Opinion
Case No. 2:10-cv-305.
January 3, 2011
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 has paid the 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.
Discussion
I. Factual allegationsPlaintiff Eugene McKinney #260969, an inmate at the Oaks Correctional Facility, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against Defendants Assistant Resident Unit Supervisor C. Mullen, Corrections Officers T. Johnson, Dawn Mayotte, B. Durand, G. Hofbauer, R. Napel, S. Place, Unknown Alexander, M. Laitine, James Armstrong, and Patricia L. Caruso.
In his complaint, Plaintiff alleges that on May 2, 2008, he arrived at the Marquette Branch Prison (MBP). Upon receiving his property, Plaintiff discovered that his Qur'an was missing. Plaintiff asked Defendant Mullen to investigate, but received no assistance. On June 4, 2008, Plaintiff gave Defendant Mullen two large folders of transcripts and legal documents to mail out, along with a disbursement form completed by Defendant Mullen and later authorized by Defendant Johnson. On January 19, 2009, Plaintiff received Plaintiff received the unprocessed disbursement form and filed a grievance regarding the mishandling of the form. On January 21, 2009, Plaintiff received a response from Defendant Mayotte stating that the property must have been lost because it was not in Plaintiff's footlocker. On February 9, 2009, Plaintiff received a notice of intent to conduct an administrative hearing from Defendants Mullen and Johnson, verifying that they possessed and disposed of Plaintiff's legal and personal property. Plaintiff claims that the loss of this property impaired his ability to appeal his criminal conviction or to file a habeas corpus petition. Plaintiff seeks compensatory, punitive and nominal damages, as well as injunctive relief.
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 Atlantic Corp. 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 bymere 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." Ashcroft, 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." Ashcroft, 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." Ashcroft, 129 S. Ct. at 1950 (quoting FED. R. CIV. P. 8(a)(2)); see also Hill v. Lappin, ___ F.3d ___, 2010 WL 5288892, at *2 (6th Cir. Dec. 28, 2010 (holding that the Twonbley/Ashcroft 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).
Plaintiff claims that Defendants improperly deprived him of his property, thereby violating his Fourteenth Amendment due process rights. The Due Process Clause does not prohibit deprivation of property by the state; instead it prohibits such deprivations without due process of law. Parratt v. Taylor, 451 U.S. 527, 537 (1981), overruled in part on other grounds Daniels v Williams, 474 U.S. 327 (1986).
A plaintiff alleging infringement of property rights must show that the deprivation was caused by action taken pursuant to established state procedures. Hudson v. Palmer, 468 U.S. 517, 532 (1984); Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-436 (1982). Plaintiff herein fails to make the required distinction between challenging the "established state procedure" itself and the failure of the state employee to follow that procedure. Id. If the official performing the state procedure fails to follow the state procedure or conform his conduct to state law, the plaintiff's injury is the result of a "random and unauthorized act" which the state was unable to foresee and thus prevent. In Parratt, the Supreme Court held that no procedural due process violation occurs when the deprivation is the result of a "random and unauthorized act," unless the state failed to provide the plaintiff with an "adequate post-deprivation remedy."
Application of the principles recited above to this case leads us to conclude the respondent has not alleged a violation of the Due Process Clause of the Fourteenth Amendment. Although he has been deprived of property under color of state law, the deprivation did not occur as a result of some established state procedure. Indeed, the deprivation occurred as a result of the unauthorized failure of agents of the state to follow established state procedure. There is no contention that the procedures themselves are inadequate nor is there any contention that it was practicable for the State to provide a predeprivation hearing. Moreover, the State of Nebraska has provided respondent with the means by which he can receive redress for the deprivation.Parratt, 451 U.S. at 543.
The Sixth Circuit has held that in procedural due process claims brought pursuant to 42 U.S.C. § 1983, the "Parratt doctrine" allows dismissal where the state provides an adequate postdeprivation remedy if:
1) the deprivation was unpredictable or "random"; 2) predeprivation process was impossible or impracticable; and 3) the state actor was not authorized to take the action that deprived the plaintiff of property or liberty.Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995); see also Pilgrim v. Littlefield, 92 F.3d 413, 416-417 (6th Cir. 1996). In cases where these conditions are present, "a procedural due process claim will not be stated unless the plaintiff pleads and proves that his available state remedies are inadequate to redress the wrong." Copeland, 57 F.3d at 479; Pilgrim, 92 F.3d at 417.
