UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ______

WILLIE LAMAR HARTWELL,

Plaintiff, Case No. 1:24-cv-123

v. Honorable Sally J. Berens

MICHIGAN DEPARTMENT OF CORRECTIONS PAROLE OFFICE et al.,

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

. The Court has granted Plaintiff leave to proceed in forma pauperis in a separate order. 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. 4, PageID.16.) This case is presently before the Court for preliminary review under

(e)(2). Pursuant to that provision, 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,

, 608–09 (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., Inc. 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, § 1915(e)(2), 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., McGore, 114 F.3d at 608–09; cf. 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

(e)(2), 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[; h]owever, because they had not been served, they were not parties to this action at the time the magistrate entered judgment.”).1 Under Section 1915(e)(2), the Court is required to dismiss any 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). 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 resides in Lansing, Michigan. Plaintiff sues the Michigan Department of Corrections (MDOC) Parole Office and the Ingham County Jail. (Compl., ECF No. 1, PageID.1, 2.) Plaintiff reports that during January of 2024, he suffered a medical crisis. He was hospitalized for almost three weeks. When he was discharged, he contacted the parole office by telephone. He was then arrested for absconding.

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”). Plaintiff was booked into the Ingham County Jail with his medication. While he was detained, he tried to obtain his medication several times. He was never provided his medication. He was released before the jail personnel responded to his requests. Plaintiff contends that he has a right to file a grievance to get his medication and that the MDOC is “capriciously exerc[]ising” its discretion to detain him for absconding when, in fact, he

did not abscond. (Id., PageID.5.) Plaintiff claims he has been retaliated against for attempting to write a grievance, locked up for getting court-ordered medical treatment, refused his due process right to a parole revocation hearing, and deprived of the little money he had. (Id.) Plaintiff asks the Court to: not allow parole officers to place [him] in and out of jail, without the due process of the parole revocation proceedings . . .[;] ask officials to take a more considerate approach to anyone getting mental health treatment[;] [order the return of his] $30.00 [booking fee;] [award] punitive damages [in the amount of $]17,000.00[; and] [enter] injunctive relief on retaliation for tr[y]ing to file a grievance. (Id., PageID.6.) 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 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,

(1994). Plaintiff’s allegations implicate his First Amendment right to engage in protected conduct without retaliation as well as his Fourteenth Amendment rights to procedural and substantive due process. MDOC Parole Office The Office of Parole and Probation Services exists within the MDOC Field Operations Administration. See, e.g., Wall v. Smith, No. 1:08-cv-1089,

, at *1 n.1 (W.D. Mich. Dec. 3, 2008) (noting “[t]he facility falls under the jurisdiction of the Office of Parole and Probation Services within the Field Operations Administration of the Michigan Department of Corrections (MDOC)”); see also https://www.michigan.gov/corrections/about/org-structure (last visited Mar. 1, 2024). Plaintiff may not maintain a Section 1983 action against the MDOC or any of its organizational subdivisions. Regardless of the form of relief requested, the states and their departments are immune under the Eleventh Amendment from suit in the federal courts, unless the state has waived immunity or Congress has expressly abrogated Eleventh Amendment immunity

by statute. See Pennhurst State Sch. & Hosp. v. Halderman,

, 98–101 (1984); Alabama v. Pugh,

(1978); O’Hara v. Wigginton,

(6th Cir. 1994). Congress has not expressly abrogated Eleventh Amendment immunity by statute, Quern v. Jordan,

(1979), and the State of Michigan has not consented to civil rights suits in federal court. Abick v. Michigan,

(6th Cir. 1986). In numerous opinions, the Sixth Circuit has specifically held that the MDOC is absolutely immune from a Section 1983 suit under the Eleventh Amendment. See, e.g., Harrison v. Michigan,

(6th Cir. 2013); Diaz v. Mich. Dep’t of Corr.,

(6th Cir. 2013); McCoy v. Michigan,

, 653–54 (6th Cir. 2010). In addition, the State of Michigan (acting through the

MDOC) is not a “person” who may be sued under Section 1983 for money damages. See Lapides v. Bd. of Regents,

(2002) (citing Will v. Mich. Dep’t of State Police,

(1989)); Harrison,

. Therefore, the Court will dismiss Defendant MDOC Parole Office. Ingham County Jail Plaintiff sues the Ingham County Jail. The jail is a building, not an entity capable of being sued in its own right. See, e.g., Watson v. Gill,

(6th Cir. 2002) (“The McCracken County Jail is not a legal entity susceptible to suit . . .[; i]t is a department of the county . . . .”). For that reason alone, Plaintiff’s claims against the Ingham County Jail are properly dismissed. The Court assumes that Plaintiff intended to sue Ingham County, rather than the Ingham County Jail, but he fails to state a claim. Ingham County may not be held vicariously liable for the actions of its employees under Section 1983. See Connick v. Thompson,

(2011); City of Canton v. Harris,

(1989); Monell v. Dep’t of Soc. Servs.,

(1978). Instead, the county is liable only when an official policy or custom causes the injury.

Connick,

. This policy or custom must be the moving force behind the alleged constitutional injury, and the plaintiff must identify the policy or custom, connect it to the governmental entity, and show that his injury was incurred because of the policy or custom. See Turner v. City of Taylor,

(6th Cir. 2005); Alkire v. Irving,

(6th Cir. 2003). “Governmental entities cannot be held responsible for a constitutional deprivation unless there is a direct causal link between a municipal policy or custom and the alleged violation of constitutional rights.” Watson,

(citing Monell,

). A policy includes a “policy statement, ordinance, regulation, or decision officially adopted and promulgated” by the sheriff’s department. See Monell,

. Moreover, the United

States Court of Appeals for the Sixth Circuit has explained that a custom “for purposes of Monell liability must be so permanent and well settled as to constitute a custom or usage with the force of law.” Doe v. Claiborne Cnty.,

, 507 (6th Cir. 1996). “In short, a ‘custom’ is a ‘legal institution’ not memorialized by written law.” Id. at 508. Here, although Plaintiff’s complaint describes alleged wrongdoing by corrections staff at the Ingham County Jail, Plaintiff fails to allege the existence of a custom or policy, let alone that any policy or custom was the moving force behind his alleged constitutional injuries. Cf. Rayford v. City of Toledo, No. 86-3260,

(6th Cir. Feb. 2, 1987); see also Bilder v. City of Akron, No. 92-4310,

(6th Cir. Oct. 6, 1993) (affirming dismissal of Section 1983 action when plaintiff allegation of policy or custom was conclusory, and plaintiff failed to allege facts tending to support the allegation). Because Plaintiff fails to allege the existence of a policy or custom, Plaintiff fails to state a claim against Ingham County. Therefore, for all of the reasons set forth above, the Court will dismiss Plaintiff’s claims against all named Defendants.

Conclusion Having conducted the review required by the in forma pauperis statute, the Court determines that Plaintiff’s complaint will be dismissed for failure to state a claim, under

(e)(2). The Court must next decide whether an appeal of this action would be in good faith within the meaning of

(a)(3). For the same reasons the Court concludes that Plaintiff’s claims are properly dismissed, the Court also concludes that any issue Plaintiff might raise on appeal would be frivolous. Coppedge v. United States,

(1962). Accordingly, the Court certifies that an appeal would not be taken in good faith. A judgment consistent with this opinion will be entered.

Dated: March 4, 2024 /s/ Sally J. Berens SALLY J. BERENS United States Magistrate Judge