Harris 642284 v. Howard

• Court: District Court, W.D. Michigan
• Decided: May 30, 2025
• Docket: 2:25-cv-00015
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION ______

FRANK HARRIS,

Plaintiff, Case No. 2:25-cv-15

v. Hon. Hala Y. Jarbou

JEFFREY HOWARD et al.,

Defendants. ____________________________/ OPINION This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. The Court will grant Plaintiff leave to proceed in forma pauperis. 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, the Court will dismiss Plaintiff’s complaint for failure to state a claim against Defendants Storey, Batho, Teneyck, Desormeau, Dotson, Mills, Shunk, Slater, and Voorhees. The Court will also dismiss, for failure to state a claim, Plaintiff’s First Amendment retaliation, Eighth Amendment, Fourteenth Amendment procedural due process, substantive due process, and equal protection, and conspiracy claims against Defendant Howard. Plaintiff’s ADA, RA, and state law claims against Defendant Howard remain in the case. Plaintiff’s request for appointment of counsel (ECF No. 3) will be denied. Discussion Factual Allegations Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Kinross Correctional Facility (KCF) in Kincheloe, Chippewa County, Michigan. The events

about which he complains occurred at that facility. Plaintiff sues Warden Jeffrey Howard, Deputy Warden Barbara Storey, Assistant Deputy Warden C. Batho, Inspectors Unknown Teneyck and Tuller Desormeau, Corrections Officer J. Dotson, Sergeant Unknown Mills, Captain S. Shunk, Hearings Investigator L. Slater, and Grievance Coordinator R. Voorhees in their official and personal capacities. (ECF No. 1, PageID.3–4.). Plaintiff alleges that he has been diagnosed as hard of hearing and needs to use a hearing aid for effective communication. Plaintiff states that this is noted on his identification card. (Id., PageID.8.) On November 24, 2024, Defendant Dotson forged a false misconduct for theft that claimed Plaintiff had taken a second unauthorized food tray and that the MDOC was seeking $2.85

in restitution. (Id.) Plaintiff claims that Defendant Dotson lied in the report when he claimed that he identified Plaintiff by using the camera system and by Plaintiff’s MDOC ID card. (Id., PageID.9.) Plaintiff asserts that he never had any contact with Defendant Dotson. (Id.) On November 26, 2024, Plaintiff was interviewed by Defendant Mills through a security window, but was not allowed to get his hearing aid and could not clearly understand Defendant Mills. (Id.) Plaintiff told Defendant Mills that the misconduct ticket was false and to check the “facial recognition video system” of Plaintiff leaving his housing unit, going to Food Service, sitting by the Officer Station, and returning to the housing unit as proof that no violation occurred. (Id.) Plaintiff then told Defendant Mills that he was going to grieve him and in retaliation, Defendant Mills refused to allow Plaintiff to get his hearing aid. (Id.) Plaintiff claims that Defendant Shunk denied him a fair hearing on the misconduct and refused to allow Plaintiff to use his hearing aid. Defendant Shunk stated that “looking upon the

video the inmate had the same hair line as you,” which Plaintiff believes implied that all Black prisoners with the same or similar hair lines are the same person. (Id., PageID.10.) During the hearing, Plaintiff stated that he was grieving the conduct of Defendants Dotson and Mills and Defendant Shunk retaliated by fabricating the content of the video footage. Defendant Shunk also refused to use the facial recognition video camera footage technology. (Id.) Plaintiff requested a hearing and appeal package by kiting Defendant Slater on November 26, 2024, but she arbitrarily disregarded the 15-day deadline for filing an appeal and Plaintiff did not receive the package until December 9, 2024. (Id., PageID.11.) Plaintiff states that at this point, he discovered that Defendant Slater had forged the forms by stating “primary voice communication without hearing aid.” (Id.) On December 6 and December 10 of 2024, Defendants Voorhees and

