Williams #221217 v. Michigan Department of Corrections et al

Filing 4

OPINION; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

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

KEVIN WILLIAMS,
Plaintiff,

Case No. 2:16-cv-221

v.

Honorable Janet T. Neff

MICHIGAN DEPARTMENT OF
CORRECTIONS et al.,
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, Plaintiff’s action will be dismissed on grounds of
immunity and failure to state a claim.

Factual Allegations
Plaintiff Kevin Williams presently is incarcerated with the Michigan Department of
Corrections (MDOC) at Marquette Branch Prison (MBP). The actions about which he complains
allegedly occurred at MBP and four other prisons: Baraga Correctional Facility (AMF); Alger
Correctional Facility (LMF); Chippewa Correctional Facility (URF); and Kinross Correctional
Facility (KCF). Plaintiff sues the MDOC, Keefe Commissary Network Sales (Keefe), and the
MDOC Manager of Grievance Appeals Richard D. Russell. Plaintiff also sues the following MBP
officials: Warden Robert Napel; Storekeeper J. Pancheri; Storekeeper Supervisor Steven Palm; and
the unknown account technician and classification director (Unknown Part(y)(ies) #2). In addition,
he sues the following AMF officials: Warden Shane Place; Classification Director K. Adams; Chip
LaClaire; Warehouse Supervisor Tom Beggs; Prisoner Counselor (unknown) Bessenger; and
Account Technician T. Minton. At LMF, Plaintiff sues the following officials: Warden Catherine
S. Bauman; and Classification Director (unknown) Hoffman. Further, Plaintiff sues three employees
at URF: Warden Jeffery Wood; Account Technician Joyce L. Ross; and Assistant Resident Unit
Supervisor (ARUS) (unknown) Psonbright. Finally, he sues these KCF employees: the unknown
Account Technician and Warehouse Supervisor (Unknown Part(y)(ies) #1); and the unknown store
clerk (Unknown Part(y)(ies) #3).
Plaintiff complains about events that allegedly occurred between April 8, 2011, and
October 30, 2015, while Plaintiff apparently was housed at five different facilities. Plaintiff provides
few details about his claims, though he alleges incidents occurred at least 20 times during a five-year
period. Plaintiff attaches nearly 300 pages of documents, consisting of a number of kites, medical
records, MDOC policies, and four grievances and grievance responses.

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In his only relatively detailed set of allegations, Plaintiff complains that, on
September 25, 2015, while he was housed in segregation at AMF, he sent an institutional letter
requesting placement on the indigent list for October 2015.1 Adams sent Plaintiff a receipt,
indicating that his request had been forwarded to the business office for approval for indigent status
for the following month. Plaintiff apparently was approved, and he received an indigent store order
form from Defendant Bessemer, which Plaintiff completed in the first week of October 2015 and
returned to Defendant Bessemer. The form was transferred to Defendants Beggs and LaClaire for
faxing to Keefe for packaging and delivery. Plaintiff complains that he never received his October
commissary order, though Keefe shipped other prisoner orders on October 29 and October 30, 2015,.
Apparently, Keefe represented in email correspondence with Defendant Bessemer that all remaining
indigent store items order for the month of October had been shipped in the October 30, 2015
shipment. On November 20, 2015, Warden Place, in a grievance response, stated that Keefe had
advised the prison that no indigent store orders would be processed for October because, as of the
date of inquiry, the month had ended.2 Plaintiff alleges that either Keefe or the AMF Defendants
acted either maliciously or with deliberate indifference to Plaintiff’s basic needs when they failed
to ship or to deliver his commissary order. Plaintiff also asserts that the warden became personally
involved by denying the grievance, thereby permitting the violation of the Eighth and Fourteenth
Amendments. He also alleges that Defendants must have been retaliating against him for filing
1

According to MDOC policy, a prisoner may apply for indigent status if neither his account balance nor his
spendable balance plus receipts equals or exceeds $11.00 in a calendar month, subject to certain exceptions. MICH. DEP’T
OF CORR., Policy Directive 04.02.120 ¶ A. A qualified prisoner is entitled to be placed on the list for a one-month period
and must reapply the next month. MICH. DEP’T OF CORR., Policy Directive 04.02.120 ¶ C.
2

A prisoner eligible for an indigent loan is eligible for a loan up to $11.00 per month solely “to purchase of
mandatory health care products, over-the-counter personal care products, and hygiene products . . . .” MICH. DEP’T OF
CORR., Policy Directive 04.02.120 ¶ D. “Any portion of an indigent loan not used by a prisoner during the one-month
period for which it was received shall not be carried forward.” Id. ¶ F.

