Walthall #258598 v. Napel et al
OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
Case No. 2:17-cv-57
Honorable Gordon J. Quist
R. NAPEL et al.,
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.
Plaintiff is presently incarcerated with the Michigan Department of Corrections
(MDOC) at Richard A. Handlon Correctional Facility (MTU) in Ionia, Ionia County, Michigan.
The events about which he complains, however, occurred while Plaintiff was incarcerated at the
Marquette Branch Prison (MBP) and the Kinross Correctional Facility (KCF). Plaintiff sues MBP
Warden R. Napel, Deputy Warden E. Huss, Resident Unit Manager C. Tallio, Assistant Resident
Unit Supervisor K. Giesen, Assistant Resident Unit Supervisor C. Lacount, Assistant Resident
Unit Supervisor F. Govern, Unknown Party named as A-Dorm Assistant Resident Unit Supervisor,
and Deputy Warden James Alexander.
Plaintiff alleges that on March 3, 2017, MBP suffered extensive power outages. In
an effort to restore power, the Marquette Board of Light and Power Company sent a 600 AMP
surge into MBP. The electrical outlets at MBP do not have surge protection. As a result of the
surge, Plaintiff’s typewriter was damaged. Plaintiff claims that he does not have sufficient funds
to have his typewriter repaired. Plaintiff filed a grievance regarding the damage to his typewriter,
which was denied by Defendant Alexander. Plaintiff complains that Defendant Alexander should
not have responded to his grievance because he was named in the grievance.
Plaintiff alleges that on May 8, 2017, he was transferred from MBP to KCF.
Plaintiff’s typewriter was sent via catch-up property on May 10, 2017. Upon arrival at KCF,
Plaintiff’s typewriter was confiscated by the property room supervisor. Plaintiff claims that
Defendants “acting through other agents (i.e. Marquette Branch Prisoner Property Room Officers),
egregiously claimed that the typewriter was operational, while knowing that it was not.”
Consequently, when the typewriter arrived at KCF already damaged, it was confiscated. Plaintiff
contends that his typewriter was necessary for him to access the courts and that the Defendants’
conduct violated his rights under the First Amendment.
Plaintiff seeks equitable relief and damages.
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.
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
In Plaintiff’s complaint, he asserts that Defendants were negligent because they had
knowledge of a potentially hazardous condition in the cells as a result of having no outlet surge
protection. And that this negligence caused Plaintiff to suffer a loss. Plaintiff alleges nothing
more than a negligent or inadvertent deprivation of his rights. He does not allege intentional
misconduct or even gross negligence. Negligence is not enough to state a claim under the
procedural element of the Due Process Clause. Daniels v. Williams, 474 U.S. 327, 330-31 (1986).
Accordingly, plaintiff has not stated a viable procedural due process claim.
Plaintiff also asserts that Defendants violated his due process rights by falsely
stating that his typewriter was not damaged prior to it being sent to KCF. Plaintiff asserts that this
falsehood made it impossible for him to get reimbursement for the damage that had actually been
caused by the power surge. 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 Arandom 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 Awithout 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 due-process
claim. 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 Aagainst 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. The fact
that Plaintiff was unable to obtain relief via a state-court action in this case does not render the
remedies inadequate. Accordingly, Plaintiff=s due process claim will be dismissed.
Finally, Plaintiff claims that the loss of his typewriter violates his First Amendment
right of access to the courts. In Bounds v. Smith, 430 U.S. 817 (1977), the Supreme Court
recognized a prisoner=s fundamental right to access courts. While the right to access does not allow
a State to prevent an inmate from bringing a grievance to court, it does not require the State to
enable a prisoner to discover grievances or litigate effectively. Lewis v. Casey, 518 U.S. 343
(1996). Thus, Bounds did not create an abstract, free-standing right to a law library, litigation
tools, or legal assistance. Id. at 351 (1996). Further, the right may be limited by legitimate
penological goals, such as maintaining security and preventing fire or sanitation hazards. See
Acord v. Brown, No. 91-1865, 1992 WL 58975 (6th Cir. March 26, 1992); Hadix v. Johnson, No.
86-1701, 1988 WL 24204 (6th Cir. March 17, 1988); Wagner v. Rees, No. 85-5637, 1985 WL
14025 (6th Cir. Nov. 8, 1985).
To state a claim, an inmate must show that any shortcoming in the library, litigation
tools, or legal assistance caused actual injury in his pursuit of a legal claim. Lewis, 518 U.S. at
351; Talley-Bey, 168 F.3d at 886; Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996); Pilgrim v.
Littlefield, 92 F.3d 413, 416 (6th Cir. 1996); Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir. 1985).
An inmate must make a specific claim that he was adversely affected or that the litigation was
prejudiced. Vandiver v. Niemi, No. 94-1642, 1994 WL 677685, at *1 (6th Cir. Dec. 2, 1994). A
prisoner must demonstrate actual injury to pending or contemplated litigation.
Corrections Corp. of America, 257 F.3d 508, 511 (6th Cir. 2001) (citing Lewis v. Casey, 518 U.S.
343, 351 (1996)). Particularly, an inmate cannot show injury when he still has access to his legal
materials by request, Kensu, 87 F.3d at 175, when he fails to state how he is unable to replicate the
confiscated documents, Vandiver, 1994 WL 677685, at *1, or when he could have received the
material by complying with the limits on property, e.g., where he had the opportunity to select the
items that he wanted to keep in his cell, or when he had an opportunity to purchase a new footlocker
that could hold the property. Carlton v. Fassbender, No. 93-1116, 1993 WL 241459, at *2 (6th
Cir. July 1, 1993). Because Plaintiff fails to allege facts showing that he suffered an actual injury,
his First Amendment claim is properly dismissed.
Motions for preliminary injunction and a temporary restraining order
Plaintiff has filed motions for preliminary injunction and a temporary restraining
order. See ECF Nos. 8 and 9. However, because Plaintiff’s complaint fails to state a claim, his
motions for injunctive relief are properly denied as moot.
Having conducted the review required by the Prison Litigation Reform Act, the
Court determines that Defendants R. Napel, E. Huss, C. Tallio, K. Giesen, C. Lacount, E. Govern,
Unknown Party named as A-Dorm arus, and James Alexander 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).
An Order and Judgment consistent with this Opinion will be entered.
Dated: October 18, 2017
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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