Fisher #691199 v. Walker et al, No. 1:2023cv01145 - Document 5 (W.D. Mich. 2023)
Court Description: OPINION; signed by Magistrate Judge Sally J. Berens (jln)
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Fisher &#035;691199 v. Walker et al Doc. 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ______ MICHAEL DWAYNE FISHER, Plaintiff, v. Case No. 1:23-cv-1145 Honorable Sally J. Berens UNKNOWN WALKER et al., Defendants. ____________________________/ OPINION This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. Plaintiff has been granted leave to proceed in forma pauperis. Pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure, Plaintiff consented to proceed in all matters in this action under the jurisdiction of a United States magistrate judge. (ECF No. 1, PageID.6.) This case is presently before the Court for preliminary review under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c). The Court is required to conduct this initial review prior to the service of the complaint. See In re Prison Litig. Reform Act, 105 F.3d 1131, 1131, 1134 (6th Cir. 1997); McGore v. Wrigglesworth, 114 F.3d 601, 604–05 (6th Cir. 1997). Service of the complaint on the named defendants is of particular significance in defining a putative defendant’s relationship to the proceedings. “An individual or entity named as a defendant is not obliged to engage in litigation unless notified of the action, and brought under a court’s authority, by formal process.” Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347 (1999). “Service of process, under longstanding tradition in our system of justice, is Dockets.Justia.com fundamental to any procedural imposition on a named defendant.” Id. at 350. “[O]ne becomes a party officially, and is required to take action in that capacity, only upon service of a summons or other authority-asserting measure stating the time within which the party served must appear and defend.” Id. (citations omitted). That is, “[u]nless a named defendant agrees to waive service, the summons continues to function as the sine qua non directing an individual or entity to participate in a civil action or forgo procedural or substantive rights.” Id. at 351. Therefore, the PLRA, by requiring courts to review and even resolve a plaintiff’s claims before service, creates a circumstance where there may only be one party to the proceeding—the plaintiff—at the district court level and on appeal. See, e.g., Conway v. Fayette Cnty. Gov’t, 212 F. App’x 418 (6th Cir. 2007) (“Pursuant to 28 U.S.C. § 1915A, the district court screened the complaint and dismissed it without prejudice before service was made upon any of the defendants . . . [such that] . . . only [the plaintiff] [wa]s a party to this appeal.”). Here, Plaintiff has consented to a United States magistrate judge conducting all proceedings in this case under 28 U.S.C. § 636(c). That statute provides that “[u]pon the consent of the parties, a full-time United States magistrate judge . . . may conduct any or all proceedings . . . and order the entry of judgment in the case . . . .” 28 U.S.C. § 636(c). Because the named Defendants have not yet been served, the undersigned concludes that they are not presently parties whose consent is required to permit the undersigned to conduct a preliminary review under the PLRA, in the same way they are not parties who will be served with or given notice of this opinion. See Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995) (“The record does not contain a consent 2 from the defendants. However, because they had not been served, they were not parties to this action at the time the magistrate entered judgment.”).1 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. §§ 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, the Court will dismiss Plaintiff’s complaint for failure to state a claim. Discussion Factual allegations Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Carson City Correctional Facility (DRF) in Carson City, Montcalm County, Michigan. The events about which he complains occurred at that facility and the Saginaw County Correctional Facility (SRF) in Freeland, Saginaw County, Michigan. Plaintiff sues SRF employees Assistant Deputy Warden Ms. Unknown Walker, Deputy Warden Ms. Unknown Godfrey, Warden Adam Douglas, Mental Health Unit Chief Ms. Unknown 1 But see Coleman v. Lab. & Indus. Rev. Comm’n of Wis., 860 F.3d 461, 471 (7th Cir. 2017) (concluding that, when determining which parties are required to consent to proceed before a United States magistrate judge under 28 U.S.C. § 636(c), “context matters” and the context the United States Supreme Court considered in Murphy Bros. was nothing like the context of a screening dismissal pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c)); Williams v. King, 875 F.3d 500, 503–04 (9th Cir. 2017) (relying on Black’s Law Dictionary for the definition of “parties” and not addressing Murphy Bros.); Burton v. Schamp, 25 F.4th 198, 207 n.26 (3d Cir. 2022) (premising its discussion of “the term ‘parties’ solely in relation to its meaning in Section 636(c)(1), and . . . not tak[ing] an opinion on the meaning of ‘parties’ in other contexts”). 