Tellis #727463 v. Braman et al, No. 1:2022cv00732 - Document 14 (W.D. Mich. 2022)

Court Description: OPINION; signed by Chief Judge Hala Y. Jarbou (aks)

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Tellis &#035;727463 v. Braman et al Doc. 14 Case 1:22-cv-00732-HYJ-RSK ECF No. 14, PageID.49 Filed 09/21/22 Page 1 of 15 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ______ DARRYL TELLIS, Plaintiff, v. Case No. 1:22-cv-732 Hon. Hala Y. Jarbou M. BRAMAN, et al., Defendants. ____________________________/ OPINION This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. Plaintiff has been granted leave to proceed in forma pauperis. (ECF No. 8.) 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. 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. Discussion Factual Allegations Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Muskegon Correctional Facility (MCF) in Muskegon, Muskegon County, Michigan. The Dockets.Justia.com Case 1:22-cv-00732-HYJ-RSK ECF No. 14, PageID.50 Filed 09/21/22 Page 2 of 15 events about which he complains, however, occurred at the Richard A. Handlon Correctional Facility (MTU) in Ionia, Ionia County, Michigan. Plaintiff sues the following MTU personnel: Warden M. Braman, Assistant Deputy Warden Aneka Stewart, Grievance Coordinator N. Lake, and Corrections Officer J. Wilson. Plaintiff alleges that Defendant Wilson has a history of “lying, falsifying documents, and harassing” Plaintiff. (ECF No. 1, PageID.2) Plaintiff contends that on May 5, 2022, Defendant Wilson conducted investigative searches after Prison Counselor Cuellar (not a party) and Plaintiff “had a few words.” (Id., PageID.3.) Plaintiff claims that Defendant Wilson retaliated against him by “harassing, lying, [and] falsifying documents, and got Plaintiff . . . sent to the hole for something he didn’t do in the end result.” (Id.) Plaintiff spent 10 days in the “hole” and received 10 days’ loss of privileges. (Id.) On May 16, 2022, Hearing Officer S. Morris (not a party) retaliated by trying to cover up how Defendant Wilson lied and falsified documents. (Id.) Plaintiff claims that Morris did so by not dismissing the whole misconduct ticket, but instead dropping it to a Class II insolence finding. (Id.) Plaintiff contends that Defendant Braman failed to “correct deficiencies and has a[] history of failing to correct deficiencies,” and that Defendant Stewart assists Defendant Braman in “running an inhumane operation.” (Id.) Plaintiff also alleges that Defendant Lake “has shown no care for what happened to Plaintiff . . . by his poor decision.” (Id.) Based on the foregoing, Plaintiff asserts violations of his Fourteenth Amendment due process and equal protection rights. (Id., PageID.3–4.) He also asserts First Amendment claims premised upon a failure to correct the problem by acting upon his grievance, as well as a violation of his right to be free from retaliation. (Id.) Plaintiff suggests further that Defendants’ actions or inactions violated various articles of the Universal Declaration of Human Rights. (Id.) Plaintiff 2 Case 1:22-cv-00732-HYJ-RSK ECF No. 14, PageID.51 Filed 09/21/22 Page 3 of 15 seeks declaratory and injunctive relief, as well as compensatory and punitive damages. (Id., PageID.5.) 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)(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); Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). Because § 1983 is a method for vindicating 3 Case 1:22-cv-00732-HYJ-RSK ECF No. 14, PageID.52 Filed 09/21/22 Page 4 of 15 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. Claims Against Defendants Braman, Stewart, and Lake Plaintiff vaguely suggests that Defendant Braman violated his constitutional rights by failing to correct deficiencies and that Defendant Stewart assisted Defendant Braman in “running an inhuman operation.” (ECF No. 1, PageID.3.) He also avers that Defendant Lake “has shown no care for what happened to Plaintiff . . . by his poor decision.” (Id.) It appears that Plaintiff has named Braman, Stewart, and Lake as Defendants because of their respective supervisory positions. Government officials, however, 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, 575–76 (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 the mere failure to act. Grinter, 532 F.3d at 576; 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 v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). “[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. The Sixth Circuit has summarized the minimum required to constitute active conduct by a supervisory official: 4 Case 1:22-cv-00732-HYJ-RSK ECF No. 14, PageID.53 Filed 09/21/22 Page 5 of 15 “[A] supervisory official’s failure to