Gardner #287557 v. Michigan Department of Corrections et al

Filing 4

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

ERIC ANDREW GARDNER,
Plaintiff,

Case No. 2:16-cv-2

v.

Honorable Robert Holmes Bell

MICHIGAN DEPARTMENT
OF CORRECTIONS, 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 MDOC, Heyns, Ortiz, Dunton, Isard, Eastman, Bassett, Weaver,
Bellinger, Earegood, and Annis. The Court will transfer the remainder of Plaintiff’s complaint
against Defendants Haske, Murphy, Thomas, Frechette, and McDonald for lack of venue.

Discussion
I.

Factual allegations

Plaintiff Eric Andrew Gardner, a Michigan state prisoner currently confined at the
Oaks Correctional Facility (ECF), filed this pro se civil rights action pursuant to 42 U.S.C. § 1983
against Defendants the Michigan Department of Corrections (MDOC) and former MDOC Director
Daniel Heyns. Plaintiff also names Chippewa Correctional Facility (URF) employees Corrections
Officer Gus Ortiz, Segregation Assistant Resident Unit Supervisor Kenneth Dunton, Assistant
Deputy Warden David Isard, and Segregation Property Room Officer Unknown Eastman. Finally,
Plaintiff names ECF employees Classification Director Unknown Haske, Grievance Coordinator T.
Bassett, Librarian Unknown Murphy, Segregation Resident Unit Manager Unknown Thomas,
Segregation Assistant Resident Unit Supervisor Unknown Weaver, Corrections Officer M. Bellinger,
Corrections Officer Unknown Earegood, Corrections Officer J. Annis, Accounting Technician
Heather Frechette, and Hearing Investigator M. McDonald.
In Plaintiff’s complaint, he alleges that on September 30, 2013, while he was confined
at URF, Defendant Ortiz took Plaintiff’s entire court file from his property and ripped the binding
off of it, tearing all 3,518 pages. Plaintiff filed a grievance on this issue. Plaintiff gave the step III
grievance appeal on this matter to Defendant Dunton on April 14, 2014. However, that grievance
appeal, and seven other grievances, were discarded or destroyed by Defendant Dunton and never
made it to Lansing. Plaintiff states that Defendants Isard and Eastman subsequently retaliated
against him for filing grievances by losing or destroying his typewriter. On July 6, 2015, Plaintiff
was transferred to ECF.

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After Plaintiff arrived at ECF, Defendant Haske refused to classify Plaintiff or to give
him indigent loans for six months. On October 13, 2015, Defendant Bassett placed Plaintiff on
modified access to the grievance procedure and refused to allow Plaintiff to file several valid
grievances. Defendants Haske, McDonald, and Thomas refused to give Plaintiff any rehearing
packets unless he agreed to plead guilty, so Plaintiff was unable to appeal over twenty retaliatory
misconduct tickets. Defendant Murphy denied Plaintiff access to a legal writer and refused to make
copies for Plaintiff.

In addition, Defendant Murphy insisted on reading Plaintiff’s legal

correspondence with the Ombudsman and the legal writer program in Lansing.
Plaintiff claims that on August 20, 2015, Defendant Earegood took pictures of
“Plaintiff’s woman” and refused to give Plaintiff a grievance form. On September 21, 2015,
Defendant Bellinger told Plaintiff to kill himself in front of Nurse Kokinowski.

Plaintiff

unsuccessfully filed a grievance on this matter. Plaintiff filed and attempted to file numerous
complaints on Defendants, including on Defendant Weaver for stealing Plaintiff’s cosmetics.
Plaintiff attempted to send mail to the Legislative Ombudsman, but his requests to send out legal
mail were refused by Defendant Frechette. Finally, Plaintiff alleges that on August 20, 2015,
Defendant Annis attempted to end Plaintiff’s hunger strike by posting a sign outside Plaintiff’s door
stating that if Plaintiff consumed “anything,” it constituted an end to the strike.
Plaintiff states that Defendants violated his constitutional rights and seeks
compensatory and punitive damages.
II.

