Dye #302488 v. Kangas et al

Filing 5

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

TIMOTHY DYE,
Plaintiff,

Case No. 2:16-cv-265

v.

Honorable Janet T. Neff

MARCY KANGAS, 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 for failure to state
a claim.

Factual Allegations
Plaintiff Timothy Dye, a Michigan state prisoner currently confined at the Central
Michigan Correctional Facility, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983
against Defendants Account Tech Marcy Kangas, Business Manager Kathy Dumback, Warden
Duncan MacLaren, and Manager of MDOC Grievance Section Richard Russell. In his complaint,
Plaintiff alleges that on June 10, 2016, while he was confined at the Kinross Correctional Facility
(KCF), he attempted to order an item from an approved out-of-state vendor via a catalog. Plaintiff
filled out the order form and calculated the sales tax according to the sub total on the form. Plaintiff
then added the cost of delivery and submitted the order. Plaintiff received the unprocessed order
form back from the business office on June 14, 2016. Plaintiff was told that he must add sales tax
to the cost of delivery pursuant to state law in order to complete the order.
On June 15, 2016, Plaintiff filled out another order form and added sales tax on the
cost of delivery to the total price. Plaintiff also filed a grievance on the business office regarding
the incorrect charge. On June 24, 2016, the funds were removed from Plaintiff’s prison account by
the business office at KCF. Plaintiff’s Step I grievance was denied by Defendant Kangas, who
attached a copy of some paperwork from the Michigan Department of the Treasury, which explains
that a use tax of 6% must be paid on the total price of an item. The paperwork also states that
transportation charges are included in the computation of the use tax. See ECF No. 1-1, PageID.1315. Plaintiff filed an appeal and the Step II grievance response was completed by Defendant
MacLaren on July 18, 2016:
In the Step II appeal, Grievant states that the response is not an
answer. Grievant states that Rule 205.124 both mention “prior to
completion of transfer of ownership” and “for use or consumption .
. . both deal with use tax. Sales tax is measured by gross proceeds of
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sales at retail and delivery charges are not charge [sic] sales tax after
sale of product at retail. This Step II respondent finds the Step I
response appropriate and supported by documents of the Michigan
Department of Treasury. Within the website under the hearing [sic]:
“Are delivery, shipping or handling charges taxable?” - it states,
“Delivery or shipping charges incurred prior to transfer of ownership
of tangible personal property are subject to tax.” Handling charges
are a part of gross proceeds and, therefore, subject to tax. When a
customer is billed for delivery or shipping and handling as a
combined total, the total amount is taxable. No violation of policy or
procedure is established.
See ECF No. 1-1, PageID.18.
Plaintiff’s Step III grievance appeal was sent out on July 26, 2016. However,
Defendant Russell never responded to this grievance appeal. Plaintiff states that the KCF business
office has charged every prisoner sales tax on the delivery cost for every item ordered from state
approved catalogs. Plaintiff states that Defendants’ conduct violated his rights. Plaintiff seeks
compensatory damages of $0.42, which is the amount he was illegally charged as tax on the cost of
delivery. Plaintiff also seeks punitive damages and costs.
Discussion
I.

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

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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); 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).

As noted above, Plaintiff states that he was improperly charged 6% tax on the

cost of delivery for an item he ordered while confined at KCF. Plaintiff claims that as a result, he
was charged $0.42 in excess of the proper cost of his order. 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

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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, 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).
Plaintiff has not and cannot meet his burden. Plaintiff has not alleged that state postdeprivation remedies are inadequate. The Sixth Circuit has found that Michigan law provides
“several adequate post-deprivation remedies” to a prisoner asserting improper removal of money
from his prison account. Copeland, 57 F.3d at 480. In a number of cases similar to this one, the
Sixth Circuit has affirmed dismissal where the inmate failed to allege and show that state law postdeprivation remedies were inadequate. Id. at 479-80 (money wrongly removed from prison
account); Lillie v. McGraw, No. 97-3359, 1997 WL 778050, at *1 (6th Cir. Dec. 12, 1997) (officials
allegedly broke television); Mowatt v. Miller, No. 92-1204, 1993 WL 27460, at *1 (6th Cir. Feb. 5,
1993) (misapplication of money to a deficit in prison account); Shabazz v. Lecureux, No. 85-2014,
1986 WL 16140, at *1 (6th Cir. Dec. 5, 1986) (illegal appropriation of money from prisoner
account). Accordingly, the Court will dismiss Plaintiff’s action.

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Moreover, to the extent that Plaintiff is asserting a violation of state law, claims
under§ 1983 can only be brought for “deprivation of rights secured by the Constitution and laws of
the United States.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982). 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). Plaintiff’s assertion that Defendants violated
state law therefore fails to state a claim under § 1983. Moreover, to the extent that Plaintiff seeks
to invoke this Court’s supplemental jurisdiction over a state-law claim, the Court declines to
exercise jurisdiction. In determining whether to retain supplemental jurisdiction, “[a] district court
should consider the interests of judicial economy and the avoidance of multiplicity of litigation and
balance those interests against needlessly deciding state law issues.” Landefeld v. Marion Gen.
Hosp., Inc., 994 F.2d 1178, 1182 (6th Cir. 1993). Ordinarily, where a district court has exercised
jurisdiction over a state-law claim solely by virtue of supplemental jurisdiction and the federal
claims are dismissed prior to trial, the court will dismiss the remaining state-law claims. Id.
Dismissal; however, remains “purely discretionary.” Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S.
635, 639 (2009) (citing 28 U.S.C. § 1367(c)); Orton v. Johnny’s Lunch Franchise, LLC, 668 F.3d
843, 850 (6th Cir. 2012). Here, the balance of the relevant considerations weighs against the
continued exercise of supplemental jurisdiction. Accordingly, Plaintiff’s state-law claim will be
dismissed without prejudice.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff’s action 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).

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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: January 12, 2017

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