Jones #183037 v. Carr et al

Filing 4

OPINION ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cam)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

DARRELL JONES,
Plaintiff,

Case No. 2:13-cv-134

v.

Honorable R. Allan Edgar

KAREN CARR,
Defendants.
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OPINION
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983.
The Court has granted Plaintiff leave to proceed without payment of an initial partial filing fee.
Under the Prison Litigation Reform Act, PUB. L. NO. 104-134, 110 STAT. 1321 (1996), the Court is
required to dismiss any prisoner action brought under federal law if the complaint is frivolous,
malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a
defendant immune from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The
Court must read Plaintiff’s pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520
(1972), and accept Plaintiff’s allegations as true, unless they are clearly irrational or wholly
incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Applying these standards, Plaintiff’s
action will be dismissed for failure to state a claim.

Discussion
I.

Factual allegations

Plaintiff Darrell Jones, a state prisoner currently confined at the Baraga Maximum
Correctional Facility (AMF), filed this civil rights action pursuant to 42 U.S.C. § 1983 against
Defendants Karen Carr, R.N., Health Care Unit Manager Gloria Hill, Resident Unit Manager
William Jondreau, Lieutenant G. Yankovich, Acting Sergeant Joseph Linden, Grievance Coordinator
T. LaPlant, Resident Unit Manager Ralph Sackett, Corrections Officer Unknown DeForge, Assistant
Resident Unit Manager S. Burke, Inspector Eric A. Pareja, Acting Warden Kenneth Tribley, Hearing
Investigator Steven Raymond, Prison Health Services, Inc. (PHS), Corrections Officer Unknown
Borgen, MDOC Director Daniel Heyns, Corrections Officer Unknown Fredrickson, Corrections
Officer Unknown Sutherland, Corrections Officer Doug West, Assistant Deputy Warden Shane
Place, and Lieutenant Unknown Dahl.
In his complaint, Plaintiff alleges that he is a diabetic and that on May 9, 2012,
Defendant Carr retaliated against him by writing a false misconduct on him. In the misconduct,
Defendant Carr claimed that Plaintiff had threatened to come take Defendant Carr on a date after he
was released from prison. Plaintiff was found “not guilty” of the misconduct on May 21, 2012. On
August 7, 2012, Defendant Borgen wrote a false misconduct ticket on Plaintiff. Plaintiff told
Defendant Linden that he did not deserve the misconduct ticket, and asserted that another prisoner
created the disruption. Defendant Linden indicated that he knew of Plaintiff’s litigation activities
against AMF officials and did not like the fact that Plaintiff had been found not guilty of the
misconduct written by Defendant Carr. Defendant Linden stated that he would see that Plaintiff was

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placed in segregation. On August 10, 2012, Defendant Yankovich “suppressed material exculpatory
evidence” and found Plaintiff guilty of the misconduct. Plaintiff filed an appeal.
On August 10, 2012, Defendant Hill wrote a retaliatory false misconduct ticket on
Plaintiff. Plaintiff was placed on “loss of privileges” through August 31, 2012, and was unable to
exercise in the yard during this period. On September 17, 2012, Plaintiff filed a grievance regarding
the retaliatory misconduct conviction. However, his grievance was rejected because a misconduct
conviction is non-grievable. Plaintiff’s attempts to appeal this rejection at steps II and III were also
denied. Plaintiff eventually learned that his appeal of the misconduct had been denied, but had to
make repeated requests to get his appeal reviewed. On October 12, 2012, Plaintiff filed a grievance
asserting staff corruption. Plaintiff states that he had been subjected to more than 30 consecutive
days of loss of privileges without a 7 day break as required by MDOC policy. On October 30, 2012,
Defendant Sackett denied Plaintiff’s grievance.
Plaintiff claims that Defendants retaliated against him in violation of the First
Amendment, as well as violated his equal protection and procedural and substantive due process
rights. Plaintiff seeks equitable relief and damages.
II.