supervise, control or train the offending individual is not actionable unless the supervisor either encouraged the specific incident of misconduct or in some other way directly participated in it.” Shehee, 199 F.3d at 300 (emphasis added) (internal quotation marks omitted). We have interpreted this standard to mean that “at a minimum,” the plaintiff must show that the defendant “at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers.” Peatross v. City of Memphis, 818 F.3d 233, 242 (6th Cir. 2016) (quoting Shehee, 199 F.3d at 300, and citing Phillips v. Roane Cnty., 534 F.3d 531, 543 (6th Cir. 2008)); see also Copeland v. Machulis, 57 F.3d 476, 481 (6th Cir. 1995) (citing Rizzo v. Goode, 423 U.S. 362, 375–76 (1976), and Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984)); Walton v. City of Southfield, 995 F.2d 1331, 1340 (6th Cir. 1993); Leach v. Shelby Cnty. Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989). Here, Plaintiff fails to allege any facts from which the Court could infer that Defendants Braman and Stewart encouraged or condoned the conduct of their subordinates, or authorized, approved or knowingly acquiesced in the conduct. Indeed, he fails to allege any facts at all about their conduct. Moreover, with respect to Defendant Lake, Plaintiff merely alleges that she denied his grievance, which is insufficient to establish liability under § 1983. See Shehee, 199 F.3d at 300. Plaintiff’s vague and conclusory allegations of supervisory responsibility are insufficient to demonstrate that Defendants Braman, Stewart, and Lake were personally involved in the events alleged in Plaintiff’s complaint. 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. Because Plaintiff’s claims against these Defendants are premised on nothing more than respondeat superior liability, he fails to state a claim against them. The Court, therefore, will dismiss Plaintiff’s claims against Defendants Braman, Stewart, and Lake. B. Claims Regarding Grievance Process Plaintiff also appears to suggest that Defendants Braman, Stewart, and Lake violated his due process rights by not investigating and acting upon his grievances concerning the issue. 5 Case 1:22-cv-00732-HYJ-RSK ECF No. 14, PageID.54 Filed 09/21/22 Page 6 of 15 Plaintiff, however, has no due process right to file a prison grievance. The courts repeatedly have held that there exists no constitutionally protected due process right to an effective prison grievance procedure. See Hewitt v. Helms, 459 U.S. 460, 467 (1983); 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); Young v. Gundy, 30 F. App’x 568, 569–70 (6th Cir. 2002); Carpenter v. Wilkinson, No. 993562, 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) (collecting cases). 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). Because Plaintiff has no liberty interest in the grievance process, Defendants’ conduct did not deprive him of due process. Moreover, contrary to Plaintiff’s suggestion, his First Amendment right to petition the government was not violated by Defendants’ failure to investigate or act upon his grievance. The First Amendment “right to petition the government does not guarantee a response to the petition or the right to compel government officials to act on or adopt a citizen’s views.” Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999); see also Minn. State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271, 285 (1984) (holding the right to petition protects only the right to address government; the government may refuse to listen or respond). Finally, Defendants’ actions (or inactions) have not barred Plaintiff from seeking a remedy for his grievances. See Cruz v. Beto, 405 U.S. 319, 321 (1972). “A prisoner’s constitutional right to assert grievances typically is not violated when prison officials prohibit only ‘one of several ways in which inmates may voice their complaints to, and seek relief, from prison officials’ while leaving a formal grievance procedure intact.” Griffin v. Berghuis, 563 F. App’x 411, 415–16 6 Case 1:22-cv-00732-HYJ-RSK ECF No. 14, PageID.55 Filed 09/21/22 Page 7 of 15 (6th Cir. 2014) (citing Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 130 n.6 (1977)). Indeed, Plaintiff’s ability to seek redress is underscored by his pro se invocation of the judicial process. See Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982). Even if Plaintiff had been improperly prevented from filing a grievance, his right of access to the courts to petition for redress of his grievances (i.e., by filing a lawsuit) cannot be compromised by his inability to file institutional grievances. Therefore, Plaintiff cannot demonstrate the actual injury required for an access-to-the-courts claim. 