Batho falsely rejected Plaintiff’s grievances against Defendants Slater, Tenyck, and Desormeau. (Id.) Plaintiff claims that Defendants retaliated against him in violation of the First Amendment, subjected him to cruel and unusual punishment in violation of the Eighth Amendment, and violated his Fourteenth Amendment substantive and procedural due process rights, as well as his equal protection rights. Plaintiff also asserts violations of the Americans with Disabilities Act, the Rehabilitation Act, and Michigan state law. Finally, Plaintiff claims that Defendants conspired with one another to violate his rights. Plaintiff seeks damages and injunctive relief. 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 § 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). A. First Amendment Retaliation Claims Plaintiff makes a conclusory assertion that Defendants retaliated against him in violation of the First Amendment. Retaliation based upon a prisoner’s exercise of his or her constitutional

rights violates the Constitution. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). In order to set forth a First Amendment retaliation claim, a plaintiff must establish three elements: (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. Id. Moreover, a plaintiff must be able to prove that the exercise of the 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). “[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 Murray v. Evert, 84 F. App’x 553, 556 (6th Cir. 2003) (in complaints screened pursuant to 28 U.S.C. § 1915A, “[c]onclusory allegations of retaliatory motive with no concrete and relevant particulars fail to raise a genuine issue of fact for trial” (internal quotations omitted)); Lewis v. Jarvie, 20 F. App’x 457, 459 (6th Cir. 2001) (“[B]are allegations of malice on the defendants’ parts are not enough to establish retaliation claims” that will survive § 1915A screening) (citing Crawford-El v. Britton, 523 U.S. 574, 588 (1998)). In some circumstances, temporal proximity “may be ‘significant enough to constitute indirect evidence of a causal connection so as to create an inference of retaliatory motive.’”

Muhammad v. Close, 379 F.3d 413, 417–18 (6th Cir. 2004) (quoting DiCarlo v. Potter, 358 F.3d 408, 422 (6th Cir. 2004)). However, “[c]onclusory allegations of temporal proximity are not sufficient to show a retaliatory motive.” Skinner v. Bolden, 89 F. App’x 579, 580 (6th Cir. 2004). Plaintiff merely alleges the ultimate fact of retaliation. Plaintiff states that he told Defendant Mills that he was going to grieve him prior to Defendant Mills’ refusal to get his hearing aid and that during the hearing on the misconduct, Defendant Shunk fabricated the content of the video footage after Plaintiff stated that he was grieving the conduct of Defendants Dotson and Mills. (ECF No. 1, PageID.9–10.) Plaintiff alleges no facts from which to reasonably infer that Defendants’ actions were motivated by any of his protected conduct. He merely concludes that because he threatened to file

grievances on Defendants Dotson and Mills, the actions of Defendants Mills and Shunk must have been motivated by his grievances. The Sixth Circuit, however, has been reluctant to find that temporal proximity between the filing of a grievance and an official’s adverse conduct, standing alone, is sufficient to establish a retaliation claim. Hill v. Lappin, 630 F.3d 468, 476 (6th Cir. 2010). Plaintiff merely alleges temporal proximity between Defendants’ conduct and his statement that he was filing grievances. Such allegations are insufficient to state a retaliation claim. Moreover, with regard to the remaining Defendants, Plaintiff fails to allege any facts at all showing that they were motivated by a desire to retaliate against him. Conclusory allegations of unconstitutional conduct without specific factual allegations fail to state a claim under § 1983. See Iqbal, 556 U.S. at 678–79; Twombly, 550 U.S. at 555. Therefore, Plaintiff’s retaliation claims will be dismissed for failure to state a claim. B. Eighth Amendment Claims Plaintiff alleges that Defendants subjected him to cruel and unusual punishment in violation of the Eighth Amendment when they wrote a false Class II misconduct on him, refused

