Thompson #951576 v. Blair et al, No. 1:2024cv00054 - Document 6 (W.D. Mich. 2024)

Court Description: OPINION; signed by Magistrate Judge Sally J. Berens (jln)

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Thompson &#035;951576 v. Blair et al Doc. 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ______ EZALE THOMPSON, Plaintiff, v. Case No. 1:24-cv-54 Honorable Sally J. Berens UNKNOWN BLAIR 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 in a separate order. Pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure, Plaintiff consented to proceed in all matters in this action under the jurisdiction of a United States magistrate judge. (ECF No. 4.) This case is presently before the Court for preliminary review under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c). The Court is required to conduct this initial review prior to the service of the complaint. See In re Prison Litig. Reform Act, 105 F.3d 1131, 1131, 1134 (6th Cir. 1997); McGore v. Wrigglesworth, 114 F.3d 601, 604–05 (6th Cir. 1997). Service of the complaint on the named defendants is of particular significance in defining a putative defendant’s relationship to the proceedings. “An individual or entity named as a defendant is not obliged to engage in litigation unless notified of the action, and brought under a court’s authority, by formal process.” Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347 (1999). “Service of process, under longstanding tradition in our system of justice, is Dockets.Justia.com fundamental to any procedural imposition on a named defendant.” Id. at 350. “[O]ne becomes a party officially, and is required to take action in that capacity, only upon service of a summons or other authority-asserting measure stating the time within which the party served must appear and defend.” Id. (citations omitted). That is, “[u]nless a named defendant agrees to waive service, the summons continues to function as the sine qua non directing an individual or entity to participate in a civil action or forgo procedural or substantive rights.” Id. at 351. Therefore, the PLRA, by requiring courts to review and even resolve a plaintiff’s claims before service, creates a circumstance where there may only be one party to the proceeding—the plaintiff—at the district court level and on appeal. See, e.g., Conway v. Fayette Cnty. Gov’t, 212 F. App’x 418 (6th Cir. 2007) (“Pursuant to 28 U.S.C. § 1915A, the district court screened the complaint and dismissed it without prejudice before service was made upon any of the defendants . . . [such that] . . . only [the plaintiff] [wa]s a party to this appeal.”). Here, Plaintiff has consented to a United States magistrate judge conducting all proceedings in this case under 28 U.S.C. § 636(c). That statute provides that “[u]pon the consent of the parties, a full-time United States magistrate judge . . . may conduct any or all proceedings . . . and order the entry of judgment in the case . . . .” 28 U.S.C. § 636(c). Because the named Defendants have not yet been served, the undersigned concludes that they are not presently parties whose consent is required to permit the undersigned to conduct a preliminary review under the PLRA, in the same way they are not parties who will be served with or given notice of this opinion. See Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995) (“The record does not contain a consent 2 from the defendants. However, because they had not been served, they were not parties to this action at the time the magistrate entered judgment.”).1 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 Carson City Correctional Facility (DRF) in Carson City, Montcalm County, Michigan. The events about which he complains occurred at that facility. Plaintiff sues the following DRF officials: Resident Unit Manager Unknown Blair, Prison Counselor Unknown Ward, Custody Sergeant Unknown Parks, and Corrections Officers Unknown White, Unknown Headliner, and Unknown Gregory. (ECF No. 1, PageID.2-3.) In addition, although Plaintiff does not identify this 1 But see Coleman v. Lab. & Indus. Rev. Comm’n of Wis., 860 F.3d 461, 471 (7th Cir. 2017) (concluding that, when determining which parties are required to consent to proceed before a United States magistrate judge under 28 U.S.C. § 636(c), “context matters” and the context the United States Supreme Court considered in Murphy Bros. was nothing like the context of a screening dismissal pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c)); Williams v. King, 875 F.3d 500, 503–04 (9th Cir. 2017) (relying on Black’s Law Dictionary for the definition of “parties” and not addressing Murphy Bros.); Burton v. Schamp, 25 F.4th 198, 207 n.26 (3d Cir. 2022) (premising its discussion of “the term ‘parties’ solely in relation to its meaning in Section 636(c)(1), and . . . not tak[ing] an opinion on the meaning of ‘parties’ in other contexts”). 