Sanders #305405 v. Napel et al

Filing 20

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

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

JASON L. SANDERS,
Plaintiff,

Case No. 2:13-cv-264

v.

Honorable Robert Holmes Bell

ROBERT NAPEL,
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 in forma pauperis. 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, the Court will dismiss Plaintiff’s complaint for failure
to state a claim against Defendants Mohrman, Napel, Alexander, and Carrol . The Court will serve
the complaint against Defendants Judkins, Nurkula, Koval, McMann, Derosie, Dafoe, Makela,
Henning, Young, Havenor, Vitilla, Tallio, Levallie, and Nadue.

Discussion
I.

Factual allegations

Plaintiff Jason L. Sanders, a state prisoner currently confined at the Marquette Branch
Prison, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against Defendants Warden
Robert Napel, Assistant Warden J. Alexander, Resident Unit Manager Unknown Tallio, Assistant
Resident Unit Supervisor Unknown Vitilla, Hearing Officer T. Mohrman, Hearings Administrator
Matt Young, Grievance Coordinator M. Carrol, Unknown Dafoe, Sergeant Unknown Havenor,
Sergeant Unknown Makela, Sergeant Unknown Henning, Corrections Officer Unknown Nadue,
Corrections Officer Unknown Judkins, Corrections Officer Unknown Levallie, Corrections Officer
Unknown Nurkula, Corrections Officer Unknown Koval, Corrections Officer Unknown McMann,
Corrections Officer Unknown Nuebecker, R.N. P. Derosie, Third Shift Officer Unknown Noble,
Sergeant Unknown Holt, Second Shift Sergeant Unknown James, First Shift Officer Unknown
Perveat, Officeer Unknown Zampese, First Shift Officer Unknown Dikema, Second Shift Officer
Unknown Tasson, Second Shift Officer Unknown Sari, Third Shift Officer J. Milliner, Third Shift
Officer Unknown Johnson, Nurse Unknown Gabe, Third Shift Officer Unknown Felton, Nurse
Shane Montgomery, Psychiatrist / Psychologist Paul Ike, Nurse Unknown Martin, Nurse Unknown
Anderson, Nurse Supervisor Brenda James, First Shift Commander Unknown Black, Second Shift
Commander Unknown Grey, Third Shift Commander Unknown White, Second Shift Officer
Unknown Wagner, and Lieutenant Unknown Tasson.
Plaintiff claims that the named Defendants retaliated against him for his use of the
grievance procedure, interfered with his right to a fair hearing, denied him access to psychological

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treatment, and subjected him to excessive force in violation of the First, Eighth and Fourteenth
Amendments. Plaintiff seeks damages, as well declaratory and injunctive relief.
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,
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)).

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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).
Initially, the court notes that Defendant Mohrman is a hearing officer whose duties
are set forth at MICH . COMP. LAWS § 791.251 through § 791.255. Hearing officers are required to
be attorneys and are under the direction and supervision of a special hearing division in the Michigan
Department of Corrections. See MICH . COMP . LAWS § 791.251(e)(6). Their adjudicatory functions
are set out in the statute, and their decisions must be in writing and must include findings of facts
and, where appropriate, the sanction imposed. See MICH . COMP . LAWS § 791.252(k). There are
provisions for rehearings, see MICH . COMP . LAWS § 791.254, as well as for judicial review in the
Michigan courts. See MICH . COMP. LAWS § 791.255(2). Accordingly, the Sixth Circuit has held that
Michigan hearing officers are professionals in the nature of administrative law judges. See Shelly
v. Johnson, 849 F.2d 228, 230 (6th Cir. 1988). As such, they are entitled to absolute judicial
immunity from inmates’ § 1983 suits for actions taken in their capacities as hearing officers. Id.; and
see Barber v. Overton, 496 F.3d 449, 452 (6th Cir. 2007); Dixon v. Clem, 492 F.3d 665, 674 (6th
Cir. 2007); cf. Pierson v. Ray, 386 U.S. 547, 554-55 (1967) (judicial immunity applies to actions
under § 1983 to recover for alleged deprivation of civil rights). Therefore, Plaintiff’s claims against
Defendant Mohrman are properly dismissed.