Failure to state a claim

A complaint may be dismissed for failure to state a claim if it fails “‘to give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While
a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include more
than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
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do not suffice.”). The court must determine whether the complaint contains “enough facts to state
a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 679. Although
the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it asks for more than
a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – that the
pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting FED. R. CIV. P. 8(a)(2)); see also Hill
v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the Twombly/Iqbal plausibility
standard applies to dismissals of prisoner cases on initial review under 28 U.S.C. §§ 1915A(b)(1)
and 1915(e)(2)(B)(i)).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right
secured by the federal Constitution or laws and must show that the deprivation was committed by
a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Street v. Corr.
Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). Because § 1983 is a method for vindicating federal
rights, not a source of substantive rights itself, the first step in an action under § 1983 is to identify
the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994).
The court notes that Plaintiff’s complaint is barely legible and consists mostly of
conclusory assertions that his rights were violated. Initially, the court notes that Plaintiff’s claims
against Defendants Jondreau, LaPlant, Sackett, DeForge, Burke, Pareja, Tribley, Raymond, PHS,
Heyns, Fredrickson, Sutherland, West, Place, and Dahl are based on the right to control employees,
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the denial of administrative grievances or the failure to act. Liability under Section 1983 must be
based on more than merely the right to control employees. Polk Co. v. Dodson, 454 U.S. 312, 32526 (1981); Monell v. New York City Department of Social Services, 436 U.S. 658 (1978). Thus,
Section 1983 liability cannot be premised upon mere allegations of respondeat superior. Monell,
436 U.S. at 691; Polk, 454 U.S. at 325. A party cannot be held liable under Section 1983 absent a
showing that the party personally participated in, or otherwise authorized, approved or knowingly
acquiesced in, the allegedly unconstitutional conduct. See e.g. Leach v. Shelby Co. Sheriff, 891 F.2d
1241, 1246 (6th Cir. 1989), cert. denied, 495 U.S. 932 (1990); Hays v. Jefferson, 668 F.2d 869, 874
(6th Cir.), cert. denied, 459 U.S. 833 (1982). See also Bellamy v. Bradley, 729 F.2d 416, 421 (6th
Cir.), cert. denied 469 U.S. 845 (1984).
Supervisory officials can be held liable for the acts of their subordinates only if
plaintiff establishes that the supervisor failed to appropriately discharge his supervisory duties, and
that this failure resulted in a denial or deprivation of plaintiff’s federal rights. See e.g. Leach, 891
F.2d at 1246; Hayes v. Vessey, 777 F.2d 1149, 1154 (6th Cir. 1985). However, the failure of a
supervisor to supervise, control or train the offending employee is not actionable absent a showing
that the official implicitly encouraged, authorized, approved or knowingly acquiesced in, or in some
other way directly participated in, the offensive conduct. Leach, 891 F.2d at 1246. Such a claim
requires, at a minimum, that the official had knowledge of the offending employee’s conduct at a
time when the conduct could be prevented, or that such conduct was otherwise foreseeable or
predictable. See e.g. Gibson v. Foltz, 963 F.2d 851, 854 (6th Cir. 1992). In addition, plaintiff must
show that defendant had some duty or authority to act. See e.g. Birrell v. Brown, 867 F.2d 956, 959
(6th Cir. 1989) (lower level official not liable for shortcomings of building); Ghandi v. Police Dept.
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of City of Detroit, 747 F.2d 338, 351 (6th Cir. 1984) (mere presence at the scene is insufficient
grounds to impose Section 1983 liability in the absence of a duty to act); accord Hall v. Shipley, 932
F.2d 1147 (6th Cir. 1991). In addition, merely bringing a problem to the attention of a supervisory
official is not sufficient to impose such liability. See Shelly v. Johnson, 684 F. Supp. 941, 946 (W.D.
Mich. 1987) (Hillman, C.J.), aff’d 849 F.2d 228 (6th Cir. 1988). Finally, supervisory liability claims
cannot be based on simple negligence. Leach, 891 F.2d at 1246; Weaver v. Toombs, 756 F. Supp.
335, 337 (W.D. Mich. 1989), aff’d 915 F.2d 1574 (6th Cir. 1990).
Plaintiff has not alleged facts establishing that Defendants Jondreau, LaPlant, Sackett,
DeForge, Burke, Pareja, Tribley, Raymond, PHS, Heyns, Fredrickson, Sutherland, West, Place, and
Dahl were personally involved in the activity which forms the basis of his claim. The only roles that
Defendants Jondreau, LaPlant, Sackett, DeForge, Burke, Pareja, Tribley, Raymond, PHS, Heyns,
Fredrickson, Sutherland, West, Place, and Dahl had in this action involve the denial of administrative
grievances or the failure to act. Defendants Jondreau, LaPlant, Sackett, DeForge, Burke, Pareja,
Tribley, Raymond, PHS, Heyns, Fredrickson, Sutherland, West, Place, and Dahl cannot be liable for
such conduct under § 1983. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999), cert. denied, 530
U.S. 1264 (2000). Accordingly, the Court concludes that Plaintiff’s claims against Defendants
Jondreau, LaPlant, Sackett, DeForge, Burke, Pareja, Tribley, Raymond, PHS, Heyns, Fredrickson,
Sutherland, West, Place, and Dahl are properly dismissed for lack of personal involvement.
Plaintiff claims that Defendants Carr, Borgen, and Hill wrote false misconduct tickets
on him in retaliation for Plaintiff’s litigation activities. Retaliation based upon a prisoner’s exercise
of his or her constitutional rights violates the Constitution. See Thaddeus-X v. Blatter, 175 F.3d 378,
394 (6th Cir. 1999) (en banc). In order to set forth a First Amendment retaliation claim, a plaintiff
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must establish that: (1) he was engaged in protected conduct; (2) an adverse action was taken against
him that would deter a person of ordinary firmness from engaging in that conduct; and (3) the
adverse action was motivated, at least in part, by the protected conduct. Id. Moreover, a plaintiff
must be able to prove that the exercise of the protected right was a substantial or motivating factor
in the defendant’s alleged retaliatory conduct. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir.
2001) (citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).
The court notes that a prisoner’s claim that he was falsely accused of a major
misconduct is barred where there has been a finding of guilt. See Peterson v. Johnson, 714 F.3d 905,
917 (6th Cir. 2013) (holding that a factual finding in a major misconduct proceeding has preclusive
effect and is not subject to challenge in a § 1983 action). Therefore, because Plaintiff was found
guilty of the misconduct tickets written by Defendants Borgen and Hill, his retaliation claims against
these Defendants are properly dismissed.
In addition, with regard to Defendant Carr, Plaintiff fails to allege any facts showing
that her conduct was motivated by desire to retaliate against him. Even if there were allegations of
temporal proximity between protected conduct on Plaintiff’s part, and the misconduct ticket by
Defendant Carr,“[c]onclusory allegations of temporal proximity are not sufficient to show a
retaliatory motive.” Skinner v. Bolden, 89 F. App’x 579, 580 (6th Cir. 2004).
In Muhammad [v. Close, 379 F.3d 413, 417-18 (6th Cir. 2004)] the
Sixth Circuit did not resolve the issue, but merely observed that
“temporal proximity alone may be ‘significant enough to constitute
indirect evidence of a causal connection so as to create an inference
of retaliatory motive.’” Id. at 418 (quoting DiCarlo v. Potter, 358
F.3d 408, 422 (6th Cir.2004) (emphasis added). Even if temporal
proximity may in some cases create an issue of fact as to retaliatory
motive, it would only be sufficient if the evidence was “significant