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 only mandates exhaustion of available administrative remedies. See 42 U.S.C. § 1997e(a). If Plaintiff were 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. See Ross v. Blake, 578 U.S. 632, 640–44 (2016) (reiterating that, if the prisoner is barred from pursuing a remedy by policy or by the interference of officials, the grievance process is not available, and exhaustion is not required); Kennedy v. Tallio, 20 F. App’x 469, 470–71 (6th Cir. 2001). In light of the foregoing, the Court finds that Plaintiff fails to state a cognizable claim against Defendants based upon a failure to investigate and act upon his grievance. C. First Amendment Retaliation Claims The Court has liberally construed Plaintiff’s complaint to assert a First Amendment retaliation claim against Defendant Wilson. Plaintiff alleges that Defendant Wilson retaliated against him by conducting investigative searches on May 5, 2022, after Plaintiff “had a few words” with Prison Counselor Cuellar (not a party). Plaintiff also vaguely suggests that Hearing Officer Morris (not a party) retaliated against him by trying to cover up Defendant Wilson’s lies, harassment, and falsification of documents. (ECF No. 1, PageId.3.) Plaintiff, however, has not named Hearing Officer Morris as a party. 7 Case 1:22-cv-00732-HYJ-RSK ECF No. 14, PageID.56 Filed 09/21/22 Page 8 of 15 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. Unknown 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)). Here, Plaintiff merely alleges the ultimate fact of retaliation in this action. Even if Defendant Wilson’s searches constitute adverse action, Plaintiff’s complaint is devoid of any facts 8 Case 1:22-cv-00732-HYJ-RSK ECF No. 14, PageID.57 Filed 09/21/22 Page 9 of 15 suggesting that he engaged in protected activity prior to that incident. Simply stating that he “had a few words” with Prison Counselor Cuellar is insufficient to establish that he engaged in protected activity prior to the searches. Moreover, nothing in the complaint suggests that Plaintiff engaged in protected activity prior to Hearing Officer Morris’ alleged retaliatory activity. Plaintiff’s speculative allegations simply fail to set forth any plausible First Amendment retaliation claims. Accordingly, such claims will be dismissed. D. Fourteenth Amendment Claims 1. Procedural Due Process Plaintiff suggests that Hearing Officer Morris violated his due process rights by covering up Defendant Wilson’s lies and falsified documents. (ECF No. 1, PageID.3.) He suggests that Hearing Officer Morris should have dismissed the misconduct ticket entirely, but instead dropped the result to a Class II insolence finding. (Id.) As noted above, Plaintiff has not named Hearing Officer Morris as a Defendant in this matter. Nevertheless, the Court will address Plaintiff’s claim regarding this incident as a Fourteenth Amendment procedural due process claim. A prisoner’s ability to challenge a prison misconduct conviction depends on whether the conviction 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). As noted above, Plaintiff alleges that he was ultimately found guilty of insolence, a Class II offense. Under MDOC Policy Directive 03.03.105, a Class I misconduct is a “major” misconduct and Class II and III misconducts are “minor” misconducts. See MDOC Policy Directive 03.03.105 ¶ B (eff. July 1, 2018). Minor misconducts are ones for which inmates cannot 9 Case 1:22-cv-00732-HYJ-RSK ECF No. 14, PageID.58 Filed 09/21/22 Page 10 of 15 be denied good time or disciplinary credits. See id. ¶ AAAA. 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). Thus, Plaintiff cannot maintain a due process claim based upon misconduct proceedings where he was found guilty of a Class II insolence offense. Even if Plaintiff was convicted of a Class I misconduct, he fails to state a due process claim. Plaintiff has not alleged a deprivation that will inevitably affect the duration of his sentence. A prisoner like Plaintiff, who is serving an indeterminate sentence for an offense committed after 2000, can accumulate “disciplinary time” for a major misconduct conviction. See Mich. Comp. Laws § 800.34; see also Offender Tracking Information System (OTIS), https://mdocweb.state.mi.us/OTIS2/otis2profile.aspx?mdocNumber=727463 (last visited Sept. 12, 2022). Disciplinary time is considered by the Michigan Parole Board when it determines whether to grant parole. Id. § 800.34(2). It does not necessarily affect the length of a prisoner’s sentence because it is “simply a record that will be presented to the parole board to aid in its [parole] determination.” Taylor v. Lantagne, 418 F. App’x 408, 412 (6th