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Case 2:13-cv-00220-GJQ-TPG Doc #8 Filed 09/20/13 Page 1 of 7 Page ID#38







Case No. 2:13-cv-220





Honorable Gordon J. Quist


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 without payment of an initial

partial filing fee. Under the Prison Litigation Reform Act, 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 Frank Jones, a state prisoner confined at the Kinross Correctional Facility,

filed this civil rights action pursuant to 42 U.S.C. § 1983 against Defendant Officer Parr. In his

complaint, Plaintiff alleges that on November 21, 2012, Plaintiff was placed in administrative

segregation for refusing to go to the Annex to be reviewed for a misconduct. Plaintiff’s personal

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property then became the direct responsibility of Defendant Parr. When Plaintiff’s property was

returned to Plaintiff, the following items were missing: AA batteries, shampoo, fingernail clippers,

Degree deodorant, Old Spice Deodorant, toothpaste, a coat, headphones, mouthwash, and a

prescription lotion. Plaintiff claims that Defendant’s conduct violated his rights under the First,

Fourth, and Fourteenth Amendments. Plaintiff seeks compensatory and punitive damages.



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. Twombly, 550 U.S. at 555; 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.” Iqbal, 556 U.S. 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.” Iqbal, 556 U.S. 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

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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


Plaintiff contends that Defendant Parr violated his Fourth Amendment rights by

mishandling his property when Plaintiff was moved to administrative segregation. In Hudson v.

Palmer, 468 U.S. 517 (1984), the Supreme Court considered and rejected a Fourth Amendment

claim similar to Plaintiff’s. In that case, a prison official searched a prisoner’s cell and destroyed

some of his legal papers in the process. Id. at 519, 535. The prisoner claimed that the prison

official’s conduct constituted an unreasonable search and seizure of his property, in violation of the

Fourth Amendment. Id. at 530. The Court disagreed.

First, the Court recognized that while prisoners are not beyond the reach of the

Constitution, “curtailment of certain rights is necessary, as a practical matter, to accommodate a

‘myriad of institutional needs and objectives’ of prison facilities, ... chief among which is internal

security.” Id. at 523–24 (internal citation omitted). The Court then determined that the official’s

search of the prisoner’s cell did not violate the Fourth Amendment because “society is not prepared

to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his

prison cell.” Id. at 526. According to the Court, “[a] right of privacy in traditional Fourth

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Amendment terms is fundamentally incompatible with the close and continual surveillance of

inmates and their cells required to ensure institutional security and internal order.” Id. at 527–28.

For similar reasons, the Court held that “the Fourth Amendment does not protect

against seizures in a prison cell [.]” Id. at 528 n.8. According to the Court, “[p]rison officials must

be free to seize from cells any articles which, in their view, disserve legitimate institutional

interests.” Id.

Applying Hudson to Plaintiff’s case, the Fourth Amendment did not prohibit

Defendant Parr from taking control of Plaintiff’s property when he was moved from his cell to

administrative segregation. Therefore, Plaintiff does not state a Fourth Amendment claim.

Plaintiff also appears to be claiming that Defendant Parr violated his Fourteenth

Amendment due process rights. Plaintiff’s due process claim is barred by the doctrine of Parratt

v. Taylor, 451 U.S. 527 (1981), overruled in part by Daniels v. Williams, 474 U.S. 327 (1986).

Under Parratt, 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. See Hudson v. Palmer, 468 U.S. 517, 530-36 (1984).

Because Plaintiff’s claim is premised upon allegedly unauthorized negligent acts of

a state official, he must plead and prove the inadequacy of state post-deprivation remedies. See

Copeland v. Machulis, 57 F.3d 476, 479-80 (6th Cir. 1995); Gibbs v. Hopkins, 10 F.3d 373, 378 (6th

Cir. 1993). Under settled Sixth Circuit authority, a prisoner’s failure to sustain this burden requires

dismissal of his § 1983 due-process action. See Brooks v. Dutton, 751 F.2d 197 (6th Cir. 1985).