Plaintiff in this case has not demonstrated the absence of adequate state remedies for Defendants' alleged misconduct. A review of the attachments to Plaintiff's complaint reveals that he filed a grievance and appeals, as well as a claim for reimbursement for the loss of court transcripts, a pair of shoes, a beard trimmer and one polo shirt with the MDOC. According to a September 29, 2009, letter from Richard Russell, Manager Grievance and Appeals Section, MDOC Office of Legal Affairs, to Sherry Bond, Secretary of the State Administrative Board:
Mr. McKinney claims the property was lost while in the property room. Staff has verified McKinney filled out a disbursement to send items home. He added two brown folders of paperwork at which time he wrote transcripts on the disbursement. McKinney wrote a grievance stating the property never made it to its destination. Although, it is not conclusive, the property and transcripts could have been misplaced/lost by the MDOC. Amounts for reimbursement by the State Administrative Board must be less than $1000.00. Therefore, the MDOC recommends reimbursement as follows:$ 1.25 1 transcripts $922.00 — amount supported by court $922.00 1 pr shoes $49.99 @ 10% residual rate + 5.00 S/H $ 10.00 Purchase date 12/27/2006 Beard Trimmers $25.00 @ 10% residual rate $ 2.50 Purchase date 12/26/2006 1 shirt $10.25 @ 10% residual rate Total $935.75
The total recommended reimbursement for this claim is $935.75.
(Docket #1-1, p. 20.)
In a November 17, 2009, letter from Sherry Bond to James Armstrong, Manager Grievance and Appeals with the MDOC, she states that the State Administrative Board adopted the recommendation for reimbursement of $963.24. (Docket #1-1, p. 19.) Warden Hofbauer was instructed to credit $963.24 to Plaintiff's account on November 23, 2009, and to notify Jody Washington when the claim was paid. In addition, Plaintiff was instructed to kite the accounting office at MBP if he did not receive payment within 4 to 8 weeks. (Docket #1-1, p. 18.) Therefore, the state provided adequate remedies for Defendants' alleged misconduct. Accordingly, pursuant to Parratt, Plaintiff's due process claims should be dismissed.
Plaintiff claims that Defendants conduct violated his right of access to the courts because the loss of his property impaired his ability to appeal his criminal conviction or to file a habeas corpus petition. In Bounds v. Smith, 430 U.S. 817 (1977), the Supreme Court recognized a prisoner's fundamental right of access to the courts. While the right of access to the courts does not allow a State to prevent an inmate from bringing a grievance to court, it also does not require the State to enable a prisoner to discover grievances or litigate effectively. Lewis v. Casey, 518 U.S. 343 (1996). Thus, Bounds did not create an abstract, free-standing right to a law library, litigation tools, or legal assistance. Id. at 351 (1996). Further, the right may be limited by legitimate penological goals, such as maintaining security and preventing fire or sanitation hazards. See Acord v. Brown, No. 91-1865, 1992 WL 58975 (6th Cir. March 26, 1992); Hadix v. Johnson, No. 86-1701, 1988 WL 24204 (6th Cir. March 17, 1988); Wagner v. Rees, No. 85-5637, 1985 WL 14025 (6th Cir. Nov. 8, 1985).
To state a claim, an inmate must show that any shortcomings in the library, litigation tools, or legal assistance caused actual injury in his pursuit of a legal claim. Lewis, 518 U.S. at 351; Talley-Bey, 168 F.3d at 886; Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996); Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996); Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir. 1985). An inmate must make a specific claim that he was adversely affected or that the litigation was prejudiced. Vandiver v. Niemi, No. 94-1642, 1994 WL 677685, at *1 (6th Cir. Dec. 2, 1994). Particularly, an inmate cannot show injury when he still has access to his legal materials by request, Kensu, 87 F.3d at 175, when he fails to state how he is unable to replicate the confiscated documents, Vandiver, 1994 WL 677685, at *1, or when he could have received the material by complying with the limits on property, e.g., where he had the opportunity to select the items that he wanted to keep in his cell, or when he had an opportunity to purchase a new footlocker that could hold the property. Carlton v. Fassbender, No. 93-1116, 1993 WL 241459, at *2 (6th Cir. July 1, 1993).
The Supreme Court has strictly limited the types of cases for which there may be an actual injury:
Bounds does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims. The tools it requires to be provided are those that the inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration.Lewis, 518 U.S. at 355. "Thus, a prisoner's right to access the courts extends to direct appeals, habeas corpus applications, and civil rights claims only." Thaddeus-X v. Blatter, 175 F.3d 378, 391 (6th Cir. 1999) (en banc). Moreover, the underlying action must have asserted a non-frivolous claim. Lewis, 518 U.S. at 353; accord Hadix v. Johnson, 182 F.3d 400, 405 (6th Cir. 1999) ( Lewis changed actual injury to include requirement that action be non-frivolous).
As noted above, Plaintiff claims that the loss of his property impaired his ability to appeal his criminal conviction or to file a habeas corpus petition. However, Plaintiff has already completed an appeal in both the Michigan Court of Appeals and the Michigan Supreme Court. People of the State of Michigan v. Eugene McKinney, Michigan Court of Appeals No. 209536 (Oct. 3, 2000), and Michigan Supreme Court No. 118119 (June 26, 2001). Moreover, any habeas corpus claim would be barred by the one-year statute of limitations provided in 28 U.S.C. § 2244(d)(1), which became effective on April 24, 1996, as part of the Antiterrorism and Effective Death Penalty Act, PUB. L. NO. 104-132, 110 STAT. 1214 ("AEDPA"). Therefore, Plaintiff cann show that his ability to access the courts was actually impaired by the loss of his property.
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.
Dated: January 3, 2011