to allow him to use his hearing aids during the misconduct review and hearing, and prevented him from filing a timely appeal. The Eighth Amendment imposes a constitutional limitation on the power of the states to punish those convicted of crimes. Punishment may not be “barbarous,” nor may it contravene society’s “evolving standards of decency.” Rhodes v. Chapman, 452 U.S. 337, 345–46 (1981). The Amendment, therefore, prohibits conduct by prison officials that involves the “unnecessary and wanton infliction of pain.” Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987) (per curiam) (quoting Rhodes, 452 U.S. at 346). The deprivation alleged must result in the denial of the “minimal civilized measure of life’s necessities.” Rhodes, 452 U.S. at 347; see also Wilson v. Yaklich, 148 F.3d 596, 600–01 (6th Cir. 1998). The Eighth Amendment is only concerned with “deprivations

of essential food, medical care, or sanitation” or “other conditions intolerable for prison confinement.” Rhodes, 452 U.S. at 348 (citation omitted). Moreover, “[n]ot every unpleasant experience a prisoner might endure while incarcerated constitutes cruel and unusual punishment within the meaning of the Eighth Amendment.” Ivey, 832 F.2d at 954. “Routine discomfort is ‘part of the penalty that criminal offenders pay for their offenses against society.’” Hudson v. McMillian, 503 U.S. 1, 9 (1992) (quoting Rhodes, 452 U.S. at 347). As a consequence, “extreme deprivations are required to make out a conditions-of-confinement claim.” Id. In order for a prisoner to prevail on an Eighth Amendment claim, he must show that he faced a sufficiently serious risk to his health or safety and that the defendant official acted with “‘deliberate indifference’ to [his] health or safety.” Mingus v. Butler, 591 F.3d 474, 479–80 (6th Cir. 2010) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)) (applying deliberate indifference standard to medical claims); see also Helling v. McKinney, 509 U.S. 25, 35 (1993) (applying deliberate indifference standard to conditions of confinement claims). The deliberate-indifference

standard includes both objective and subjective components. Farmer, 511 U.S. at 834; Helling, 509 U.S. at 35–37. To satisfy the objective prong, an inmate must show “that he is incarcerated under conditions posing a substantial risk of serious harm.” Farmer, 511 U.S. at 834. Under the subjective prong, an official must “know[] of and disregard[] an excessive risk to inmate health or safety.” Id. at 837. “[I]t is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.” Id. at 842. “It is, indeed, fair to say that acting or failing to act with deliberate indifference to a substantial risk of serious harm to a prisoner is the equivalent of recklessly disregarding that risk.” Id. at 836. “[P]rison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.” Id. at 844.

Plaintiff’s Eighth Amendment claims lack merit because Plaintiff fails to allege conditions which show that Plaintiff was “incarcerated under conditions posing a substantial risk of serious harm.” Id. at 834. Plaintiff does not claim that he was deprived of his hearing aids altogether, merely that he was not allowed to use them during his hearing. Plaintiff states, and the attached misconduct report and hearing report show, that he was found guilty of a Class II misconduct for taking an extra meal tray and charged $2.85 in restitution. (ECF Nos. 1-3, 1-4.) Plaintiff was not subjected to any other punishment as a result of this finding. The one-time charge of $2.85 does not constitute cruel and unusual punishment. Therefore, Plaintiff’s Eighth Amendment claims are properly dismissed. C. Fourteenth Amendment Claims 1. Equal Protection Plaintiff asserts that Defendants violated his Fourteenth Amendment right to equal protection. 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., Inc., 473 U.S. 432, 439 (1985). When a law adversely impacts a “suspect class” such as one defined by race, alienage, or national origin, or invades a “fundamental right” such as speech or religious freedom, the rigorous “strict scrutiny” standard ordinarily governs, whereby such laws “will be sustained only if they are suitably tailored to serve a compelling state interest.” City of Cleburne, 473 U.S. at 440. “The limitations on the exercise of constitutional rights arise both from the fact of incarceration and from valid penological objectives—including deterrence of crime, rehabilitation of prisoners, and institutional security.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) (citing, inter alia, Turner v. Safley, 482 U.S. 78, 84 (1987)).