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Plaintiff has not sustained his burden in this case. Plaintiff has not alleged that state

post-deprivation remedies are inadequate. Moreover, numerous state post-deprivation remedies are

available to him. First, a prisoner who incurs a loss through no fault of his own may petition the

institution’s Prisoner Benefit Fund for compensation. MICH. DEP’T OF CORR., Policy Directive

04.07.112, ¶ B (effective Jul. 9, 2012). Aggrieved prisoners may also submit claims for property

loss of less than $1,000 to the State Administrative Board. MICH. COMP. LAWS § 600.6419; Policy

Directive, 04.07.112, ¶ B. Alternatively, Michigan law authorizes actions in the Court of Claims

asserting tort or contract claims “against the state and any of its departments, commissions, boards,

institutions, arms, or agencies.” MICH. COMP. LAWS § 600.6419(1)(a). The Sixth Circuit

specifically has held that Michigan provides adequate post-deprivation remedies for deprivation of

property. See Copeland, 57 F.3d at 480. Plaintiff does not allege any reason why a state court

action would not afford him complete relief for the deprivation, either negligent or intentional, of

his personal property. Accordingly, Plaintiff’s complaint will be dismissed.

Finally, Plaintiff makes a conclusory assertion that Defendant Parr’s conduct was

motivated by a desire to retaliate against him for filing a grievance. The filing of a prison grievance

is constitutionally protected conduct for which a prisoner cannot be subjected to retaliation. See

Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001); Hall v. Nusholtz, No. 99-2442, 2000 WL

1679458, at *2 (6th Cir. Nov. 1, 2000); Burton v. Rowley, No. 00-1144, 2000 WL 1679463, at *2

(6th Cir. Nov. 1, 2000). In order to set forth a First Amendment retaliation claim, a plaintiff must

establish that: (1) he was engaged in protected conduct; (2) an adverse action was taken against him

that would deter a person of ordinary firmness from engaging in that conduct; and (3) the adverse

action was motivated, at least in part, by the protected conduct. Thaddeus-X v. Blatter, 175 F.3d

378, 394 (6th Cir.1999) (en banc). Moreover, Plaintiff must be able to prove that the exercise of the

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protected right was a substantial or motivating factor in the defendant’s alleged retaliatory conduct.

See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001) (citing Mount Healthy City Sch. Dist.

Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).

It is well recognized that “retaliation” is easy to allege and that it can seldom be

demonstrated by direct evidence. See Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6th Cir. 2005);

Murphy v. Lane, 833 F.2d 106, 108 (7th Cir. 1987); Vega v. DeRobertis, 598 F. Supp. 501, 506

(C.D. Ill. 1984), aff’d, 774 F.2d 1167 (7th Cir. 1985). “[A]lleging merely the ultimate fact of

retaliation is insufficient.” Murphy, 833 F.2d at 108. “[C]onclusory allegations of retaliatory

motive ‘unsupported by material facts will not be sufficient to state . . . a claim under § 1983.’”

Harbin-Bey, 420 F.3d at 580 (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1538-39 (6th Cir. 1987));

see also Skinner v. Bolden, 89 F. App’x 579, 579-80 (6th Cir. 2004) (without more, conclusory

allegations of temporal proximity are not sufficient to show a retaliatory motive); Birdo v. Lewis,

No. 95-5693, 1996 WL 132148, at *1 (6th Cir. Mar. 21, 1996); Fields v. Powell, No. 94-1674, 1995

WL 35628, at *2 (6th Cir. Jan. 30, 1995); Williams v. Bates, No. 93-2045, 1994 WL 677670, at *3

(6th Cir. Dec. 2, 1994).

Plaintiff fails to specify the date of the alleged grievance he filed on Defendant Parr,

or whether Defendant Parr was even aware of the grievance at the time of his handling of Plaintiff’s

property. Although temporal proximity may be “significant enough to constitute indirect evidence

of a causal connection so as to create an inference of retaliatory motive,” temporal proximity alone

is insufficient to create an issue of fact as to retaliatory motive. Muhammad v. Close, 379 F.3d 413,

417-18 (6th Cir. 2004).

In Muhammad the Sixth Circuit did not resolve the issue, but merely
observed that “temporal proximity alone may be ‘significant enough
to constitute indirect evidence of a causal connection so as to create
an inference of retaliatory motive.’ “ Id. at 418 (quoting DiCarlo v.

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Potter, 358 F.3d 408, 422 (6th Cir.2004) (emphasis added). Even if
temporal proximity may in some cases create an issue of fact as to
retaliatory motive, it would only be sufficient if the evidence was
“significant enough.” Plaintiff’s conclusory and ambiguous evidence
is not “significant enough” to create an issue of fact as to retaliatory

Brandon v. Bergh, 2010 WL 188731, slip op. at 1 (W.D. Mich., Jan. 16, 2010).

In this case, Plaintiff merely alleges the ultimate fact of retaliation in this action.

Plaintiff has not presented any facts to support his conclusion that Defendant Parr retaliated against

him because he filed a grievance. Accordingly, his speculative allegation fails to state a claim.


Having conducted the review 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.

Dated: September 20, 2013

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/s/ Gordon J. Quist