3 individual when listing the Defendants in his suit, Plaintiff names Unknown Keck2 as a Defendant in the body of his complaint. (Id., PageID.6, 8.) Plaintiff alleges that on December 29, 2023, he was in a physical altercation with another inmate. As a result, Plaintiff was transferred to the temporary segregation unit, where he was strip searched and placed in Cell 52 of Housing Unit 1200 on non-bond status. (Id., PageID.6.) Plaintiff states that for the next nine days, until January 7, 2024, he requested his allowable personal, religious, state, and legal property from Defendants. Plaintiff states that Defendant Keck wrote him a misconduct for disobeying a direct order in response to Plaintiff’s request for property. (Id.) Plaintiff attaches a copy of the misconduct report by Defendant Keck to his complaint. (ECF No. 1-1.) According to the misconduct report: At approx 1015 while conducting a formal count round in 1200, Prisoner Thompson #951576 was standing at his cell door. From approx two feet away and making direct eye contact, I gave Prisoner Thompson a direct order to get on his bunk as it was count time. Prisoner Thompson refused to get on his bunk and sat down on his locker and said “I’m not getting on my bunk.” At no time did Prisoner Thompson comply with my reasonable order to get on his bunk during count. (Id.) Plaintiff states that as of January 16, 2024, when Plaintiff signed the instant complaint, he was not provided with his personal, religious, state, or legal property. Nor was he given a bedroll or personal hygiene items. (ECF No. 1, PageID.7.) At unspecified times, Plaintiff asked Defendants Blair, Parks, Ward, Gregory, White, Keck, and Headliner for his property. (See id., PageID.6.) On December 30, 2023, December 31, 2023, January 1, 2024, and January 9, 2024, Plaintiff requested a grievance form to grieve the confiscation of his property, “but each [D]efendant” told Plaintiff that he did not “have shit coming.” (Id., PageID.6–7.) On an unspecified 2 Because Keck is not named in the case caption or the list of Defendants in the complaint, any claims against Keck are subject to dismissal. Nevertheless, the Court considers the merits of Plaintiff’s claims against Keck in this opinion. 4 date, “Plaintiff was scheduled to attend his NOI Muslim religious services” but was denied by Defendants Gregory and Parks. (Id., PageID.7.) Plaintiff states that he was kept on non-bond status for over 14 days since he received a misconduct on January 2, 2024, which violates MDOC Policy Directive 03.03.105. (Id.) Plaintiff claims that Defendants violated his rights under the First, Eighth, and Fourteenth Amendments. (Id., PageID.8.) Plaintiff seeks compensatory and punitive damages, as well as declaratory and injunctive relief. (Id., PageID.5, 8.) Plaintiff also seeks his costs for the suit. (Id.) 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 5 (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 Section 1983 is a method for vindicating federal rights, not a source of substantive rights itself, the first step in an action under Section 1983 is to identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994). A. Fourteenth Amendment 1. Due Process Plaintiff claims that Defendants violated MDOC Policy Directive 03.03.105, which mandates that prisoners who have received a class I misconduct be placed on non-Bond status for no more than seven business days, and that a violation of this timeline must result in the dismissal of the misconduct. Plaintiff states that after twelve days, he had still not met with a hearings investigator, had a hearing, or received any other form of due process. The elements of a procedural due process claim are (1) a life, liberty, or property interest requiring protection under the Due Process Clause, and (2) a deprivation of that interest (3) without adequate process. Women’s Med. Prof’l Corp. v. Baird, 438 F.3d 595, 611 (6th Cir. 2006). “Without a protected liberty or property interest, there can be no federal procedural due process claim.” Experimental Holdings, Inc. v. Farris, 503 F.3d 514, 519 (6th Cir. 2007) (citing Board of Regents of State Colleges v. Roth, 408 U.S. 564, 579 (1972)). The Supreme Court long has held that the Due Process Clause does not protect every change in the conditions of confinement having an impact on a prisoner. See Meachum v. Fano, 6 427 U.S. 215, 225 (1976). In Sandin v. Conner, 515 U.S. 472, 484 (1995), overruled on other grounds by Edwards v. Balisok, 520 U.S. 641 (1997), the Court set forth the standard for determining when a prisoner’s loss of liberty implicates a federally cognizable liberty interest protected by the Due Process Clause. According to the Sandin Court, a prisoner is entitled to the protections of due process only when a deprivation “will inevitably affect the duration of his sentence” or imposes an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 486–87; see also Jones v. Baker, 155 F.3d 810, 812 (6th Cir. 1998); Rimmer-Bey v. Brown, 62 F.3d 789, 790-91 (6th Cir. 1995). Confinement in administrative segregation “is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration.” Hewitt