To establish a violation of the Equal Protection Clause, an inmate must show that the defendants purposefully discriminated against him. Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977). The discriminatory purpose must be a motivating factor in the actions of the defendants. Id. at 265–66. “A plaintiff presenting a race-based equal protection claim can either present direct evidence of discrimination, or can establish a prima facie case of discrimination under the burden-shifting scheme set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” Umani v. Mich. Dep’t of Corr., 432 F. App’x 453, 458 (6th Cir. 2011). Plaintiff baldly asserts that Defendants discriminated against him because he was hard of hearing and because of his race. However, Plaintiff’s assertion that Defendants discriminated against him is conclusory and is unsupported by any specific factual allegations. Plaintiff alleges that Defendant Shunk failed to use the facial recognition technology and stated, “looking at the video the inmate had the same hair line as you,” which Plaintiff claims implied that all Black prisoners with the same hairline were the same person. (ECF No. 1, PageID.10.) However, Plaintiff

does not allege any facts showing that Defendant Shunk was motivated by racial animus, or that he would not have made the same comment in relation to a white prisoner. Moreover, 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). “‘Similarly situated’ is a term of art—a comparator . . . must be similar in ‘all relevant respects.’” Paterek v. Village of Armada, 801 F.3d 630, 650 (6th Cir. 2015) (quoting United States v. Green, 654 F.3d 637, 651 (6th Cir. 2011)); see also Nordlinger, 505 U.S. at 10; Tree of Life Christian Sch. v. City of Upper Arlington, 905 F.3d 357, 368 (6th Cir. 2018) (“A plaintiff bringing an equal protection claim must be ‘similarly situated’ to a comparator in ‘all relevant respects.’”). Plaintiff fails to allege facts showing that he was treated differently from any other similarly situated prisoner. Conclusory

allegations of unconstitutional conduct without specific factual allegations fail to state a claim under § 1983. See Iqbal, 556 U.S. at 678–79; Twombly, 550 U.S. at 555. Therefore, Plaintiff’s equal protection claims are properly dismissed. 2. Procedural Due Process Plaintiff claims that Defendants violated the procedural protections of the Fourteenth Amendment’s Due Process Clause in relation to his Class II misconduct for taking an extra meal tray. A prisoner’s ability to challenge a prison misconduct conviction depends on whether the convictions implicated any liberty interest. A prisoner does not have a protected liberty interest in prison disciplinary proceedings unless the sanction “will inevitably affect the duration of his sentence” or the resulting restraint imposes an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” See Sandin v. Conner, 515 U.S. 472, 484, 487 (1995). Under Michigan Department of Corrections Policy Directive 03.03.105, ¶ C (eff. Apr. 18, 2022), a Class I misconduct is a “major” misconduct and Class II and III misconducts are “minor” misconducts. The policy further provides that prisoners are deprived of good time or disciplinary

credits only when they are found guilty of a Class I misconduct. See id. ¶ DDDD and Attachment D. Therefore, Plaintiff could not have been denied good time or disciplinary credits as a result of his Class II misconduct conviction. In fact, it appears that the only sanction Plaintiff received was a charge of $2.85 as restitution for the stolen meal tray. (ECF Nos. 1-1, 1-3.), The Sixth Circuit routinely has held that misconduct convictions that do not result in the loss of good time are not atypical and significant deprivations and therefore do not implicate due process. See, e.g., Ingram v. Jewell, 94 F. App’x 271, 273 (6th Cir. 2004), overruled on other grounds by Maben v. Thelen, 887 F.3d 252 (6th Cir. 2018); Carter v. Tucker, 69 F. App’x 678, 680 (6th Cir. 2003); Green v. Waldren, No. 99-1561, 2000 WL 876765, at *2 (6th Cir. June 23, 2000); Staffney v. Allen, No. 98- 1880, 1999 WL 617967, at *2 (6th Cir. Aug. 12, 1999). Plaintiff, therefore, fails to state a due

