Kelley #259579 v. Atkinson, et al

Filing 13

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

MARCUS KELLEY,
Plaintiff,

Case No. 2:14-cv-117

v.

Honorable R. Allan Edgar

KIMBERLY ATKINSON,
Defendants.
____________________________________/
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 Atkinson, Unknown Health Care Parties, Rafaele, MacLaren,
Reynolds, Olson, Benard, Malette, Belinger, Corrigan, Heyns, Louri, Decker, Mavi, Suite, and
Unknown Mailroom Employee. The Court will serve the complaint against Defendants Frazier,
Carrick, Zimmerman, Parr, Cowan, Nettleston, MacClean, Suriano, Lewis, Chappa, Esslin, Johnson,

and McClean.
Discussion
I.

Factual allegations

Plaintiff Marcus Kelley, a state prisoner currently confined at the Chippewa
Correctional Facility (URF), filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against
Defendants Assistant Deputy Warden Kimberly Atkinson, Corrections Officers Frazier, Carrick,
Zimmerman, Parr, Cowan, Nettleston, Reynolds, MacClean, Chappa, Unknown Health Care Parties,
Lieutenant Rafaele, Warden Duncan MacLaren, Assistant Deputy Warden Olson, Assistant Resident
Unit Supervisor Benard, Resident Unit Manager Malette, Deputy Belinger, Assistant Resident Unit
Supervisor Suriano, Inspector J. Corrigan, Lieutenant Lewis, MDOC Director Daniel H. Heyns,
Sergeant Louri, Sergeant Esslin, Resident Unit Manager Decker, Sergeant Johnson, Sergeant
McClean, Sergeant Mavi, Deputy Suite, and Unknown Mailroom Employee.
In his amended complaint, Plaintiff claims that on November 8, 2013, Defendant
Bruni informed him that he was scheduled for a deposition on November 11, 2013, via
teleconference. On November 11, 2013, Plaintiff arrived for the deposition at 12:51 pm and
informed officers of the 1:00 pm deposition. Plaintiff was told that it was a holiday. Plaintiff asked
Defendant Bruni to call his attorney, to no avail. Finally at 2:45 pm, Corrections Officer Kerckaert
notified Plaintiff that he could go to the deposition. Plaintiff states that he was only allowed to
attend the final 10 minutes of the deposition. Plaintiff filed a grievance against Defendant Atkinson
regarding this denial because she was responsible for scheduling teleconferences. Defendant
Atkinson received Plaintiff’s grievance, despite the fact that it had been filed on her. Defendant
Lewis reviewed the grievance and yelled obscenities at Plaintiff, denying him any investigation.
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Defendant MacLaren denied Plaintiff any relief.
Plaintiff states that as a result of the grievance he filed on Defendant Atkinson, he has
been continuously harassed and threatened with physical violence by multiple officers and that legal
correspondence, such as mail from attorney Paulette Michel, continues to be rejected. Plaintiff states
that on February 28, 2014, he had only 21 days to submit a motion for reconsideration to the
Michigan Supreme Court. Plaintiff gave it to Defendant Bruni for mailing on March 18, 2014, but
it was not actually mailed until March 20, 2014. Plaintiff only received one out of three pieces of
legal mail from Attorney Paulette Michel, the other two were rejected and returned to Michel.
On March 2, 2014, Plaintiff was helping inmate Richards shave because he did not
know how to use the beard trimmers. Defendant Parr burst into the restroom and asked to see
Plaintiff’s I.D. Plaintiff was subsequently written a misconduct for being an accomplice to out of
place because Richards was assigned to a different unit. Plaintiff claims that he was unaware that
Richards was assigned to another unit. Later that day, Defendant Cowan asked Plaintiff if there was
a problem. During the 4 pm count, Defendant Nettleston stated, “For real Kelley! Are you serious?”
Defendant Nettleston then slammed Plaintiff’s door and left. Defendant Cowan then came and told
Plaintiff to get his “Fagget [sic] ass” to the counselor’s office. Once Plaintiff reached Defendant
Bruni’s office, he saw Defendant Nettleston sitting at the desk. Defendant Nettleston told Plaintiff
to ask the counselor to go to protective custody and stated, “We know about you! We’re going to
make your life a living hell.!” When Plaintiff protested, Defendant Nettleston told Plaintiff, “We
will shake your cell down and fuck up you and your cellmates shit every day until they decide to fuck
you up, and that’s only part of your misery.”
Plaintiff states that he has been harassed by various Corrections Officers and that his
3

