United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER SUMMARILY DISMISSING CIVIL RIGHTS
F. COX UNITED STATES DISTRICT JUDGE
County Jail inmate Jordan Joseph Bullis
(“Plaintiff”) has filed a pro se civil
rights complaint pursuant to 42 U.S.C. § 1983. The Court
has granted Plaintiff leave to proceed without prepayment of
the filing fee for this action. See 28 U.S.C. §
1915(a)(1). In his complaint, Plaintiff alleges that K.
Kullman, a Macomb County Jail mailroom employee, opened
unidentified pieces of mail and wrote on his letters and
damaged an envelope of federal court mail. Plaintiff also
alleges that the midnight shift at the Macomb County Jail is
not allowing him to shower every night such that he is at
risk of disease. Plaintiff names K. Kullman and the Macomb
County Jail as the defendants in this action. He sues K.
Kullman in his personal and official capacity and sues the
Macomb County Jail in its official capacity. Plaintiff
alleges a violations of certain federal criminal postal
statutes with respect to his mail and a violation of his
Eighth Amendment rights with respect to his shower
privileges. Plaintiff seeks “liabilities” and a
“lien” as relief. Having reviewed the matter, the
Court concludes that the civil rights complaint must be
dismissed. The Court also concludes that an appeal from this
decision cannot be taken in good faith.
has been granted leave to proceed without prepaying the
filing fee for this action. Under the Prison Litigation
Reform Act (“PLRA”), a court is required to
sua sponte dismiss an in forma pauperis
complaint before service if it determines that the action is
frivolous or malicious, fails to state a claim upon which
relief can be granted, or seeks monetary relief against a
defendant who is immune from such relief. See 42
U.S.C. § 1997e(c); 28 U.S.C. § 1915(e)(2)(B). A
court is similarly required to dismiss a complaint seeking
redress against government entities, officers, and employees
which it finds to be frivolous or malicious, fails to state a
claim upon which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief.
See 28 U.S.C. § 1915A(b). A complaint is
frivolous if it lacks an arguable basis in law or in fact.
Denton v. Hernandez, 504 U.S. 25, 31 (1992);
Neitzke v. Williams, 490 U.S. 319, 325 (1989).
pro se civil rights complaint is to be construed
liberally. Haines v. Kerner, 404 U.S. 519, 520-21
(1972). Nonetheless, Federal Rule of Civil Procedure 8(a)
requires that a complaint set forth “a short and plain
statement of the claim showing that the pleader is entitled
to relief, ” as well as “a demand for the relief
sought.” Fed.R.Civ.P. 8(a)(2), (3). The purpose of this
rule is to “give the defendant fair notice of what the
... claim is and the grounds upon which it rests.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957) and Fed.R.Civ.P. 8(a)(2)). While notice pleading does
require not require detailed factual allegations, it does
require more than the bare assertion of legal conclusions.
Twombly, 550 U.S. at 555. Rule 8 “demands more
than an unadorned, the defendant-unlawfully-harmed me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). “A pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.'”
Id. (quoting Twombly, 550 U.S. at 555).
“Nor does a complaint suffice if it tenders
‘naked assertion[s]' devoid of ‘further
factual enhancement.'” Id. (quoting
Twombly, 550 U.S. at 557). “Factual
allegations must be enough to raise a right to relief above
the speculative level on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact).” Twombly, 550 U.S. at 555-56 (citations
and footnote omitted).
state a federal civil rights claim, a plaintiff must show
that: (1) the defendant is a person who acted under the color
of state or federal law, and (2) the defendant's conduct
deprived the plaintiff of a federal right, privilege, or
immunity. Flagg Bros. v. Brooks, 436 U.S. 149,
155-57 (1978); Harris v. Circleville, 583 F.3d 356,
364 (6th Cir. 2009). Additionally, a plaintiff must allege
that the deprivation of his or her rights was intentional.