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grievances. In addition, Plaintiff alleges that Defendant Bessemer did not provide him with hygiene
supplies during the month of November, despite the fact that Plaintiff did not receive his October
commissary order.
Plaintiff does not specifically identify other instances in which he did not receive his
indigent order. His remaining allegations consist solely of summary statements, referencing
grievances attached to the complaint and naming Defendants only in their relationship to the
handling of such grievances. An example of Plaintiff’s allegations is the following extraordinary
long, run-on sentence – the only place Plaintiff names most of the Defendants he has sued:
Named herein where on 6/21/13 Placheri [sic], STK, Steven Palm, STK Supv.,
Kinross Store Clerk, G-Unit ARUS Listen, Classification Director, Acct. Tech. and
Warden Robert Napel’s continued those same deliberate indifference under the color
of law and became personally involved on 6/21/13 to 7/12/13, throughout Plaintiff’s
stay at MBP, (See, Exh. I, G, att.) as well as, Classification Director, Mr. Hoffman,
Storekeeper, and Storekeeper Supervisor, Acct. Tech., Pine Unit ARUS and RUM,
Kinross Store Clerk and Warden Catherine S. Bauman, who also continued those
same deliberate indifference under the color of law and became personally involved
on 9/7/12, and ongoing through-out the Plaintiff stay at LMF (See, Exh. G att.) and
was further executed and continued by Kinross Store Clerk, Classification Director,
Steamboat Unit Counsel McLeod, Acct. Tech. Joyce L. Ross, ARUS and/or RUM
Psonbright, Storekeeper, and Storekeeper Supervisor, and Warden Jefferey Wood,
who also continued those same deliberate indifferences under the color of law and
became personally involved on 12/8/14, 12/29/14, 11/26/14, 12/22/14, 1/27, 12, and
2/3/15 (See, Exh. J, G, att.) and ongoing throughout the Plaintiff stay at URF, where
even during the Plaintiff stay at (LMF), where Mr. Williams purchased indigent store
order Aleve pain pills/medication was thrown away in the garbage and never
returned (See, Exh. M att.), for which Catherine Bauman allowed to happen because
of her failure to remedy, and alter her staff’s disastrous behavior after being notified
in Step II grievance sent to her officer directly identifying all parties involved and
showing that the Plaintiff was found no guilty concerning an alleged misuse of
medication but was never reimbursed, repurchased or ordered and provided to the
Plaintiff in retaliation because of the grievances he had prepared against her and her
staff.

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(Compl., ECF No. 1, PageID.15-16.)3
Plaintiff contends that the October 2015 failure to deliver his indigent commissary
order, together with other unspecified failures to deliver his orders on 20 occasions during the
preceding five years, caused Plaintiff to suffer bleeding gums, rashes, athletes foot, facial sores,
severe gout pains, severe chest pains, and severe joint pains, because he could not get over-thecounter pain medications and hygiene supplies.
For relief, Plaintiff seeks compensatory and punitive damages and permanent
injunctive relief.
Discussion
I.

Sovereign Immunity

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

3

The recited allegations appear to reference an incident described in certain attachments during which Plaintiff’s
Aleve pain reliever, together with a number of bottles of prescription medication that appeared to be unauthorized, was
confiscated. (Pl.’s Ex. M, ECF No. 1-6, Page Id.288-292.) Plaintiff was charged with a misconduct ticket, of which he
was found not guilty. (Id.) Plaintiff filed grievance number AMF 1305 0719 12F, because his Aleve was not returned
to him. The incident appears to have occurred on April 12, 2013.

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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.
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.” Id. 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

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entitled to relief.” Id. 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); Dominguez v.
Corr. Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009). 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).

A.