cell has been shaken down at least once a day, sometimes twice a day, leaving his property in
disarray. Plaintiff states that some of his property has come up missing, including legal property and
photos and addresses of family and friends. On March 10, 2014, Plaintiff had a hearing on the
“accomplice to out of place” misconduct ticket before Defendant Rafaele, who found Plaintiff guilty
despite a lack of any evidence to support the charge. Plaintiff was denied any witnesses, including
inmate Richards. When Plaintiff requested a witness, Defendant Rafaele shouted, “I’m not giving
you a witness! I don’t have to and I’m not! I believing [sic] my officers!”
On March 13, 2014, Plaintiff sent letters to the Ombudsman, Internal Affairs,
Defendant MacLaren, Attorney Racine Miller, and his mother. On March 14, 2014, Plaintiff was
awakened by Defendant Parr and told to go to the annex for review of a misconduct ticket. When
Plaintiff arrived, he was met by Defendant Johnson, who showed Plaintiff a misconduct written by
Defendant Frazier. The misconduct stated that Plaintiff had been using the kiosk machine while on
loss of privileges. However, Plaintiff was in the library at the time of the alleged misconduct, and
this was confirmed by Defendant Johnson, who ripped up the ticket. Plaintiff then wrote a grievance
on Defendant Frazier for falsifying a misconduct ticket. On March 15, 2014, Plaintiff was again
called to the annex for review of a ticket written by Defendant Frazier. This ticket asserted that
Plaintiff had used the Jpay kiosk while on loss of privileges on the same date as the first ticket, but
five minutes later. Plaintiff protested to Defendant Johnson that the ticket was written after Plaintiff
filed a grievance on Defendant Frazier, but Defendant Johnson stated that she did not want to deal
with it.
On March 26, 2014, Plaintiff was scheduled to see an eye doctor at 2:00 pm. Plaintiff
arrived at healthcare at 2:06 pm and Defendant Chappa told Plaintiff to leave and that the eye doctor
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did not want to see him. Plaintiff was told that if he did not leave, he would be going to the “hole.”
Plaintiff complied.
Plaintiff states that he was denied medical attention on an ongoing basis and at the
end of March 2014, he was moved from cell B-2-59 to cell E-2-8. While in E-2-8, Plaintiff received
fabricated misconduct tickets. On March 31, 2014, Defendant Carrick wrote a ticket on Plaintiff
asserting that he had seen Plaintiff running from an unauthorized area on the unit. On April 1, 2014,
Defendant Wollan told Plaintiff that if he pleaded guilty and took 5 days loss of privileges,
Defendant Wollan would get his co-workers to leave Plaintiff alone. Plaintiff agreed, but continued
to be subjected to harassment and retaliation from staff.
On April 2, 2014, Defendant Malette found Plaintiff “not guilty” of a misconduct
written by Defendant Frazier. On April 10, 2014, Deputy Warden Harwood denied Plaintiff’s appeal
on the “Accomplice to Out of Place” ticket in violation of Plaintiff’s due process rights. On April
11, 2014, Plaintiff was moved for the second time in 30 days. After the move, Corrections Officer
Wallis approached Plaintiff and shouted in his face:
I heard about your lawsuit against Oakland County! Every time a
criminal gets in trouble with the law, he claims the officers assaulted
him! Well I’ll tell you what, I don’t like your kind. In fact, I bet you
made that shit up! Just like you made all this shit up about officers
here allegedly harassing you! Your [sic] going to get yours!
On April 12, 2014, Corrections Officer Wallis saw Plaintiff reading the posted rules and asked him
what he was doing. Plaintiff said he did not want any problems and Corrections Officer Wallis
stated “Get the fuck out of here nigger! I’ve been itching to use this tazer on you!” Plaintiff claims
that Defendant Suriano refuses to send out his legal mail, repeatedly telling Plaintiff to “come back
later.”
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Plaintiff was placed on “Penicillin V Potassium Oral” on March 31, 2014, for a gum
infection. This medication caused Plaintiff to suffer upset stomach and diarrhea. Plaintiff submitted
a healthcare kite requesting that he be allowed to use the restroom to relieve himself during count
after the Corrections Officers had made rounds. Plaintiff received no response. On April 4, 2014,
Plaintiff asked Defendant Zimmerman for permission to use the restroom after rounds, but
Defendant Zimmerman said “no!” Plaintiff explained that he was on medication which caused
diarrhea and that it was an emergency, but Defendant Zimmerman denied his request, stating that
he did not “give a fuck.” Plaintiff could not wait any longer and began to defecate on himself, so
he rushed to the restroom to use the toilet and clean himself up. Defendant Zimmerman stood in
front of the stall, and told Plaintiff that he was going to write his “shitty ass” a ticket. Defendant
Zimmerman wrote a misconduct on Plaintiff for disobeying a direct order.
On April 13, 2014, Plaintiff discovered insects in his food. Sergeant Cryderman told
Plaintiff that he could get a new tray, but when he went back to the chow line, the workers attempted
to serve him from the same pots and pans. Therefore, Plaintiff was denied a meal.
On April 23, 2014, Corrections Officer Wallis told Plaintiff that if he agreed to stop
pursuing grievances against Defendant Atkinson and other officers he would promise that Plaintiff
would be left alone. Plaintiff agreed to think about it. The next day, Plaintiff told Corrections
Officer Wallis that he was going to proceed with his complaints, and Corrections Officer Wallis
stated “I tried to warn you nicely.” When Plaintiff returned to his cell from healthcare, he noticed
that his locker was wide open. His cell mate told him that Corrections Officer Wallis had looked
in Plaintiff’s locker and had not looked in anyone else’s locker. Later that day, Plaintiff discovered
that Corrections Officer Wallis had packed up all of Plaintiff’s property in a dufflebag. Corrections
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Officer Wallis stated that it was a mock pack-up to make sure everything fit. When Plaintiff asked
why he had packed up without Plaintiff being present, Corrections Officer Wallis stated “Because
I can.” Plaintiff called his family to report the problem and when Corrections Officer Wallis saw
him on the phone, he stated “Go cry to your mommy!” When Plaintiff hung up the phone,
Corrections Officer Wallis said he would show Plaintiff what happened to people who filed
complaints on them. Corrections Officer Wallis began pushing Plaintiff toward the empty office of
Defendant Suriano. Plaintiff refused to go into the office and Corrections Officer Wallis grabbed
him, Plaintiff could smell alcohol on his breath. Plaintiff pulled away with his hands in the air and
refused Corrections Officer Wallis’ order to go into the office away from cameras and witnesses,
stating that he was not going to let himself be hurt or set up. Corrections Officer Wallis became
extremely violent, screaming at Plaintiff to put his hands down. Defendant Reynolds arrived but he
merely stood and observed and did nothing to calm the situation. Plaintiff asked for a supervisor so
he could report the incident, but Defendant Reynolds stated, “Fuck you! Get one yourself when the
yard opens, I’m not calling anybody for you, bitch!”
In the afternoon, Plaintiff spoke to Defendant Johnson about Corrections Officer
Wallis. Defendant Johnson stated that he would call Defendant Suriano and that Plaintiff should go
talk to him. As soon as Defendant Suriano saw Plaintiff approaching, he stated that he was not going
to deal with that “shit” and that Plaintiff should “get the fuck out of” his office. Plaintiff later
reported the incident to his mother and sister, who called prison administration and reported it. At
6:05 pm, Defendant McClean told Plaintiff that he should call his mother and tell her that there was
nothing he could do for Plaintiff.
On April 25, 2014, Plaintiff received a ticket fabricated by Corrections Officer Wallis,
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which asserted that Plaintiff had refused to give him some headphones. Plaintiff states that he never
possessed any headphones to give. Plaintiff subsequently made a complaint to the Michigan State
Police regarding the continued harassment by Corrections Officer Wallis via a three way call with
the police, himself and his sister. Because Plaintiff made the three way call, he was sanctioned with
30 days loss of privileges. On April 26, 2014, Plaintiff discovered that much of the legal material
he had prepared was missing. On April 30, 2014, Plaintiff’s appeal of the three way call sanction
was denied and he was given 45 days of phone restrictions by Defendant Suriano. Defendant
Suriano told Plaintiff that he would not be able to call anyone, including his attorney. Plaintiff was
subsequently denied the ability to call either his criminal or civil attorney, despite the fact that he
requested permission to call both attorneys.
On May 24, 2014, and May 27, 2014, Inmate Kenny Dancy allowed Plaintiff to use
his PIN number to make phone calls. On May 27, 2014, Defendant MacClean coerced Inmate Dancy
into accusing Plaintiff of stealing his PIN number. However, Inmate Dancy later admitted that
Defendant MacClean had threatened to have him put in “the hole,” so Plaintiff was found not guilty
of the misconduct. On May 30, 2014, Inmate Dancytold Plaintiff that Defendant Suriano and other
officers were discussing ways to get rid of Plaintiff and that Defendant Suriano had suggested
planting a knife in Plaintiff’s cell. Plaintiff wrote a letter informing his psychiatrist Klein of the
threat.
On June 4, 2014, Defendant Suriano gave Plaintiff a ticket fabricated by Corrections
Officer Wallis for possession contraband. Plaintiff did not challenge the ticket because he feared
that would cause further retaliation. On June 5, 2014, Defendant Lewis came to the call and told
Inmate Dancy to pack up because he was being moved to administration. Defendant Lewis then told
8

