The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DERRICK LEE SMITH,
Plaintiff,
v. Case Number 2:21-CV-11489
HON. GEORGE CARAM STEEH
GOOGLE LLC, et. al.,
Defendants.
_______________________/
OPINION AND ORDER SUMMARILY
DISMISSING CIVIL RIGHTS COMPLAINT
This matter is before the Court on plaintiff’s pro se civil rights
complaint filed pursuant to 42 U.S.C. § 1983. Plaintiff is an inmate
confined at the Muskegon Correctional Facility in Muskegon, Michigan.
The complaint is dismissed with prejudice, because the complaint fails to
state a claim for relief under 42 U.S.C. § 1983.
I. STANDARD OF REVIEW
Plaintiff has paid the entire filing fee of $350.00, plus the $52.00
administrative fee, rendering inapplicable this Court’s authority to screen
his complaint for frivolity or maliciousness pursuant to a portion of the
Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(e)(2). However, the
Court has an initial and continuing obligation under Fed. R. Civ. P. 12(b)(1)
to review and dismiss cases in which the Court lacks subject matter
jurisdiction. Because the Court finds that plaintiff’s claims are devoid of
merit or no longer open to discussion, the Court will sua sponte dismiss the
complaint for lack of subject matter jurisdiction.
A federal district court’s authority to screen and sua sponte dismiss
complaints under 28 U.S.C. § 1915(e)(2) is limited to those prisoner
complaints that are filed in forma pauperis. Benson v. O'Brian, 179 F. 3d
1014, 1015 (6th Cir. 1999). Plaintiff did not file his complaint in this case as
an indigent, but paid the filing fee and did not seek in forma pauperis
status. As a general rule, a district court may not sua sponte dismiss a
complaint where the filing fee has been paid unless the court gives the
plaintiff the opportunity to amend the complaint. Apple v. Glenn, 183 F. 3d
477, 479 (6th Cir. 1999).
However, a review of a prisoner’s civil rights complaint pursuant to 28
U.S.C. § 1915A is appropriate regardless of whether the prisoner has
sought in forma pauperis status when the claim is brought against a
governmental entity. Benson, 179 F. 3d at 1017. Therefore, if a prisoner’s
complaint seeks relief from a governmental entity, officer, or employee,
Congress has directed that the district court must dismiss it, or any part
thereof, which (a) is frivolous, malicious, or fails to state a claim upon which
relief can be granted, or (b) seeks monetary relief from a defendant who is
immune from suit for monetary damages. 28 U.S.C. § 1915A.
Furthermore, “a district court may, at any time, sua sponte dismiss 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 at 479 (citing
Hagans v. Lavine, 415 U.S. 528, 536-37 (1974)(citing numerous Supreme
Court cases for the proposition that patently frivolous, attenuated, or
unsubstantial claims divest the district court of jurisdiction)).
A complaint is frivolous if it lacks an arguable basis in law or fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989); see also Denton v.
Hernandez, 504 U.S. 25, 32 (1992). “A complaint lacks an arguable basis
in law or fact if it ... is based on legal theories that are indisputably
meritless.” Brown v. Bargery, 207 F. 3d 863, 866 (6th Cir. 2000)(citing
Neitzke, 490 U.S. at 327-28). A complaint fails to state a claim “if it
appears beyond a doubt that the plaintiff can prove no set of facts in
support of his claim that would entitle him to relief.” Brown, 207 F. 3d at
867. Sua sponte dismissal is appropriate if the complaint lacks an arguable
basis when filed. McGore, 114 F. 3d at 612; Goodell v. Anthony, 157 F.
Supp. 2d 796, 799 (E.D. Mich. 2001).
A pro se litigant’s complaint is to be construed liberally, Middleton v.
McGinnis, 860 F. Supp. 391, 392 ( E.D. Mich.1994)(citing Estelle v.
Gamble, 429 U.S. 97, 106 (1976)); that is, they are held to a “less stringent
standard” than those drafted by attorneys. Haines v. Kerner, 404 U.S. 519,
520 (1972). Such complaints, however, must plead facts sufficient to show
a legal wrong has been committed from which plaintiff may be granted
relief. Fed. R. Civ. P. 12(b); Dekoven v. Bell, 140 F. Supp. 2d 748, 755
(E.D. Mich.2001).
While a complaint “does not need detailed factual allegations,” the
“[f]actual allegations must be enough to 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).” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007)(footnote and citations omitted). Stated differently, “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 Twombly, 550 U.S. at 570). “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. (citing Twombly, 550 U.S. at 556).
To establish a prima facie case under 42 U.S.C. § 1983, a civil rights
plaintiff must show that: (1) the defendant acted under color of state law;
and (2) the offending conduct deprived the plaintiff of rights secured by
federal law. Bloch v. Ribar, 156 F. 3d 673, 677 (6th Cir. 1998)(citing Parratt
v. Taylor, 451 U.S. 527, 535 (1981)). “If a plaintiff fails to make a showing
on any essential element of a § 1983 claim, it must fail.” Redding v. St.
Eward, 241 F. 3d 530, 532 (6th Cir. 2001).
II. COMPLAINT
Plaintiff claims that the various defendants have defamed his
character by placing false information about him on various websites
dedicated to exposing “liars, cheaters, or bastards.” Plaintiff also claims
that these defendants have conspired with various defendants working in
the Michigan Department of Corrections (M.D.O.C.) to place false
information on the entry for plaintiff’s convictions on the M.D.O.C.’s
Offender Tracking Information System (OTIS). Plaintiff seeks monetary
damages.
III. DISCUSSION
Plaintiff claims that the defendants have defamed his character.
“Absent a further injury, such as loss of a government job or loss of a legal
right or status, defamation, by itself, does not constitute a remediable
constitutional claim.” Voyticky v. Vill. of Timberlake, Ohio, 412 F.3d 669,
677 (6th Cir. 2005)(citing Paul v. Davis, 424 U.S. 693, 701–03 (1976);
Mertik v. Blalock, 983 F.2d 1353, 1362 (6th Cir. 1993)).
Plaintiff does not allege any injury other than being defamed other
than the alleged placement of false information on OTIS. Plaintiff,
however, does not offer any argument as to how the erroneous placement
of the number of convictions on OTIS has adversely affected him. To the
extent that this information may have affected his security level, a prisoner
has no right to be given a particular security level, Olim v. Wakinekona, 461
U.S. 238, 245 (1983); Montanye v. Haymes, 427 U.S. 236, 242 (1976), nor
does a prisoner have a constitutional right to placement in a particular
prison. Hewitt v. Helms, 459 U.S. 460, 468 (1983). The use of false or
inaccurate information to increase a prisoner’s security level thus fails to
state a claim upon which relief can be granted. See Johnson v. CCA-Ne.
Ohio Corr. Ctr. Warden, 21 F. App’x 330, 332–33 (6th Cir. 2001). Plaintiff
is not entitled to relief on his claim.
IV. ORDER
Accordingly, it is ORDERED that the complaint (ECF No. 1) is
DISMISSED for failing to state a claim upon which relief can be
granted.
The Court certifies that any appeal by plaintiff would be frivolous and
not in good faith. 28 U.S.C. § 1915(a)(3); Coppedge v. United States, 369
U.S. 438, 445 (1962).
Dated: July 27, 2021
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
July 27, 2021, by electronic and/or ordinary mail and also on
Derrick Lee Smith #267009, Muskegon Correctional Facility,
2400 S. Sheridan, Muskegon, MI 49442.
s/Leanne Hosking
Deputy Clerk