UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

_____________________________________________________________________

JANINE WEATHINGTON,

Plaintiff,

v. Case No. 08-15267

WARREN EVANS, et al.,

Defendants.

___________________________________/

ORDER DISMISSING JARIELD HEARD, ROBERT FICANO, 

AND KEN COCKREL AND DIRECTING SERVICE OF THE 

COMPLAINT ON THE REMAINING DEFENDANTS

Plaintiff Janine Weathington, a state inmate currently incarcerated at the Wayne

County Jail in Detroit, Michigan, has filed a pro se civil rights complaint pursuant to 42

U.S.C. § 1983. Plaintiff is proceeding without prepayment of the filing fee in this action

under 28 U.S.C. § 1915(a)(1). Upon initial consideration, the court will summarily

dismiss Defendants Jarield Heard, Robert Ficano, and Ken Cockrel pursuant to 28

U.S.C. § 1915(e)(2) and will order service on the remaining Defendants.

I. BACKGROUND

On December 24, 2008, Plaintiff filed the instant action against Defendants

Warren Evans, the Wayne County Sheriff; Jarield Heard, Commander of Detroit Jails;

Robert Ficano, Wayne County Executive; Ken Cockrel, Mayor for the City of Detroit;

Lieutenant Owens and Sergeant Harris, who are or were employed at the Dickerson

Detention Facility in Hamtramck, Michigan; and Carny Mader-Jewel, a substance abuse

facilitator in Southfield, Michigan. In her Complaint, Plaintiff alleges violations of her

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right of access to the courts and her right to privacy. She also complains about other

conditions at the Wayne County Jail, including the grievance procedures, the handling

of mail and processing of medical orders, the lack of sentencing credits, the lack of

access to a law librarian, the malfunction of emergency buttons in cells, the lack of a jail

rule book, and the loss of programming for female inmates when a facility closed. 

Plaintiff seeks injunctive relief from this court and “$1,625,000.00 for emotional

suffering, discrimination, sexual harassment, [and] future psychological therapy . . . .” 

(Pl.’s Compl. at 3.) 

II. STANDARD

Civil rights complaints filed by a pro se prisoner are subject to the screening

requirements of 28 U.S.C. § 1915(e)(2). Brown v. Bargery, 207 F.3d 863, 866 (6th Cir.

2000). Section 1915(e)(2) requires district courts to screen and to dismiss complaints

that are frivolous, fail to state a claim upon which relief can be granted, or that seek

monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 

1915(e)(2); McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997).

A complaint is frivolous and subject to sua sponte dismissal under § 1915(e) if it

lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325

(1989). “The former occurs when ‘indisputably meritless’ legal theories underlie the

complaint, and the latter when it relies on ‘fantastic or delusional’ allegations.” Brand v.

Motley, 526 F.3d 921, 923 (6th Cir. 2008) (quoting Neitzke, 490 U.S. at 327-28). 

A complaint may be dismissed for failure to state a claim if the facts alleged in

the complaint do not state a plausible claim for relief. Bell Atlantic Corp. v. Twombly,

540 U.S. 544, 127 S. Ct. 1955, 1974 (2007). “Factual allegations must be enough to

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raise a right to relief above the speculative level on the assumption that all the

allegations in the complaint are true (even if doubtful in fact).” Id. at 1965 (citations and

footnote omitted). In addition, “a district court may, at any time, dismiss sua sponte a

complaint for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1) of the Federal

Rules of Civil Procedure when the allegations of a complaint are totally implausible,

attenuated, unsubstantial, frivolous, devoid of merit, or no longer open to discussion.” 

Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999) (citing Hagans v. Lavine, 415 U.S.

528, 536-37 (1974)). 

III. DISCUSSION

In her Complaint, Plaintiff alleges that Defendant Jarield Heard declined to

restore twenty-four days of sentencing credits to Plaintiff’s sentence. This claim is not

cognizable in a § 1983 complaint because it challenges the fact or length of Plaintiff’s

confinement. Preiser v. Rodriguez, 411 U.S. 475, 499 (1973). Success in this action

would demonstrate the invalidity of Petitioner’s confinement or its duration. Therefore,

her claim against Defendant Heard is barred from review. Wilkinson v. Dotson, 544

U.S. 74, 81-82 (2005) (emphasis in original). The court will accordingly dismiss

Plaintiff’s claim against Defendant Heard for failure to state a claim. 

Plaintiff makes no mention of Robert Ficano or Ken Cockrel in her statement of

facts or in her enumerated claims. “[D]amage claims against governmental officials

alleged to arise from violations of constitutional rights cannot be founded upon

conclusory, vague or general allegations, but must instead, allege facts that show the

existence of the asserted constitutional rights violation recited in the complaint and what

each defendant did to violate the asserted right.” Terrance v. Northville Reg’l

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Psychiatric Hosp., 286 F.3d 834, 842 (6th Cir. 2002) (emphasis in original). To the

extent that Plaintiff seeks to hold Mr. Ficano or Mayor Cockrel liable for the acts or

omissions of their subordinates, she has failed to state a claim, because vicarious

liability is not a basis for relief under § 1983. Canton, Ohio v. Harris, 489 U.S. 378, 385

(1989) (citing Monell v. Dep’t of Soc. Serv. of the City of New York, 436 U.S. 658, 694-

95 (1978)). Therefore, the court will dismiss Plaintiff’s claims against Defendants

Ficano and Cockrel. The court will order service on the remaining Defendants. 

IV. CONCLUSION

For the reasons stated above, IT IS ORDERED that Defendants Jarield Heard,

Robert Ficano, and Ken Cockrel are DISMISSED from this lawsuit pursuant to 28

U.S.C. § 1915(e)(2) for failure to state a claim upon which relief may be granted. 

 IT IS FURTHER ORDERED that the United States Marshal serve the

appropriate papers on Defendants Warren Evans, Lieutenant Owens, Sergeant Harris,

and Carny Mader-Jewel without prepayment of the costs for such service. The Marshal

may collect the usual and customary costs from Plaintiff after effecting service.

IT IS ALSO ORDERED that Plaintiff serve a copy of all future documents on

Defendants, or on defense counsel if legal counsel represents Defendants. Plaintiff

shall attach to all original documents filed with the Clerk of the Court a certificate stating

the date that Plaintiff mailed a copy of the original document to Defendants or defense

counsel. The court will disregard any paper received by a district judge or a magistrate

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S:\Cleland\JUDGE'S DESK\C2 ORDERS\08-15267.WEATHINGTON.Partial.Dismissal.1915.bh.ljd.wpd

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 judge if the paper has not been filed with the Clerk or if it fails to include a certificate of

service.

s/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: January 28, 2009

I hereby certify that a copy of the foregoing document was mailed to counsel of record

on this date, January 28, 2009, by electronic and/or ordinary mail.

s/Lisa G. Wagner 

Case Manager and Deputy Clerk

(313) 234-5522

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