UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION ______

JACOB HAWKINS-BIVINS,

Plaintiff, Case No. 2:25-cv-29

v. Honorable Ray Kent

MICHIGAN DEPARTMENT OF CORRECTIONS,

Defendant. ____________________________/ OPINION This is a civil rights action brought by a state prisoner 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. 5.) This case is presently before the Court for preliminary review under the Prison Litigation Reform Act,

Stat. 1321 (1996) (PLRA), pursuant to

(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,

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

(6th Cir. 1997) (overruled on other grounds). 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, 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). Section 636(c) 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 Defendant has not yet been served, the undersigned concludes that the Defendant is not presently a party whose consent is required to permit the undersigned to conduct a preliminary review under the PLRA, in the same way the Defendant is not a party 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 the 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 without prejudice for failure to state a claim. Discussion Factual Allegations Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Alger Correctional Facility in Munising, Alger County, Michigan. Plaintiff sues the MDOC.2 (Compl., ECF No. 1, PageID.1, 2; Signature Page, ECF No. 6.)

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,

(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”). 2 The Court notes that Plaintiff previously filed a lawsuit against the MDOC and the State of Michigan regarding different underlying events. See Hawkins-Bivins v. State of Mich. et al., No. 2:25-cv-22 (W.D. Mich.). In an opinion and judgment entered on February 12, 2025, the Court dismissed that action without prejudice for failure to state a claim.

(ECF Nos. 5, 6.) Shortly thereafter, Plaintiff initiated the present action by filing an unsigned complaint, and he returned the signature page for his complaint on March 11, 2025. In Plaintiff’s complaint, he alleges: On 10-21-24 at approximately 1:39 p.m. Corrections Officer “Sabin” opened my cell door and told me [to] step out to conduct a “shakedown” which is referred to as a “cell search.” When I stepped out [of] the cell she patted down from my shoulder to my ankles and back up to my penis and grabbed it until I snatched away and told her she was grabbing my penis. She then asked “what are you hiding in your pants[?”] When I tried to respond her fellow coworkers were running up to aid and assist her. I[’]m filing this suit due to being sexually assaulted by Correction Officer Sabin. (Compl., ECF No. 1, PageID.3.)3 Plaintiff seeks “to hold MDOC liable” and requests monetary damages. (Id., PageID.4.) 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

3 In this opinion, the Court corrects the capitalization in quotations from Plaintiff’s complaint. 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). Here, Plaintiff names the MDOC as the sole Defendant, and he seeks monetary damages only. (Compl., ECF No. 1, PageID.1, 2, 4; Signature Page, ECF No. 6.) As an initial matter, Plaintiff does not name Defendant in the body of his complaint.

(Compl., ECF No. 1, PageID.3.) It is a basic pleading essential that a plaintiff attribute factual allegations to particular defendants. See Twombly, 550 U.S. at 555–61 (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 or entity 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). Moreover, § 1983 expressly requires that a named defendant be a “person.” See Monell v. Dep’t of Soc. Servs.,

(1978). However, the State of Michigan (acting through the MDOC) is not a “person” within the meaning of § 1983. See Will v. Mich. Dep’t of State Police,

(1989) (holding a state is not a “person”); Parker v. Mich. Dep’t of Corr.,

(6th Cir. 2003) (citing Will and holding that the MDOC is not a “person.”). Additionally, 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 United States Court of Appeals for the Sixth Circuit has specifically held that the MDOC is absolutely immune from a § 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). Accordingly, for these reasons, Plaintiff fails to state any claim against Defendant upon which relief can be granted. Conclusion Having conducted the review required by the PLRA, the Court determines that Plaintiff’s complaint will be dismissed without prejudice 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). 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. This is a dismissal as described by

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

Dated: March 14, 2025 /s/ Ray Kent Ray Kent United States Magistrate Judge