Moore #255379 v. Fegan et al
Filing
8
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
ANTHONY LAMONT MOORE,
Plaintiff,
Case No. 2:15-cv-142
v.
Honorable R. Allan Edgar
TOMMY FEGAN, et al.,
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 Bonnee, Graham, Cress, Woods, Horton, McLean, Calder, and
Bailey. The Court will serve the complaint against Defendants Fegan, Thompson, Norton, and
Benson.
Discussion
I.
Factual allegations
Plaintiff Anthony Lamont Moore, a Michigan state prisoner currently confined at the
Ojibway Correctional Facility (OCF), filed this pro se civil rights action pursuant to 42 U.S.C. §
1983 against Defendants Supervisor Tommy Fegan, Supervisor Donald Bonnee, Superintendent
Roger Graham, Regional Business Manager Carl Cress, Warden Jeffrey Woods, Deputy Warden
Connie Horton, Assistant Resident Unit Supervisor Unknown Thompson, Grievance Coordinator
Unknown Mclean, Classification Director Unknown Calder, Resident Unit Manager Unknown
Bailey, Corrections Officer Unknown Benson, and Resident Unit Manager Unknown Norton.
In Plaintiff’s complaint, he alleges that on April 22, 2013, while he was confined at
the Chippewa Correctional Facility (URF), he complained to Defendant Fegan about not getting
overtime at his job in the M.S.I. (Michigan State Industries) Factory. Defendant Fegan rudely
ordered Plaintiff to return to work. Plaintiff filed a grievance on Defendant Fegan. On April 26,
2013, Defendant interviewed on the grievance by Defendant Graham. Defendant Bonnee responded
to the grievance, which was ultimately denied at each level.
On April 26, 2013, Defendant Fegan told Plaintiff, “since you like writing grievances,
I’m going to do everything in my power to get you remove [sic] out of the factory.” Plaintiff
complained to Defendant Graham, who indicated that he did not believe Plaintiff and ordered him
to return to work. On April 29, 2013, Plaintiff was again harassed by Defendant Fegan and again
complained to Defendant Graham. Defendant Graham responded by stating, “deal with it or quit.”
Plaintiff returned to work. After lunch, Plaintiff was joking with another inmate, who happened to
be a “five rate,” which is a highly skilled worker. Defendant Fegan told Plaintiff not to be arguing
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with the other inmate. Defendant Fegan stated, “I’ll fire you’re a** right on the spot. He’s your
boss, and don’t you forget it buddy.” Plaintiff and the other inmate explained that they were just
joking around. Later that day, Defendant Fegan gave Plaintiff a work report which accused Plaintiff
of arguing with the “five rate” inmate. When Plaintiff asked Defendant Fegan what the problem
was, Defendant Fegan responded that Plaintiff knew the answer to that question. Plaintiff
understood this as a reference to the grievance he had filed on Defendant Fegan. Plaintiff signed the
work report and was ordered back to work.
As soon as Plaintiff returned to work, Defendant Fegan came and stood directly
behind Plaintiff. Plaintiff alleges that Defendant Fegan then “started saying more comments to
harass and retaliate against Plaintiff.” Plaintiff subsequently filed a grievance regarding the
harassment and the falsified work report. Plaintiff was interviewed on the grievance by Defendant
Graham on May 8, 2013, and the grievance was responded to by Defendant Bonnee. Plaintiff’s
grievance was denied at each step. At step II, Defendant Cress falsely stated that Plaintiff was
verbally assaultive toward Defendant Fegan on April 29, 2013.
On April 30, 2013, Plaintiff returned to work and Defendant Fegan placed Plaintiff
in a skilled job, where Plaintiff, who was semi-skilled, normally did not work. Defendant Fegan
stated, “You want to write a grievance on me, I’ll show you, mess up and you’re done buddy.” Later
in the day, Defendant Fegan told Plaintiff that he knew about the most recent grievance and that
Plaintiff’s grievances were “not going anywhere.”
On May 1, 2013, Plaintiff worked running pillowcases through the mangler, a device
that folds sheets and pillowcases. Another worker told Plaintiff that the pillowcases were coming
out wet, so Plaintiff went to get the pillowcases to run them through the mangler a second time. At
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this point, Defendant Fegan approached Plaintiff and asked “what the hell” he was doing. Plaintiff
explained the situation. After all the pillowcases were done, Defendant Fegan called Plaintiff into
his office and stated:
You still think your grievances [sic] going somewhere, guess again
they’re not. You still want to write grievances on me, go right ahead.