process claim arising from his Class II misconduct convictions. 3. Substantive Due Process Plaintiff also asserts a violation of his substantive due process rights under the Fourteenth Amendment, which prohibits states from “depriv[ing] any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV. “Substantive due process ‘prevents the government from engaging in conduct that shocks the conscience or interferes with rights implicit in the concept of ordered liberty.’” Prater v. City of Burnside, 289 F.3d 417, 431 (6th Cir. 2002) (quoting United States v. Salerno, 481 U.S. 739, 746 (1987)). “Substantive due process . . . serves the goal of preventing governmental power from being used for purposes of oppression, regardless of the fairness of the procedures used.” Pittman v. Cuyahoga Cnty. Dep’t of Child. & Fam. Servs., 640 F.3d 716, 728 (6th Cir. 2011) (quoting Howard v. Grinage, 82 F.3d 1343, 1349 (6th Cir. 1996)). “Conduct shocks the conscience if it violates the decencies of civilized conduct.” Range v. Douglas, 763 F.3d 573, 589 (6th Cir. 2014) (cleaned up). The Sixth Circuit has held that framing an inmate by planting evidence may violate substantive due process where a defendant’s conduct

shocks the conscience and constitutes an “egregious abuse of governmental power.” Cale v. Johnson, 861 F.2d 943, 950 (6th Cir. 1988), overruled in other part by Thaddeus-X v. Blatter, 175 F.3d 378, 388 (6th Cir. 1999); see also Davis v. Gallagher, No. 1:16-cv-1405, 2016 WL 7403941, *4 (W.D. Mich. Dec. 22, 2016); Robinson v. Schertz, No. 2:07-cv-78, 2007 WL 4454293 (W.D. Mich. Dec. 14, 2007). “Where a particular [a]mendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of government behavior, ‘that [a]mendment, not the more generalized notion of “substantive due process,” must be the guide for analyzing these claims.’” Albright v. Oliver, 510 U.S. 266, 269 (1994) (quoting Graham v. Connor, 490 U.S. 386, 394 (1989)) (holding that the Fourth Amendment, not substantive due process, provides the standard

for analyzing claims involving unreasonable search or seizure of free citizens, and the Eighth Amendment provides the standard for such searches of prisoners), overruled on other grounds by Saucier v. Katz, 533 U.S. 194 (2001)). If such an amendment exists, the substantive due process claim is properly dismissed. Heike v. Guevara, 519 F. App’x 911, 923 (6th Cir. 2013). In this case, there are specific constitutional amendments that apply to Plaintiff’s claims. For example, the Eighth Amendment provides an explicit source of constitutional protection to Plaintiff’s claim that he was subjected to cruel and unusual punishment. See Graham, 490 U.S. at 394 (citing Whitley v. Albers, 475 U.S. 312, 327 (1986)) (rejecting a substantive due process claim where the Eighth Amendment supplies a textual source for prison-condition claims); Dodson v. Wilkinson, 304 F. App’x 434, 438 (6th Cir. 2008) (because the Eighth Amendment supplies the explicit textual source of constitutional protection for claims governing a prisoner’s health and safety, the plaintiff’s substantive due process claim was subject to dismissal). Similarly, the First Amendment provides an explicit textual source of constitutional protection for Plaintiff’s

