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Kelley v. Hissong

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

November 14, 2019

MARCUS MANDELE KELLEY, Plaintiff,
v.
HISSONG, et al., Defendants.

          OPINION AND ORDER OF PARTIAL SUMMARY DISMISSAL

          VICTORIA A. ROBERTS, UNITED STATES DISTRICT JUDGE.

         I.

         Michigan prisoner Marcus Mandele Kelley (“Plaintiff”) filed a pro se civil rights complaint and a supplemental complaint pursuant to 42 U.S.C. § 1983. The Court granted him leave to proceed without prepayment of the filing fee. Plaintiff's original complaint concerns his prison legal mail, the grievance process, his personal property, and a prison transfer (which forced him out of a college education program) while he was confined at the Parnall Correctional Facility (“SMT”) in Jackson, Michigan. He names Prison Counselor Hissong, Resident Unit Manager Walton, Mailroom Employee Metellus, Warden M. Braman, Grievance Coordinator C. Whitford, and an unidentified (“John Doe”) Property Room Manager as defendants (collectively the “SMT defendants”). Plaintiff sues them in their personal capacities for monetary damages and other appropriate relief.

         Plaintiff's supplemental complaint concerns prison misconduct charges and his security classification (which forced him out of a college education program), access to disinfectant, the grievance process, verbal harassment, and another prison transfer while he was confined at the Adrian Correctional Facility (“ARF”) in Adrian, Michigan. He names Assistant Deputy Warden Messer, Prison Counselor Bates, Corrections Officer Reasoner, Prison Counselor Condon, Warden Campbell, Jackson College Program Coordinator Costello, Vocational Village Electrical Instructor Male, Administrative Assistant Heard, and Corrections Officers Perez and Gee as the defendants (collectively the “ARF defendants”) in his supplemental complaint and sues them in their personal capacities for monetary damages and other appropriate relief. Over the two complaints, Plaintiff alleges violations of his right of access to the courts, his right to file grievances and obtain relief, his property rights, his right to a safe environment, and his equal protection and due process rights. He also raises claims of conspiracy and retaliation.

         Having reviewed the original and supplemental complaint, the Court shall dismiss them in part pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim upon which relief may be granted under 42 U.S.C. § 1983.

         II.

         Under the Prison Litigation Reform Act of 1996 (“PLRA”), the Court is required to sua sponte dismiss an in forma pauperis complaint before service on a defendant 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. 42 U.S.C. § 1997(e)(c); 28 U.S.C. § 1915(e)(2)(B). The 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. 28 U.S.C. § 1915A. A complaint is frivolous if it lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989).

         A 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 this notice pleading standard 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).

         To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that (1) he or she was deprived of a right, privilege, or immunity secured by the federal Constitution or laws of the United States; and (2) the deprivation was caused by a person acting under color of state law. Flagg Bros. v. Brooks, 436 U.S. 149, 155-57 (1978); Harris v. Circleville, 583 F.3d 356, 364 (6th Cir. 2009); Brock v. McWherter, 94 F.3d 242, 244 (6th Cir. 1996). 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). With these standards in mind, the Court finds that Plaintiff's complaint and supplemental complaint are subject to summary dismissal in part.

         III.

         First, Plaintiff's claims against certain defendants, such as Warden Braman, Warden Campbell, Assistant Deputy Warden Messer, and Administrative Assistant Heard, based upon their supervisory roles over other defendants must dismissed. It is well-settled that a civil rights plaintiff must allege the personal involvement of a defendant to state a claim under 42 U.S.C. § 1983 and that liability cannot be based upon a theory of respondeat superior or vicarious liability. Monell v. Department of Social Svs., 436 U.S. 658, 691-92 (1978); Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009); 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). Thus, to the extent that Plaintiff alleges that the afore-mention defendants, or any others, should be liable for another individual's conduct, he fails to state a claim upon which relief may be granted. Assertions that one or more of the defendants failed to supervise an employee, should be vicariously liable for another employee's conduct, and/or did not sufficiently respond to the situation are insufficient to state a claim under § 1983. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999); see also Martin v. Harvey, 14 Fed.Appx. 307, 309 (6th Cir. 2001).