In fact, write one on this.
While Defendant Fegan was talking to Plaintiff, Defendant Graham walked into the office. Plaintiff
turned to Defendant Graham and stated, “You know this is harassment and retaliation.” Defendant
Graham indicated that he was not going to do anything about the situation. Defendant Fegan then
started laughing and told Plaintiff that he was fired from his job.
Plaintiff sent a letter of complaint to Defendant Woods, to no avail. On May 2, 2013,
Plaintiff sent a letter to the Administrator of M.S.I., as well as to Defendant Cress. Plaintiff did not
receive a response to either letter. On May 3, 2013, Plaintiff filed a grievance on Defendant Graham
for failing to properly supervise Defendant Fegan, which was rejected at step I and denied at steps
II and III. On May 5, 2013, Plaintiff filed a grievance on Defendant Fegan. Plaintiff was
interviewed on the grievance by Defendant Bailey on May 16, 2013. Plaintiff states that the account
of the interview given by Defendant Bailey was false in that it stated that Plaintiff had received two
false write-ups on the job. Plaintiff’s step II appeal pointed this out, but Defendant Horton ignored
the issue and denied Plaintiff’s step II grievance. Plaintiff’s step III appeal was also denied.
On May 28, 2013, Plaintiff received a work report in the mail, which was prepared
by Defendant Fegan and approved by Defendant Graham. The work report falsely indicated that on
May 1, 2013, Plaintiff had argued with M.S.I. staff over his write-ups, which led to Plaintiff’s receipt
of another write-up. On May 30, 2013, Plaintiff filed a grievance on Defendant Fegan for staff
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corruption. However, Plaintiff wrote the wrong date on the grievance, specifically May 3, 2013.
Defendant McLean later stated that he never received this grievance.
On June 6, 2013, Plaintiff asked Defendant Thompson to place him on the list for a
transfer to a prison in Michigan’s lower peninsula. Defendant Thompson responded by stating,
“you’re not going anywhere, so write a grievance on that since you like writing them.” On June 7,
2013, Plaintiff asked Defendant Thompson to turn in a phone disbursement so that he could call a
lawyer and his family. Defendant Thompson refused Plaintiff’s request and again referenced
Plaintiff’s use of the grievance procedure. Plaintiff subsequently got the block rep to assist him and
was able to turn in his phone disbursement. Plaintiff filed a grievance on Defendant Thompson,
which was denied at each step.
Plaintiff alleges that Defendant Calder erred in failing to interview him prior to
terminating him from his M.S.I. job and by denying Plaintiff’s grievance at step I. On August 26,
2013, Plaintiff was assaulted by another inmate. Plaintiff was improperly charged with fighting and
was taken to segregation. From August 27, 2013, until September 3, 2013, Plaintiff sent numerous
letters to Defendant Norton explaining that there was a hit out on him and that inmates at URF,
Kinross Correctional Facility (KCF), and Alger Correctional Facility (LMF) wanted him dead, so
it was not safe for Plaintiff to reside at any of these facilities. Plaintiff did not receive a response.
On September 11, 2013, Plaintiff stopped Defendant Norton while he was making rounds and asked
to talk to him. Plaintiff was subsequently escorted to Defendant Norton’s office, where he explained
his situation. Defendant Norton stated, “Yes I know you, you like to write a lot of grievances on my
staff. And where we send you, you’re going to have to deal with it.”
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Later that day, Plaintiff asked a Corrections Officer to get his legal papers from his
property. When the Corrections Officer returned, he told Plaintiff that he did not have any legal
papers. When Plaintiff asked who had packed his property, the Corrections Officer told him that it
was the same person who had written the ticket on him. Plaintiff claims that his legal property
consisted of an affidavit from a prisoner who had been fired by Defendant Fegan after he filed a
grievance, as well as affidavits from prisoners who witnessed Defendant Fegan’s retaliatory conduct
toward Plaintiff. Plaintiff also had copies of grievances and letters.