3 Richmond, Prisoner Counselor Mr. Unknown Chalker, and Correctional Mental Health Professional Mr. Unknown Barnhart. Plaintiff also sues DRF Warden Randee Rewerts and MDOC Grievance Section Manager Richard D. Russell. Plaintiff alleges that on May 18, 2023, he talked to Defendants Walker, Godfrey, Douglas, Richmond, Chalker, and his therapist, Defendant Barnhart. Plaintiff initially approached Defendant Chalker about being waived into a lower level so he could participate in the Michigan Sexual Abuse Prevention Program (MSAPP) as recommended by the Parole Board on April 19, 2023. Defendant Chalker told Plaintiff that he could not grant Plaintiff’s request because Plaintiff had 35 points. Plaintiff was told the same thing by his therapist, who advised Plaintiff to get his points reduced so that he would be eligible for a lower security level. Plaintiff then approached Defendants Richmond, Walker, Godfrey, and Douglas, who all gave Plaintiff the same response. Plaintiff filed a grievance, which was rejected at steps I, II, and III. Plaintiff states that the only thing Defendant Russell said in his response was that the rejection was upheld, and that Defendant Russell failed to give any reason for the rejection. (ECF No. 1, PageID.4.) Plaintiff states that because he could not participate in MSAPP, he was given a 12-month continuance by the Parole Board, and he was instructed to “demonstrate responsible behavior by earning positive reports in any programs [he] may be involved in.” (Id.) Plaintiff contends that other inmates have been waived to a lower level to participate in other programs and that the refusal to allow him to participate in MSAPP deprives him of the chance of parole, as well as constitutes deliberate indifference to Plaintiff’s mental health needs. (Id., PageID.4–5.) Plaintiff appears to be asserting claims under the Eighth and Fourteenth Amendments. Plaintiff states that the only relief he is seeking in this case is to be enrolled in MSAPP. 4 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. 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. Id.; 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.” Id. 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.” Id. 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)(ii)). 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); Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). Because Section 1983 is a method for vindicating federal rights, not a source of substantive rights itself, the first step in an action under Section 1983 5 is to identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994). A. SRF Defendants Walker, Godfrey, Douglas, Richmond, Chalker, and Barnhart As noted above, Plaintiff is only seeking injunctive relief in this case. The Sixth Circuit has held that transfer to another prison facility moots prisoner injunctive and declaratory claims. Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996); Mowatt v. Brown, No. 89-1955, 1990 WL 59896 (6th Cir. May 9, 1990); Tate v. Brown, No. 89-1944, 1990 WL 58403 (6th Cir. May 3, 1990); Howard v. Heffron, No. 89-1195, 1989 WL 107732 (6th Cir. Sept. 20, 1989); Williams v. Ellington, 936 F.2d 881 (6th Cir. 1991). Underlying the rule is the premise that injunctive relief is appropriate only where plaintiff can show a reasonable expectation or demonstrated probability that he is in immediate danger of sustaining direct future injury as the result of the challenged official conduct. Los Angeles v. Lyons, 461 U.S. 95, 102 (1983). Past exposure to an isolated incident of illegal conduct does not, by itself, sufficiently prove that the plaintiff will be subjected to the illegal conduct again. See, e.g., Lyons, 461 U.S. at 102; Alvarez v. City of Chicago, 649 F. Supp. 43 (N.D. Ill. 1986); Bruscino v. Carlson, 654 F. Supp. 609, 614, 618 (S.D. Ill. 1987), aff’d, 854 F.2d 162 (7th Cir. 1988); O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974). A court should assume that, absent an official policy or practice urging unconstitutional behavior, individual government officials will act constitutionally. Lyon, 461 U.S. at 102; O’Shea, 414 U.S. at 495–96. As noted above, Plaintiff is now incarcerated at DRF and is no longer incarcerated at SRF. Because Plaintiff seeks only injunctive relief in this action, Plaintiff’s claims against SRF Defendants Walker, Godfrey, Douglas, Richmond, Chalker, and Barnhart are properly dismissed from this action. 