UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTICT OF MICHIGAN

SOUTHERN DIVISION

ANGEL PETERSON #240544,

Plaintiff, Civil Action No.: 14-13000

Honorable Thomas L. Ludington

v. Magistrate Judge Elizabeth A. Stafford

 

ROCKY BURRIS, et al., 

Defendants. 

__________________________________/

REPORT AND RECOMMENDATION TO DISMISS PLAINTIFF’S 

COMPLAINT [R. 1] SUA SPONTE AND TO DENY DEFENDANTS’ 

MOTION TO DISMISS [R. 22] AS MOOT

I. INTRODUCTION

Plaintiff Angel Peterson, a Michigan Department of Corrections 

(“MDOC”) prisoner proceeding pro se, filed her complaint under 42 U.S.C. 

§ 1983 against Michigan State Industries (“MSI”), Rockey Burris1

, and 

Millicent Warren (collectively, the “MDOC Defendants”), alleging a host of 

violations. [R. 1]. Pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), this case 

was referred to the undersigned for general case management, including 

review of the complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A, 

and review of MDOC Defendants’ motion to dismiss. [R. 31]. This Court 

finds the motion to dismiss to be deficient; it simply strings together 

1 This spelling of Burris’s first name was provided in the MDOC’s Motion to 

Dismiss, and differs from the complaint.

 

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boilerplate legal principles without any factual discussion or analysis. [R. 

22]. However, Peterson’s complaint fails to state a plausible claim upon 

which relief can be granted. Therefore, the Court RECOMMENDS that the 

complaint be DISMISSED SUA SPONTE, and that the MDOC Defendants’

motion to dismiss be DENIED AS MOOT.

II. BACKGROUND

Peterson is an inmate at MDOC’s Women Huron Valley Complex 

(“WHV”), Warren is the warden of WHV, and Burris is a MSI dental lab 

technician who supervised Peterson until she was fired from the dental lab 

on August 27, 2012. [R. 22, PgID 101; R. 1, PgID 3, 6]. The statement of 

facts in Peterson’s complaint primarily focuses on her termination from the 

MSI dental lab after Burris wrote her three counseling memos, and the 

grievances and appeals that followed. [R. 1, PgID 3-9]. 

Peterson alleges that Burris wrote the first memo to reprimand her for 

arguing with a coworker even though he was on sick leave when the 

alleged argument occurred. [Id., PgID 4]. Peterson acknowledges that the 

second counseling memo she received from Burris was valid in that she did 

not store a critical tool, but she faults Burris for not identifying the date or 

other details regarding this transgression. [Id., PgID 6]. Burris allegedly 

wrote the third counseling memo because of Peterson’s “bad attitude” in 

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response to “extreme leaking” of the roof in her work area. [Id., PgID 6-7]. 

She alleges that Burris at first did not allow her to perform her work in a 

different area to avoid the leaking roof, but that she refused to move when 

Burris later permitted her to move to another seat. [Id.]. Peterson states 

that she refused to move because she was in possession of a critical tool 

and because of her and Burris’s negative working relationship. [Id., PgID 

7]. This third counseling memo provided Burris with the grounds to 

terminate Peterson. [Id., PgID 7]. 

Peterson’s statement of facts also describes an alleged incident in 

which “Inmate Vincincia” offered her stolen lab equipment. Peterson said 

that she refused to accept the equipment, prompting Vincincia to raise her 

hand in anger as if to strike Peterson. [R. 1, PgID 4]. Peterson claims that 

she reported the incident to Burris, and that he replied, “You get under 

people’s skin.” [Id.] 

According to Peterson, she grieved and reported her alleged 

mistreatment and wrongful termination, but MSI’s area manager and 

Warren failed to address any of her complaints. [Id., PgID 7-9].

Peterson filed her complaint here on July 31, 2014, alleging claims of 

deliberate indifference, denial of equal protection and procedural due 

process, libel and slander, substantial burden on the exercise of her 

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religion, and sexual harassment. [R. 1].2 She seeks injunctive relief 

related to her employment with MSI and compensation of $1,000,000. [Id., 

PgID 21]. 

