Opinion
Case No. 1:00-cv-882
December 27, 2000
JUDGMENT
In accordance with the opinion filed this date:
IT IS ORDERED that plaintiff's action be dismissed for failure to state a claim upon which relief may be granted and because it is frivolous, pursuant to 28 U.S.C. § 1915(e), § 1915A, and 42 U.S.C. § 1997e(c).
For the same reasons that the Court dismisses the action, the Court discerns no good-faith basis for an appeal. 28 U.S.C. § 1915 (a)(3);McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997).
This is a dismissal as described by 28 U.S.C. § 1915(g).
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 proceedin forma pauperis. 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. 42 U.S.C. § 1997e(c); 28 U.S.C. § 1915(e)(2), 1915A. The Court must read plaintiff's pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595-96 (1972)), and accept plaintiff's allegations as true, unless they are clearly irrational or wholly incredible. See Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 1733 (1992). Applying these standards, the Court will dismiss plaintiff's complaint for failure to state a claim and for frivolousness.
Discussion
I.Factual Allegations
Plaintiff is presently incarcerated at the Riverside Correctional Facility. In his pro se complaint, he sues Dan Bolden, the Deputy Director of the Michigan Department of Corrections. Plaintiff's allegations against Bolden are brief, if not incomprehensible:
Strangely enough, he lists his place of present confinement as "the Eastern District Court." (Compl. at 4.) It also appears that plaintiff may have been previously incarcerated at the Greensville Correctional Center in Virginia, pursuant to a compact between the State of Michigan and the State of Virginia for housing Michigan inmates. (Compl. at 5.)
Form 1997-55, V.R.; Abuse of Discretion; Legalized extortion, deprivation, slander, defamed, and in court late 1990. My plight in the above style title *42 U.S.C.A. § 1981; 1983, Chapter 21.
(Compl. at 6.) Plaintiff asserts nothing further in the section of his form complaint concerning the statement of his claim. In his statement for relief, he seeks for the court to "pull my credit (via TNC I.R.S., T.W.Q.), record(s) for creditability [sic] as to the promptness I pay my bills." (Compl. at 7.)
II.Failure to state a claim
Plaintiff has not exhausted his claims as required by 42 U.S.C. § 1997e (a). Despite the lack of exhaustion, the court may nonetheless dismiss the complaint for failure to state a claim and frivolousness. 42 U.S.C. § 1997e(c)(2). A complaint fails to state a claim upon which relief can be granted when it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations of the complaint. Jones v. City of Carlisle, 3 F.3d 945, 947 (6th Cir. 1993). 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, 108 S.Ct. 2250, 2254-55 (1988); Street v. Corrections Corp. of America, 102 F.3d 810, 814 (6th Cir. 1996).
The sole defendant in this case is Dan Bolden, Deputy Director of the Michigan Department of Corrections. Plaintiff has made no specific allegations against Bolden. In addition, Bolden may not be sued simply based upon his position as deputy director. A plaintiff bringing an action pursuant to § 1983 cannot premise liability upon a theory of respondeat superior or vicarious liability. Street, 102 F.3d at 818 (quoting Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018 (1978)). As the Sixth Circuit has repeatedly emphasized:
Section 1983 liability will not be imposed solely upon the basis of respondeat superior. There must be a showing that the supervisor encouraged the specific incident of misconduct or in some other way directly participated in it. At a minimum, a § 1983 plaintiff must show that a supervisory official at least implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending subordinate.Taylor v. Michigan Dep't of Corrections, 69 F.3d 76, 81 (6th Cir. 1998) (citing Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984)); accord Copeland v. Machulis, 57 F.3d 476, 481 (6th Cir. 1995); Walton v. City of Southfield, 995 F.2d 1331, 1340 (6th Cir. 1993); Leach v. Shelby County Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989). Liability under § 1983 must be based on active unconstitutional behavior and cannot be based upon "a mere failure to act." Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (quoting Salehpour v. University of Tenn., 159 F.3d 199, 206 (6th Cir. 1998), cert. denied, 526 U.S. 1115, 119 S.Ct. 1763 (1999)),cert. denied, 120 S.Ct. 2724 (2000). Plaintiff has not demonstrated how Deputy Director Bolden deprived him of his constitutional rights.
Frivolousness
In addition, plaintiff's action is frivolous. An action may be dismissed as frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831 (1989). The court has the "unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Id., 490 U.S. at 327, 109 S.Ct. at 1833. "A finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Denton, 504 U.S. at 32, 112 S.Ct. at 1732. Plaintiff's allegations are incomprehensible and thus, it is appropriate to dismiss his complaint as frivolous. See, e.g., Mayfield v. Collins, 918 F.2d 560, 562 (5th Cir. 1991) (affirming the dismissal of a complaint as frivolous where the complaint contained "a plethora of vague and largely incomprehensible claims"). Consequently, the Court will also dismiss plaintiff's complaint as frivolous.
Conclusion
Having conducted the review now required by the Prison Litigation Reform Act, the Court determines that plaintiff's action fails to state a claim and is frivolous. Therefore, it will be dismissed pursuant to 28 U.S.C. § 1915(e)(2), 1915A(b); 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 $105 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 $105 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 27, 2000