Cir. 2011). Moreover, Plaintiff fails to show that any sanction he received was an “atypical” and “significant deprivation” because he does not include any allegations regarding the sanctions that he received. Sandin, 515 U.S. at 484. Further, Plaintiff’s placement in the “hole” for 10 days as a result of the misconduct does not constitute an “atypical” and “significant deprivation.” Id. In Sandin, the United States Supreme Court concluded that placement in segregation for 30 days did not impose an atypical and 10 Case 1:22-cv-00732-HYJ-RSK ECF No. 14, PageID.59 Filed 09/21/22 Page 11 of 15 significant hardship. Id. Similarly, the Sixth Circuit has held that placement in administrative segregation for two months does not require the protections of due process. See Joseph v. Curtin, 410 F. App’x 865, 868 (6th Cir. 2010) (finding that 61 days in segregation is not atypical and significant). Instead, generally only periods of segregation lasting for several years or more have been found to be atypical and significant. See, e.g., Selby v. Caruso, 734 F.3d 554, 559 (6th Cir. 2013) (concluding that thirteen years of segregation implicates a liberty interest); Harris v. Caruso, 465 F. App’x 481, 484 (6th Cir. 2012) (finding that eight years of segregation implicates a liberty interest); Harden-Bey v. Rutter, 524 F.3d 789, 795 (6th Cir. 2008) (remanding to the district court to consider whether the plaintiff’s allegedly “indefinite” period of segregation, i.e., three years without an explanation from prison officials, implicated a liberty interest). Plaintiff’s 10-day placement in segregation falls far short of the periods of time for which the courts have concluded due process protections are required. Plaintiff also indicates that he received 10 days’ loss of privileges. Pursuant to MDOC Policy Directive 03.03.105, the “loss of privileges” sanction involves the loss of various privileges, such as access to the day room, exercise facilities, group meetings, “[o]ut of cell hobbycraft activities,” the kitchen area, the general library (not including the law library), movies, music practice, and other “[l]eisure time activities.” MDOC Policy Directive 03.03.105E (eff. Apr. 18, 2022). Where a stay of that duration in segregation is not considered an atypical or significant hardship, it defies logic to suggest that the lesser penalty of “loss of privileges” for that duration could be atypical or significant. Sixth Circuit authority bears that out. See Ingram, 94 F. App’x at 273 (holding that a fourteen-day loss of privileges sanction did not implicate the due process clause); Carter, 69 F. App’x at 680 (nine-month loss of package privileges did not impose an atypical and significant hardship); Miles v. Helinski, No. 20-1279, 2021 WL 1238562, at *4 (6th 11 Case 1:22-cv-00732-HYJ-RSK ECF No. 14, PageID.60 Filed 09/21/22 Page 12 of 15 Cir. Jan. 29, 2021) (five days’ toplock and five days’ loss of privileges fails to state a due process claim); Alexander v. Vittitow, No. 17-1075, 2017 WL 7050641, at *3 (6th Cir. Nov. 9, 2017) (“thirty days’ loss of privileges—did not implicate a protected liberty interest”); Langford, v. Koskela, No. 16-1435, 2017 WL 6803554, at *3 (6th Cir. Jan. 24, 2017) (thirty days’ toplock and thirty days’ loss of privileges “does not amount to an ‘atypical and significant hardship’”). For the foregoing reasons, Plaintiff fails to state a Fourteenth Amendment procedural due process claim, and such claim will be dismissed. 2. Equal Protection Plaintiff vaguely suggests that Defendants violated his Fourteenth Amendment equal protection rights. (ECF No. 1, PageID.3–4.) The Equal Protection Clause prohibits discrimination by government actors which either burdens a fundamental right, targets a suspect class, or intentionally treats one differently than others similarly situated without any rational basis for the difference. Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 681–82 (6th Cir. 2011); Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir. 2005). Plaintiff does not identify a fundamental right, and he does not allege that he is a member of a suspect class. “[P]risoners are not a suspect class,” Hadix v. Johnson, 230 F.3d 840, 843 (6th Cir. 2000), “nor are classifications of prisoners,” Mader v. Sanders, 67 F. App’x 869, 871 (6th Cir. 2003). To state an equal protection claim in a class-of-one case, Plaintiff must show “intentional and arbitrary discrimination” by the state; that is, he must show that he “has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); see also Nordlinger v. Hahn, 505 U.S. 1, 10–11 (1992); United States v. Green, 654 F.3d 637, 651 (6th Cir. 2011). “[T]he hallmark of [a ‘class-of-one’] claim is not