Failure to state a claim

A complaint may be dismissed for failure to state a claim if it fails “‘to give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp.
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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 Plaintiff may not maintain a § 1983 action against the
Michigan Department of Corrections. Regardless of the form of relief requested, the states and their
departments are immune under the Eleventh Amendment from suit in the federal courts, unless the
state has waived immunity or Congress has expressly abrogated Eleventh Amendment immunity by
statute. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-101 (1984); Alabama v.
Pugh, 438 U.S. 781, 782 (1978); O’Hara v. Wigginton, 24 F.3d 823, 826 (6th Cir. 1993). Congress
has not expressly abrogated Eleventh Amendment immunity by statute, Quern v. Jordan, 440 U.S.
332, 341 (1979), and the State of Michigan has not consented to civil rights suits in federal court.
Abick v. Michigan, 803 F.2d 874, 877 (6th Cir. 1986). In numerous unpublished opinions, the Sixth
Circuit has specifically held that the MDOC is absolutely immune from suit under the Eleventh
Amendment. See, e.g., McCoy v. Michigan, 369 F. App’x 646, 653-54 (6th Cir. 2010); Turnboe v.
Stegall, No. 00-1182, 2000 WL1679478, at *2 (6th Cir. Nov. 1, 2000). In addition, the State of
Michigan (acting through the Michigan Department of Corrections) is not a “person” who may be
sued under § 1983 for money damages. See Lapides v. Bd. of Regents, 535 U.S. 613 (2002) (citing
Will v. Mich. Dep’t of State Police, 491 U.S. 58 (1989)). Therefore, the Court dismisses the
Michigan Department of Corrections.
In addition, Plaintiff’s claims against Defendant Heyns appear to be based solely on
his position as former Director of the MDOC. 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
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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.
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
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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 Defendant Heyns was personally
involved in the activity which forms the basis of his claim. The only roles that Defendant Heyns
could have had in this action involved the denial of administrative grievances or the failure to act.
Defendant Heyns 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 Defendant Heyns are properly dismissed for lack of personal involvement.
Plaintiff appears to be claiming that Defendants Ortiz, Isard, Eastman, Weaver, and
Earegood all took and/or destroyed various property in violation of his due process rights. 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 post-deprivation 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, 53036 (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 due-process 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 claims against Defendants
Ortiz, Isard, Eastman, Weaver, and Earegood will be dismissed.
Plaintiff also claims that Defendants Isard and Eastman were motivated by a desire
to retaliate against him when they lost or destroyed his typewriter. 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
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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)).
Plaintiff fails to allege any specific facts showing that Defendants Isard and Eastman
were motivated by a desire to retaliate against him. Temporal proximity “may be ‘significant enough
to constitute indirect evidence of a causal connection so as to create an inference of retaliatory
motive.’” Muhammad v. Close, 379 F.3d 413, 417-18 (6th Cir. 2004) (quoting DiCarlo v. Potter,
358 F.3d 408, 422 (6th Cir. 2004)). However, “[c]onclusory allegations of temporal proximity are
not sufficient to show a retaliatory motive.” Skinner v. Bolden, 89 F. App’x 579, 580 (6th Cir.
2004).
Moreover, Muhammad does not stand for the proposition that temporal proximity
alone is sufficient to create an issue of fact as to retaliatory motive.
In Muhammad the Sixth Circuit did not resolve the issue, but merely
observed that “temporal proximity alone may be ‘significant enough
to constitute indirect evidence of a causal connection so as to create
an inference of retaliatory motive.’” Id. at 418 (quoting DiCarlo v.
Potter, 358 F.3d 408, 422 (6th Cir.2004) (emphasis added). Even if
temporal proximity may in some cases create an issue of fact as to
retaliatory motive, it would only be sufficient if the evidence was
“significant enough.” Plaintiff’s conclusory and ambiguous evidence
is not “significant enough” to create an issue of fact as to retaliatory
motive.
Brandon v. Bergh, 2010 WL 188731, slip op. at 1 (W.D. Mich., Jan. 16, 2010). Because Plaintiff’s
retaliation claims against Defendants Isard and Eastman are entirely conclusory, they are properly
dismissed.

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Plaintiff appears to be asserting that Defendants Bellinger and Annis improperly
harassed him by telling him to kill himself and by attempting to end his hunger strike. Allegations
of verbal harassment or threats by prison officials toward an inmate do not constitute punishment
within the meaning of the Eighth Amendment. Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir.1987).
Nor do allegations of verbal harassment rise to the level of unnecessary and wanton infliction of pain
proscribed by the Eighth Amendment. Id. Even the occasional or sporadic use of racial slurs,
although unprofessional and reprehensible, does not rise to a level of constitutional magnitude. See
Torres v. Oakland County, 758 F.2d 147, 152 (6th Cir. 1985). Because the conduct of Defendants
Bellinger and Annis did not violate Plaintiff’s rights under the Constitution, his claims against them
are properly dismissed.
Plaintiff claims that Defendants Dunton, Bassett, and Earegood interfered with his
use of the grievance procedure by refusing to mail out step III grievance appeals, by placing him on
modified access, and by refusing to give him grievance forms. 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).
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Because Plaintiff has no liberty interest in the grievance process, the conduct of Defendants Dunton,
Bassett, and Earegood did not deprive him of due process.
Plaintiff claims that Defendants Haske, Murphy, Thomas, Frechette, and McDonald
all interfered with his First Amendment right of access to the courts. These claims appear to be
nonfrivolous and may not be dismissed upon initial review.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Defendants MDOC, Heyns, Ortiz, Dunton, Isard, Eastman, Bassett, Weaver,
Bellinger, Earegood, and Annis will be dismissed for failure to state a claim pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c). The Court will order service of Plaintiff’s
complaint with regard to Defendants Haske, Murphy, Thomas, Frechette, and McDonald.
An Order consistent with this Opinion will be entered.

Dated: February 1, 2016

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

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