-HWB Stone #489704 v. McDonald et al, No. 1:2011cv00602 - Document 5 (W.D. Mich. 2011)

Court Description: OPINION ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, mil)

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UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION RUBIN LAMONT STONE, Plaintiff, Case No. 1:11-cv-602 v. Honorable Robert J. Jonker M.E. McDONALD et al., Defendants. ____________________________________/ OPINION This is 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 (PLRA), 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. Factual Allegations Plaintiff Rubin Lamont Stone presently is incarcerated with the Michigan Department of Corrections (MDOC) and housed at the Oaks Correctional Facility (ECF). He sues the following ECF employees: Grievance Coordinator M.E. McDonald; Assistant Deputy Warden Rick Sharp; Warden Cindi Curtin; Resident Unit Manager J. Schiebner; Sean Lockhart; and B.D. Russell. Plaintiff complains that, beginning November 6, 2010, Defendant McDonald has deliberately interfered with Plaintiff s First and Fourteenth Amendment rights by delaying the filing of his grievances and denying the grievances for arbitrary and capricious reasons. He also alleges that McDonald conspired with others by assigning the grievances to her friends, in violation of MDOC policy and Plaintiff s protected right to file grievances. Plaintiff asserts that Defendant Sharp, McDonald s immediate supervisor, has failed to investigate Plaintiff s complaints and has thereby acquiesced in McDonald s unconstitutional conduct and conspired with her to deprive Plaintiff of his rights. In addition, Plaintiff complains that Defendant Curtin, who appointed McDonald to her position and is McDonald s ultimate supervisor, has failed to stop McDonald s improper conduct. Curtin also allegedly has failed to respond to Plaintiff s complaints. Further, Plaintiff contends that he complained directly to acting inspector Schiebner, as allegedly permitted in MICH . DEP T OF CORR., Policy Directive 03.02.130, ¶ Q. Plaintiff claims that Schiebner never responded to his complaint and never investigated his claims. Discussion I. Failure to state a claim A 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. -2- v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (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, 129 S. Ct. 1937, 1949 (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, 129 S. Ct. at 1949. 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, 129 S. Ct. at 1949 (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, 129 S. Ct. at 1950 (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)). To 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). -3- Plaintiff alleges that Defendant McDonald deprived him of his First Amendment right to petition the government and his due process right under the Fourteenth Amendment to file a grievance. A prisoner has no constitutional right to an effective grievance procedure or to access any such procedure voluntarily established by the state. See Hewitt v. Helms, 459 U.S. 460, 467 (1983); Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (collecting cases); Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991). Michigan law does not create a liberty interest in the grievance procedure. See Walker v. Mich. Dep t of Corr., 128 F. App x 441, 445 (6th Cir. 2005); Young v. Gundy, 30 F. App x 568, 569-70 (6th Cir. 2002); Carpenter v. Wilkinson, No. 99-3562, 2000 WL 190054, at *2 (6th Cir. Feb. 7, 2000). As a consequence, Plaintiff fails to state a claim for the abridgement of his right to petition the government for redress. In addition, because Plaintiff has no liberty interest in the grievance process, Defendant McDonald s conduct in delaying or denying his grievances did not deprive him of due process. For the same reasons, Plaintiff s claim that other Defendants participated in McDonald s conduct fails to state a claim of constitutional dimension. Moreover, Plaintiff s claim against Defendants Sharp, Curtin and Schiebner fails for an additional reason. Plaintiff s only allegations against Sharp, Curtin and Schiebner are that they failed to adequately supervise McDonald or failed to respond to Plaintiff s grievances. Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior or vicarious liability. Iqbal, 129 S. Ct. at 1948; Monell v. New York City Dep t of Soc. Servs., 436 U.S. 658, 691(1978); Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009). A claimed constitutional violation must be based upon active unconstitutional behavior. Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008); Greene v. Barber, 310 F.3d 889, 899 (6th Cir. 2002). -4- The acts of one s subordinates are not enough, nor can supervisory liability be based upon the mere failure to act. Grinter, 532 F.3d at 575; Greene, 310 F.3d at 899; Summers v. Leis, 368 F.3d 881, 888 (6th Cir. 2004). Moreover, § 1983 liability may not be imposed simply because a supervisor denied an administrative grievance or failed to act based upon information contained in a grievance. See Shehee v. Luttrell, 199 F.3d 245, 300 (6th Cir. 1999). [A] plaintiff must plead that each Government-official defendant, through the official s own individual actions, has violated the Constitution. Iqbal, 129 S. Ct. at 1948. Plaintiff has failed to allege that Defendants Sharp, Curtin, and Schiebner engaged in any active unconstitutional behavior. Accordingly, for this additional reason, he fails to state a claim against them. Finally, Plaintiff makes no factual allegations against Defendants Lockhart and Russell; he merely mentions their names in the caption of his complaint. It is a basic pleading essential that a plaintiff attribute factual allegations to particular defendants. See Twombly, 550 U.S. at 544 (holding that, in order to state a claim, Plaintiff must make sufficient allegations to give a defendant fair notice of the claim). Where a person is named as a defendant without an allegation of specific conduct, the complaint is subject to dismissal, even under the liberal construction afforded to pro se complaints. See Gilmore v. Corr. Corp. of Am., 92 F. App x 188, 190 (6th Cir. 2004) (dismissing complaint where plaintiff failed to allege how any named defendant was involved in the violation of his rights); Frazier v. Michigan, 41 F. App x 762, 764 (6th Cir. 2002) (dismissing plaintiff s claims where complaint did not allege with any degree of specificity which of the named defendants were personally involved in or responsible for each alleged violation of rights); Griffin v. Montgomery, No. 00-3402, 2000 WL 1800569, at *2 (6th Cir. Nov. 30, 2000) (requiring allegations of personal involvement against each defendant); Rodriguez v. Jabe, No. 90-1010, 1990 -5- WL 82722, at *1 (6th Cir. June 19, 1990) ( Plaintiff s claims against those individuals are without a basis in law as the complaint is totally devoid of allegations as to them which would suggest their involvement in the events leading to his injuries ). Because Plaintiff s claims fall far short of the minimal pleading standards under FED . R. CIV . P. 8 (requiring a short and plain statement of the claim showing that the pleader is entitled to relief ), his complaint must be dismissed against Defendants Lockhart and Russell. Conclusion Having conducted the review now required by the Prison Litigation Reform Act, the Court determines that Plaintiff s action will be dismissed for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c). The Court must next decide whether an appeal of this action would be in good faith within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997). For the same reasons that the Court dismisses the action, the Court discerns no good-faith basis for an appeal. Should Plaintiff appeal this decision, the Court will assess the $455.00 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless Plaintiff is barred from proceeding in forma pauperis, e.g., by the three-strikes rule of § 1915(g). If he is barred, he will be required to pay the $455.00 appellate filing fee in one lump sum. This is a dismissal as described by 28 U.S.C. § 1915(g). A Judgment consistent with this Opinion will be entered. /s/Robert J. Jonker ROBERT J. JONKER UNITED STATES DISTRICT JUDGE Dated: July 29, 2011 -6-

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