UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

DANIEL JAMES OLAR,

Plaintiff, Case No. 1:20-cv-1159

v. Hon. Hala Y. Jarbou

CRAIG RITTER, et al.,

Defendants. ____________________________/ OPINION This is a civil rights action brought by a state prisoner under

. Under the Prison Litigation Reform Act,

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.

(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiff’s pro se complaint indulgently, see Haines v. Kerner,

(1972), and accept Plaintiff’s allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez,

(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 Bellamy Creek Correctional Facility (IBC) in Ionia, Ionia County, Michigan. The events about which he complains occurred at that facility. Plaintiff sues Assistant Resident Unit Supervisor Craig Ritter, Resident Unit Manager B. Hadden, and Warden Matt Macauley. Plaintiff alleges that on April 28, 2020, he gave Defendant Ritter a habeas corpus petition for mailing and told him that it needed to be sent out right away because the deadline was May 2, 2020. Plaintiff’s mail was not sent out until May 7, 2020. Plaintiff wrote a grievance on

the issue, which was denied by Defendants Hadden and Macauley. Plaintiff claims that Defendants’ conduct violated his First Amendment right of access to the courts. Plaintiff seeks damages and equitable 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,

(2007) (quoting Conley v. Gibson,

(1957)). While a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include more than labels and conclusions. Twombly,

; Ashcroft v. Iqbal,

(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,

. “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,

. 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.” Iqbal,

(quoting Twombly,

). “[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.” Iqbal,

(quoting Fed. R. Civ. P. 8(a)(2)); see also Hill v. Lappin,

(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

, 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,

(1988); Street v. Corr. Corp. of Am.,

(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,

(1994). Respondeat superior Plaintiff fails to allege that Defendants Hadden and Macauley took any action against him, other than to suggest that they failed to adequately supervise their subordinates or respond to Plaintiff’s grievances. Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior or vicarious

liability. Iqbal,

; Monell v. New York City Dep’t of Soc. Servs.,

(1978); Everson v. Leis,

(6th Cir. 2009). A claimed constitutional violation must be based upon active unconstitutional behavior. Grinter v. Knight,

, 575–76 (6th Cir. 2008); Greene v. Barber,

(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,

; Greene,

; Summers v. Leis,

(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,

(6th Cir. 1999). “[A] plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” Iqbal,

. The Sixth Circuit repeatedly has summarized the minimum required to constitute active conduct by a supervisory official: “[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,

(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,

(6th Cir. 2016) (quoting Shehee,

, and citing Phillips v. Roane Cnty.,

(6th Cir. 2008)); see also Copeland v. Machulis,

(6th Cir. 1995) (citing Rizzo v. Goode,

, 375–76 (1976), and Bellamy v. Bradley,

, 421 (6th Cir. 1984)); Walton v. City of Southfield,

(6th Cir. 1993); Leach v. Shelby Cnty. Sheriff,

(6th Cir. 1989). Plaintiff fails to allege any facts showing that Defendants Hadden or Macauley 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. His vague and conclusory allegations of supervisory responsibility are insufficient to demonstrate that Defendants were personally involved in the events surrounding Plaintiff’s reclassification to administrative segregation. 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,

. Because Plaintiff’s claims against Defendants Hadden and Macauley are premised on nothing more than respondeat superior liability, he fails to state a claim against them. Access to the courts Plaintiff claims that Defendant Ritter violated his right of access to the courts by failing to mail his habeas corpus petition in a timely manner. It is clearly established that prisoners have a constitutionally protected right of access to the courts under the First and Fourteenth Amendments. See Lewis v. Casey,

(1996); Bounds v. Smith,

(1977); Wolff v. McDonnell,

(1974). Prison officials have a two-fold duty to protect a prisoner’s right of access to the courts. McFarland v. Luttrell, No. 94-6231,

(6th Cir. Apr. 5, 1995). First, they must provide affirmative assistance in the preparation of legal papers in cases involving constitutional rights, in particular criminal and habeas corpus cases, as well as other civil rights actions relating to the prisoner’s incarceration.

(citing Bounds, 430 U.S. at 824–28). Second, the right of access to the courts prohibits prison officials from erecting any barriers that may impede the inmate’s accessibility to the courts.

(citing Knop v. Johnson,

(6th Cir. 1992)); see also Bounds,

(citing Ex parte Hull,

(1941)). In order to state a viable claim for interference with his access to the courts, a plaintiff must show actual injury to pending or contemplated

litigation. See Lewis,

; Dellis v. Corr. Corp. of Am.,

, 511 (6th Cir. 2001); Talley-Bey v. Knebl,

(6th Cir. 1999); Knop,

. In his grievances, which are attached as exhibits to the complaint, Plaintiff claims that the failure to send out his legal mail in a timely manner will result in the denial of his habeas corpus petition. (ECF No. 1-5, PageID.11.) However, Plaintiff fails to allege that his case was actually denied as a result of the delay in mailing. Moreover, it appears that Plaintiff’s habeas corpus petition was timely filed and accepted by the United States District Court for the Eastern District of Michigan on May 7, 2020, and that Plaintiff’s motion to stay proceedings and hold the case in abeyance pending exhaustion of state court remedies was granted on July 15, 2020. See Olar v. Macauley, Case No. 4:20-cv-11373 (E.D. Mich.). Because it is clear that Plaintiff did not suffer any actual injury as a result of Defendant Ritter’s conduct, he fails to state a claim under the First Amendment. 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

(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

(a)(3). See McGore v. Wrigglesworth,

(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,

(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,

, 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

(g). A judgment consistent with this opinion will be entered.

Dated: March 15, 2021 /s/ Hala Y. Jarbou HALA Y. JARBOU UNITED STATES DISTRICT JUDGE