UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ______

JON PAUL KEAN,

Plaintiff, Case No. 1:23-cv-1205

v. Honorable Phillip J. Green

UNKNOWN STOTT, et al.,

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

. Pursuant to

(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. 1, PageID.6.) Plaintiff has paid the filing fee. This case is presently before the Court for preliminary review under the Prison Litigation Reform Act,

Stat. 1321 (1996) (PLRA), pursuant to 28 U.S.C. § 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,

(6th Cir. 1997); McGore v. Wrigglesworth,

, 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.,

(1999). “Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.”

. “[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.”

(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.”

. 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,

(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

(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 . . . .”

(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,

(5th Cir. 1995) (“The record does not contain a consent 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,

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. § 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.

1 But see Coleman v. Lab. & Indus. Rev. Comm’n of Wis.,

(7th Cir. 2017) (concluding that, when determining which parties are required to consent to proceed before a United States magistrate judge under

(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

(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c)); Williams v. King,

, 503–04 (9th Cir. 2017) (relying on Black’s Law Dictionary for the definition of “parties” and not addressing Murphy Bros.); Burton v. Schamp,

, 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”). Discussion Factual allegations Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Thumb Correctional Facility (TCF) Lapeer, Lapeer

County, Michigan. The events about which he complains, however, occurred at the Carson City Correctional Facility (DRF) in Carson City, Montcalm County, Michigan. Plaintiff sues Corrections Officers Unknown Stott, Unknown Olson, Unknown Godell, Unknown Alegria, and Unknown Woodward. Plaintiff also sues Sergeants Unknown Fears and Unknown Leonard, and Unknown Part(y)(ies) named as all other unknown staff working first shift control center in their individual and official capacities.

Plaintiff alleges that on October 28, 2022, he was scheduled for a pre-approved visit with his attorney. Plaintiff was in his cell, dressed in his state prison blues and shoes, and with his hearing aid in his left ear waiting for his attorney, Anastase Markou. At approximately 9:50, he walked to the lobby to use the telephone, which is about 12 to 15 feet from the officers’ desk. Plaintiff called his attorney’s office and spoke to the assistant, who confirmed that Plaintiff’s attorney was just around the

corner from the prison and was checking in for the visit as she spoke. Plaintiff then returned to his cell to wait for his callout. At no time did any DRF staff contact him for his attorney visit. (ECF No. 1, PageID.4.) Plaintiff alleges that between 11:20 and 11:30 a.m., Defendant Alegria called Plaintiff to the officers’ desk and told him that his attorney was there but had to leave. Defendant Alegria had a worried look on his face. Plaintiff asked why his attorney had to leave, but Defendant Alegria stated that he did not know. Plaintiff then asked to speak to the shift command, but Defendant Alegria denied his request. (Id.)

After count cleared, Plaintiff called his attorney’s office and discovered that he had been at the prison, had checked into the control center, and had waited for around one and a half hours. When Plaintiff did not appear, his attorney finally left to attend to other legal obligations. (Id.) Plaintiff asserts that he has been injured because his “case has been set back,” which has caused him “mental anguish, loss of sleep, anxiety, severe headaches, and the right to redress of his grievances (file [his] pleadings to court timely).” (Id., PageID.5.) Plaintiff asserts that Defendants Stott,

Olson, Godell, Alegria, and Woodward were all working in the unit on October 28, 2022, and that Sergeant Leonard and Unknown Part(y)(ies) working in the control center should have known that an attorney was waiting for a client but failed to act. According to a letter from Plaintiff’s attorney dated November 15, 2022, which Plaintiff attaches to his complaint as an exhibit (ECF 1-4, PageID.13), Plaintiff successfully met with his attorney on November 14, 2022, a little more than two

weeks after their originally scheduled appointment. Plaintiff claims that Defendants violated his rights under the First, Sixth, and Fourteenth Amendments. Plaintiff seeks compensatory and punitive damages. 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. Id.; 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.”

at 678 (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.”

at 679 (quoting Fed. R. Civ. P. 8(a)(2)); see also Hill v. Lappin,

, 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

, 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). A. Sixth Amendment Plaintiff claims that Defendants violated his rights under the Sixth

Amendment. The Sixth Amendment provides that “[i]in all criminal prosecutions, the accused shall enjoy the right to . . . the [a]ssistance of [c]ounsel for his defence.” U.S. Const. amend. VI. However, Plaintiff does not specify the nature of his case, or state whether it was a civil or criminal action. 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,

. Therefore,

because Plaintiff has not specifically alleged any litigation or case to which the Sixth Amendment would attach, this claim is properly dismissed as conclusory. B. First Amendment It is well established that prisoners have a constitutional right of access to the courts. Bounds v. Smith,

(1977). The principal issue in Bounds was whether the states must protect the right of access to the courts by providing law libraries or alternative sources of legal information for prisoners.