retaliation claims. Thus, the standard applicable to that source, the First Amendment right to be free from retaliation, should be applied, not the more generalized notion of substantive due process. Graham, 490 U.S. at 395; see also Bell v. Johnson, 308 F.3d 594, 610 (6th Cir. 2002) (holding that, after Graham, the First Amendment standard is the sole source of substantive protection); Brandenburg v. Housing Auth. of Irvine, 253 F.3d 891, 900 (6th Cir. 2001) (a “substantive due process right to free speech is duplicative of [a] First Amendment retaliation claim”). Likewise, the Fourteenth Amendment Procedural Due Process Clause would apply to protect Plaintiff’s liberty interest in the misconduct proceedings. Consequently, Plaintiff’s substantive due process claim will be dismissed. D. Conspiracy Claims Plaintiff asserts that Defendants engaged in a conspiracy to violate his rights. A civil

conspiracy under § 1983 is “an agreement between two or more persons to injure another by unlawful action.” See Hensley v. Gassman, 693 F.3d 681, 695 (6th Cir. 2012) (quoting Hooks v. Hooks, 771 F.2d 935, 943-44 (6th Cir. 1985)). The plaintiff must show the existence of a single plan, that the alleged coconspirator shared in the general conspiratorial objective to deprive the plaintiff of a federal right, and that an overt action committed in furtherance of the conspiracy caused an injury to the plaintiff. Hensley, 693 F.3d at 695; Bazzi v. City of Dearborn, 658 F.3d 598, 602 (6th Cir. 2011). Moreover, a plaintiff must plead a conspiracy with particularity, as vague and conclusory allegations unsupported by material facts are insufficient. Twombly, 550 U.S. at 565 (recognizing that allegations of conspiracy must be supported by allegations of fact that support a “plausible suggestion of conspiracy,” not merely a “possible” one); Fieger v. Cox, 524 F.3d 770, 776 (6th Cir. 2008); Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir. 2003); Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987). Plaintiff’s allegations of conspiracy are wholly conclusory. He alleges no facts that indicate

the existence of a plan, much less that any Defendant shared a conspiratorial objective. Instead, Plaintiff’s allegations, even viewed in the light most favorable to Plaintiff, describe a number of discrete acts in relation to the misconduct process which culminated in Plaintiff having to pay restitution of $2.85. Plaintiff alleges that various Defendants lied in relation to the misconduct process and that other Defendants failed to take corrective actions. As the Supreme Court has held, such allegations may hint at a sheer “possibility” of conspiracy, but do not contain “enough factual matter (taken as true) to suggest that an agreement was made.” Twombly, 550 U.S. at 556–57. Instead, the Court has recognized that although parallel conduct may be consistent with an unlawful agreement, it is insufficient to state a claim where that conduct “was not only compatible with, but indeed was more likely explained by, lawful, unchoreographed . . . behavior.” Iqbal, 556

U.S. at 680 (citing Twombly, 550 U.S. at 567). A conspiracy claim fails when, as in the instant case, a plaintiff alleges facts showing that the defendants acted together but does not allege facts showing that the parties agreed to an objective to deprive the plaintiff of his civil rights. Siefert v. Hamilton Cnty. Bd. of Comm’rs, 951 F.3d 753, 767-68 (6th Cir. Mar. 3, 2020). Therefore, Plaintiff’s conspiracy claims are properly dismissed. E. ADA and RA Claims Plaintiff claims that Defendants violated Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131, and section 504 of the Rehabilitation Act (RA) of 1973, 29 U.S.C. § 794(a). Title II of the ADA provides, in pertinent part, that no qualified individual with a disability shall, because of that disability, “be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” Mingus v. Butler, 591 F.3d 474, 481–82 (6th Cir. 2010) (citing 42 U.S.C. § 12132).1 The Supreme Court has held that Title II of the ADA applies to state prisons and inmates.