Plaintiff that he was being called out to “the psych.” Plaintiff states that when he arrived at her
office, Ms. Klein showed him the letter he had written and informed him that it had been opened
before she received it. Klein stated that she had never seen that done before and did not understand
why it had been opened.
Plaintiff states that he continuously received threats from Defendant MacClean and
towards the end of July, Plaintiff went to Defendant Suriano and asked to be moved. Defendant
Suriano denied Plaintiff’s request. On July 28, 2014, Plaintiff asked Defendant Esslin to move him
away from Defendant MacClean, but she refused. When Plaintiff pleaded with her, she ordered him
to return to his cell. However, when Plaintiff complied, she ordered him to stop and had him placed
in handcuffs and taken to segregation. Plaintiff later received a ticket for disobeying a direct order,
stating that Plaintiff had refused to lock down and was unmanageable. Plaintiff’s witnesses were
not allowed to answer questions relevant to Plaintiff’s defense and he was found guilty. Plaintiff
appealed unsuccessfully. Plaintiff wrote a grievance on Defendants MacClean, Suriano, and Esslin,
which was denied at each level. On August 15, 2014, Defendants Malette, Benard and Olson
transferred Plaintiff from Kinross Correctional Facility to Chippewa Correctional Facility (URF),
an alternative level II facility, stating that Plaintiff had “worn out his welcome.”
Plaintiff claims that Defendants violated his rights under the First, Sixth, Eighth, and
Fourteenth Amendments. Plaintiff seeks compensatory and punitive damages, as well as equitable
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.
9