. The

Court further noted that in addition to law libraries or alternative sources of legal knowledge, the states must provide indigent inmates with “paper and pen to draft legal documents, notarial services to authenticate them, and with stamps to mail them.”

at 824–25. The right of access to the courts also prohibits prison officials from erecting barriers that may impede the inmate’s access to the courts. See Knop v. Johnson,

(6th Cir. 1992). An indigent prisoner’s constitutional right to legal resources and materials is not, however, without limit. In order to state a viable claim for interference with his access to the courts, a plaintiff must show “actual injury.” Lewis v. Casey,

(1996); see also Talley-Bey v. Knebl,

(6th Cir. 1999); Knop,

. In other words, a plaintiff must plead and demonstrate that the shortcomings in the prison legal assistance program or lack of legal materials have hindered, or are presently hindering, his efforts to pursue a nonfrivolous legal claim. Lewis, 518 U.S. at 351–53; see also Pilgrim v. Littlefield,

(6th Cir. 1996). The Supreme Court has strictly limited the types of cases for which there may be an actual injury:

Bounds does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims. The tools it requires to be provided are those that the inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration. Lewis,

. “Thus, a prisoner’s right to access the courts extends to direct appeals, habeas corpus applications, and civil rights claims only.” Thaddeus-X v. Blatter,

(6th Cir. 1999) (en banc). Moreover, the underlying action must have asserted a non-frivolous claim. Lewis,

; accord Hadix v. Johnson,

(6th Cir. 1999) (Lewis changed actual injury to include requirement that action be non-frivolous). In addition, the Supreme Court squarely has held that “the underlying cause of action . . . is an element that must be described in the complaint, just as much as allegations must describe the official acts frustrating the litigation.” Christopher v.

Harbury,

(2002) (citing Lewis,

& n.3). “Like any other element of an access claim, the underlying cause of action and its lost remedy must be addressed by allegations in the complaint sufficient to give fair notice to a defendant.”

As noted above, Plaintiff fails to allege any facts regarding the nature of the case he is pursuing with the help of his attorney. Nor does Plaintiff allege any facts showing that he suffered any actual injury. To state a claim, an inmate must show

that any shortcomings in the library, litigation tools, or legal assistance caused actual injury in his pursuit of a legal claim. Lewis,

; Talley-Bey,

; Kensu v. Haigh,

(6th Cir. 1996); Pilgrim v. Littlefield,

(6th Cir. 1996); Walker v. Mintzes,

(6th Cir. 1985). In this case, Plaintiff’s meeting with his attorney was delayed by approximately two weeks. Plaintiff does not allege that he missed any court deadlines or that he is no longer

able pursue relief in the case. Therefore, for these reasons, Plaintiff’s access to the courts claim is properly dismissed. C. Fourteenth Amendment 1. Due Process Plaintiff asserts that Defendants violated his Fourteenth Amendment due process rights. 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,

(6th Cir. 2006). “Without a protected liberty or property interest, there can be no federal procedural due process claim.” Experimental

Holdings, Inc. v. Farris,

(6th Cir. 2007) (citing Bd. of Regents of State Colleges v. Roth,

(1972)). The Supreme Court has long held that the due process clause prevents the states from denying litigants the use of established adjudicatory procedures, when such an action would be the equivalent of denying the litigant an opportunity to be heard upon their claimed rights. Boddie v. Connecticut,

(1971); see Logan v. Zimmerman Brush Co.,

(1982). However, Plaintiff does

not claim that he has been denied an opportunity to be heard, but only that there has been a delay in the time which his claim is to be resolved. Because Plaintiff does not allege that he is being prevented from pursuing the underlying claim, his due process claim is properly dismissed. 2. 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.,

(1985). Plaintiff fails to allege any facts showing that he has been treated differently than other similarly situated individuals. 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 equal protection claim is entirely conclusory, it is properly dismissed. D. Insufficient allegations of wrongdoing Finally, the Court notes that Plaintiff fails to allege any facts showing that any

of the named Defendants engaged in conduct which intentionally prevented Plaintiff from meeting with his attorney on October 28, 2022. Plaintiff merely alleges that Defendants were present in the unit and should have been aware of the fact that Plaintiff’s attorney was waiting for him. It is a basic pleading essential that a plaintiff attribute factual allegations to particular defendants. See Twombly,

(holding that, in order to state a claim, a plaintiff must make sufficient

allegations to give a defendant fair notice of the claim). Where a person is named as a defendant without an allegation of specific conduct, the complaint is subject to dismissal, even under the liberal construction afforded to pro se complaints. See Gilmore v. Corr. Corp. of Am.,

(6th Cir. 2004) (dismissing complaint where plaintiff failed to allege how any named defendant was involved in the violation of his rights); Frazier v. Michigan,

(6th Cir. 2002) (dismissing plaintiff’s claims where the complaint did not allege with any degree of

specificity which of the named defendants were personally involved in or responsible for each alleged violation of rights); Griffin v. Montgomery, No. 00-3402,

, at *2 (6th Cir. Nov. 30, 2000) (requiring allegations of personal involvement against each defendant); Rodriguez v. Jabe, No. 90-1010,

(6th Cir. June 19, 1990) (“Plaintiff’s claims against those individuals are without a basis in law as the complaint is totally devoid of allegations as to them which would suggest their involvement in the events leading to his injuries”). Because Plaintiff’s claims fall far short of the minimal pleading standards under Fed. R. Civ. P. 8 (requiring “a short and plain statement of the claim showing that the pleader is entitled to relief”),

his complaint must 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. § 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 $605.00 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 $605.00 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: January 2, 2024 /s/ Phillip J. Green PHILLIP J. GREEN United States Magistrate Judge