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Case 1:13-cv-00903-GJQ-HWB Doc #4 Filed 09/20/13 Page 1 of 9 Page ID#31

UNITED STATES OF AMERICA

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION



TORAN PETERSON,

Plaintiff,

v.

DIANE SHAW et al.,

Defendants.

_________________________/

Case No. 1:13-cv-903

Honorable Gordon J. Quist

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, and Plaintiff will pay the initial

partial filing fee as funds become available. 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

and/or because Defendants are immune from suit.

Factual Allegations

Plaintiff Toran Peterson is a state prisoner incarcerated by the Michigan Department

of Corrections (MDOC) at the Ionia Correctional Facility (ICF). He sues the MDOC, former

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Director of the MDOC Patricia Caruso, MDOC Regional Health Information Manager Diane Shaw,

and Acting Manager of the MDOC’s Grievance and Appeal’s Section, Richard Russell. He also

sues the following employees of ICF: Grievance Coordinator (unknown) Breedlove and

Administrative Assistant/Deputy Warden Richard Groves. In addition, he sues Willie O. Smith,

who was the warden of ICF at the time of the events he complains of in the complaint, but who is

now the warden of Carson City Correctional Facility (DRF).

According to the pro se complaint, on June 27, 2010, Plaintiff received documents

from an attorney representing an MDOC employee. Upon reviewing the documents, Plaintiff

learned that Defendant Shaw disclosed 825 pages of his medical records to the attorney, without

Plaintiff’s consent. Plaintiff claims that the disclosure constituted a violation of his right to privacy

and confidentiality under the First and Fourteenth Amendments.

On June 29, 2010, Plaintiff sent a kite to Shaw about the disclosure of his medical

records. He never received a response. On July 5, 2010, Plaintiff filed a prisoner grievance

regarding Shaw’s actions, but he never received a grievance receipt or a response to his grievance.

Plaintiff then wrote to Defendant Groves about the issue, but Plaintiff never received a response.

Plaintiff also wrote to Defendant Breedlove about the grievance on two occasions, but he never

received a response. On August 11, 2010, Plaintiff wrote a letter to Warden Smith complaining that

Defendant Breedlove was not processing his grievances. Plaintiff also wrote to Defendants Caruso

and other MDOC officials. Plaintiff later received a copy of his grievance along with memos from

Defendant Russell, which stated that Plaintiff must file his grievance at his facility. The memos

were dated August 17, 2010.

Based on the foregoing, Plaintiff claims that Defendant Breedlove denied him his

First Amendment right to file prisoner grievances by failing to process them. In addition,

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Defendants Caruso, Russell, Smith, and Groves denied Plaintiff his rights under the First

Amendment because they “tacitly/implicitly authorized/approved and knowingly acquiesced in the

violation of [Plaintiff’s] right to file nonfrivolous grievances.” (Compl., docket #1, Page ID#4.)

As relief for the foregoing, Plaintiff seeks compensatory and punitive damages.

Discussion

I.

Immunity

Plaintiff may not maintain a § 1983 action against the MDOC. Regardless of the

form of relief requested, the states and their departments are immune under the Eleventh

Amendment from suit in the federal courts, unless the state has waived immunity or Congress has

expressly abrogated Eleventh Amendment immunity by statute. See Pennhurst State Sch. & Hosp.

v. Halderman, 465 U.S. 89, 98-101 (1984); Alabama v. Pugh, 438 U.S. 781, 782 (1978); O’Hara

v. Wigginton, 24 F.3d 823, 826 (6th Cir. 1993). Congress has not expressly abrogated Eleventh

Amendment immunity by statute, Quern v. Jordan, 440 U.S. 332, 341 (1979), and the State of

Michigan has not consented to civil rights suits in federal court. Abick v. Michigan, 803 F.2d 874,

877 (6th Cir. 1986). In numerous unpublished opinions, the Sixth Circuit has specifically held that

the MDOC is absolutely immune from suit under the Eleventh Amendment. See, e.g., McCoy v.