Penn. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210-12 (1998) (noting that the phrase “services, programs, or activities” in § 12132 includes recreational, medical, educational, and vocational prison programs). The proper defendant under a Title II claim is the public entity or an official acting in his official capacity. Carten v. Kent State Univ., 282 F.3d 391, 396–97 (6th Cir. 2002). Plaintiff has named Defendant MDOC officials in their individual and official capacities: The State of Michigan (acting through the MDOC) is not necessarily immune from Plaintiff’s claims under the ADA. The ADA “validly abrogates state sovereign immunity” for “conduct that actually violates the Fourteenth Amendment.” United States v. Georgia, 546 U.S. 151, 159 (2006); see also Mingus, 591 F.3d at 482. If conduct violates the ADA but not the Fourteenth Amendment, then the Court must determine whether the ADA validly abrogates state

sovereign immunity. Id. At this stage of the proceedings, the Court will presume that the ADA validly abrogates state sovereign immunity for Plaintiff’s ADA claims. However, the Court notes

1 Similarly, § 504 of the RA provides in pertinent part: No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. 29 U.S.C. § 794(a). “Because the ADA sets forth the same remedies, procedures, and rights as the Rehabilitation Act . . . claims brought under both statutes may be analyzed together.” Thompson v. Williamson County, 219 F.3d 555, 557 n.3 (6th Cir. 2000) (citing Maddox v. Univ. of Tenn., 62 F.3d 843, 846 n.2 (6th Cir. 1995)). that Title II of the ADA does not provide for suit against a public official acting in his or her individual capacity. Everson v. Leis, 556 F.3d 484, 501 n.7 (6th Cir. 2009). Thus, the Court will dismiss Plaintiff’s individual capacity ADA claims against the named Defendants. Discrimination against a “qualified individual on the basis of a disability” includes “not

making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.” 42 U.S.C. § 12112(b)(5)(A). To establish a prima facie case under the ADA for failure to accommodate a disability, the plaintiff must show that (1) he is disabled within the meaning of the ADA; (2) he is otherwise qualified for the service, with or without reasonable accommodation; (3) the defendants knew or had reason to know of his disability; (4) he requested an accommodation; and (5) the defendants failed to provide the necessary accommodation. Mosby-Meachem v. Memphis Light, Gas & Water Div., 883 F.3d 595, 603 (6th Cir. 2018).

As noted above, Plaintiff claims that he is hard of hearing and needs to use a hearing aid for effective communication, and that this is noted on his identification card. (ECF No. 1, PageID.8.) Plaintiff alleges that on November 26, 2024, Plaintiff was interviewed on the misconduct charge by Defendant Mills through a security window, but was not allowed to get his hearing aid and could not clearly understand Defendant Mills. (Id., PageID.9.) Plaintiff also claims that Defendant Shunk denied him a fair hearing on the misconduct and refused to allow Plaintiff to use his hearing aid. (Id., PageID.10.) Upon review, the Court concludes that Plaintiff’s allegations are sufficient to warrant service of Plaintiff’s ADA and RA claims. However, an official capacity damages action against a state officer is the equivalent of a damages liability litigation targeted against the State. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). The named Defendants in this case are all employed by the Michigan Department of Corrections (MDOC). Consequently, Plaintiff’s claims against them in their official capacities

are all asserted against the MDOC. Id.; Von Herbert v. City of St. Clair Shores, No. 02-1063, 2003 WL 1194304 at *6 (6th Cir. March 11, 2003). There is no need to proceed with the ADA claims against all of them. Consequently, this action shall proceed solely against Warden Jeff Howard in his official capacity. The ADA claims against the other defendants in their official capacities are dismissed as redundant. F. State Law Claims Plaintiff asserts several state law claims in his complaint. Claims under § 1983 can only be brought for “deprivations of rights secured by the Constitution and laws of the United States.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982). Section 1983 does not provide redress for a violation of state law. Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir. 1995); Sweeton v. Brown, 27 F.3d 1162, 1166 (6th Cir. 1994). Plaintiff’s assertion that Defendants violated state law therefore

