Robinson #602273 v. Killips et al

Filing 5

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

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
______
ALBERT REGINALD ROBINSON,
Plaintiff,
v.

Case No. 2:17-cv-00098
Honorable Gordon J. Quist

UNKNOWN KILLIPS et al.,
Defendants.

____________________________/
OPINION
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983.
Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), 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.
Discussion
I.

Factual allegations

Plaintiff is presently incarcerated with the Michigan Department of Corrections
(MDOC) at Chippewa Correctional Facility (URF) in Kincheloe, Chippewa County, Michigan.

The events about which he complains occurred at that facility. Plaintiff sues Corrections Officer
Unknown Killips and Sergeant P. Thompson.
Plaintiff alleges that he has worked for the URF small yard crew since October of
2014.

Plaintiff’s current supervisor is Defendant Killips, and his supervisor is Defendant

Thompson. Plaintiff states that in the past, he filed two grievances about his pay, which were
resolved. Plaintiff claims that he worked 29 days between May 19, 2016, and June 18, 2016,
which included 26 days for Defendant Killips and 3 days for Marty Terrion, the Horticulture
Supervisor. However, Defendant Killips insisted that Plaintiff had only worked 24 days for him.
Plaintiff attempted to get Defendant Killips to pay him what he was owed, to no avail. Defendant
Killips told Plaintiff that if he filed a grievance, he would give him a ticket for being out of place
when Plaintiff tried to check in for overtime. Prior to this, Plaintiff had been working overtime on
a regular basis.
On July 4, 2016, Defendant Thompson interviewed Plaintiff on his grievance
regarding payment for his job. Defendant Thompson refused to listen to Plaintiff’s claims and told
Plaintiff that if he wanted to file grievances, he would make sure to take more money from
Plaintiff’s pay. Defendant Thompson also told Plaintiff that he would not be given any overtime.
On July 5, 2016, Plaintiff asked Defendant Killips to pay him what he was owed, but Defendant
Killips refused. Plaintiff claims that the July 6, 2016, payroll was not correct. On July 10, 2016,
Defendant Killips told Plaintiff, “You can’t work overtime, take it in.” On July 17, 2016,
Defendant Killips again told Plaintiff that he could not work overtime and that he should “go write
a grievance about that.” On July 25, 2016, Defendant Thompson repeated to Plaintiff that he could

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not work overtime. Plaintiff states that he has not worked since June 30, 2016, and that yard
workers are paid five days per week, whether they work or not.
Plaintiff states that Defendant Killips is supposed to use a check-in sheet to keep
track of workers as they arrive and leave work, but that he does not use the sheet, so there is no
way to prove that Plaintiff is telling the truth. Plaintiff claims that Defendant Killips provided
false information regarding the hours that Plaintiff worked in response to his grievance. Plaintiff
also claims that Defendant Killips paid a white inmate overtime wages for working regular hours.
Plaintiff claims that Defendants violated his rights under the First and Fourteenth
Amendments. Plaintiff seeks compensatory and punitive damages, as well as declaratory 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
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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).
Initially the Court notes that the refusal to allow Plaintiff to work overtime does not
constitute a violation of his constitutional right of due process under the Fourteenth Amendment.
Procedural due process claims require resolution of two questions:
[T]he first asks whether there exists a liberty or property interest
which has been interfered with by the State, Board of Regents of
State Colleges v. Roth, 408 U.S. 564, 571 (1972); the second
examines whether the procedures attendant upon that deprivation
were constitutionally sufficient. Hewitt v. Helms, 459 U.S. at 472.
Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 460 (1989).
Generally speaking, a protected interest exists if the individual has a legitimate
claim of entitlement to it. Id. The interest at issue here is whether Plaintiff, a prisoner, had an
entitlement to continued prison employment in the absence of just cause for discharge. Plaintiff
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has no inherent constitutional right to rehabilitation, education, job assignments, or other
programming. See Rhodes v. Chapman, 452 U.S. 337, 348 (1981); Moody v. Daggett, 429 U.S.
78, 88 n.9 (1976); Newsom v. Norris, 888 F.2d 371, 374-75 (6th Cir. 1989); Canterino v. Wilson,
869 F.2d 948, 952-54 (6th Cir. 1989); Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir. 1987); Bills v.
Henderson, 631 F.2d 1287 (6th Cir. 1980).
Nor does state law create such an entitlement. Michigan’s statutes and regulations
give prison authorities complete discretion regarding programming assignments of prisoners.
Michigan does not have statutes or administrative rules restricting the discretion of its prison
administrators concerning such decisions.

