UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

WINSTON ROBERT LARRY,

 

Plaintiff,

v. Case Number: 08-CV-15105

Honorable John Corbett O’Meara

BARBARA SAMPSON, et. al.,

Defendants.

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OPINION AND ORDER OF SUMMARY DISMISSAL

I.

Before the Court is Plaintiff Winston Robert Larry’s pro se civil rights complaint filed

pursuant to 42 U.S.C. § 1983. Plaintiff is a state prisoner currently confined at G. Robert Cotton

Correctional Facility in Jackson, Michigan. Plaintiff has been granted leave to proceed without

prepayment of the filing fee for this action. Defendants are Barbara Sampson, Member of the

Parole Board, Parole Agent William E. Switzer, and Carol Barnes. In his complaint, Plaintiff

alleges that his parole was revoked on the basis of defendant Switzer’s parole violation report,

which stated that he be returned to prison to complete the remainder of his sentence because he

displayed a gun toward Carol Barnes, the Complainant in this case. Plaintiff contends that the

report was untrue and was used to enhance his prison term. Plaintiff seeks monetary damages.

Having reviewed the complaint, the Court dismisses it pursuant to 28 U.S.C. 

§§ 1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim upon which relief may be granted

and on the basis of immunity.
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II.

On September 29, 2004, defendant Switzer prepared a parole violation report charging

Plaintiff with twelve parole violations, which included Plaintiff engaging in assaultive and

abusive behavior toward Carol Barnes, possessing a handgun in her presence, and being

chronically unemployed. (See Plaintiff’s Exhibits, 1-2.) The Parole Board revoked Plaintiff’s

parole and imposed an eighteen-month continuance of incarceration. The documents attached to

the complaint indicate that Plaintiff filed grievances concerning this matter, which were denied

as untimely.

III.

Under the Prison Litigation Reform Act of 1996 (“PLRA”), the Court is required to sua

sponte dismiss an in forma pauperis complaint before service on a defendant if it determines that

the action is frivolous or malicious, fails to state a claim upon which relief can be granted, or

seeks monetary relief against a defendant who is immune from such relief. 42 U.S.C. 

§ 1997(e)(c); 28 U.S.C. § 1915(e)(2)(B). The Court is similarly required to dismiss a complaint

seeking redress against government entities, officers, and employees which it finds to be

frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary

relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A. A complaint is

frivolous if it lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25,

31 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989).

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that (1) he was deprived

of a right, privilege, or immunity secured by the federal Constitution or laws of the United

States; and (2) the deprivation was caused by a person acting under color of state law. See Flagg
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Bros. v. Brooks, 436 U.S. 149, 155-57 (1978); Brock v. McWherter, 94 F.3d 242, 244 (6th Cir.

1996). A pro se civil rights complaint is to be construed liberally. Haines v. Kerner, 404 U.S.

519, 520-21 (1972). Here, despite this liberal pleading standard, the Court finds that Plaintiff’s

complaint is subject to dismissal pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b).

IV.

A.

Plaintiff’s complaint is subject to dismissal because he has not demonstrated that the

defendants engaged in conduct which violated his constitutional rights. Plaintiff has failed to

allege any facts to show that defendant Switzer submitted a false parole violation report by

stating that Plaintiff had engaged in assaultive and abusive behavior, possessed a handgun, and

had been chronically unemployed. Conclusory allegations are insufficient to state a civil rights

claim. See, e.g., Leon v. Federal Reserve Bank of Chicago, 823 F.2d 928, 930 (6th Cir. 1987). 

Further, Plaintiff has failed to allege facts to show that the Parole Board relied upon any false

information in issuing its revocation decision. In fact, the documents attached to the complaint

belie Plaintiff’s assertions. 

Plaintiff has also failed to allege facts which indicate that the alleged deprivation of his

rights was intentional. An “injury caused by negligence does not constitute a deprivation of any

constitutionally-protected interest” and a claim that officials have engaged in negligent conduct

does not state a claim under §1983. See Collins v. City of Harker Hgts., 503 U.S. 115, 127-28

(1992); Lewellen v. Metropolitan Gov't. of Nashville & Davidson Co. Tenn., 34 F.3d 345, 348

(6th Cir. 1994) (ruling that even gross negligence is not actionable under § 1983, because it is

not 
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“arbitrary in the constitutional sense”). Plaintiff does not set forth facts indicating that the

defendant Switzer’s conduct was intentional in the constitutional sense.

B.