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enough.” Plaintiff’s conclusory and ambiguous evidence is not
“significant enough” to create an issue of fact as to retaliatory motive.
Brandon v. Bergh, 2010 WL 188731, slip op. at 1 (W.D. Mich., Jan. 16, 2010).
Plaintiff states that Defendant Linden and Defendant Yankovich conspired to retaliate
against him when Defendant Linden stated that would see that Plaintiff was placed in segregation
prior to Defendant Yankovich finding Plaintiff guilty of a misconduct ticket on August 10, 2012.
To state a claim for conspiracy, a plaintiff must plead with particularity, as vague and conclusory
allegations unsupported by material facts are insufficient. Twombly, 550 U.S. at 565 (recognizing
that allegations of conspiracy must be supported by allegations of fact that support a “plausible
suggestion of conspiracy,” not merely a “possible” one); Fieger v. Cox, 524 F.3d 770, 776 (6th Cir.
2008); Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir. 2003); Gutierrez v. Lynch, 826 F.2d 1534,
1538 (6th Cir. 1987); Smith v. Rose, 760 F.2d 102,106 (6th Cir. 1985); Pukyrys v. Olson, No. 951778, 1996 WL 636140, at *1 (6th Cir. Oct. 30, 1996). A plaintiff’s allegations must show (1) the
existence or execution of the claimed conspiracy, (2) overt acts relating to the promotion of the
conspiracy, (3) a link between the alleged conspirators, and (4) an agreement by the conspirators to
commit an act depriving plaintiff of a federal right. Lepley v. Dresser, 681 F. Supp. 418, 422 (W.D.
Mich. 1988). “[V]ague allegations of a wide-ranging conspiracy are wholly conclusory and are,
therefore, insufficient to state a claim.” Hartsfield v. Mayer, No. 95-1411, 1996 WL 43541, at *3
(6th Cir. Feb. 1, 1996). A simple allegation that defendants conspired to cover up wrongful actions
is too conclusory and too speculative to state a claim of conspiracy. Birrell v. Michigan, No. 942456, 1995 WL 355662, at *2 (6th Cir. June 13, 1995).