fails to state a claim under § 1983. Moreover, to the extent that Plaintiff seeks to invoke this Court’s supplemental jurisdiction over state-law claims against Defendants Storey, Batho, Teneyck, Desormeau, Dotson, Mills, Shunk, Slater, and Voorhees, the Court declines to exercise jurisdiction. Ordinarily, where a district court has exercised jurisdiction over a state-law claim solely by virtue of supplemental jurisdiction and the federal claims are dismissed prior to trial, the court will dismiss the remaining state-law claims. See Experimental Holdings, Inc. v. Farris, 503 F.3d 514, 521 (6th Cir. 2007) (“Generally, once a federal court has dismissed a plaintiff’s federal law claim, it should not reach state law claims.” (citing United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966))); Landefeld v. Marion Gen. Hosp., Inc., 994 F.2d 1178, 1182 (6th Cir. 1993). In determining whether to retain supplemental jurisdiction, “[a] district court should consider the interests of judicial economy and the avoidance of multiplicity of litigation and balance those interests against needlessly deciding state law issues.” Landefeld, 994 F.2d at 1182; see also Moon v. Harrison

Piping Supply, 465 F.3d 719, 728 (6th Cir. 2006) (“Residual jurisdiction should be exercised only in cases where the interests of judicial economy and the avoidance of multiplicity of litigation outweigh our concern over needlessly deciding state law issues.” (internal quotations omitted)). Dismissal, however, remains “purely discretionary.” Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009) (citing 28 U.S.C. § 1367(c)); Orton v. Johnny’s Lunch Franchise, LLC, 668 F.3d 843, 850 (6th Cir. 2012). Here, the balance of the relevant considerations weighs against the continued exercise of supplemental jurisdiction against Defendants Storey, Batho, Teneyck, Desormeau, Dotson, Mills, Shunk, Slater, and Voorhees. Accordingly, Plaintiff’s state-law claims against these Defendants will be dismissed without prejudice.

However, the Court will exercise supplemental jurisdiction over Plaintiff’s state law claims against Defendant Howard because there continues to be federal claims pending against him. Motion for Appointment of Counsel Plaintiff has filed a motion for the appointment of counsel (ECF No. 3). Indigent parties in civil cases have no constitutional right to a court-appointed attorney. Abdur-Rahman v. Mich. Dep’t of Corr., 65 F.3d 489, 492 (6th Cir. 1995); Lavado v. Keohane, 992 F.2d 601, 604–5 (6th Cir. 1993). The Court may, however, request an attorney to serve as counsel, in the Court’s discretion. Abdur-Rahman, 65 F.3d at 492; Lavado, 992 F.2d at 604–5; see Mallard v. U.S. Dist. Ct., 490 U.S. 296 (1989). Appointment of counsel is a privilege that is justified only in exceptional circumstances. In determining whether to exercise its discretion, the Court should consider the complexity of the issues, the procedural posture of the case, and Plaintiff’s apparent ability to prosecute the action without the help of counsel. See Lavado, 992 F.2d at 606. The Court has carefully considered these

factors and determines that, at this stage of the case, the assistance of counsel does not appear necessary to the proper presentation of Plaintiff’s position. Plaintiff’s request for appointment of counsel (ECF No. 3) will therefore be denied. Conclusion The Court will grant Plaintiff leave to proceed in forma pauperis. Having conducted the review required by the PLRA, the Court determines that Defendants Storey, Batho, Teneyck, Desormeau, Dotson, Mills, Shunk, Slater, and Voorhees will be dismissed for failure to state a claim, under 28 U.S.C. §§ 1915(e)(2) and 1915A(b) and 42 U.S.C. § 1997e(c). The Court will also dismiss, for failure to state a claim, Plaintiff’s retaliation, Eighth Amendment, procedural due process, substantive due process, equal protection, and conspiracy claims against Defendant Howard. Plaintiff’s ADA, RA, and state law claims against Defendant Howard remain in the case.

An order consistent with this Opinion will be entered.

Dated: May 30, 2025 /s/ Hala Y. Jarbou HALA Y. JARBOU CHIEF UNITED STATES DISTRICT JUDGE