v. Helms, 459 U.S. 460, 468 (1983) (superseded by statute on other grounds). Thus, it is considered atypical and significant only in “extreme circumstances.” Joseph v. Curtin, 410 F. App’x 865, 868 (6th Cir. 2010). Generally, courts will consider the nature and duration of a stay in segregation to determine whether it imposes an “atypical and significant hardship.” Harden-Bey v. Rutter, 524 F.3d 789, 794 (6th. Cir. 2008). In Sandin, the Supreme Court concluded that the segregation at issue in that case (disciplinary segregation for 30 days) did not impose an atypical and significant hardship. Sandin, 515 U.S. at 484–86. Similarly, the Sixth Circuit has held that mere placement in administrative segregation, and placement for a relatively short period of time, do not require the protections of due process. Rimmer-Bey, 62 F.3d at 790–91; see Joseph v. Curtin, 410 F. App’x 865, 868 (6th Cir. 2010) (61 days in segregation is not atypical and significant). The Sixth Circuit has also held, in specific circumstances, that confinement in segregation for a relatively long period of time does not implicate a liberty interest. See, e.g., Baker, 155 F.3d at 812–23 (two years of segregation while 7 the inmate was investigated for the murder of a prison guard in a riot); Mackey v. Dyke, 111 F.3d 460 (6th Cir. 1997) (one year of segregation following convictions for possession of illegal contraband and assault, including a 117-day delay in reclassification due to prison crowding). But cf. Selby v. Caruso, 734 F.3d 554, 559 (6th Cir. 2013) (13 years of segregation implicates a liberty interest); Harden-Bey, 524 F.3d at 795 (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, implicates a liberty interest); Harris v. Caruso, 465 F. App’x 481, 484 (6th Cir. 2012) (eight years of segregation implicates a liberty interest). As of the time that Plaintiff filed his complaint, Plaintiff contends that he had been in administrative segregation for eighteen days and that during this time, he was not allowed personal, legal, or religious property. Plaintiff states that he was also denied state property, including a bedroll, extra clothing, and towels. As discussed above, to determine whether segregation of an inmate from the general prison population involves the deprivation of a liberty interest protected by the due process clause, the Court must determine if the segregation imposes an “atypical and significant” hardship on the inmate “in relation to the ordinary incidents of prison life.” Jones, 155 F.3d at 811 (6th Cir. 1998 (quoting Sandin, 515 U.S. at 483). Here, Plaintiff does not allege that he was placed in segregation for an extended period of time, and Plaintiff has failed to allege any facts to show that his placement in segregation triggered a right to due process. Moreover, the Court notes that a prisoner’s claim that he was deprived of a mattress and blanket for sixty days failed to state a Fourteenth Amendment procedural due process claim because his allegations did not rise to the level of an “atypical and significant hardship” under Sandin. See, e.g., Velasquez v. Lewis, No. 4:20-CV-00172-JHM, 2022 WL 1914072, at *3 (W.D. Ky. June 3, 2022) (discussing that “more than 30 days on a ‘mattress, sheets, and bed covering 8 restriction’ with no clothes was not so ‘atypical and significant’ as to give rise to a Fourteenth Amendment due process claim” (quoting Sanders v. Smith, No. 1:11-CV-892, 2011 WL 5921426 at *17 (W.D. Mich. Nov. 27, 2011))); see also Blair v. Ky. State Penitentiary, No. 5:21-CV-P75, 2022 WL 660792, at *6–7 (W.D. Ky. Mar. 4, 2022) (collecting cases). Plaintiff has failed to make any allegations showing that his segregation is “atypical and significant.” Consequently, the court concludes that no liberty interest is implicated by his placement. Furthermore, Plaintiff’s claim regarding the confiscation of his property is barred by the doctrine of Parratt v. Taylor, 451 U.S. 527 (1981), overruled in part by Daniels v. Williams, 474 U.S. 327 (1986). Under Parratt, a person deprived of property by a “random and unauthorized act” of a state employee has no federal due process claim unless the state fails to afford an adequate post-deprivation remedy. If an adequate post-deprivation remedy exists, the deprivation, although real, is not “without due process of law.” Parratt, 451 U.S. at 537. This rule applies to both negligent and intentional deprivations of property, as long as the deprivation was not done pursuant to an established state procedure. See Hudson v. Palmer, 468 U.S. 517, 530–36 (1984). Because Plaintiff’s claim is premised upon allegedly unauthorized acts of a state official, he must plead and prove the inadequacy of state post-deprivation remedies. See Copeland v. Machulis, 57 F.3d 476, 479–80 (6th Cir. 1995); Gibbs v. Hopkins, 10 F.3d 373, 378 (6th Cir. 1993). Under settled Sixth Circuit authority, a prisoner’s failure to sustain this burden requires dismissal of his Section 1983 due-process action. See Brooks v. Dutton, 