Lack of Allegations

It is a basic pleading essential that a plaintiff attribute factual allegations to particular
defendants. See Twombly, 550 U.S. at 544 (holding that, in order to state a claim, a plaintiff must
make sufficient allegations to give a defendant fair notice of the claim). Where a person is named
as a defendant without an allegation of specific conduct, the complaint is subject to dismissal, even
under the liberal construction afforded to pro se complaints. See Frazier v. Michigan, 41 F. App’x
762, 764 (6th Cir. 2002) (dismissing the plaintiff’s claims where the complaint did not allege with
any degree of specificity which of the named defendants were personally involved in or responsible
for each alleged violation of rights); Griffin v. Montgomery, No. 00-3402, 2000 WL 1800569, at *2
(6th Cir. Nov. 30, 2000) (requiring allegations of personal involvement against each defendant));
Rodriguez v. Jabe, No. 90-1010, 1990 WL 82722, at *1 (6th Cir. June 19, 1990) (“Plaintiff’s claims
against those individuals are without a basis in law as the complaint is totally devoid of allegations
as to them which would suggest their involvement in the events leading to his injuries.”); see also

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Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994); Krych v. Hvass, 83 F. App’x 854, 855 (8th Cir.
2003); Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974); Williams v. Hopkins, No. 06-14064,
2007 WL 2572406, at *4 (E.D. Mich. Sept. 6, 2007); McCoy v. McBride, No. 3:96-cv-227RP, 1996
WL 697937, at *2 (N.D. Ind. Nov. 5, 1996); Eckford-El v. Toombs, 760 F. Supp. 1267, 1272-73
(W.D. Mich. 1991). Plaintiff fails to even mention Defendant Milton in the body of his complaint.
His allegations against Milton therefore fall far short of the minimal pleading standards under FED.
R. CIV. P. 8 (requiring “a short and plain statement of the claim showing that the pleader is entitled
to relief”).
B.

Supervisory Liability

Although Plaintiff’s allegations are vague against most Defendants, his allegations
against Defendants Place, Bauman, Woods, Napel, and Russell appear to rest solely on their failures
to supervise their subordinates and failures to resolve his grievances in the manner he would prefer.
Government officials may not be held liable for the unconstitutional conduct of their subordinates
under a theory of respondeat superior or vicarious liability. Iqbal, 556 U.S. at 676; Monell v. New
York City Dep’t of Soc. Servs., 436 U.S. 658, 691(1978); Everson v. Leis, 556 F.3d 484, 495 (6th
Cir. 2009). A claimed constitutional violation must be based upon active unconstitutional behavior.
Grinter v. Knight, 532 F.3d 567, 575-76 (6th Cir. 2008); Greene v. Barber, 310 F.3d 889, 899 (6th
Cir. 2002). The acts of one’s subordinates are not enough, nor can supervisory liability be based
upon the mere failure to act. Grinter, 532 F.3d at 576; Greene, 310 F.3d at 899; Summers v. Leis,
368 F.3d 881, 888 (6th Cir. 2004). Moreover, § 1983 liability may not be imposed simply because
a supervisor denied an administrative grievance or failed to act based upon information contained
in a grievance. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). “[A] plaintiff must plead

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that each Government-official defendant, through the official’s own individual actions, has violated
the Constitution.” Iqbal, 556 U.S. at 676. Plaintiff has failed to allege that Defendants Place,
Bauman, Woods, Napel, and Russell engaged in any active unconstitutional behavior. Accordingly,
he fails to state a claim.
C.

Conclusory Allegations

Plaintiff’s allegations against Defendants Hoffman, Unknown Parties #1, Pancheri,
Palm, Unknown Parties #2, Ross, Psonbright, and Unknown Parties #3 are limited to their inclusion
in a one-sentence declaration that they “continued” the “deliberate indifference” of other Defendants
who did not ensure that Plaintiff received his commissary items in some month in a five-year period.
(Compl., ECF No. 1, PageID.15-16.) Conclusory allegations of unconstitutional conduct without
specific factual allegations fail to state a claim under § 1983. See Iqbal, 556 U.S. at678-69;
Twombly, 550 U.S. at 555. Plaintiff’s conclusory allegations “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)). Plaintiff
therefore fails to state a claim against Defendants Hoffman, Unknown Parties #1, Pancheri, Palm,
Unknown Parties #2, Ross, Psonbright, and Unknown Parties #3.
D.