the allegation that one individual was singled out, but rather, the allegation of arbitrary or malicious treatment not based on membership in a disfavored 12 Case 1:22-cv-00732-HYJ-RSK ECF No. 14, PageID.61 Filed 09/21/22 Page 13 of 15 class.” Davis v. Prison Health Servs., 679 F.3d 433, 441 (6th Cir. 2012) (alterations in original) (citations omitted); see Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008) (“The ‘class of one’ theory . . . is unusual because the plaintiff in a ‘class of one’ case does not allege that the defendants discriminate against a group with whom she shares characteristics, but rather that the defendants simply harbor animus against her in particular and therefore treated her arbitrarily.” (emphasis in original)). A plaintiff “must overcome a ‘heavy burden’ to prevail based on the class-of-one theory.” Loesel v. City of Frankenmuth, 692 F.3d 452, 462 (6th Cir. 2012) (citing TriHealth, Inc. v. Bd. of Comm’rs, Hamilton Cnty., 430 F.3d 783, 791 (6th Cir. 2005)). “Unless carefully circumscribed, the concept of a class-of-one equal protection claim could effectively provide a federal cause of action for review of almost every executive and administrative decision made by state actors.” Id. (quoting Jennings v. City of Stillwater, 383 F.3d 1199, 1210–11 (10th Cir. 2004)). 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). “To state an equal protection claim, a plaintiff must adequately plead that the government treated the plaintiff ‘disparately as compared to similarly situated persons and that such disparate treatment either burdens a fundamental right, targets a suspect class, or has no rational basis.’” Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 379 (6th Cir. 2011) (quoting Club Italia Soccer & Sports Org., Inc., 470 F.3d at 298)). “‘Similarly situated’ is a term of art—a comparator . . . must be similar in ‘all relevant respects.’” Paterek v. Vill. 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). 13 Case 1:22-cv-00732-HYJ-RSK ECF No. 14, PageID.62 Filed 09/21/22 Page 14 of 15 Plaintiff’s equal protection claims are wholly conclusory. He fails to identify any fellow inmate or individual who was similar in all relevant aspects. Moreover, Plaintiff’s complaint is wholly devoid of facts suggesting that Defendants intentionally and arbitrarily discriminated against him. Plaintiff’s conclusory allegations simply do not suffice to state a claim. See Iqbal, 556 U.S. at 678 (“[T]he tenet that a court must accept a complaint’s allegations as true is inapplicable to threadbare recitals of a cause of action’s elements, supported by mere conclusory statements.”). The Court, therefore, will dismiss Plaintiff’s Fourteenth Amendment equal protection claims. E. Violations of the Universal Declaration of Human Rights Plaintiff also suggests that Defendants violated various articles set forth in the Universal Declaration of Human Rights. Federal courts, however, do not recognize a private cause of action for prisoners pursuant to this Declaration. See Sosa v. Alvarez–Machain, 542 U.S. 692, 734–35 (2004) (indicating that the UDHR is aspirational only and “does not of its own force impose obligations as a matter of international law”); see also Ruhaak v. Comm’r of Internal Revenue, 422 F. App’x 530, 532 (7th Cir. 2011) (“And the Universal Declaration of Human Rights is a statement of principles and not a treaty or international agreement imposing legal obligations.”); Serra v. Lappin, 600 F.3d 1191, 1196–97 & n.5 (9th Cir. 2010) (the Universal Declaration of Human Rights is not a “source of justiciable rights”). Consequently, Plaintiff is unable to sustain a claim under the Universal Declaration of Human Rights, and such claims will be dismissed. Conclusion Having conducted the review required by the Prison Litigation Reform Act, the Court determines that Plaintiff’s complaint 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 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 14 Case 1:22-cv-00732-HYJ-RSK ECF No. 14, PageID.63 Filed 09/21/22 Page 15 of 15 (6th Cir. 1997). Although the Court concludes that Plaintiff’s claims are properly dismissed, the Court does not conclude that any issue Plaintiff might raise on appeal would be frivolous. Coppedge v. United States, 369 U.S. 438, 445 (1962). Accordingly, the Court does not certify that an appeal would not be taken in good faith. Should Plaintiff appeal this decision, the Court will assess the $505.00 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 $505.00 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 21, 2022 /s/ Hala Y. Jarbou HALA Y. JARBOU CHIEF UNITED STATES DISTRICT JUDGE 15

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