Plaintiff was transferred to LMF on September 16, 2013. Plaintiff discovered that
Defendant Benson had packed his property prior to the loss of his legal property, so he sent a letter
to Defendant McLean requesting a step I grievance form. Plaintiff never received a response. On
October 28, 2013, Plaintiff received memoranda from Defendant McLean dated September 12, 2013,
and October 24, 2013, which stated that he was enclosing step I grievance forms so that Plaintiff
could file grievances regarding his lost property. However, Plaintiff contends that he was never
actually given the grievance forms.
In Plaintiff’s supplemental complaint filed on October 22, 2015 (ECF No. 5-1), he
asserts that Defendant Cress ignored numerous letters regarding the retaliatory conduct of
Defendants Graham, Bonnee, and Fegan, which resulted in Plaintiff’s loss of employment at M.S.I.
Finally, Plaintiff claims that Defendants all violated grievance policy in the handling of his
grievances in various ways on numerous occasions.
Plaintiff states that Defendants violated his rights under the First, Eighth, and
Fourteenth Amendments, as well as under state law. Plaintiff seeks compensatory and punitive
damages, as well as declaratory relief.
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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)).
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.
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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 Plaintiff has no due process right to file a prison
grievance. The courts repeatedly have held that there exists no constitutionally protected due process
right to an effective prison grievance procedure. See Hewitt v. Helms, 459 U.S. 460, 467 (1983);
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 72, 75 (4th Cir.
1994) (collecting cases). 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 also asserts that Defendants’ conduct violated his right of access to the
courts. However, Plaintiff’ right of access to the courts to petition for redress of his grievances (i.e.,
by filing a lawsuit) cannot be compromised by his inability to file institutional grievances. See, e.g.,
Lewis v. Casey, 518 U.S. 343, 355 (1996) (requiring actual injury); Bounds v. Smith, 430 U.S. 817,
821-24 (1977). The exhaustion requirement only mandates exhaustion of available administrative
remedies. See 42 U.S.C. § 1997e(a). If Plaintiff were improperly denied access to the grievance
process, the process would be rendered unavailable, and exhaustion would not be a prerequisite for
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initiation of a civil rights action. In light of the foregoing, the Court finds that Plaintiff fails to state
a cognizable access to courts claim.
Plaintiff claims that Defendant Graham violated the Eighth Amendment by failing
to act in order take corrective action against Defendant Fegan, and that Defendant Norton acted with
deliberate indifference to Plaintiff’s safety when he had Plaintiff transferred to LMF. The Eighth
Amendment imposes a constitutional limitation on the power of the states to punish those 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
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standard to medical claims); see also Helling v. McKinney, 509 U.S. 25, 35 (1993) (applying
deliberate indifference standard to conditions of confinement claims)).
An Eighth Amendment claim comprises objective and subjective components: (1) a
sufficiently grave deprivation and (2) a sufficiently culpable state of mind. Farmer v. Brennan, 511
U.S. 825, 834 1977 (1994); Woods v. LeCureux, 110 F.3d 1215, 1222 (6th Cir. 1997). A prison
official cannot be found liable unless the official has acted with deliberate indifference; that is, the
official must know of and disregard an excessive risk to inmate health or safety. Farmer, 511 U.S.
at 837; see also Wilson v. Seiter, 501 U.S. 294, 302-03 (1991) (deliberate indifference standard
applies to all claims challenging conditions of confinement to determine whether defendants acted
wantonly). The official must both be aware of facts from which the inference could be drawn that
a substantial risk of serious harm exists and he must also draw the inference. Farmer, 511 U.S. at
837. Thus, the mental state required for an Eighth Amendment claim is not actual intent, but
something close to common-law recklessness. Hubbert v. Brown, Nos. 95-1983, 95-1988, 96-1078,
1997 WL 242084, at *5 (6th Cir. May 18, 1997) (relying on Farmer, 511 U.S. at 836 n.4. Plaintiff’s
allegations do not show that Defendant Graham was aware of any risk to his health or safety as a
result of Defendant Fegan’s conduct.
With regard to Defendant Norton, Plaintiff claims that he told Defendant Norton that
he had enemies at LMF. However, Plaintiff does not allege that he actually received threats from
anyone at LMF. Nor does Plaintiff allege that his transfer to LMF by Defendant Norton resulted in
any injury. The court concludes that Plaintiff’s allegations fail to show that Defendant Norton knew
of and disregarded an excessive risk to Plaintiff’s health or safety. Therefore, Plaintiff’s Eighth
Amendment claims are properly dismissed.