751 F.2d 197 (6th Cir. 1985). Plaintiff has not sustained his burden in this case. Plaintiff has not alleged that state postdeprivation remedies are inadequate. Moreover, numerous state post-deprivation remedies are available to him. First, a prisoner who incurs a loss through no fault of his own may petition the institution’s Prisoner Benefit Fund for compensation. MDOC Policy Directive 04.07.112, ¶ B (eff. 9 Oct. 2, 2023); MDOC Policy Directive 04.02.110, ¶ E (eff. Nov. 1, 2017). Aggrieved prisoners may also submit claims for property loss of less than $1,000 to the State Administrative Board. Mich. Comp. Laws § 600.6419; MDOC Policy Directive 03.02.131 (eff. Mar. 27, 2017). Alternatively, Michigan law authorizes actions in the Court of Claims asserting tort or contract claims “against the state and any of its departments or officers.” Mich. Comp. Laws § 600.6419(1)(a). The Sixth Circuit specifically has held that Michigan provides adequate postdeprivation remedies for deprivation of property. See Copeland, 57 F.3d at 480. Plaintiff does not allege any reason why a state-court action would not afford him complete relief for the deprivation, either negligent or intentional, of his personal property. Accordingly, Plaintiff’s Fourteenth Amendment due process claim will be dismissed. 2. Equal Protection Plaintiff makes a conclusory assertion of “disparate treatment.” (ECF No. 1, PageID.8.) 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., 473 U.S. 432, 439 (1985). 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. 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 v. Hahn, 505 U.S. 1, 10 (1992); 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.’”). 10 In this case, Plaintiff fails to allege any facts showing that he was treated differently from similarly situated prisoners. Conclusory allegations of unconstitutional conduct without specific factual allegations fail to state a claim under Section 1983. See Iqbal, 556 U.S. at 678–79; Twombly, 550 U.S. at 555. Therefore, Plaintiff’s equal protection claim is properly dismissed. B. Eighth Amendment Plaintiff claims that Defendants violated his rights under the Eighth Amendment. As noted above, Plaintiff contends that he had been in administrative segregation for eighteen days at the time he filed his complaint, and that during this time, he was not allowed personal items, including a bedroll, extra clothing, and towels. 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. “[R]outine 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. 11 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. As noted above, placement in segregation is a routine discomfort that is “part of the penalty that criminal offenders pay for their offenses against society.” Hudson, 503 U.S. at 9 (quoting Rhodes, 452 U.S. at 347). Moreover, with regard to Plaintiff’s claim regarding the denial of personal and state property during the period, the Court notes: As recognized by the Sixth Circuit, “the deprivation of a mattress and bedding for a fixed period of time does not violate the Eighth Amendment” or the Fourteenth Amendment. Richmond v. Settles, 450 F. App’x 448, 455 (6th Cir. 2011) (holding “the deprivation of a mattress and bedding for a fixed period of time does not violate the Eighth Amendment”); see also, Jones v. Toombs, 77 F.3d 482 (6th Cir. 1996) (holding that two weeks without a mattress did not violate the Eighth Amendment); 12 O’Leary v. Iowa State Men’s Reformatory, 79 F.3d 82, 84 (8th Cir. 1996) (holding that three days without a blanket and a mattress during a disciplinary confinement did not violate the Eighth Amendment). Velasquez, 2022 WL 1914072, at *3. Plaintiff does not allege that he was denied a mattress, but states that he was denied a bedroll, extra clothing, and towels. However, Plaintiff does not allege any details regarding this deprivation, including what the temperatures were in his cell during this period, whether his clothing was badly soiled, or whether he suffered any adverse health consequences as a result of these deprivations. Because Plaintiff does not allege facts showing that he was deprived of essential food, medical care, or sanitation, or that his health or safety were threatened by the conditions of his confinement, his Eighth Amendment claim is properly dismissed. C. First Amendment 1. Religious property Plaintiff alleges that he was denied his religious property for a period of eighteen days, including his Bible and Quran. The First Amendment provides “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .” U.S. Const. amend I. The right to freely exercise one’s religion falls within the fundamental concept of liberty under the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). Accordingly, state legislatures and those acting on behalf of a state are “as incompetent as Congress” to interfere with the right. Id. While “lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights,” inmates clearly retain the First Amendment protection to freely exercise