Davidson v. Cannon, 474 U.S. 344, 348 (1986);
Daniels v. Williams, 474 U.S. 327, 333-36 (1986).
Plaintiff's claims against the Macomb County Jail must be
dismissed. Section 1983 imposes liability on any
“person” who violates an individual's federal
constitutional or statutory rights. It is well-settled that
county jails, sheriff departments, and other governmental
agencies are not legal entities subject to suit under 42
U.S.C. § 1983. See Edward v. Jail, No.
2:16-CV-11596, 2016 WL 2937146, *2 (E.D. Mich. May 20, 2016)
(citing cases and ruling that county jails, sheriff
departments, and other governmental agencies are not legal
entities amenable to suit under § 1983); Coopshaw v.
Lenawee Co. Sheriff's Office of Lenawee Co., No.
05-CV-72569, 2006 WL 3298898, *6-7 (E.D. Mich. Nov. 14, 2006)
(citing cases); see also Boykin v. Van Buren Twp.,
479 F.3d 444, 450 (6th Cir. 2007) (police department is an
improper defendant in a § 1983 case); Rhodes v.
McDannel, 945 F.2d 117, 120 (6th Cir. 1991)
(sheriff's department cannot be sued under § 1983).
Plaintiff's claims against the Macomb County Jail must
therefore be dismissed.
even if Plaintiff named a proper defendant (e.g., a
jail employee) as to his shower privileges claim, he fails to
state a constitutional violation as to that issue. It is
well-settled that the unnecessary and wanton infliction of
pain upon a prisoner constitutes cruel and unusual punishment
under the Eighth Amendment. See, e.g., Rhodes v.
Chapman, 452 U.S. 337, 346 (1981). As to conditions of
confinement, the Eighth Amendment is concerned with
“deprivations of essential food, medical care, or
sanitation, ” or “other conditions intolerable
for prison confinement.” Id. at 348. A
prisoner raising an Eighth Amendment claim for inhumane
conditions of confinement must meet objective and subjective
requirements in order to establish a constitutional
violation. See Farmer v. Brennan, 511 U.S. 825, 833
(1994). First, the failure to protect from risk of harm must
be objectively “sufficiently serious.”
Id. To meet this requirement, the prisoner must show
that he is incarcerated under conditions posing a
“substantial risk of serious harm.” Id.
Second, the prisoner must allege “more than ordinary
lack of due care” for his safety. Id. at 835.
The prisoner must show that the prison official acted with
“deliberate indifference” to a substantial risk
of harm. The prisoner must show that “the official
knows of and disregards an excessive risk to inmate health or
safety; the official must both be aware of the facts from
which the inference could be drawn that a substantial risk of
harm exists, and he must also draw the inference.”
Id. at 837.
being allowed to shower every night does not create a
substantial risk of harm to an inmate - and Plaintiff
presents no facts to show that he is likely to suffer such
harm or that he has suffered any such harm. Conclusory
allegations are insufficient to state a civil rights claim
under § 1983. Iqbal, 556 U.S. at 678;
Twombly, 550 U.S. at 555-57; Crawford-El v.
Britton, 523 U.S. 574, 588 (1998); Moldowan v. City
of Warren, 578 F.3d 351, 390-91 (6th Cir. 2009). To be
sure, federal courts have held that inmates do not have a
constitutional right to shower every day. See, e.g.,
Fountain v. Rupert, No. 6:15cv100, 2018 WL 4346645, *3
(E.D. Tex. Sept. 12, 2018) (adopting magistrate judge's
report and citing Vinson v. Texas Bd. of Corr., 901
F.2d 474, 475 (5th Cir. 1990)); Bensinger v.
Nichols, No. 94-CV-4322, 1994 WL 561924, *2 (E.D. Pa.