6 B. Eighth Amendment Plaintiff claims that the continued refusal to waive him to a lower security level so that he could participate in sex offender treatment constitutes deliberate indifference in violation of the Eighth Amendment. The Eighth Amendment requires prison officials to provide medically necessary mental health treatment to inmates. See Estelle v. Gamble, 429 U.S. 97, 103 (1976); Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001); Government of the Virgin Islands v. Martinez, 239 F.3d 293, 301 (3d Cir. 2001); Lay v. Norris, No. 88-5757, 1989 WL 62498, at *4 (6th Cir. June 13, 1989); Potter v. Davis, No. 82-5783, 1985 WL 13129, at * 2 (6th Cir. April 26, 1985). A claim for the deprivation of adequate medical or psychological care has an objective and a subjective component. Farmer v. Brennan, 511 U.S. 825, 834 (1994). To satisfy the objective component, the plaintiff must allege that the medical or psychological need at issue is sufficiently serious. Id. In other words, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm. Id. The objective component of the adequate medical care test is satisfied “[w]here the seriousness of a prisoner’s need[] for medical care is obvious even to a lay person.” Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 899 (6th Cir. 2004); see also Phillips v. Roane Cnty., 534 F.3d 531, 539–40 (6th Cir. 2008). Obviousness, however, is not strictly limited to what is detectable to the eye. Even if the layman cannot see the medical need, a condition may be obviously medically serious where a layman, if informed of the true medical situation, would deem the need for medical attention clear. See, e.g., Rouster v. Saginaw Cnty., 749 F.3d 437, 446– 51 (6th Cir. 2014) (holding that a prisoner who died from a perforated duodenum exhibited an “objectively serious need for medical treatment,” even though his symptoms appeared to the medical staff at the time to be consistent with alcohol withdrawal); Johnson v. Karnes, 398 F.3d 868, 874 (6th Cir. 2005) (holding that prisoner’s severed tendon was a “quite obvious” medical 7 need, since “any lay person would realize to be serious,” even though the condition was not visually obvious). If the plaintiff’s claim, however, is based on “the prison’s failure to treat a condition adequately, or where the prisoner’s affliction is seemingly minor or non-obvious,” Blackmore, 390 F.3d at 898, the plaintiff must “place verifying medical evidence in the record to establish the detrimental effect of the delay in medical treatment,” Napier v. Madison Cnty., 238 F.3d 739, 742 (6th Cir. 2001) (internal quotation marks omitted). Here, Plaintiff fails to allege facts showing that he suffered from any serious mental impairment or illness that required mental health treatment. Plaintiff’s allegations in this case indicate that he is seeking to participate in MSAPP in order to increase his suitability for parole. “[T]he mere fact that the plaintiff[ ] [is a] convicted sexual offender [ ] does not mean that [he has] psychological disorders or that [he is] in need of psychiatric treatment.” Riddle v. Mondragon, 83 F.3d 1197, 1204 (10th Cir. 1996) (internal quotation omitted); see also Jones v. Steinman, No. 97– 2048, 1998 WL 791847, at *1 (6th Cir. Nov. 4, 1998) (citing Riddle, 83 F. 3 d at 1204). In the absence of a demonstrated serious psychological disorder, Plaintiff does not have a “serious medical need,” and the failure to waive Plaintiff into a lower security level so that he can participate in MSAPP does not raise an issue under the Eighth Amendment. See Hunt v. Colorado Dep’t of Corrections, 194 F. App’x 492, 495 (10th Cir. 2006); Riddle, 83 F.3d at 1204; Ramos v. Vaughn, No. 94–2596, 1995 WL 386573, at *5–*6 (E.D. Pa. June 27, 1995), aff’d, 85 F.3d 612 (3d Cir. 1996); Patterson v. Webster, 760 F. Supp. 150, 154 (E.D. Mo. 1991). Further, it is well established that a prisoner’s eligibility for release on parole is not a constitutionally protected interest. See Crump v. Lafler, 657 F.3d 393, 404 (6th Cir. 2011); Sweeton v. Brown, 27 F.3d 1162, 1164–165 (6th Cir. 1994). Likewise, “[t]he law is clear that limitations on, or the denial of, . . . rehabilitation programs do not inflict unnecessary or wanton pain and 8 therefore do not constitute cruel and unusual punishment.” Smith v. Heyns, No. 12-11373, 2013 WL 3944474, at *9 (E.D. Mich. July 31, 2013) (citing McQuillion v. Rushen, 639 F. Supp. 420, 424 (N.D. Cal. 1986)); see also Gawloski v. Dallman, 803 F. Supp. 103, 112 (S.D. Ohio 1992). Therefore, neither the alleged failure to waive Plaintiff into a security level where he could obtain sex offender programming nor any resulting ineligibility for parole consideration raises a claim under the Eighth Amendment. See Moore v. Mich. Dep’t of Corr., No. 1:07–cv–756, 2007 WL 3124649, at *3 (W.D. Mich. Oct. 25, 2007). Further, even if Plaintiff could establish a serious medical need, he cannot establish that Defendants Rewerts and Russell were deliberately indifferent to his need. In fact, Plaintiff fails to allege any facts indicating that Defendants Rewerts and Russell had any direct involvement with the denial of his requests to be waived to a lower security level to participate in MSAPP. Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior or vicarious liability. Iqbal, 556 U.S. at 676; 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, 575–76 (6th Cir. 2008); Greene v. Barber, 310 F.3d 889, 899 (6th Cir. 2002). 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 576; Greene, 310 F.3d at 899; Summers v. Leis, 368 F.3d 881, 888 (6th Cir. 2004). Moreover, Section 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 295, 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, 556 U.S. at 676. Plaintiff has failed to allege that Defendants 9 Rewerts and Russell engaged in any active unconstitutional behavior.2 Accordingly, he fails to state a claim against them. C. Due process Plaintiff asserts that the refusal to lower his security level so that he could participate in MSAPP violated his due process rights. The Supreme Court repeatedly has held that a prisoner has no constitutional right to be incarcerated in a particular facility or to be held in a specific security classification. See Olim v. Wakinekona, 461 U.S. 238, 245 (1983); Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976). Prisoners cannot “have a protected liberty interest in the procedure[s] affecting [their] classification and security, because the resulting restraint, without more, [does] not impose an ‘atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.’” Cash v. Reno, No. 97-5220, 1997 WL 809982, at *1 (6th Cir. Dec. 23, 1997); see also Morris v. Metrish, No. 97-1624, 1998 WL 246454, at *2 (6th Cir. May 5, 1998); Moore v. Sally, No. 97-4384, 1999 WL 96725, at *1 (6th Cir. Feb. 3, 1999). Without such a protectible interest, Plaintiff cannot successfully claim he has been denied due process, because “[p]rocess is not an end in itself.” Olim, 461 U.S. at 250. Further, Plaintiff does not have a federally cognizable liberty interest in participating in rehabilitative programs for sex offenders. Federal courts have consistently found that prisoners have no constitutionally protected liberty interest in prison rehabilitation programs based on the Fourteenth Amendment. See, e.g., Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) (Due Process Clause not implicated by prisoner classification and eligibility for rehabilitative programs, even where inmate suffers “grievous loss”); Antonelli v. Sheahan, 81 F.3d 1422, 1431 (7th Cir. 1996) 2 For this reason alone, all of Plaintiff’s claims against Defendants Rewerts and Russell are subject to dismissal because Plaintiff fails to allege sufficient facts to show that Defendants Rewerts and Russell engaged in any active unconstitutional conduct. Nevertheless, as set forth herein, the Court also addresses the merits of Plaintiff’s claims. 10 (participation in a rehabilitative program is a privilege that the Due Process Clause does not guarantee); Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985) (no constitutional right to rehabilitative services). Moreover, the Court notes that there is no constitutional or inherent right to be conditionally released before the expiration of a prison sentence. Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979). Although a state may establish a parole system, it has no duty to do so; thus, the presence of a parole system by itself does not give rise to a constitutionally protected liberty interest in parole release. Id. at 7, 11; Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). Rather, a liberty interest is present only if state law entitles an inmate to release on parole. Inmates of Orient Corr. Inst. v. Ohio State Adult Parole Auth., 929 F.2d 233, 235 (6th Cir. 1991). In Sweeton v. Brown, 27 F.3d 1162, 1164–65 (6th Cir. 1994) (en banc), the Sixth Circuit, noting “the broad powers of the Michigan authorities to deny parole,” held that the Michigan system does not create a liberty interest in parole. The Sixth Circuit reiterated the continuing validity of Sweeton in Crump v. Lafler, 657 F.3d 393, 404 (6th Cir. 2011). In Crump, the Sixth Circuit held that the adoption of specific parole guidelines since Sweeton does not lead to the conclusion that parole release is mandated upon reaching a high probability of parole. See id.; see also Carnes v. Engler, 76 F. App’x 79, 80 (6th Cir. 2003). In addition, the Sixth Circuit has rejected the argument that the Due Process Clause is implicated when changes to parole procedures and practices have resulted in incarcerations that exceed the subjective expectation of the sentencing judge. See Foster v. Booker, 595 F.3d 353, 369 (6th Cir. 2010). Further, the Michigan Supreme Court has recognized that there exists no liberty interest in parole under the Michigan system. Glover v. Mich. Parole Bd., 596 N.W.2d 598, 603–04 (Mich. 1999). 