 II. ANALYSIS

The Court has an obligation to under 28 U.S.C. §§ 1915(e)(2)(B) and

1915A to screen prisoner complaints and dismiss them sua sponte when 

they fail to state a claim, are frivolous, seek monetary relief from immune 

defendants. In re Prison Litig. Reform Act, 105 F.3d 1131, 1134 (6th Cir. 

1997). When conducting this screening, the Court bears in mind that, 

although the federal rules only require that that a complaint contain a “short 

and plain statement of the claim showing that the pleader is entitled to 

relief,” see Federal Rule of Civil Procedure 8(a)(2), the statement of the 

claim must be plausible. 

Indeed, “[t]o survive a motion to dismiss, a complaint must contain 

sufficient factual matter, accepted as true, to ‘state a claim to relief that is 

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

2 Peterson filed a motion to amend her complaint on November 17, 2014, 

[R. 15], which the Court denied. [R. 39]. The only substantive change 

Peterson proposed in her motion to amend was to clarify that she was 

suing both MSI and Warren in their official and personal capacities. [R. 15, 

PgID 71]. For reasons described below, Peterson’s claims against the 

MDOC Defendants are not viable regardless of the capacities in which she 

sues them.

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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Iqbal Court 

explained, “[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.” Id.

The plausibility standard “does not impose a probability requirement 

at the pleading stage; it simply calls for enough fact to raise a reasonable 

expectation that discovery will reveal evidence of illegal [conduct].” 

Twombly, 550 U.S. at 556. Put another way, the complaint’s allegations 

“must do more than create speculation or suspicion of a legally cognizable 

cause of action; they must show entitlement to relief.” League of United 

Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007)

(emphasis in original) (citing Twombly, 550 U.S. at 555-56). 

In deciding whether a plaintiff has set forth a “plausible” claim, the 

Court must construe the complaint in the light most favorable to the plaintiff 

and accept as true all well-pleaded factual allegations. Id.; see also 

Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, legal conclusions 

need not be accepted as true. “Threadbare recitals of the elements of a 

cause of action, supported by mere conclusory statements, do not suffice.” 

Iqbal, 556 U.S. at 678. Furthermore, the Court is not required to “create a 

claim which [the plaintiff] has not spelled out in his pleading.” 

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Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975). Ultimately, 

“[d]etermining whether a complaint states a plausible claim for relief [is] . . . 

a context-specific task that requires the reviewing court to draw on its 

judicial experience and common sense.” Iqbal, 556 U.S. at 679.

Pleadings filed by pro se litigants are entitled to a more liberal reading 

than would be afforded to formal pleadings drafted by lawyers. Thomas v. 

Eby, 481 F.3d 434, 437 (6th Cir. 2007). Nonetheless, “[t]he leniency 

granted to pro se [litigants] ... is not boundless.” Martin v. Overton, 391 

F.3d 710, 714 (6th Cir. 2004). Indeed, such complaints still must plead a 

plausible claim for relief. Davis v. Prison Health Services, 679 F.3d 433, 

437-38 (6th Cir. 2012).

Here, the Court finds that Peterson has failed to state a plausible 

claim for relief.

A. Deliberate Indifference

Peterson alleges that Burris, Warren and MSI’s area manager3 were 

deliberately indifferent in violation of the Eighth Amendment by failing to 

address her complaints about Vincincia’s alleged threatening behavior and 

the health hazard posed by the leaking ceiling. [R. 1, PgID 10-14]. 

3 Peterson does not name MSI’s area manager as a defendant in her 

complaint. 

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However, Peterson may not bring an Eighth Amendment action to recover

monetary damages from prison officials because she has not alleged any 

actual physical injury, as required by 42 U.S.C. § 1997e(e). See HardenBey v. Rutter, 524 F.3d 789, 795-96 (6th Cir. 2008). She postulates that 

she faces “the jeopardy of ongoing physical harm based on diagnosed high 

blood pressure created by the elevated stress during the included

described incidents,” [R. 1, PgID 21], but that is insufficient to establish 

§ 1997e(e) standing. “A speculative injury does not vest a plaintiff with 

standing, and [Peterson] has merely set forth a speculative claim of injury.” 

