United States District Court, W.D. Michigan, Northern Division
T. NEFF UNITED STATES DISTRICT JUDGE.
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.
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.
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.13-15. 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 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.
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.
Failure to state a claim
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)).
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 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 due-process action. See
Brooks v. Dutton, 751 F.2d 197 (6th Cir. 1985).
has not and cannot meet his burden. Plaintiff has not alleged
that state post-deprivation 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 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, the Court will dismiss Plaintiff's
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. ...