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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DAVID GREEN,

 

Plaintiff,

CASE NO. 09-CV-11994

v. HONORABLE VICTORIA A. ROBERTS

ARTURO AVILES, et al.,

Defendants.

_______________________________________/

OPINION AND ORDER OF PARTIAL SUMMARY DISMISSAL AND

DIRECTING SERVICE UPON DEFENDANTS AVILES AND CITCHEN

I.

Before the Court is Plaintiff David Green’s pro se civil rights complaint filed pursuant to

Bivens v. Six Unknown Named Narcotics Agents of the Federal Bureau of Narcotics, 403 U.S.

388 (1971). A Bivens action is considered the federal counterpart to an action brought pursuant

to 42 U.S.C. § 1983. See Vector Research, Inc. v. Howard & Howard Attorneys P.C., 76 F.3d

692, 698 (6th Cir. 1996). Plaintiff is a federal prisoner currently confined at the Federal

Correctional Institution in Milan, Michigan (“FCI Milan”). He has been granted leave to

proceed without prepayment of the filing fee for this action.

In his complaint, Plaintiff alleges that employees at FCI Milan have violated his

constitutional rights by harassing him and retaliating against him for giving a grievance letter to

the Director of the Bureau of Prisons. Plaintiff names Warden Christopher Zych, Unit Manager

Arturo Aviles, Unit Manager Steven Citchen, Case Managers Robin Wilson and Craig Henly,

and Unit Secretary Haynes as the defendants in this action and sues them in their official and

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individual capacities. He seeks monetary damages and injunctive relief. Having reviewed the

matter, the Court dismisses the complaint in part 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 orders that the

remainder of the complaint be served upon defendants Aviles and Citchen.

II.

Under the Prison Litigation Reform Act (“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. See 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. See 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). A pro se civil rights complaint is to be

construed liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Despite this liberal

pleading standard, the Court finds that Plaintiff’s complaint is subject to partial summary

dismissal.

III.

As an initial matter, the Court finds that Plaintiff’s claims against defendants Wilson,

Henly and Haynes must be dismissed because Plaintiff has failed to alleged any facts

demonstrating their 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

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under 42 U.S.C. § 1983 or Bivens. See, e.g., Monell v. Department of Social Svs., 436 U.S. 658,

691-92 (1978) (liability for a civil rights complaint cannot be based upon a theory of respondeat

superior); Turner v. City of Taylor, 412 F.3d 629, 643) (6th Cir. 2005) (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 defendants Wilson,

Henly, and Haynes. He has failed to allege any facts indicating that those defendants had any

personal or direct involvement in any harassment, retaliation, or other unconstitutional conduct. 

Conclusory allegations are insufficient to state a civil rights claim. See, e.g., Lanier v. Bryant,

332 F.3d 999, 1007 (6th Cir. 2003). Plaintiff's claims against defendants Wilson, Henly, and

Haynes must therefore be dismissed.

Plaintiff’s complaint against defendant Zych must also be dismissed for failure to state a

claim upon which relief may be granted. Plaintiff alleges, at best, that defendant Zych verbally

harassed and threatened him. It is well-established, however, that allegations of harassment and

verbal threats are insufficient to state a civil rights claim under § 1983 or Bivens. See Ivey v.

Wilson, 832 F.2d 950, 954-55 (6th Cir. 1987); Davis v. Michigan Dept. of Corrections, 746 F.

Supp. 662, 667 (E.D. Mich. 1990). Verbal threats by a corrections officer to assault an inmate

do not violate an inmate’s constitutional rights. See Miller v. Wertanen, 109 Fed. Appx. 64, 65

(6th Cir. 2004). Similarly, verbal threats made in retaliation for filing grievances are not

actionable. See Carney v. Craven, 40 Fed. Appx. 48, 50 (6th Cir. 2002). While the Court does

not condone the alleged conduct complained of, it nonetheless concludes that Plaintiff’s

allegations of verbal harassment and threats by defendant Zych (or any other defendant or prison

employee) do not state a claim under Bivens and must be dismissed. Furthermore, any claim that

defendant Zych failed to properly supervise a prison employee, should be vicariously liable for

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an employee’s conduct, or did not respond to the situation is insufficient to state a claim under

Bivens. See Monell, supra.

Lastly, Plaintiff alleges that defendants Aviles and Citchen searched his cell, confiscated

or destroyed his property, filed false incident reports, and conspired against him in retaliation for

his conduct in giving a grievance letter to the Director of the Bureau of Prisons. Having

reviewed the complaint and given the liberal pleading standard for pro se actions, the Court finds

that Plaintiff's retaliation claims against defendants Aviles and Citchen are not subject to

dismissal at this time.

IV.

For the reasons stated, the Court concludes that Plaintiff has failed to state a claim upon

which relief may be granted under Bivens as to defendants Wilson, Henly, Haynes, and Zych. 

Accordingly, the Court DISMISSES WITH PREJUDICE Plaintiff’s civil rights complaint

against those individuals pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). The Court further

concludes that Plaintiff’s retaliation claims against defendants Aviles and Citchen are not subject

to summary dismissal. Accordingly, the Court ORDERS that the complaint, as it pertains to

defendants Aviles and Citchen, and a copy of this order be served upon those two defendants by

the United States Marshal without prepayment of costs. Lastly, 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).

IT IS ORDERED.

S/Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: June 3, 2009

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The undersigned certifies that a copy of this

document was served on the attorneys of record

and David Green by electronic means or U.S.

Mail on June 3, 2009.

s/Carol A. Pinegar 

Deputy Clerk

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