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Plaintiff’s allegations of conspiracy are conclusory and speculative. Plaintiff has
provided no allegations establishing a link between the alleged conspirators or any agreement
between them. He relies entirely on a highly attenuated inference from the mere fact that he has been
disciplined by or subjected to objectionable treatment by a prison officials in various circumstances
with which he disagreed. As the Supreme Court has held, such allegations, while hinting at a
“possibility” of conspiracy, do not contain “enough factual matter (taken as true) to suggest that an
agreement was made.” Twombly, 550 U.S. at 556. Instead, the Court has recognized that although
parallel conduct may be consistent with an unlawful agreement, it is insufficient to state a claim
where that conduct “was not only compatible with, but indeed was more likely explained by, lawful,
unchoreographed . . . behavior.” Iqbal, 556 U.S. at 680. In light of the far more likely possibility
that the incidents described in Plaintiff’s complaint were unrelated, Plaintiff fails to state a plausible
claim of conspiracy.
Moreover, Plaintiff’s claim that Defendant Linden retaliated against him is frivolous,
as Defendant Linden did not take any adverse action against Plaintiff. The court notes that
Defendant Linden’s statement is not evidence of retaliation because Defendant Linden was not the
decisionmaker taking the alleged adverse action. Smith v. Campbell, 250 F.3d 1032, 1038 (6th Cir.
2001); Shehee v. Luttrell, 199 F.3d 295, 301 (6th Cir. 1999).
Finally, Plaintiff alleges that Defendant Yankovich violated his rights while acting
as a hearing officer and adjudicating Plaintiff’s misconduct ticket. The Sixth Circuit, recognizing
that a Michigan hearings officer has adjudicatory functions spelled out by statute in the nature of an
administrative law judge, has held that hearings officers are entitled to absolute judicial immunity
in relation to actions within the officer’s authority. Shelly v. Johnson, 849 F.2d 228, 229 (6th Cir.
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1988); MICH. COMP. LAWS §§ 791.251-255. See also Williams v. McGinnis, Nos. 02-1336, 02-1837,
2003 WL 245352, at *2 (6th Cir. Jan. 31, 2003) (recognizing that Michigan’s prison hearings
officers are entitled to absolute immunity); Thompson v. Mich. Dep’t of Corr., No. 01-1943, 2002
WL 22011, at *1 (6th Cir. Jan. 2, 2002) (same); Gribble v. Bass, No. 93-5413, 1993 WL 524022,
at *2 (6th Cir. Dec. 16, 1993) (same). Plaintiff’s action fails because Defendant Yankovich is
absolutely immune under the circumstances of this case.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff’s action will be dismissed for failure to state a claim pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c).
The Court must next decide whether an appeal of this action would be in good faith
within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611
(6th Cir. 1997). For the same reasons that the Court dismisses the action, the Court discerns no
good-faith basis for an appeal. Should Plaintiff appeal this decision, the Court will assess the
$505.00 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless
Plaintiff is barred from proceeding in forma pauperis, e.g., by the “three-strikes” rule of § 1915(g).
If he is barred, he will be required to pay the $505.00 appellate filing fee in one lump sum.
This is a dismissal as described by 28 U.S.C. § 1915(g).
A Judgment consistent with this Opinion will be entered.

Dated:

1/6/2014

/s/ R. Allan Edgar
R. Allan Edgar
United States District Judge
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