Oct. 14, 1994). The Eighth Amendment is not violated when an
inmate merely suffers uncomfortable or harsh living
conditions. Rhodes, 452 U.S. at 347.
to the extent that Plaintiff cites federal criminal civil
rights and conspiracy statutes, 18 U.S.C. §§ 241,
242, with respect to his shower privileges claim, he is also
not entitled to relief. Those criminal statutes do not
authorize civil suits or create a private cause of action for
the alleged deprivation of civil rights. See., e.g.,
Young v. Overly, No. 17-6242, 2018 WL 5311408, *2 (6th
Cir. July 2, 2018) (citing cases); United States v.
Oguaju, 76 Fed.Appx. 579, 581 (6th Cir. 2003) (affirming
dismissal of claims brought under 18 U.S.C. §§ 241
and 242 “because [plaintiff] has no private right of
action under either of these criminal statutes”);
accord Crosby v. Catret, 308 Fed.Appx. 453 (D.C.
Cir. 2009) (per curiam); Thibeaux v. Mukasey, 275
Fed.Appx. 889, 893 (11th Cir. 2008); Allen v. Gold
Country Casino, 464 F.3d 1044, 1048 (9th Cir. 2006);
Durso v. Summer Brook Preserve Homeowners
Ass'n., 641 F.Supp.2d 1256, 1267-68 (M.D. Fla. 2008)
(citing cases). Plaintiff thus fails to state a claim upon
which relief may be granted as to his shower privileges
Plaintiff's claims against K. Kullman (and the Macomb
County Jail) concerning his mail must also be dismissed.
Plaintiff alleges violations of federal criminal postal
statutes, 18 U.S.C. §§ 1702, 1703, 1705, 1706, as
the bases for his mail claims. Those criminal statutes,
however, do not provide a private cause of action for damages
or other civil action for the alleged deprivation of rights.
See, e.g., Woods v. McGuire, 954 F.2d 388, 391 (6th
Cir. 1992) (discussing § 1703 and citing cases);
accord Contemporary Mission, Inc. v. United States Postal
Svs., 648 F.2d 97, 103 n. 7 (2d Cir. 1981) (discussing
§§ 1701, 1702, and 1703); Durso, 641
F.Supp.2d at 1268 (discussing § 1705 and citing cases);
Sciolino v. Marine Midland Bank-Western, 463 F.Supp.
128, 130-31 (W.D. N.Y. 1979); Berlin Democratic Club v.
Rumsfeld, 410 F.Supp. 144, 162 (D. D.C. 1976); Hill
v. Sands, 403 F.Supp. 1368, 1370 (N.D. Ill. 1975).
Additionally, at least two of those statutes are inapplicable
to the facts at hand, e.g.. § 1703 only applies
to Postal Service employees and § 1706 applies to mail
bags/containers for mail transportation. Plaintiff thus fails
to state a claim upon which relief may be granted as to his
the Court notes that the Macomb County Jail, even if it were
a proper defendant such as Macomb County, cannot be held
liable for K. Kullman's conduct (or the conduct of any
other jail employees) in this action. A civil rights
plaintiff must allege the personal involvement of a defendant
to state a claim under 42 U.S.C. § 1983. See Monell
v. Department of Social Svs., 436 U.S. 658, 691-92
(1978) (Section 1983 liability cannot be based upon a theory
of respondeat superior or vicarious liability); Everson
v. Leis, 556 F.3d 484, 495 (6th Cir. 2009) (same);
see also Taylor v. Michigan Dep't of Corr., 69
F.3d 76, 80-81 (6th Cir. 1995) (plaintiff must allege facts
showing that the defendant participated, condoned,
encouraged, or knowingly acquiesced in alleged misconduct to
establish liability). Plaintiff does not do so. He also does
not allege facts showing that any injury is the result of a
policy or regulation, or that any improper conduct arose from
the deliberate failure to adequately investigate, train, or
supervise employees. See Ellis v. Cleveland Mun. Sch.
Dist., 455 F.3d 690, 700 (6th Cir. 2006) (setting forth
three-part test for such claims). Plaintiff thus fails to
state a claim upon which relief may be granted in his