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Plaintiff claims that Defendant Thompson violated the Equal Protection Clause of the
Fourteenth Amendment when he refused to place Plaintiff on the list to be transferred to the lower
peninsula. The Equal Protection Clause commands that no state shall “deny to any person within
its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV, § 1. A state practice
generally will not require strict scrutiny unless it interferes with a fundamental right or discriminates
against a suspect class of individuals. Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312 (1976).
Plaintiff does not suggest that he is a member of a suspect class, and “prisoners are not considered
a suspect class for purposes of equal protection litigation.” Jackson v. Jamrog, 411 F.3d 615, 619
(6th Cir. 2005); see also Wilson v. Yaklich, 148 F.3d 596, 604 (6th Cir.1998). In addition, There is
no right under federal law allowing a prisoner to prevent a transfer to another facility or giving him
any choice concerning the facility where he will be incarcerated. Meachum v. Fano, 427 U.S. 215
(1976); Olim v. Wakinekona, 461 U.S. 238 (1983).
Because neither a fundamental right nor a suspect class is at issue, Plaintiff’s claim
is reviewed under the rational basis standard. Club Italia Soccer & Sports Org., Inc. v. Charter Twp.
of Shelby, 470 F.3d 286, 298 (6th Cir. 2006). “Under rational basis scrutiny, government action
amounts to a constitutional violation only if it ‘is so unrelated to the achievement of any combination
of legitimate purposes that the court can only conclude that the government’s actions were
irrational.’” Id. (quoting Warren v. City of Athens, 411 F.3d 697, 710 (6th Cir. 2005)). To prove
his equal protection claim, Plaintiff must demonstrate “intentional and arbitrary discrimination” by
the state; that is, he must demonstrate that he “has been intentionally treated differently from others
similarly situated and that there is no rational basis for the difference in treatment.” Vill. of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
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To prove his equal protection claim, Plaintiff must demonstrate “intentional and
arbitrary discrimination” by the state; that is, he must demonstrate that he “has been intentionally
treated differently from others similarly situated and that there is no rational basis for the difference
in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). However, Plaintiff fails to
allege specific facts showing that he was treated differently from similarly situated prisoners.
Moreover, it is clear for Plaintiff’s allegations that he is asserting that Defendant Thompson denied
his request because he wished to retaliate against Plaintiff for his use of the grievance system.
Therefore, Plaintiff’s claim against Defendant Thompson is is properly analyzed as a retaliation
claim pursuant to Plaintiff’s rights under the First Amendment.
Plaintiff claims that Defendants McLean, Woods, Bonnee, and Graham retaliated
against him for his use of the grievance system by placing him on modified access to the grievance
procedure and by improperly responding to his 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 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)).
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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.
Rowley, No. 00-1144, 2000 WL 1679463, at *2 (6th Cir. Nov. 1, 2000). However, the court notes
that the Sixth Circuit has repeatedly held that placement on modified access does not constitute an
adverse action for purposes of a retaliation claim. See, e.g., Jackson v. Madery, 158 F. App’x 656,
660 (6th Cir. 2005) (per curiam); Walker v. Mich. Dep’t of Corr., 128 F. App’x 441, 446 (6th Cir.
2005).
In Kennedy v. Tallio, 20 F. App’x 469, 471 (6th Cir. Sept. 26, 2001), the court stated:
Kennedy’s claim that placement on modified access violated his First
Amendment right of access to the courts is likewise without merit. 42
U.S.C. § 1997e(a) requires prisoners to exhaust "such administrative
remedies as are available" prior to filing suit in federal court. If a
prisoner has been placed on modified access to the grievance
procedure and attempts to file a grievance which is deemed to be
non-meritorious, he has exhausted his "available" administrative
remedies as required by § 1997e(a). Consequently, Kennedy's
placement on modified access cannot prevent him from filing claims
in federal court. Accordingly, Kennedy's access to courts claims were
properly dismissed.
Kennedy failed to state a retaliation claim because no adverse action
"that would deter a person of ordinary firmness from continuing to
engage in that conduct" was taken against him. See Thaddeus-X v.
Blatter, 175 F.3d 378, 394 (6th Cir.1999). Placement on modified
access to the grievance procedure does not constitute such an action.