Statute of Limitations

Plaintiff alleges that he has been deprived of necessary commissary items for five
years, between April 2011 and November 2015. State statutes of limitations and tolling principles
apply to determine the timeliness of claims asserted under 42 U.S.C. § 1983. Wilson v. Garcia, 471
U.S. 261, 268-69 (1985). For civil rights suits filed in Michigan under § 1983, the statute of
limitations is three years. See MICH. COMP. LAWS § 600.5805(10); Carroll v. Wilkerson, 782 F.2d

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44, 44 (6th Cir. 1986) (per curiam); Stafford v. Vaughn, No. 97-2239, 1999 WL 96990, at *1 (6th
Cir. Feb. 2, 1999). Accrual of the claim for relief, however, is a question of federal law. Collyer
v. Darling, 98 F.3d 211, 220 (6th Cir. 1996); Sevier v. Turner, 742 F.2d 262, 272 (6th Cir. 1984).
The statute of limitations begins to run when the aggrieved party knows or has reason to know of
the injury that is the basis of his action. Collyer, 98 F.3d at 220.4
A significant portion of Plaintiff’s complaint is untimely. He asserts claims that arose
between April 2011 and November 2015. Plaintiff had reason to know of the “harms” done to him
at the time they occurred. Hence, some of his claims accrued as early as 2011. However, Plaintiff
did not file his complaint until October 2016,5 well past Michigan’s three-year limit for claims that
accrued prior to October 1, 2013. Moreover, Michigan law no longer tolls the running of the statute
of limitations when a plaintiff is incarcerated. See MICH. COMP. LAWS § 600.5851(9). Further, it
is well established that ignorance of the law does not warrant equitable tolling of a statute of
limitations. See Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991); Jones v. Gen. Motors Corp.,
939 F.2d 380, 385 (6th Cir. 1991); Mason v. Dep’t of Justice, No. 01-5701, 2002 WL 1334756, at
*2 (6th Cir. June 17, 2002).

4

28 U.S.C. § 1658 created a “catch-all” limitations period of four years for civil actions arising under federal
statutes enacted after December 1, 1990. The Supreme Court’s decision in Jones v. R.R. Donnelley & Sons Co., 541 U.S.
369 (2004), which applied this federal four-year limitations period to a suit alleging racial discrimination under § 1981
does not apply to prisoner claims under 28 U.S.C. § 1983 because, while § 1983 was amended in 1996, prisoner civil
rights actions under § 1983 were not “made possible” by the amended statute. Id. at 382.
5

Although Plaintiff signed his complaint on January 13, 2016, the complaint was not received by this Court until
October 12, 2016. While the prison mail-box rule generally allows the Court to presume that the complaint was filed
at the time a plaintiff signs the complaint, see Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008), such a presumption
is not warranted when nine months have passed between the date of signing and the date of receipt by this Court. That
is particularly true where, as here, the postal marks on the envelope indicate that the complaint and attachments were
mailed on October 10, 2016. It therefore appears that any alleged conduct that occurred prior to early October 2016 is
time-barred.

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As a consequence, to the extent that Plaintiff raises alleged harms that occurred prior
to October 1, 2013, those claims will be dismissed for failure to state a claim because they are timebarred. Jones v. Bock, 549 U.S. 199, 215 (2007) (“If the allegations . . . show that relief is barred
by the applicable statute of limitations, the complaint is subject to dismissal for failure to state a
claim . . . .”).6
E.

Eighth Amendment

Plaintiff alleges that Defendants collectively violated the Eighth Amendment by
failing to ensure that he received his commissary orders in every month over the last five years. He
broadly asserts that the inability to receive commissary purchases in every month led him to
experience pain, because he lacked over-the-counter pain medications, and deteriorated dental
health, apparently because he did not receive one or more unspecified dental hygiene item.
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
6
Among those claims that are time-barred is Plaintiff’s implicit claim that unspecified Defendants confiscated
his Aleve on April 11, 2013 and failed to return it.

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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. “Routine discomfort is ‘part
of the penalty that criminal offenders pay for their offenses against society.’” Hudson v. McMillian,
503 U.S. 1, 9 (1992) (quoting Rhodes, 452 U.S. at 347). As a consequence, “extreme deprivations
are required to make out a conditions-of-confinement claim.” Id.
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)). Allegations about temporary
inconveniences, e.g., being deprived of a lower bunk, subjected to a flooded cell, or deprived of a
working toilet, do not demonstrate that the conditions fell beneath the minimal civilized measure
of life’s necessities as measured by a contemporary standard of decency. Dellis v. Corr. Corp. of
Am., 257 F.3d 508, 511 (6th Cir. 2001); see also J.P. v. Taft, 439 F. Supp. 2d 793, 811 (S.D. Ohio
2006) (“[M]inor inconveniences resulting from the difficulties in administering a large detention
facility do not give rise to a constitutional claim.” (internal citation omitted)). But see Flanory v.
Bonn, 604 F.3d 249, 255-56 (6th Cir. 2010) (holding that allegations that an inmate was deprived
of toothpaste for 337 days and experienced dental health problems did not constitute a temporary
inconvenience and were sufficient to state an Eighth Amendment claim).
Although Plaintiff makes sweeping allegations about ongoing deprivations at multiple
facilities over a five-year period, he describes with specificity only one occasion on which he did