Michigan, 369 F. App’x 646, 653-54 (6th Cir. 2010); Turnboe v. Stegall, No. 00-1182, 2000

WL1679478, at *2 (6th Cir. Nov. 1, 2000). In addition, the State of Michigan (acting through the

Michigan Department of Corrections) is not a “person” who may be sued under § 1983 for money

damages. See Lapides v. Bd. of Regents, 535 U.S. 613 (2002) (citing Will v. Mich. Dep’t of State

Police, 491 U.S. 58 (1989)). Therefore, the MDOC will be dismissed.

II.

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.

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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

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).

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A. Right to Privacy

Plaintiff claims that the disclosure of his medical records by a MDOC employee to

an attorney representing one of the MDOC’s employees constituted a violation of his constitutional

right to privacy. There is a constitutional right to informational privacy under the Fourteenth

Amendment, but the Sixth Circuit has limited that right “‘only to interests that implicate a

fundamental liberty interest.’” Wurzelbacher v. Jones–Kelley, 675 F.3d 580, 586 (6th Cir. 2012)

(quoting Lambert v. Hartman, 517 F.3d 433, 440 (6th Cir. 2008) (internal quotation marks and

citation omitted)). A plaintiff alleging a violation of his informational privacy rights must

demonstrate that “‘the interest at stake relates to those personal rights that can be deemed

fundamental or implicit in the concept of ordered liberty.’” Id. (quoting Bloch v. Ribar, 156 F.3d

673, 684 (6th Cir. 1998) (internal quotation marks and citation omitted)); see also Lee v. City of

Columbus, 636 F.3d 245, 260 (6th Cir. 2011); J.P. v. DeSanti, 653 F.2d 1080, 1087-91 (6th Cir.

1981).

Applying the foregoing standard, the Sixth Circuit repeatedly has rejected claims

asserting a constitutional right to non-disclosure of personal information. See, e.g., Lee, 636 F.3d

at 261 (city’s requirement that employees returning from sick leave disclose the “nature of [their]

illness” to their immediate supervisors does not implicate a fundamental right); Summe v. Kenton

Cnty. Clerk’s Office, 604 F.3d 257, 270-71 (6th Cir. 2010) (county’s release of medical record of

deputy county clerk pursuant to an open records request did not implicate a right fundamental or

implicit in the concept of ordered liberty so as to violate constitutional right to privacy); Barber v.

Overton, 496 F.3d 449, 455-57 (6th Cir. 2007) (release of guards’ birth dates and social security

numbers to prisoners did not rise to constitutional level); Coleman v. Martin, 63 F. App’x 791, 793

(6th Cir. 2003) (dissemination of prisoner’s mental health records to parole board was not a

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constitutional violation); Jarvis v. Wellman, 52 F.3d 125, 126 (6th Cir. 1995) (disclosure of rape

victim’s medical records to an inmate did not violate her constitutional privacy rights); DeSanti, 653

F.2d at 1091 (constitutional rights not violated by dissemination of juvenile delinquents’ social

histories to various state agencies). Indeed, the court “has recognized a constitutionally-protected

informational-privacy interest in only two circumstances: (1) where the release of personal

information may lead to bodily harm, and (2) where the released information relates to matters ‘of

a sexual, personal, and humiliating nature.’” Wurzelbacher, 675 F.3d at 586 (quoting Lambert, 517

F.3d at 440).

Plaintiff does not allege that the disclosure of his medical information put him at risk

of bodily harm, or involved information of a sexual, personal, and humiliating nature. Moreover,

none of Plaintiff's allegations meaningfully distinguish his case from Lee, Summe, Coleman, or

Jarvis, in which the Sixth Circuit held that the disclosure of medical information did not violate the

plaintiff’s constitutional right to privacy. See Lee, 636 F.3d at 261 (“[W]e have not yet confronted

circumstances involving the disclosure of medical records that, in our view, are tantamount to the

breach of a ‘fundamental liberty interest’ under the Constitution.”). In short, Plaintiff fails to state

a constitutional claim with respect to the disclosure of his medical records.