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)).
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).
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Initially, the court notes that 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
(6th Cir. 1989) (lower level official not liable for shortcomings of building); Ghandi v. Police Dept.
11

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 MacLaren, Belinger,
Corrigan, Heyns, Louri, Decker, Mavi, Suite, Reynolds, Unknown Health Care Parties, and
Unknown Mailroom Employee were personally involved in the activity which forms the basis of his
claim. The only roles that Defendants MacLaren, Belinger, Corrigan, Heyns, Louri, Decker, Mavi,
Suite, Reynolds, Unknown Health Care Parties, and Unknown Mailroom Employee had in this
action, if any1, involved the denial of administrative grievances or the failure to act. These
Defendants 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 MacLaren, Belinger, Corrigan, Heyns, Louri, Decker, Mavi,
Suite, Reynolds, Unknown Health Care Parties, and Unknown Mailroom Employee are properly
dismissed for lack of personal involvement.
Plaintiff claims that Defendant Rafaele conducted a hearing on the “accomplice to
out of place” misconduct and refused to allow Plaintiff witnesses in the hearing. Plaintiff further

1

In fact, Plaintiff has failed to allege any specific facts at all with regard to Defendants
Belinger, Corrigan, Heyns, Louri, Decker, Mavi, Suite, and Unknown Mailroom Employee.
12