Placement on modified access did not deprive Kennedy of the ability
to file civil rights actions in federal court. Kennedy's placement on
modified access to the grievance procedure merely enabled prison
officials to screen Kennedy's grievances prior to filing to determine
whether they were grievable, non-frivolous, and non-duplicative. See
Mich. Dep't of Corr. Policy Directive 03.02.130(II)(PP). Moreover,
Kennedy was not deterred from continuing to engage in the protected
conduct because he continued to attempt to file grievances.
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Id.
In addition, in Corsetti v. McGinnis, No. 00-1409, 2001 WL 1298830, at *2 (6th Cir.
Aug. 7, 2001), the court noted:
Nor can Corsetti show a First Amendment violation based upon either
his placement on modified grievance access or the reading of his legal
mail and legal materials. Modified access to the grievance process
does not deny Corsetti the right or ability to seek redress for
meritorious grievances. Rather, it merely requires the prisoner to
obtain permission from the grievance coordinator to file a grievance.
See Hartsfield v. Mayer, No. 95-1411, 76 F.3d 378 (table), 1996 WL
43541, at *3 (6th Cir. Feb. 1, 1996) (unpublished). Regarding the
alleged reading of Corsetti's legal mail and legal materials, Corsetti
has not alleged, nor is there any evidence, that any papers were seized
or that the defendants' reading of the papers caused actual injury or
"hindered [his] efforts to pursue a legal claim." Lewis v. Casey, 518
U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). Finally,
Corsetti failed to establish the elements of his retaliation claims
because either the acts that he alleged the defendants committed
would not deter a person of ordinary firmness or he produced no
evidence that the defendants were motivated to act against him
because of his grievances or prior lawsuits. See Thaddeus-X v.
Blatter, 175 F.3d 378, 394 (6th Cir.1999) (en banc).
Id.
As noted above, Plaintiff claims that Defendants McLean and Woods improperly
placed him on modified access and Defendants Bonnee and Graham improperly responded to his
grievances in violation of MDOC policy. However, as noted above, 42 U.S.C. § 1997e(a) only
requires prisoners to exhaust "such administrative remedies as are available" prior to filing suit in
federal court. Once Plaintiff attempted to file a grievance and was prevented from doing so through
no fault of his own, he was free to file suit in this court. The conduct of Defendants McLean,
Woods, Bonnee, and Graham did not deprive Plaintiff of the ability to file suit in federal court.
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Therefore, the alleged misconduct of Defendants McLean, Woods, Bonnee, and Graham does not
constitute adverse action for purposes of a retaliation claim.
Plaintiff also claims that Defendants Fegan, Thompson, Norton, and Benson retaliated
against him when they fired him from his job, prevented him from being placed on a list for transfer
to the lower peninsula, had him transferred to a prison where he felt endangered, and destroyed his
legal property. The court concludes that these claims are not clearly frivolous and may not be
dismissed on initial review.
Plaintiff claims that Defendants Benson violated his due process rights when he either
confiscated or destroyed Plaintiff’s legal property. Plaintiff’s due process claim is barred by the
doctrine of Parratt v. Taylor, 451 U.S. 527 (1981), overruled in part by Daniels v. Williams, 474
U.S. 327 (1986). Under Parratt, a person deprived of property by a “random and unauthorized act”
of a state employee has no federal due process claim unless the state fails to afford an adequate postdeprivation remedy. If an adequate post-deprivation remedy exists, the deprivation, although real,
is not “without due process of law.” Parratt, 451 U.S. at 537. This rule applies to both negligent
and intentional deprivation of property, as long as the deprivation was not done pursuant to an
established state procedure. See Hudson v. Palmer, 468 U.S. 517, 530-36 (1984). Because
Plaintiff’s claim is premised upon allegedly unauthorized acts of a state official, he must plead and
prove the inadequacy of state post-deprivation remedies. See Copeland v. Machulis, 57 F.3d 476,
479-80 (6th Cir. 1995); Gibbs v. Hopkins, 10 F.3d 373, 378 (6th Cir. 1993). Under settled Sixth
Circuit authority, a prisoner’s failure to sustain this burden requires dismissal of his § 1983 dueprocess action. See Brooks v. Dutton, 751 F.2d 197 (6th Cir. 1985).
