Washington #686360 v. Michigan Department of Corrections et al

Filing 7

OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

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

ROBERT TYWAN WASHINGTON,
Plaintiff,

Case No. 2:17-cv-6

v.

Honorable Gordon J. Quist

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, the Court will dismiss Plaintiff’s complaint for failure
to state a claim against Defendants Michigan Department of Corrections and Woods. The Court will
serve the complaint against Defendants Ernst, Martin, Derry, and Wonacott with regard to Plaintiff’s
retaliation claims, but will dismiss Plaintiff’s due process and state law claims.

Discussion
I.

Factual allegations

Plaintiff, Robert Tywan Washington, a state prisoner currently confined at the Carson
City Correctional Facility, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against
Defendants Michigan Department of Corrections (MDOC), Corrections Officer Unknown Ernst,
Sergeant Unknown Martin, Assistant Resident Unit Supervisor Art Derry, Corrections Officer
Unknown Wonacott, and Warden Jeffrey Woods.
Plaintiff alleges that on January 10, 2016, at approximately 12:30 am, Defendant
Ernst stopped at his cell and began kicking the door. Plaintiff and Defendant Ernst had a verbal
altercation, and Defendant Ernst threatened to take Plaintiff’s television. Plaintiff responded by
threatening to file a grievance. Defendant Ernst left the area and, a few minutes later, Plaintiff was
called to the base area. Plaintiff was met by seven corrections officers. Defendant Martin reviewed
Plaintiff on a misconduct ticket and told him that they were taking his television. Plaintiff was then
told to go into the unit quiet room to wait. Plaintiff was locked into the room and observed
Defendant Ernst and another officer take the television out of his cell and carry it to the Resident
Unit Manager’s office. After the quiet room was unlocked, Plaintiff asked Defendant Martin why
they had taken his television. Defendant Martin told Plaintiff that staff could do whatever they
wanted.
On January 11, 2016, Defendant Derry wrote a class I misconduct on Plaintiff for
possession of contraband and told Plaintiff that he was not getting the television back. The
television was given to Defendant Wonacott. Plaintiff filed grievances and kites regarding the
matter, making Defendant Woods aware of the situation, but no corrective action was taken.

-2-

Plaintiff claims that Defendants’ conduct violated his right to be free from retaliation
and his right to his property. Plaintiff also claims that Defendants violated his rights under state law.
Plaintiff seeks damages, as well as declaratory and injunctive relief.
II.

Failure to state a claim

A complaint may be dismissed for failure to state a claim if it fails “‘to give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp.
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)).

-3-

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).
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.

-4-

In addition, Plaintiff fails to make specific factual allegations against Defendant
Woods, other than his claim that he failed to conduct an investigation or assist Plaintiff with his the
loss of his property in response to his grievances. 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 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 Defendant Woods engaged in any active unconstitutional behavior.
Accordingly, he fails to state a claim against Defendant Woods.
Plaintiff’s due process claim regarding the deprivation of his property 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
-5-

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 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, Plaintiff claims that he received a misconduct for contraband. Plaintiff could
have requested a rehearing of the misconduct conviction. MICH. DEP’T OF CORR., Policy Directive
03.03.105 ¶ SSS (effective Apr. 9, 2012). In addition, 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; MICH. DEP’T OF CORR., 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 regarding the loss of his television will be dismissed.

-6-

Plaintiff claims that Defendants’ conduct was motivated by a desire to retaliate
against him. 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)).
In this case, Plaintiff claims that Defendant Ernst threatened to take his television and
Plaintiff responded by stating that he would file a grievance on Defendant Ernst. Plaintiff claims
that Defendants’ conduct in depriving him of his television was in retaliation for Plaintiff’s threat.
In Pasley v. Conerly, 345 Fed. App’x 981 (6th Cir. 2009), the Sixth Circuit Court of Appeals
addressed whether a threat to file a grievance constitutes protected conduct for purposes of a
retaliation claim. The Pasley Court stated:
This circuit appears not to have determined conclusively whether
merely threatening to file a grievance constitutes protected activity.
In an unpublished order issued shortly after the *985 court decided
Thaddeus-X v. Blatter, we held that a prisoner who merely threatened
to file a federal lawsuit was engaged in protected behavior. See Dean
v. Conley, No. 98-5906, 1999 WL 1045166, at *2 (6th Cir. Nov.9,
1999). We based this conclusion on the fact that prisoners have a
constitutional right to file civil rights claims. In two other
unpublished orders, we held that certain prisoners who had threatened
to file grievances were not engaged in protected conduct, but in each
case we based our conclusion on the fact that the threatened
grievance was frivolous and that prisoners do not have a protected
right to file frivolous grievances. See Scott v. Kilchermann, No. 99-7-

1711, 2000 WL 1434456, at *2 (6th Cir. Sept.18, 2000); Thaddeus-X
v. Love, No. 98-2211, 2000 WL 712354, at *3 (6th Cir. May 22,
2000). These two orders are consistent with the possibility that, had
the prisoners threatened to file legitimate grievances, the conduct
would have been protected. Because Pasley's threatened grievance
was arguably legitimate, his conduct was arguably protected by the
First Amendment.
Pasley v. Conerly, 345 F. App’x 981, 984–85 (6th Cir. 2009).
In this case, Plaintiff threatened to file a grievance over the unlawful taking of his
television. Because such a grievance was arguably legitimate, his conduct in making the threat was
arguably protected conduct. In addition, the taking of Plaintiff’s television appears to be the type
of conduct which would deter a person of ordinary firmness from exercising his or her First
Amendment rights, see, e.g., Thaddeus-X, 175 F.3d at 396, 398 (threat of physical harm); Smith v.
Yarrow, 78 F. App’x 529, 542 (6th Cir. 2003) (threat to change drug test results). Finally, the
taking of Plaintiff’s television immediately followed his threat to file a grievance supports Plaintiff’s
position regarding retaliation. See Muhammad v. Close, 379 F.3d 413, 417-18 (6th Cir. 2004)
(quoting DiCarlo v. Potter, 358 F.3d 408, 422 (6th Cir. 2004)) (temporal proximity “may be
‘significant enough to constitute indirect evidence of a causal connection so as to create an inference
of retaliatory motive.’”) Therefore, Plaintiff’s retaliation claims against Defendants Ernst, Martin,
Derry, and Wonacott will not be dismissed on initial review.
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 violations of 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,
-8-

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 statelaw claim will be dismissed without prejudice.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Defendants Michigan Department of Corrections and Woods 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 serve the complaint against Defendants Ernst, Martin, Derry, and Wonacott with
regard to Plaintiff’s retaliation claims, but will dismiss Plaintiff’s due process and state law claims.
An Order consistent with this Opinion will be entered.

Dated: May 16, 2017

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

-9-