         Second, to the extent that Plaintiff asserts that one or more of the defendants, including Warden Braman, Grievance Coordinator Whitford, and Warden Campbell, violated his constitutional rights by denying his grievances or complaints, he fails to state a claim for relief. The First Amendment guarantees “the right of the people . . . to petition the Government for a redress of grievances.” U.S. Const. amend. I. While a prisoner has a First Amendment right to file grievances against prison officials, Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000), the First Amendment does not impose an affirmative obligation on the government to consider, respond to, or grant any relief on a petition for redress of grievances. Smith v. Arkansas State Hwy. Employees, Local 1315, 441 U.S. 463, 464-65 (1979); Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999) (“A citizen's right to petition the government does not guarantee a response to the petition or the right to compel government officials to act on or adopt a citizen's views.”). An inmate does not have a constitutionally protected interest in a jail or prison grievance procedure or the right to an effective procedure. Walker v. Michigan Dep't of Corr., 128 Fed.Appx. 441, 445 (6th Cir. 2005); Argue v. Hofmeyer, 80 Fed.Appx. 427, 430 (6th Cir. 2003) (citing cases). To the extent that Plaintiff is dissatisfied with the investigation of his complaints and the responses to his grievances, he fails to state a claim upon which relief may be granted. Carlton v. Jondreau, 76 Fed.Appx. 642, 644 (6th Cir. 2003); Proctor v. Applegate, 661 F.Supp.2d 743, 766-67 (E.D. Mich. 2009) (Borman, J., adopting magistrate judge's report).

         Third, to the extent that Plaintiff complains that certain defendants, namely defendants Messer, Perez, and Gee, made threatening remarks or verbally harassed him, he fails to state a claim upon which relief may be granted. Allegations of verbal harassment and threats are insufficient to state a civil rights claim under § 1983. Ivey v. Wilson, 832 F.2d 950, 954-55 (6th Cir. 1987); see also Wingo v. Tenn. Dep't of Corr., 499 Fed.Appx. 453, 455 (6th Cir. 2012) (“Verbal harassment or idle threats by a state actor do not create a constitutional violation and are insufficient to support a section 1983 claim for relief.”); Montgomery v. Harper, No. 5:14-CV-P38-R, 2014 WL 4104163, *2 (W.D. Ky. Aug. 19, 2014) (“[H]arassing or degrading language by a prison official, while unprofessional and despicable, does not amount to a constitutional violation.”). Even verbal threats by a corrections officer to assault an inmate do not violate an inmate's constitutional rights. Miller v. Wertanen, 109 Fed.Appx. 64, 65 (6th Cir. 2004). Verbal threats and abuse made in retaliation for filing grievances are also not actionable. Carney v. Craven, 40 Fed.Appx. 48, 50 (6th Cir. 2002). Plaintiff's claims against the defendants involving verbal harassment are thus subject to dismissal. Fourth, to the extent that Plaintiff alleges violations of state law or MDOC policy or procedures, such as with his claims against Corrections Officer Reasoner and Instructor Male, he fails to state a claim upon which relief may be granted. Section 1983 remedies violations of federal law, not state law or prison policy. Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982); Laney v. Farley, 501 F.3d 577, 580-81 (6th Cir. 2007). Alleged violations of a Michigan law or an MDOC policy do not rise to the level of a violation or deprivation of a right guaranteed by the United States Constitution cognizable under § 1983. See Grinter v. Knight, 532 F.3d 567, 574 (6th Cir. 2008) (ruling that “failing to follow proper procedures is insufficient to establish an infringement of a liberty interest” and citing Olim v. Wakinekona, 461 U.S. 238, 250 (1983)); Laney, 501 F.3d at 581 n. 2; Smith v. Freland, 954 F.2d 343, 347-48 (6th Cir. 1992); McVeigh v. Bartlett, No. 94-2347. 1995 WL 236687, *1 (6th Cir. April 21, 1995) (failure to follow MDOC Policy Directive does not rise to the level of a constitutional violation because the Directive does not create a liberty interest protected by the Fourteenth Amendment's Due Process Clause); Coleman v. Martin, 363 F.Supp.2d 894, 903 (E.D. Mich. 2005) (“the failure of a prison, or the state, to follow its own policies and procedures does not amount to a constitutional violation.”). Plaintiff's claims concerning alleged violations of state law or MDOC policy must therefore be dismissed.

         Fifth, Plaintiff fails to state a claim upon which relief may be granted against the unidentified Property Room Manager, or any other defendants, concerning the alleged deprivation of his personal property. In Parratt v. Taylor, 451 U.S. 527 (1981), overruled in part by Daniels v. Williams, 474 U.S. 327 (1986), the United States Supreme Court ruled that 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. Hudson v. Palmer, 468 U.S. 517, 530-36 (1984). Because Plaintiff's property claim is premised upon allegedly unauthorized acts of a state official, he must plead and prove the inadequacy of ...


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