United States District Court, W.D. Michigan, Southern Division
L. Maloney United States District Judge.
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. § 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.
is presently incarcerated with the Michigan Department of
Corrections (MDOC) at the Carson City Correctional Facility
(DRF) in Montcalm County, Michigan. Plaintiff sues Inspector
Lloyd Blackman, who works at Richard A. Handlon Correctional
alleges that he was incarcerated at MTU for continuance in a
“Residential Treatment Program (RTP) in a level (2) two
correctional facility.” (Compl., ECF No. 1, PageID.3.)
Plaintiff filed a grievance against Blackman for failing to
“adhere [to] his duty” when Plaintiff's
property was stolen from the MTU mailroom. (Id.) On
January 4, 2018, while Plaintiff was waiting to be
interviewed about his grievance, Blackman stepped out of his
office and stated to Plaintiff, “Oh, you filed a
grievance against me, your ass is out of here!”
(Id.) Plaintiff responded, “I am going to
write another one on you, because I have a CFA hold; [I am]
on Calvin's Spring Semester; and I have a follow-up with
the psychiatrist[.]” (Id.) Blackman allegedly
told Plaintiff “that grievance will never be heard,
submitted, nor read[.] I can guarantee you won't be able
to sue me piece of shit!” (Id.)
January 11, 2018, Plaintiff was transferred to DRF. As a
result, his “Violence Prevention Program, ”
“Calvin's College semester, ” and appointment
with his psychiatrist were cancelled.
claims that Defendant retaliated against him. As relief,
Plaintiff seeks monetary and punitive damages.
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); 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).
asserts that Defendant retaliated against him for filing a
grievance. 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
allegations fail to satisfy the second element of a
retaliation claim. He does not allege an adverse action.
Plaintiff alleges that he was transferred from one level II
facility to another level II facility; this is not
sufficient to state a retaliation claim.
Court of Appeals for the Sixth Circuit has repeatedly held
that a prison transfer does not rise to the level of an
adverse action because it would not deter a person of
ordinary firmness from the exercise of his First Amendment
rights. See Siggers-El v. Barlow, 412 F.3d 693, 701
(6th Cir. 2005); see also Smith v. Yarrow, 78
Fed.Appx. 529, 543 (6th Cir. 2003) (collecting cases).
“Since prisoners are expected to endure more than the
average citizen, and since transfers are common among
prisons, ordinarily a transfer would not deter a prisoner of
ordinary firmness from continuing to engage in protected
conduct.” Id. A prison transfer can rise to
the level of an adverse action when there are
“forseeable, negative consequences” that
“inextricably follow” from the transfer, such as
“the prisoner's loss of his high-paying job and
reduced ability to meet with his lawyer.” Jones v.
Caruso, 421 Fed.Appx. 550, 553 (6th Cir. 2011).
Similarly, transfer to a more restrictive form of confinement
has been recognized as an adverse ...