Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kirk v. Burt

United States District Court, W.D. Michigan, Southern Division

December 14, 2016

PERRY KIRK, Plaintiff,
SHERRY BURT et al., Defendants.


          Paul L. Maloney United States District Judge

         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 Perry Kirk presently is incarcerated at the Muskegon Correctional Facility (MCF). He sues the following MCF officials: Warden Sherry Burt; Classification Director Roger Kitchen; Grievance Coordinator Loretta Barnes; Food Services Director Charles Balling; and Assistant Food Services Director Ron Eckert.

         On January 25, 2016, Plaintiff received a non-job-related, Class-II misconduct for destruction of state property in the amount of $1.05. On February 3, 2016, he was found guilty and orally informed that he would be sanctioned with five days' toplock and 20 days' loss of privileges. He also was ordered to pay restitution in the amount of $1.05. Plaintiff subsequently learned that the sanctions were to start on February 6 and end of February 11, 2016. Plaintiff was scheduled to have time off on February 6 and 7, and he was supposed to report back on February 8, 2016. He alleges that he received the paperwork for the sanctions on February 10, so he did not work that day. On February 11, however, he reported to work.

         When Plaintiff arrived in food service on February 11, 2016, he was advised by food service staff that, because he had been on toplock for five days, he would be terminated from the job. Plaintiff complains, however, that he did not miss five days of work, because he was scheduled to be off work for the first two days. Although he left work in response to the order, he assumed that Defendant Classification Director Roger Kitchen would see the error in the termination. Kitchen allegedly failed to perform his duties, however, so Plaintiff's discharge was upheld. Plaintiff, however, did not receive paperwork until March 10, 2016. On that same date, Plaintiff received a Work Assignment Evaluation Report, in which Defendants Balling and Eckert recommended his dismissal from his position because he had missed five consecutive days of work.

         Plaintiff complains that his delayed receipt of the work report demonstrates that the report was backdated, in order to belatedly justify the termination. He asserts that the action amounts to the creation of a false report and violates prison policy and due process. Plaintiff also contends that the negative work report and request for discharge was retaliatory, because in 2014, Plaintiff complained about Defendant Eckert to then-Food Service Director Eddy. Finally, Plaintiff contends that another prisoner, Prisoner Everest, was treated differently in similar circumstances. Everest also received five days' toplock for a non-work misconduct. Everest worked three of his toplock days, whereas Plaintiff worked only two of his toplock days. Everest was not discharged from his job. Plaintiff contends that Everest was treated differently because there existed no false or backdated work documents.

         For relief, Plaintiff seeks compensatory and punitive damages, together with an injunction permanently enjoining Defendants from violating Plaintiff's due process rights and ordering that Plaintiff be returned to his job assignment.


         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 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).

         A. Supervisory Liability

         Plaintiff's sole allegation against Defendants Burt and Barnes are that they failed to ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.