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not receive his commissary items: October 2015. Plaintiff’s failure to receive commissary items
for a one-month period amounts to a claim about a temporary inconvenience. An inability to
purchase hygiene products for one month does not create an objectively serious risk to a prisoner’s
health or safety. Moreover, Plaintiff fails to allege that any named Defendant either acted
intentionally to deprive him of the desired items or was subjectively aware of his serious need for
those items. Instead, his claim appears to rest on mere negligence. Allegations of negligence fall
short of the deliberate indifference required to state an Eighth Amendment claim. See Farmer, 511
U.S. at 835 (holding that an Eighth Amendment violation requires a “state of mind more
blameworthy than negligence”). As a consequence, Plaintiff’s allegation about the October 2015
failure to provide his commissary items fails to state and Eighth Amendment claim.
Given that Plaintiff’s only specific allegations against Defendants Keefe Commissary
Network Sales,7 Adams, Bessemer, Beggs, and LaClair involved the October 2015 incident,
Plaintiff’s Eighth Amendment claims against those Defendants will be dismissed.

7

Keefe Commissary Network Sales is a private company. In order for a private party’s conduct to be under
color of state law, it must be “fairly attributable to the State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982).
For purposes of this opinion, the Court has assumed without deciding that Defendant Keefe is a state actor subject to
suit under § 1983.

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F.

Retaliation

Plaintiff makes the conclusory allegation that Defendants’ actions in preventing him
from receiving his commissary items in a given month were taken in retaliation for his having filed
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)).
It is well recognized that “retaliation” is easy to allege and that it can seldom be
demonstrated by direct evidence. See Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6th Cir. 2005);
Murphy v. Lane, 833 F.2d 106, 108 (7th Cir. 1987); Vega v. DeRobertis, 598 F. Supp. 501, 506
(C.D. Ill. 1984), aff’d, 774 F.2d 1167 (7th Cir. 1985). “[A]lleging merely the ultimate fact of
retaliation is insufficient.” Murphy, 833 F.2d at 108. “[C]onclusory allegations of retaliatory motive
‘unsupported by material facts will not be sufficient to state . . . a claim under § 1983.’” HarbinBey, 420 F.3d at 580 (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1538-39 (6th Cir. 1987)); see also
Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”); Skinner v. Bolden, 89 F. App’x 579, 579-80 (6th Cir. 2004)

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(without more, conclusory allegations of temporal proximity are not sufficient to show a retaliatory
motive).
Here, Plaintiff merely alleges the ultimate fact of retaliation in this action. He has
not presented any facts to support his conclusion that any Defendants retaliated against him because
he filed a grievance. Plaintiff therefore fails to state a retaliation claim.
G.

Due Process

Plaintiff alleges that he was deprived of his right to receive commissary items as an
indigent prisoner without due process of law. Plaintiff has not specified whether he intends to raise
a procedural due process claim or a substantive due process claim. The Court will discuss each in
turn.
1.

Procedural due process

“The Fourteenth Amendment protects an individual from deprivation of life, liberty
or property, without due process of law.” Bazetta v. McGinnis, 430 F.3d 795, 801 (6th Cir. 2005).
To establish a Fourteenth Amendment procedural due process violation, a plaintiff must show that
one of these interests is at stake. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Analysis of a
procedural due process claim involves two steps: “[T]he first asks whether there exists a liberty or
property interest which has been interfered with by the State; the second examines whether the
procedures attendant upon that deprivation were constitutionally sufficient.” Ky. Dep’t of Corr. v.
Thompson, 490 U.S. 454, 460 (1989). The Supreme Court long has held that the Due Process Clause
does not protect every change in the conditions of confinement having an impact on a prisoner. See
Meachum v. Fano, 427 U.S. 215, 225 (1976). In Sandin v. Conner, 515 U.S. 472, 484 (1995), the
Court set forth the standard for determining when a state-created right creates a federally cognizable