states that Defendant Rafaele improperly found him guilty of the misconduct. 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 from damages in relation to actions within the officer’s authority. Shelly v. Johnson, 849
F.2d 228, 229 (6th Cir. 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. 935413, 1993 WL 524022, at *2 (6th Cir. Dec. 16, 1993) (same). Plaintiff’s action fails because
Defendant Rafaele is absolutely immune from suit for damages under the circumstances of this case.
Moreover, injunctive relief is not available under § 1983, because, under the 1996
amendments to that statute, injunctive relief “shall not be granted” in an action against “a judicial
officer for an act or omission taken in such officer’s judicial capacity . . . unless a declaratory decree
was violated or declaratory relief was unavailable.” 42 U.S.C. § 1983; accord Savoie v. Martin, 673
F.3d 488, 496 (6th Cir. 2012). Plaintiff does not allege that a declaratory decree was violated or that
declaratory relief was unavailable. Consequently, his claim for injunctive relief is barred. Montero
v. Travis, 171 F.3d 757, 761 (2d Cir. 1999).
Plaintiff claims that Defendants Olson, Benard, and Malette improperly transferred
him from the Kinross Correctional Facility (KCF) to the Chippewa Correctional Facility (URF) in
retaliation for filing grievances. 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
13

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, 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)).
Filing a grievance is constitutionally protected conduct under the First Amendment.
See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001); Noble v. Schmitt, 87 F.3d 157, 162 (6th
Cir. 1996). Plaintiff, however, cannot show that his transfer to URF was an adverse action taken
against him because of his conduct in filing grievances. “Since prisoners are expected to endure
more than the average citizen, and since transfers are common among prisons, ordinarily a transfer
would not deter a prisoner of ordinary firmness from continuing to engage in protected conduct.”
Siggers-El v. Barlow, 412 F.3d 693, 701 (6th Cir. 2005). See, e.g., Smith v. Yarrow, 78 F. App’x.
529, 543 (6th Cir. 2003) (“transfer from one prison to another prison cannot rise to the level of an
adverse action because it would not deter a person of ordinary firmness from the exercise of his First
Amendment rights”) (internal quotation marks omitted). If, however, a foreseeable consequence of
a transfer would be to substantially inhibit a prisoner’s ability to access the courts, then such a
transfer could be considered an “adverse action” that would deter a person of ordinary firmness from
continuing to engage in the protected conduct. See Siggers-El, 412 F.3d at 702 (holding that a
transfer was an “adverse action,” where the transfer resulted in plaintiff losing a high paying job that
paid for his lawyer fees and moved him further from the attorney); Johnson v. Beardslee, No. 1:06CV-374, 2007 WL 2302378, at *5 (W.D. Mich. Aug. 8, 2007). Similarly, the Sixth Circuit has held
14

that a transfer to segregation or to an area of the prison used to house mentally disturbed inmates
could be sufficiently adverse. See Thaddeus-X, 175 F.3d at 398; see also Hill, 630 F.3d at 468.
Plaintiff’s transfer was from one level II facility to another level II facility. Transfers
to the general population of another prison are not typically an adverse action. See Smith v. Yarrow,
78 F. App’x 529, 543 (6th Cir. 2003) (collecting cases); see also Hill, 630 F.3d at 473; Thaddeus-X,
175 F.3d at 398. Plaintiff does not allege that he was transferred to a lock-down unit at the new
facility or that his access to the courts was compromised as a result of the transfer. Therefore,
Plaintiff’s retaliatory transfer claims against Defendants Olson, Benard, and Malette are properly
dismissed. However, Plaintiff’s remaining retaliation claims are not clearly frivolous and may not
be dismissed on initial screening.
Plaintiff appears to be claiming that Defendants Atkinson violated his First
Amendment right of access to the courts because of the manner in which she scheduled his
teleconference in relation to a deposition of parties in a civil case he was pursuing. In Bounds v.
Smith, 430 U.S. 817 (1977), the Supreme Court recognized a prisoner’s fundamental right of access
to the courts. While the right of access to the courts does not allow a State to prevent an inmate from
bringing a grievance to court, it also does not require the State to enable a prisoner to discover
grievances or litigate effectively. Lewis v. Casey, 518 U.S. 343 (1996). Thus, Bounds did not create
an abstract, free-standing right to a law library, litigation tools, or legal assistance. Id. at 351 (1996).
Further, the right may be limited by legitimate penological goals, such as maintaining security and
preventing fire or sanitation hazards. See Acord v. Brown, No. 91-1865, 1992 WL 58975 (6th Cir.
March 26, 1992); Hadix v. Johnson, No. 86-1701, 1988 WL 24204 (6th Cir. March 17, 1988);
Wagner v. Rees, No. 85-5637, 1985 WL 14025 (6th Cir. Nov. 8, 1985).
15

