United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER OF PARTIAL SUMMARY
VICTORIA A. ROBERTS, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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).
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).
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.
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).
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
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.
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 ...