B. Right to File Grievances

Plaintiff also claims that Defendants’ failure to process or respond to his prison

grievances violated his right under the First Amendment to file prisoner grievances. Prisoners have

a First Amendment right to file nonfrivolous institutional grievances without being subject to

retaliation. Herron v. Harrison, 203 F.3d 410, 414 (6th Cir. 2000); Thaddeus-X v. Blatter, 175 F.3d

378 (6th Cir.1999). Plaintiff, however, does not contend that Defendants retaliated against him for

filing grievances. Instead, he claims that Defendants would not acknowledge or respond to them.

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The Sixth Circuit has never held that prisoners have a constitutional right to receive a response to

their grievances. To the contrary, the Sixth Circuit and other circuit courts have held that there is

no constitutionally protected right to an effective prison grievance process. 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) (“[T]here is no inherent constitutional right to an effective prison grievance procedure.”);

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); see also Antonelli v. Sheahan, 81 F.3d 1422, 1430

(7th Cir. 1996); Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994). Also, 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). Consequently, Defendants’ failure to process or respond to

Plaintiff’s grievances did not deprive him of a constitutionally protected interest.

In addition, even if Defendants improperly prevented Plaintiff from pursuing a

grievance through the grievance appeal process, Plaintiff’s constitutional right of access to the courts

cannot be compromised by his inability to exhaust the prison grievance process. See, e.g., Lewis v.

Casey, 518 U.S. 343, 355 (1996) (requiring actual injury); Bounds v. Smith, 430 U.S. 817, 821-24

(1977). The exhaustion requirement in the PLRA only mandates exhaustion of available

administrative remedies. See 42 U.S.C. § 1997e(a). If Plaintiff was improperly denied access to the

grievance process, the process would be rendered unavailable, and exhaustion would not be a

prerequisite for initiation of a civil rights action.

In light of the foregoing, the Court finds that Plaintiff fails to state a cognizable claim

with respect to Defendants’ failure to process or respond to his grievances. Cf. Shehee v. Luttrell,

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199 F.3d 295, 300 (6th Cir. 1999) (a failure to act in response to a prison grievance is not sufficient

to give rise to liability under § 1983).



C. State Law / MDOC Policies

Plaintiff asserts in his complaint that certain conduct by Defendants violated their

duties under state administrative rules and/or MDOC policies. A failure to comply with an

administrative rule or policy does not itself rise to the level of a constitutional violation. Laney v.

Farley, 501 F.3d 577, 581 n.2 (6th Cir. 2007); Smith v. Freland, 954 F.2d 343, 347-48 (6th Cir.

1992); Barber v. City of Salem, 953 F.2d 232, 240 (6th Cir. 1992); McVeigh v. Bartlett, No. 94-

23347, 1995 WL 236687, at *1 (6th Cir. Apr. 21, 1995) (failure to follow policy directive does not

rise to the level of a constitutional violation because policy directive does not create a protectable

liberty interest). Section 1983 is addressed to remedying violations of federal law, not state law.

Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982); Laney, 501 F.3d at 580-81. Plaintiff’s

assertion that Defendants violated state administrative rules or policies is not sufficient to state a

cognizable § 1983 claim.

D. Supervisory Liability

Plaintiff’s only allegation against Defendants Caruso, Smith, and Groves are that they

failed to respond to Plaintiff’s complaints regarding conduct by other MDOC employees.

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 (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

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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, 199 F.3d at 300. “[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. Thus, even if Plaintiff had stated a viable constitutional claim against one of the other

Defendants, Defendants Caruso, Smith and Groves are subject to dismissal because Plaintiff has

failed to allege that they engaged in any active unconstitutional behavior.

Conclusion

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 and/or on grounds of

immunity, 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

GORDON J. QUIST

UNITED STATES DISTRICT JUDGE