11 Finally, as to Plaintiff’s claim that Defendant Russell upheld the rejection of Plaintiff’s grievance, Plaintiff has no due process right to file a prison grievance. The courts repeatedly have held that there exists no constitutionally protected due process right to an effective prison grievance procedure. See Hewitt v. Helms, 459 U.S. 460, 467 (1983); Walker v. Mich. Dep’t of Corr., 128 F. App’x 441, 445 (6th Cir. 2005); Argue v. Hofmeyer, 80 F. App’x 427, 430 (6th Cir. 2003); Young v. Gundy, 30 F. App’x 568, 569–70 (6th Cir. 2002); see also Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (collecting cases). Michigan law does not create a liberty interest in the grievance procedure. See Olim v. Wakinekona, 461 U.S. 238, 249 (1983); Keenan v. Marker, 23 F. App’x 405, 407 (6th Cir. 2001); Wynn v. Wolf, No. 93-2411, 1994 WL 105907, at *1 (6th Cir. Mar. 28, 1994). Thus, although it is clear that Plaintiff disagreed with Defendant Russell’s response to his grievance, because Plaintiff has no liberty interest in the grievance process—including any response to his grievances— Defendant Russell’s conduct did not deprive Plaintiff of due process. Consequently, for all of the reasons set forth above, Plaintiff fails to state a due process claim. D. Equal protection Plaintiff claims that he has to wait to get his “points reduced and get to a lower level just to take MSAPP, but with other inmates who ha[ve] to take other programs[,] they get waived to a lower level with 24–35 points.” (ECF No. 1, PageID.4–5.) Plaintiff’s allegations suggest that he is raising a Fourteenth Amendment equal protection claim. The Equal Protection Clause of the Fourteenth Amendment provides that a state may not “deny to any person within its jurisdiction the equal protection of the laws,” which is essentially a direction that all persons similarly situated should be treated alike. U.S. Const., amend. XIV; City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). To state an equal protection claim, 12 Plaintiff must show “intentional and arbitrary discrimination” by the state; that is, he must show that he “has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). The threshold element of an equal protection claim is disparate treatment. Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir. 2006). Further, “‘[s]imilarly situated’ is a term of art—a comparator . . . must be similar in ‘all relevant respects.’” Paterek v. Vill. of Armada, 801 F.3d 630, 650 (6th Cir. 2015) (quoting United States v. Green, 654 F.3d 637, 651 (6th Cir. 2011)). Here, Plaintiff fails to allege any facts to suggest that he was treated differently than others who were similarly situated. Specifically, although Plaintiff vaguely references “other inmates who ha[ve] to take other programs,” he fails to allege any facts to suggest that these other inmates were similarly situated. (ECF No. 1, PageID.4–5.) Instead, any allegations of discriminatory treatment are wholly conclusory. Conclusory allegations of unconstitutional conduct without specific factual allegations fail to state a claim under Section 1983. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555. Furthermore, even viewing Plaintiff’s equal protection claim as a classof-one claim, the Court would reach the same conclusion because Plaintiff’s equal protection claims are wholly conclusory and he has alleged no facts that plausibly suggest that his equal protection rights were violated. Accordingly, any intended Fourteenth Amendment equal protection claims will be dismissed. Conclusion Having conducted the review required by the Prison Litigation Reform Act, the Court determines that Plaintiff’s complaint will be dismissed for failure to state a claim, under 28 U.S.C. 13 §§ 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). Although the Court concludes that Plaintiff’s claims are properly dismissed, the Court does not conclude that any issue Plaintiff might raise on appeal would be frivolous. Coppedge v. United States, 369 U.S. 438, 445 (1962). Accordingly, the Court does not certify that an appeal would not be taken in good faith. Should Plaintiff appeal this decision, the Court will assess the $505.00 appellate filing fee pursuant to Section 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 Section 1915(g). If he is barred, he will be required to pay the $505.00 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. Dated: December 4, 2023 /s/ Sally J. Berens SALLY J. BERENS United States Magistrate Judge 14
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