Furthermore, to the extent that Plaintiff challenges the duration of his continued

confinement, he fails to state a claim upon which relief may be granted. A claim under § 1983 is

an appropriate remedy for a state prisoner challenging a condition of his imprisonment. See

Preiser v. Rodriguez, 411 U.S. 475, 499 (1973). Plaintiff, however, essentially challenges the

eighteen-month continuance issued by the Parole Board because he asserts that the Board’s

decision was based upon the allegedly false report. Such a claim is not properly brought under

42 U.S.C. § 1983. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (holding that a state

prisoner does not state a cognizable civil rights claim challenging his conviction or

imprisonment if a ruling on his claim would necessarily render his continuing confinement

invalid, until and unless the reason for his continued confinement has been reversed on direct

appeal, expunged by executive order, declared invalid by a state tribunal, or has been called into

question by a federal court’s issuance of a writ of habeas corpus); Schilling v. White, 58 F.3d

1081, 1085 (6th Cir. 1995). This holds true regardless of the relief sought by the plaintiff. Heck,

512 U.S. at 487-89. The United States Supreme Court has recently affirmed that “a state

prisoner’s § 1983 action is barred (absent prior invalidation)– no matter the relief sought

(damages or equitable relief), no matter the target of the prisoner’s suit (state conduct leading to

conviction or internal prison proceedings)– if success in that action would necessarily

demonstrate the invalidity of confinement or its duration.” Wilkinson v. Dotson, 544 U.S. 74, 81

(2005). Because the duration 
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of Plaintiff’s confinement would be called into question if he were to prevail on his claim that

the Parole Board relied upon a false report, his complaint under § 1983 is subject to dismissal.

C.

Plaintiff’s claim against defendants Sampson and Barnes is also subject to dismissal

because Plaintiff has failed to allege facts demonstrating their personal involvement in the events

giving rise to his complaint. It is well-established that a civil-rights plaintiff must allege the

personal involvement of a defendant to state a claim under 42 U.S.C. § 1983 and that such

liability cannot be based upon a theory of respondeat superior. See, e.g., Monell v. Department

of Social Svs., 436 U.S. 658, 691-92 (1978); Taylor v. Michigan Dep’t. of Corrections, 69 F.3d

716, 727-28 (6th Cir. 1995) (plaintiff must allege facts showing that defendant participated,

condoned, encouraged, or knowingly acquiesced in alleged misconduct to establish liability). 

Plaintiff has not done so with respect to defendant Sampson. Plaintiff’s conclusory claim that

defendant Sampson bears responsibility for departmental regulations is insufficient to show her

personal involvement. The mere fact that defendant Sampson may have supervisory authority

over the other defendant is insufficient to state a claim under § 1983. 

Furthermore, Plaintiff has not demonstrated Carol Barnes’ personal involvement in the

events. Ms. Barnes was the Complainant in the case, as she was the victim of Plaintiff’s

assaultive and abusive behavior.

D.

Finally, Plaintiff’s claims for damages against defendant Sampson in her official

capacities are subject to dismissal on the basis of Eleventh Amendment immunity. The Eleventh

Amendment provides immunity to a state and its agencies from suit in federal court unless the
1

The Court also notes that the defendant parole agent, Switzer, may be entitled to

absolute or qualified immunity from suit, depending on the characterizations of the actions. See,

e.g. Fleming v. Martin, et al., 24 Fed.Appx. 258, 259 (6th Cir. 2001); see also Figg v. Russell,

433 F.3d 593 (8th Cir. 2006).

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state expressly waives immunity or Congress clearly abrogates the Eleventh Amendment in

legislation designed to enforce the Fourteenth Amendment. See Welch v. Texas Dep't. of

Highways and Public Transp., 483 U.S. 468, 472-74 (1987). As Congress did not abrogate the

Eleventh Amendment when enacting § 1983, neither a state, a state agency, nor a state official

sued in his official capacity is a "person" subject to suit under § 1983. Will v. Michigan Dep't of

State Police, 491 U.S. 58, 66-71 (1989). “‘[A] suit in federal court by private parties seeking to

impose a liability which must be paid from public funds in the state treasury is barred by the

Eleventh Amendment.’ This bar against suit also extends to state officials acting in their official

capacities.” Hutsell v. Sayre, 5 F.3d 996, 999 (6th Cir. 1993) (citations omitted); see also Ritchie

v. Michigan Dept. of Corr., 826 F.2d 1065, 1987 WL 38524, 1 (6th Cir. 1987) (unpublished)

(MDOC immunity). Plaintiff’s claims for monetary damages against defendant Sampson in her

official capacities must therefore be dismissed.1

V.

For the reasons stated, the Court concludes that (1) Plaintiff has failed to state a claim

upon which relief may be granted under 42 U.S.C. § 1983, and, (2) defendant Sampson, in her

official capacity is immune from suit on Plaintiff’s claim for monetary damages. Accordingly,

the Court DISMISSES Plaintiff’s civil-rights complaint.
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Finally, the Court concludes that an appeal from this order would be frivolous and

therefore cannot be taken in good faith. See 28 U.S.C. § 1915(a)(3); see also McGore v.

Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir. 1997).

s/John Corbett O’Meara

United States District Judge

Date: December 22, 2008

I hereby certify that a copy of the foregoing document was served upon the parties of record on

this date, December 22, 2008, by electronic and/or ordinary mail.

s/William Barkholz

Case Manager