their religion. See O’Lone v. Shabazz, 482 U.S. 342, 348 (1987) (citations omitted). To establish that this right has been violated, Plaintiff must establish (1) that the belief or practice he seeks to protect is religious within his own “scheme of things,” (2) that his belief is sincerely held, and 13 (3) that Defendant’s behavior infringes upon this practice or belief. Kent v. Johnson, 821 F.2d 1220, 1224–25 (6th Cir. 1987); see also Flagner v. Wilkinson, 241 F.3d 475, 481 (6th Cir. 2001) (same); Bakr v. Johnson, No. 95-2348, 1997 WL 428903, at *2 (6th Cir. July 30, 1997) (noting that “sincerely held religious beliefs require accommodation by prison officials”). Plaintiff’s First Amendment claim is entirely conclusory. Plaintiff fails to allege the nature of his religious beliefs or to specify how the failure to allow him access to his religious property infringed on his ability to exercise those beliefs. As noted previously by the Court, conclusory allegations of unconstitutional conduct without specific factual allegations fail to state a claim under Section 1983. See Iqbal, 556 U.S. at 678–79; Twombly, 550 U.S. at 555. Therefore, Plaintiff’s First Amendment denial of religious property claims are properly dismissed. 2. Retaliation by Defendant Keck Finally, Plaintiff appears to be claiming that Defendant Keck wrote him a misconduct for disobeying a direct order “in response to” Plaintiff’s request for property. (ECF No. 1, PageID.6.) In order to set forth a First Amendment retaliation claim, a plaintiff must establish that: (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, in least in part, by the protected conduct. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). Moreover, 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 14 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) (holding that 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 quotation marks 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))). 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, 579-80 (6th Cir. 2004); see also Brandon v. Bergh, No. 2:08cv-152, 2010 WL 188731, at *1 (W.D. Mich. Jan. 16, 2010). Here, the sum of Plaintiff’s retaliation claim is one sentence in which he alleges that “Defendant Keck wrote Plaintiff a disobeying a direct order in response to Plaintiff[‘]s request for property.” (Compl., ECF No. 1, PageID.6.) As noted above, the misconduct report written by Defendant Keck asserts that Plaintiff refused to get on his bunk during count time. (ECF No. 1-1.) Plaintiff does not contend that the misconduct was false or that he complied with Defendant Keck’s order. Indeed, besides this conclusory sentence, Plaintiff alleges no further facts in support of this claim. Plaintiff’s use of the phrase “in response” is ambiguous, however, without any additional supporting facts or explanation, that conclusory phrase is insufficient, on its own, to state a 15 retaliation claim. In short, Plaintiff appears to ask the Court to fabricate plausibility to his claims from mere ambiguity; however, ambiguity does not support a claim. Additionally, it is not clear that Defendant Keck was aware of Plaintiff’s request for his property at the time Keck wrote the misconduct. Instead, Plaintiff alleges in a conclusory manner that he “requested his allowable personal, religious, state and federal property from Defendants.” (ECF No. 1, PageID.6.) Plaintiff does not identify which Defendants he spoke with, and any “[s]ummary reference to a single, five-headed ‘Defendants’ [or staff] does not support a reasonable inference that each Defendant is liable . . . .” Boxill v. O’Grady, 935 F.3d 510, 518 (6th Cir. 2019) (citation omitted) (“This Court has consistently held that damage claims against government officials arising from alleged violations of constitutional rights must allege, with particularity, facts that demonstrate what each defendant did to violate the asserted constitutional right.” (quoting Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008))). In summary, Plaintiff merely alleges the ultimate fact of retaliation in this action. He has not presented any facts to support his conclusion that Defendant Keck retaliated against him because of his requests for his property. Accordingly, Plaintiff fails to state a retaliation claim against Defendant Keck. See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). 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 (6th Cir. 1997). Although the Court concludes that Plaintiff’s claims are properly dismissed, the Court does not conclude that any issue Plaintiff might 16 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 $605.00 appellate filing fee pursuant to Section 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 Section 1915(g). If he is barred, he will be required to pay the $605.00 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: April 26, 2024 /s/ Sally J. Berens SALLY J. BERENS United States Magistrate Judge 17

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