To state a claim, an inmate must show that any shortcomings in the library, litigation
tools, or legal assistance caused actual injury in his pursuit of a legal claim. Lewis, 518 U.S. at 351;
Talley-Bey, 168 F.3d at 886; Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996); Pilgrim v. Littlefield,
92 F.3d 413, 416 (6th Cir. 1996); Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir. 1985). An inmate
must make a specific claim that he was adversely affected or that the litigation was prejudiced.
Vandiver v. Niemi, No. 94-1642, 1994 WL 677685, at *1 (6th Cir. Dec. 2, 1994). Particularly, an
inmate cannot show injury when he still has access to his legal materials by request, Kensu, 87 F.3d
at 175, when he fails to state how he is unable to replicate the confiscated documents, Vandiver,
1994 WL 677685, at *1, or when he could have received the material by complying with the limits
on property, e.g., where he had the opportunity to select the items that he wanted to keep in his cell,
or when he had an opportunity to purchase a new footlocker that could hold the property. Carlton
v. Fassbender, No. 93-1116, 1993 WL 241459, at *2 (6th Cir. July 1, 1993).
In this case, Plaintiff fails to allege any facts showing that Defendant Atkinson’s
conduct in scheduling the teleconference result in any actual injury to his litigation. Therefore,
Plaintiff’s access to courts claim against Defendant Atkinson is properly dismissed.
Plaintiff claims that Defendants violated his rights under the Sixth Amendment. The
Sixth Amendment protects a person’s right to counsel in all criminal proceedings. U.S. CONST.
amend. VI. The Sixth Amendment does not give an inmate the right to counsel in civil proceedings.
Plaintiff fails to allege that he was denied counsel in a criminal proceeding. Therefore, his Sixth
Amendment claim against Defendants are properly dismissed.
Plaintiff also claims that Defendants violated his rights under the Eighth Amendment.
The Eighth Amendment imposes a constitutional limitation on the power of the states to punish those
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convicted of crimes. Punishment may not be “barbarous” nor may it contravene society’s “evolving
standards of decency.” Rhodes v. Chapman, 452 U.S. 337, 345-46 (1981). The Amendment,
therefore, prohibits conduct by prison officials that involves the “unnecessary and wanton infliction
of pain.” Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987) (per curiam) (quoting Rhodes, 452 U.S.
at 346). The deprivation alleged must result in the denial of the “minimal civilized measure of life’s
necessities.” Rhodes, 452 U.S. at 347; see also Wilson v. Yaklich, 148 F.3d 596, 600-01 (6th Cir.
1998). The Eighth Amendment is only concerned with “deprivations of essential food, medical care,
or sanitation” or “other conditions intolerable for prison confinement.” Rhodes, 452 U.S. at 348
(citation omitted). Moreover, “[n]ot every unpleasant experience a prisoner might endure while
incarcerated constitutes cruel and unusual punishment within the meaning of the Eighth
Amendment.” Ivey, 832 F.2d at 954.
In order for a prisoner to prevail on an Eighth Amendment claim, he must show that
he faced a sufficiently serious risk to his health or safety and that the defendant official acted with
“‘deliberate indifference’ to [his] health or safety.” Mingus v. Butler, 591 F.3d 474, 479-80 (6th Cir.
2010) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994) (applying deliberate indifference
standard to medical claims); see also Helling v. McKinney, 509 U.S. 25, 35 (1993) (applying
deliberate indifference standard to conditions of confinement claims)). Plaintiff in this case fails to
allege facts showing that he faced such a risk to his health or safety. Therefore, Plaintiff’s Eighth
Amendment claims are properly dismissed.
Finally, Plaintiff claims that Defendants’ conduct violated his Fourteenth Amendment
due process rights. Throughout his complaint, Plaintiff asserts that he received false misconduct
tickets and that he was found guilty of many of the charges in violation of his due process rights.
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A prisoner’s ability to challenge a prison misconduct conviction depends on whether the convictions
implicated any liberty interest. In the seminal case in this area, Wolff v. McDonnell, 418 U.S. 539
(1974), the Court prescribed certain minimal procedural safeguards that prison officials must follow
before depriving a prisoner of good-time credits on account of alleged misbehavior. The Wolff Court
did not create a free-floating right to process that attaches to all prison disciplinary proceedings;
rather the right to process arises only when the prisoner faces a loss of liberty, in the form of a longer
prison sentence caused by forfeiture of good-time credits:
It is true that the Constitution itself does not guarantee good-time credit for
satisfactory behavior while in prison. But here the State itself has not only provided
a statutory right to good time but also specifies that it is to be forfeited only for
serious misbehavior. Nebraska may have the authority to create, or not, a right to a
shortened prison sentence through the accumulation of credits for good behavior, and
it is true that the Due Process Clause does not require a hearing “in every conceivable
case of government impairment of private interest.” But the State having created the
right to good time and itself recognizing that its deprivation is a sanction authorized
for major misconduct, the prisoner’s interest has real substance and is sufficiently
embraced within Fourteenth Amendment “liberty” to entitle him to those minimum
procedures appropriate under the circumstances and required by the Due Process
Clause to insure that the state-created right is not arbitrarily abrogated.
Wolff, 418 U.S. at 557 (citations omitted).
Plaintiff does not allege that his major misconduct convictions resulted in any loss
of good-time credits, nor could he. The Sixth Circuit has examined Michigan statutory law, as it
relates to the creation and forfeiture of disciplinary credits2 for prisoners convicted of crimes
occurring after April 1, 1987. In Thomas v. Eby, 481 F.3d 434 (6th Cir. 2007), the court determined
that loss of disciplinary credits does not necessarily affect the duration of a prisoner’s sentence.
Rather, it merely affects parole eligibility, which remains discretionary with the parole board. Id.