Under Michigan Department of Corrections

regulations, prison authorities retain broad discretion regarding the assignment of prisoners to
rehabilitative programs and work assignments. See Mich. Dep’t of Corr., Policy Directives
05.01.100 and 05.02.112.
Accordingly, since Plaintiff did not have a liberty interest in his job assignment, the
Due Process Clause was not implicated by the denial of overtime work, with or without cause.
Moreover, Plaintiff’s due process claim regarding the alleged discrepancy in his
pay 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

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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 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
post-deprivation remedies are inadequate. Plaintiff filed a grievance in this case, and he attaches
copies of his step I and II grievances and responses to the complaint. See ECF No. 1-2, PageID.17PageID.22. According to the step I response by Defendant Thompson:
Prisoner Robinson did work the month of May 15 days. He was not
working as Yard Crew as of 5/25/16 so he does [sic] not owed any
pay as a yard crew worker. This was explained to prisoner Robinson
that he would be paid from his horticulture assignment. He was not
satisfied and wanted the grievance sent to Step II. Not resolved.
Id. at PageID.17. The response was reviewed by Lieutenant T. Derusha. Id.
The step II response by Warden Jeffrey Woods states:
This Step II Respondent interviewed the Classification Director who
reviewed the grievant’s payroll for May 19-June 18. Records show
the prisoner worked 19 days in yard crew and 5 days in Horticulture
(2 more than the grievant states). There was no overtime scheduled
for yard crew workers during that pay period due to the dryness and
lack of grass needing to be cut. The grievant was paid $28.50 which
is for 25 days total and should have only been paid for 24. No
violation of policy exists.
Id. at PageID.22.
The Sixth Circuit has found that Michigan law provides “several adequate postdeprivation 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
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dismissal where the inmate failed to allege and show that state law post-deprivation 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,
Plaintiff’s due process claim is properly dismissed.
Plaintiff claims that the denial of his ability to work overtime was motivated by a
desire to retaliate against him for filing 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)).
With regard to whether or not Defendants took a sufficiently adverse action against
Plaintiff, the Court notes that in Davis v. Walton, No. 1:12-CV-258, 2014 WL 320206 (W.D. Mich.
Jan. 29, 2014), the district court explained that the prisoner plaintiff’s failure to receive the prison
job of his choice was a routine inconvenience of prison life that would not deter a person of
ordinary person from engaging in protected conduct:

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Prison employment is not employment in the ordinary sense, but
represents a part of the rehabilitation program of the prison. The
incidents described in this record are routine aspects of prison life.
It trivializes the concept of First Amendment retaliation—which
was fashioned by the Supreme Court and the Sixth Circuit to assure
vindication of prisoner's free-speech rights—to allow dissatisfaction
over a prison work detail to qualify as an adverse action sufficient
to support a constitutional tort.
Id.; see also Colvin v. Foy, No. 1:13-CV-465, 2014 WL 1154658, at *3 (W.D. Mich. Mar. 21,
2014) (denial of a prison job did not constitute adverse action because the denial did not deter the
prisoner from engaging in the protected activity of filing grievances); Cohron v. City of Louisville,
No. 3:06-CV-P570-C, 2010 WL 1049975, at *3 (W.D. Ky. Mar. 19, 2010) (inmate’s removal from
the work list did not constitute an adverse action for purposes of a retaliation claim); Neal v.
Nomack, No. 2:09-CV-12859, 2010 WL 3277863, at *4 (E.D. Mich. July 9, 2010) (“[E]ven if
plaintiff’s loss of his prison job because of the transfer impaired his ability to pursue his medical
malpractice claim, such an adverse consequence does not implicate his constitutional right of
access to the courts.”); Umani v. Caruso, No. 2:07-CV-10649, 2008 WL 2216283, at *14 (E.D.
Mich. May 27, 2008) (granting defendant’s motion for summary judgment regarding prisoner’s
retaliation claim based on the loss of his prison job because “loss of a job would not deter a person
of ordinary firmness from continuing to file grievances.”).
For the reasons stated above, Plaintiff’s retaliation claim lacks merit because the
refusal to allow Plaintiff to work overtime does not constitute an adverse action that would deter
a person of ordinary firmness from engaging in protected conduct. Therefore, Plaintiff’s retaliation
claim is properly dismissed.
Finally, Plaintiff claims that Defendant Killips paid a white inmate overtime wages
for working regular hours during the same time period that Plaintiff was being denied overtime
work. Plaintiff, who is black, claims that this shows that Defendant Killips’ refusal to allow him
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to work overtime was motivated by a desire to discriminate against him on the basis of his race.
The Equal Protection Clause of the Fourteenth Amendment provides that a state may not “deny to
any person within its jurisdiction the equal protection of the laws,” which is essentially a direction
that all persons similarly situated should be treated alike. U.S. Const., amend. XIV; City of
Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). When a law adversely impacts
a “suspect class” such as one defined by race, alienage, or national origin, or invades a
“fundamental right” such as speech or religious freedom, the rigorous “strict scrutiny” standard
ordinarily governs, whereby such laws “will be sustained only if they are suitably tailored to serve
a compelling state interest.” City of Cleburne, 473 U.S. at 440.
To establish a violation of the Equal Protection Clause, an inmate must show that
the defendants purposefully discriminated against him. Vill. of Arlington Heights v. Metro. Hous.
Dev. Corp., 429 U.S. 252, 265 (1977). Such discriminatory purpose must be a motivating factor
in the actions of the defendants. Id. at 265-66. “A plaintiff presenting a race-based equal
protection claim can either present direct evidence of discrimination, or can establish a prima facie
case of discrimination under the burden-shifting scheme set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).” Umani v. Mich. Dep’t of Corr., 432 F. App’x 453, 458 (6th Cir.
2011).
Plaintiff alleges no facts constituting direct evidence of discriminatory motive or
purpose in refusing to allow Plaintiff to work overtime. See id. at 458. Moreover, Plaintiff fails
to allege a prima facie claim under the indirect, burden-shifting framework of McDonnell Douglas
v. Green, 411 U.S. 792 (1973). To establish a prima facie case of discrimination under the
McDonnell Douglas test, a plaintiff must show that (1) he was a member of a protected class; (2)
he was qualified for the job; (3) he was subjected to an adverse employment decision; and (4) he

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was replaced by a person outside the protected class or treated differently than similarly situated
non-protected employees. See Arendale v. City of Memphis, 519 F.3d 587, 603 (6th Cir. 2008)
(internal quotations omitted). To be a similarly situated member of another class, “the comparative
[prisoner] ‘must have dealt with the same [decisionmaker], have been subject to the same
standards, and have engaged in the same conduct without such differentiating or mitigating
circumstances that would distinguish their conduct or their employer’s treatment of them for it.’”
Umani, 432 F. App’x at 460 (quoting Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344,
352 (6th Cir. 1998)); see also Mitchell v. Toledo Hosp., 964 F.2d 577, 586 (6th Cir. 1992).
Plaintiff’s only allegation in support of his equal protection claim is that Defendant Killips paid a
white inmate overtime for work that was not subject to overtime pay. Plaintiff’s claim that he was
denied the opportunity to work overtime does not appear to be comparable to this allegation in any
way. Because Plaintiff has failed to allege facts showing that he and the white prisoner were
similarly situated, his equal protection claim is properly dismissed.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the
Court determines that Plaintiff’s complaint will be dismissed for failure to state a claim, under 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

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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 28, 2017

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

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