King v. Deskins, 229 F.3d 1152 (6th Cir. 2000) (unpublished). 

The Court additionally notes that the alleged leaking roof did not 

create an excessive risk to inmate health or safety that constituted an 

inhumane condition of confinement. See Farmer v. Brennan, 511 U.S. 825, 

837 (1994) (describing conditions of confinement that support an Eighth 

Amendment claim); Reynolds v. Powell, 370 F.3d 1028, 1031 (10th Cir. 

2004) (collecting cases holding that standing water and slippery floors in 

prisons do not violate the Eighth Amendment). Moreover, Peterson’s own 

complaint indicates that she refused to move in order to avoid the leaking 

roof when Burris offered her the opportunity. [R. 1, PgID 6-7]. 

Therefore, Peterson’s claim of deliberate indifference should be 

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dismissed.

B. Procedural Due Process and Eleventh Amendment Immunity

Peterson argues that MSI violated her procedural due process rights. 

For relief, she requests the removal of Burris’s counseling memos and back 

pay, and for the Court to order the MDOC Defendants to change the

disciplinary procedures that led to her termination. [R. 1, PgID 19-21]. MSI 

is a bureau of MDOC, and Peterson’s suit against MSI is no different than 

suing the State of Michigan. Holt v. Michigan Dep't of Corr., Michigan State 

Indus., 974 F.2d 771, 772 (6th Cir. 1992); Gene v. Hattaway, 330 F.3d 758, 

766 (6th Cir. 2003). Under the Eleventh Amendment, the State is not a 

“person” capable of being sued under § 1983. Will v. Michigan Dep't of 

State Police, 491 U.S. 58, 71 (1989).

The procedural due process claim is without merit even if Peterson 

intended for it to also be brought against Burris or Warren. In order to state 

a claim for a violation of procedural due process, a prisoner must first 

allege the existence of a protected liberty or property interest. Wilkinson v. 

Austin, 545 U.S. 209, 221 (2005). Peterson alleges that she had a 

protected property interest in her prison job. However, a prisoner has no 

constitutionally protected property interest in prison employment and 

Michigan law vests the MDOC with complete discretion regarding prisoner 

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work assignments. Dobbins v. Craycraft, 423 Fed. Appx. 550, 552 (6th Cir. 

2011). Given that, this Court has no authority to order injunctive relief 

related to her employment with and termination from the MSI dental lab. 

Of further note, under the Eleventh Amendment, Burrell and Warren

may be sued in their official capacities only for injunctive relief.

4

 Will, 491 

U.S. at 71 & n. 10; Wolfel v. Morris, 972 F.2d 712, 719 (6th Cir. 1992). As

set forth above, Peterson’s claims for injunctive relief are not viable, so her 

suit against Burris and Warren in their official capacities is unsustainable.

C. Equal Protection

Peterson claims that MSI violated her Fifth and Fourteenth 

Amendment rights to equal protection. [R. 1, PgID 14-15]. To establish a 

prima facie case, she must show that she (1) was a member of a protected 

class; (2) was subject to an adverse employment action; (3) was qualified 

for the job; and (4) was treated differently from similarly situated nonminority employees for the same or similar conduct. Perry v. McGinnis, 

209 F.3d 597, 601 (6th Cir. 2000). The only element that Peterson satisfies 

is that she was subject to an adverse action. She does not allege that she 

was a member of a protected class, that she was qualified for the job or 

4 Peterson’s sues Burris in both his personal and official capacities, and she 

indicated in her motion to amend an intent to sue Warren in both 

capacities. [R. 1, PgID 1; R. 15, PgID 71].

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that similarly situated inmates were treated differently for the same or 

similar conduct. To the contrary, Peterson alleges that other inmates were 

demoted just like her. [R. 1, PgID 14-15]. Thus, her equal protection claim 

fails. 