2

For crimes committed after April 1, 1987, Michigan prisoners earn “disciplinary credits” under a statute that abolished
the former good-time system. MICH. COMP. LAWS § 800.33(5).

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at 440. Building on this ruling, in Nali v. Ekman, 355 F. App’x 909 (6th Cir. 2009), the court held
that a misconduct citation in the Michigan prison system does not affect a prisoner’s constitutionally
protected liberty interests, because it does not necessarily affect the length of confinement. 355 F.
App’x at 912; accord, Taylor v. Lantagne, 418 F. App’x 408, 412 (6th Cir. 2011); Wilson v.
Rapelje, No. 09-13030, 2010 WL 5491196, at * 4 (E.D. Mich. Nov. 24, 2010) (Report &
Recommendation) (holding that “plaintiff’s disciplinary hearing and major misconduct sanction does
not implicate the Fourteenth Amendment Due Process Clause”), adopted as judgment of court, 2011
WL 5491196 (Jan. 4, 2011). In the absence of a demonstrated liberty interest, Plaintiff has no dueprocess claim based on the loss of disciplinary credits. See Bell v. Anderson, 301 F. App’x 459, 46162 (6th Cir. 2008).
Even in the absence of a protectible liberty interest in disciplinary credits, a prisoner
may be able to raise a due-process challenge to prison misconduct convictions that result in a
significant, atypical deprivation. See Sandin v. Connor, 515 U.S. 472 (1995). Plaintiff has not
identified any significant deprivation arising from his convictions. Unless a prison misconduct
conviction results in an extension of the duration of a prisoner’s sentence or some other atypical
hardship, a due-process claim fails. Ingram v. Jewell, 94 F. App’x 271, 273 (6th Cir. 2004).
Moreover, the court notes that Plaintiff was found “not guilty” of misconduct tickets on at least two
occasions discussed above. Therefore, the court concludes that Plaintiff’s due process claims are
properly dismissed.
Finally, the court notes that Plaintiff’s retaliation claims against Defendants Frazier,
Carrick, Zimmerman, Parr, Cowan, Nettleston, MacClean, Suriano, Lewis, Chappa, Esslin, Johnson,
and McClean are nonfrivolous and cannot be dismissed on initial review.
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Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Defendants Atkinson, Unknown Health Care Parties, Rafaele, MacLaren, Reynolds,
Olson, Benard, Malette, Belinger, Corrigan, Heyns, Louri, Decker, Mavi, Suite, and Unknown
Mailroom Employee 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, as will Plaintiff’s Sixth, Eighth and Fourteenth
Amendment claims against all Defendants. The Court will serve the complaint with regard to
Plaintiff’s retaliation claims against Defendants Frazier, Carrick, Zimmerman, Parr, Cowan,
Nettleston, MacClean, Suriano, Lewis, Chappa, Esslin, Johnson, and McClean.
An Order consistent with this Opinion will be entered.

Dated: 1/23/2015

/s/ R. Allan Edgar
R. ALLAN EDGAR
UNITED STATES DISTRICT JUDGE

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