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liberty interest protected by the Due Process Clause. According to the Sandin Court, a prisoner is
entitled to the protections of due process only when the sanction “will inevitably affect the duration
of his sentence” or when a deprivation imposes an “atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 486-87; see also Jones v.
Baker, 155 F.3d 810, 812 (6th Cir. 1998); Rimmer-Bey v. Brown, 62 F.3d 789, 790-91 (6th Cir.
1995). The Sandin Court concluded that mere placement in administrative segregation did not
implicate a liberty interest because the segregation at issue in that case did not impose an atypical
and significant hardship. Sandin, 515 U.S. at 484; Wilkinson v. Austin, 545 U.S. 209, 222-23 (2005).
Here, Plaintiff’s sole complaint is that he did not receive his commissary items during
a particular month. No basis exists for concluding that the deprivation of one month’s commissary
items is atypical or significant.
Moreover, assuming that Plaintiff intends to allege that he had a property interest in
receiving the items, and further assuming without deciding that such a property interest exists, any
due process claim based on the taking of that property would be 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

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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).
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.
For all of these reasons, Plaintiff’s procedural due process claims will be dismissed.
2.

Substantive due process

Plaintiff also asserts a violation of his substantive due process rights under the
Fourteenth Amendment, which prohibits states from “depriv[ing] any person of life, liberty, or
property, without due process of law[.]” U.S. Const. amend. XIV. “Substantive due process

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prevents the government from engaging in conduct that shocks the conscience or interferes with
rights implicit in the concept of ordered liberty.” Prater v. City of Burnside, 289 F.3d 417, 431 (6th
Cir. 2002). “Substantive due process serves the goal of preventing governmental power from being
used for purposes of oppression, regardless of the fairness of the procedures used.” Pittman v.
Cuyahoga Cty. Dep’t of Children & Family Servs., 640 F.3d 716, 728 (6th Cir. 2011) (quoting
Howard v. Grinage, 82 F.3d 1343, 1349 (6th Cir. 1996)).
“Where a particular [a]mendment provides an explicit textual source of constitutional
protection against a particular sort of government behavior, that [a]mendment, not the more
generalized notion of ‘substantive due process,’ must be the guide for analyzing such a claim.”
Albright v. Oliver, 510 U.S. 266, 266 (1994) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989))
(holding that the Fourth Amendment, not substantive due process, provides the standard for
analyzing claims involving unreasonable search or seizure of free citizens, and the Eighth
Amendment provides the standard for such searches of prisoners)). If such an amendment exists,
the substantive due process claim is properly dismissed. Heike v. Guevara, 519 F. App’x 911, 923
(6th Cir. 2013).
In this case, there are specific constitutional amendments that apply to Plaintiff’s
claims. For example, the Eighth Amendment provides an explicit source of constitutional protection
to Plaintiff concerning his medical claims. See Dodson v. Wilkinson, 304 F. App’x 434, 438 (6th
Cir. 2008) (because the Eighth Amendment supplies the explicit textual source of constitutional
protection for claims governing a prisoner’s health and safety, the plaintiff’s substantive due process
claim was subject to dismissal). Similarly, the First Amendment provides an explicit textual source
of constitutional protection for Plaintiff’s retaliation claims. Thus, the standard applicable to that

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source, the First Amendment right to be free from retaliation, and not the more generalized notion
of substantive due process should be applied. Graham, 490 U.S. at 395; see also Bell v. Johnson,
308 F.3d 594, 610 (6th Cir. 2002) (holding that, after Graham, the First Amendment standard is the
sole source of substantive protection); Brandenburg v. Housing Auth. of Irvine, 253 F.3d 891, 900
(6th Cir. 2001) (A “substantive due process right to free speech is duplicative of [a] First
Amendment retaliation claim.”). Consequently, Plaintiff’s substantive due process claim will be
dismissed.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff’s action will be dismissed on grounds of immunity and failure to state a
claim, pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c).
The Court must next decide whether an appeal of this action would be in good faith
within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611
(6th Cir. 1997). For the same reasons that the Court dismisses the action, the Court discerns no
good-faith basis for an appeal. Should Plaintiff appeal this decision, the Court will assess the
$505.00 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless
Plaintiff is barred from proceeding in forma pauperis, e.g., by the “three-strikes” rule of § 1915(g).
If he is barred, he will be required to pay the $505.00 appellate filing fee in one lump sum.
This is a dismissal as described by 28 U.S.C. § 1915(g).
A Judgment consistent with this Opinion will be entered.
Dated: November 4, 2016

/s/ Janet T. Neff
Janet T. Neff
United States District Judge
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