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Plaintiff alleges that Defendants Napel and Alexander failed to properly supervise
their subordinates. Liability under Section 1983 must be based on more than merely the right to
control employees. Polk Co. v. Dodson, 454 U.S. 312, 325-26 (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
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(6th Cir. 1989) (lower level official not liable for shortcomings of building); Ghandi v. Police Dept.
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 Napel and Alexander were
personally involved in the activity which forms the basis of his claim. The only roles that
Defendants Napel and Alexander had in this action involve the denial of administrative grievances
or the failure to act. Defendants Napel and Alexander 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 Napel and Alexander
are properly dismissed for lack of personal involvement.
Plaintiff alleges that Defendant Carrol failed to properly process Plaintiff’s
grievances. Plaintiff has no due process right to file a prison grievance. The Sixth Circuit and other
circuit courts have held that there is no constitutionally protected due process right to an effective
prison grievance procedure. Walker v. Mich. Dep’t of Corr., 128 F. App’x 441, 445 (6th Cir. 2005);
Argue v. Hofmeyer, 80 F. App’x 427, 430 (6th Cir. 2003); Young v. Gundy, 30 F. App’x 568, 569-70
(6th Cir. 2002); Carpenter v. Wilkinson, No. 99-3562, 2000 WL 190054, at *2 (6th Cir. Feb. 7,
2000); see also Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Adams v. Rice, 40 F.3d
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72, 75 (4th Cir. 1994). Michigan law does not create a liberty interest in the grievance procedure.
See Olim v. Wakinekona, 461 U.S. 238, 249 (1983); Keenan v. Marker, 23 F. App’x 405, 407 (6th
Cir. 2001); Wynn v. Wolf, No. 93-2411, 1994 WL 105907, at *1 (6th Cir. Mar. 28, 1994). Because
Plaintiff has no liberty interest in the grievance process, Defendants’ conduct did not deprive him
of due process.
Plaintiff claims that Defendants Judkins, Nurkula, Koval, McMann, and Derosie
wrote false misconduct tickets on him in retaliation for his use of the grievance system, and that
Defendants Dafoe, Makela and Henning failed to review the tickets with Plaintiff, which resulted
in Plaintiff being unable to call witnesses or to request a Hearing Investigator. Plaintiff’s request for
rehearing was denied by Defendant Young.
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 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 filing of a prison grievance is constitutionally protected conduct for which a
prisoner cannot be subjected to retaliation. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir.
2001); Hall v. Nusholtz, No. 99-2442, 2000 WL 1679458, at *2 (6th Cir. Nov. 1, 2000); Burton v.
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Rowley, No. 00-1144, 2000 WL 1679463, at *2 (6th Cir. Nov. 1, 2000). In addition, major
misconduct charges constitute an adverse action. However, Plaintiff concedes that he was found
guilty of the allegedly false misconduct charges. The Sixth Circuit recently held that when a state
agency acting in a judicial capacity resolves disputed issues of fact properly before it which the
parties have had an adequate opportunity to litigate, federal courts must give the agency’s factfinding
the same preclusive effect to which it would be entitled in the State’s courts. Peterson v. Johnson,
714 F.3d 905 (6th Cir. 2013). In this case, Plaintiff alleges that Defendants Dafoe, Makela, Henning,
and Mohrman prevented him from having an adequate opportunity to litigate his misconduct charge.
Therefore, Plaintiff’s retaliation claims are not frivolous and may not be dismissed on initial review.
Plaintiff also asserts that the conduct of Defendants Judkins, Nurkula, Koval,
McMann, Derosie, Dafoe, Makela, Henning, and Young in relation to his misconduct convictions
violated his due process rights. “The Fourteenth Amendment protects an individual from deprivation
of life, liberty or property, without due process of law.” Bazetta v. McGinnis, 430 F.3d 795, 801 (6th
Cir. 2005). To establish a Fourteenth Amendment procedural due process violation, a plaintiff must
show that one of these interests is at stake. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Analysis
of a procedural due process claim involves two steps: “[T]he first asks whether there exists a liberty
or property interest which has been interfered with by the State; the second examines whether the
procedures attendant upon that deprivation were constitutionally sufficient.” Ky. Dep’t of Corr. v.
Thompson, 490 U.S. 454, 460 (1989). The Supreme Court long has held that the Due Process Clause
does not protect every change in the conditions of confinement having an impact on a prisoner. See
Meachum v. Fano, 427 U.S. 215, 225 (1976). In Sandin v. Conner, 515 U.S. 472, 484 (1995), the
Court set forth the standard for determining when a state-created right creates a federally cognizable
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liberty interest protected by the Due Process Clause. According to the Sandin Court, a prisoner is
entitled to the protections of due process only when the sanction “will inevitably affect the duration
of his sentence” or when a deprivation imposes an “atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 486-87; see also Jones v.
Baker, 155 F.3d 810, 812 (6th Cir. 1998); Rimmer-Bey v. Brown, 62 F.3d 789, 790-91 (6th Cir.
1995). The Sandin Court concluded that mere placement in administrative segregation did not
implicate a liberty interest because the segregation at issue in that case did not impose an atypical
and significant hardship. Sandin, 515 U.S. at 484; Wilkinson v. Austin, 545 U.S. 209, 222-23 (2005).
Here, Plaintiff asserts that he was placed in detention for 150 days as a result of his
misconduct convictions.

The Sixth Circuit has determined that a prisoner’s placement in

administrative segregation for over a year is not an atypical or significant hardship as to create a
liberty interest in due process. Mackey v. Dyke, 111 F.3d 460, 461-63 (6th Cir.), cert. denied, 522
U.S. 848 (1997). Because Plaintiff in this case fails to allege facts constituting an “atypical and
significant hardship,” Plaintiff’s claim that he was denied procedural due process is without merit.
As noted above, Plaintiff’s retaliation claims against Defendants Judkins, Nurkula,
Koval, McMann, Derosie, Dafoe, Makela, Henning, and Young appear to state a claim and may not
be dismissed at this time. Finally, the court concludes that Plaintiff’s Eighth Amendment claims
against Defendants Havenor, Vitilla, Tallio, Levallie, and Nadue are also nonfrivolous and may not
be dismissed on initial review.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Defendants Mohrman, Napel, Alexander, and Carrol will be dismissed for failure
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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 will serve the complaint against Defendants Judkins, Nurkula, Koval, McMann, Derosie,
Dafoe, Makela, Henning, Young, Havenor, Vitilla, Tallio, Levallie, and Nadue.
An Order consistent with this Opinion will be entered.

Dated: September 3, 2014

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE

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