D. Religious Land Use and Institutionalized Persons Act

Citing the First Amendment and the Religious Land Use and 

Institutionalized Persons Act (RLUIPA), Peterson claims that she has been 

mocked and belittled because she is a Jehovah’s Witness, and she 

attempts to tie the alleged unfair treatment she received from Burris to her 

religion. [R. 1, PgID 17-18]. RLUIPA enforces the First Amendment by 

prohibiting institutions of confinement from substantially burdening religion 

absent a compelling governmental interest. 42 U.S.C. § 2000cc-1; Cutter 

v. Wilkinson, 544 U.S. 709, 720 (2005). “To establish a cognizable claim 

under RLUIPA, the inmate must first demonstrate that a prison policy 

substantially burdens a religious practice.” Haight v. Thompson, 763 F.3d 

554, 559-60 (6th Cir. 2014). Peterson does not argue that a prison policy

substantially burdens her right to exercise her religious practices, so her 

RLUIPA claim is without merit.

E. Sexual Harassment

Peterson alleges sexual harassment under the Civil Rights Act. [R. 1, 

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PgID 18-19]. In conclusory fashion, she alleges that she was “subjected to 

various types of unwelcome sexual communication” and that “she was 

subjected to differentiated treatment because she would not participate in 

the verbal communication” with Burris. [Id. at 18]. Peterson does not 

identify any unwelcome sexual communication, and the only “overfamiliar” 

conduct she describes on the part of her coworkers was bringing Burris 

coffee every morning in a mug on which they had painted the word “boss.” 

These allegations fall far short of stating a plausible claim for sexual 

harassment. Faragher v. City of Boca Raton, 524 U.S. 775, 786-89 (1998)

(describing the pervasive and severe harassment necessary to support a 

sexual harassment claim).

F. Pendant State-Law Claims

In addition to her federal claims, Peterson alleged libel and slander 

and sexual harassment under Michigan law. [R. 1, PgID 16 &18]. If the 

recommendation that Peterson’s federal claims be dismissed is adopted, 

her pendant state-law claims should be dismissed without reaching their 

merits. Pilgrim v. Littlefield, 92 F.3d 413, 417 (6th Cir. 1996).

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III. CONCLUSION

For the foregoing reasons, the Court RECOMMENDS that Peterson’s 

complaint be DISMISSED SUA SPONTE, and the MDOC Defendants’ 

motion to dismiss be DENIED AS MOOT. [R. 22].

Dated: May 21, 2015 s/Elizabeth A. Stafford 

Detroit, Michigan ELIZABETH A. STAFFORD

United States Magistrate Judge

NOTICE TO THE PARTIES REGARDING OBJECTIONS

Either party to this action may object to and seek review of this 

Report and Recommendation, but must act within fourteen days of service 

of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 

72(b)(2). Failure to file specific objections constitutes a waiver of any 

further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. 

Secretary of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 

638 F.2d 947 (6th Cir. 1981). Filing objections which raise some issues but 

fail to raise others with specificity will not preserve all objections that party 

might have to this Report and Recommendation. Willis v. Secretary of 

HHS, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers 

Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). A copy of any objection 

must be served upon this Magistrate Judge. E.D. Mich. LR 72.1(d)(2).

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Each objection must be labeled as “Objection #1,” “Objection #2,” 

etc., and must specify precisely the provision of this Report and 

Recommendation to which it pertains. Not later than fourteen days after 

service of objections, the non-objecting party must file a response to 

the objections, specifically addressing each issue raised in the objections in 

the same order and labeled as “Response to Objection #1,” “Response to 

Objection #2,” etc. The response must be concise and proportionate in 

length and complexity to the objections, but there is otherwise no page 

limitation. If the Court determines that any objections are without merit, it 

may rule without awaiting the response.

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s ECF 

System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on May 21, 2015.

s/Marlena Williams 

MARLENA WILLIAMS

Case Manager

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