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Plaintiff has not sustained his burden in this case. Plaintiff has not alleged that state
post-deprivation remedies are inadequate. Moreover, numerous state post-deprivation remedies are
available to him. First, a prisoner who incurs a loss through no fault of his own may petition the
institution’s Prisoner Benefit Fund for compensation. MICH. DEP’T OF CORR., Policy Directive
04.07.112, ¶ B (effective Dec. 12, 2013). Aggrieved prisoners may also submit claims for property
loss of less than $1,000 to the State Administrative Board. MICH. COMP. LAWS § 600.6419; MDOC
Policy Directive 03.02.131 (effective Oct. 21, 2013). Alternatively, Michigan law authorizes actions
in the Court of Claims asserting tort or contract claims “against the state and any of its departments,
commissions, boards, institutions, arms, or agencies.” MICH. COMP. LAWS § 600.6419(1)(a). The
Sixth Circuit specifically has held that Michigan provides adequate post-deprivation remedies for
deprivation of property. See Copeland, 57 F.3d at 480. Plaintiff does not allege any reason why a
state-court action would not afford him complete relief for the deprivation, either negligent or
intentional, of his personal property. Accordingly, Plaintiff’s due process claim against Defendant
Benson will be dismissed.
Plaintiff claims that Defendants Graham and Woods failed to properly supervise
subordinates or to take corrective action. 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
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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.
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).
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Plaintiff has not alleged facts establishing that Defendants Graham and Woods were
personally involved in the activity which forms the basis of his claim. The only roles that
Defendants Graham and Woods had in this action involve the denial of administrative grievances
or the failure to act. Defendants Graham and Woods 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 Defendants Graham and
Woods are properly dismissed for lack of personal involvement.
Plaintiff claims that Defendants conspired to violate his constitutional rights. A civil
conspiracy under § 1983 is “an agreement between two or more persons to injure another by
unlawful action.” See Hensley v. Gassman, 693 F.3d 681, 695 (6th Cir. 2012) (quoting Hooks v.
Hooks, 771 F.2d 935, 943-44 (6th Cir. 1985)). The plaintiff must show the existence of a single
plan, that the alleged coconspirator shared in the general conspiratorial objective to deprive the
plaintiff of a federal right, and that an overt action committed in furtherance of the conspiracy caused
an injury to the plaintiff. Hensley, 693 F.3d at 695; Bazzi v. City of Dearborn, 658 F.3d 598, 602
(6th Cir. 2011). Moreover, a plaintiff must plead a conspiracy 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).
Plaintiff’s allegations of conspiracy are conclusory and speculative. Plaintiff has
provided no allegations establishing a link between the alleged conspirators or any agreement
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between them. He relies entirely on a highly attenuated inference from the mere fact that Defendants
have made decisions which adversely affect him in relation to his numerous grievances. As noted
by the Supreme Court, allegations which do not contain “enough factual matter (taken as true) to
suggest that an agreement was made” are not sufficient to support a conspiracy claim 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 Defendants’ conduct was unrelated,
Plaintiff fails to state a plausible claim of conspiracy.
Plaintiff also claims that Defendants violated his rights under state law. Section 1983
does not provide redress for a violation of a state law. Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir.
1995); Sweeton v. Brown, 27 F.3d 1162, 1166 (6th Cir. 1994). To the extent that Plaintiff’s
complaint presents allegations under state law, this Court declines to exercise jurisdiction. The Sixth
Circuit has stated that district courts should generally decline to exercise supplemental jurisdiction
over state law claims under these circumstances. See Landefeld v. Marion Gen. Hosp., Inc., 994
F.2d 1178, 1182 (6th Cir. 1993); Hawley v. Burke, No. 97-1853, 1998 WL 384557, at *2 (6th Cir.
June 18, 1998). Plaintiff’s state law claims will be dismissed without prejudice to his ability to
pursue those claims in state court.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Defendants Bonnee, Graham, Cress, Woods, Horton, McLean, Calder, and Bailey
will be dismissed for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and
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42 U.S.C. § 1997e(c). The Court will serve the complaint against Defendants Fegan, Thompson,
Norton, and Benson.
An Order consistent with this Opinion will be entered.
Dated: 12/2/2015
/s/ R. Allan Edgar
R. ALLAN EDGAR
UNITED STATES DISTRICT JUDGE
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