Deshone 591224 v. Rewerts

[[COURTLISTENER_SUBOPINION {"id":"10225445","type":"100trialcourt","part":"other","author":null,"source_field":"html_with_citations"}]]
UNITED STATES DISTRICT COURT                             
            WESTERN DISTRICT OF MICHIGAN                             
                  SOUTHERN DIVISION                                  
                         ______                                      

PAUL A. DESHONE,                                                          

          Plaintiff,          Case No. 1:22-cv-968                   

v.                                 Honorable Phillip J. Green             

R. REWERTS, et al.,                                                       

          Defendants.                                                
____________________________/                                             
                       OPINION                                       
This is a civil rights action brought by a state prisoner under
42 U.S.C. § 1983
.  
Plaintiff has been granted leave to proceed in forma pauperis.  (ECF No. 4.)  Pursuant 
to
28 U.S.C. § 636
(c) and Rule 73 of the Federal Rules of Civil Procedure, Plaintiff 
consented to proceed in all matters in this action under the jurisdiction of a United 
States magistrate judge.  (ECF No. 5.)                                    
This case is presently before the Court for preliminary review under the Prison 
Litigation Reform Act,
Pub. L. No. 104-134, 110
Stat. 1321 (1996) (PLRA), pursuant 
to
28 U.S.C. §§ 1915
(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c).  The Court is 
required to conduct this initial review prior to the service of the complaint.  See In re 
Prison Litig. Reform Act,
105 F.3d 1131, 1131, 1134
(6th Cir. 1997);  McGore v. 
Wrigglesworth,
114 F.3d 601
, 604–05 (6th Cir. 1997).  Service of the complaint on the 
named defendants is of particular significance in defining a putative defendant’s 
relationship to the proceedings.                                          
“An individual or entity named as a defendant is not obliged to engage in 
litigation unless notified of the action, and brought under a court’s authority, by 
formal process.”  Murphy Bros. v. Michetti Pipe Stringing, Inc.,
526 U.S. 344, 347
(1999).  “Service of process, under longstanding tradition in our system of justice, is 
fundamental to any procedural imposition on a named defendant.”
Id. at 350
.  “[O]ne 
becomes a party officially, and is required to take action in that capacity, only upon 
service of a summons or other authority-asserting measure stating the time within 
which the party served must appear and defend.”
Id.
(citations omitted).  That is, 
“[u]nless a named defendant agrees to waive service, the summons continues to 
function as the sine qua non directing an individual or entity to participate in a civil 

action or forgo procedural or substantive rights.”
Id. at 351
.  Therefore, the PLRA, 
by requiring courts to review and even resolve a plaintiff’s claims before service, 
creates a circumstance where there may only be one party to the proceeding—the 
plaintiff—at the district court level and on appeal.  See, e.g., Conway v. Fayette Cnty. 
Gov’t,
212 F. App’x 418
(6th Cir. 2007) (“Pursuant to 28 U.S.C. § 1915A, the district 
court screened the complaint and dismissed it without prejudice before service was 

made upon any of the defendants . . . [such that] . . . only [the plaintiff] [wa]s a party 
to this appeal.”).                                                        
Here, Plaintiff has consented to a United States magistrate judge conducting 
all proceedings in this case under
28 U.S.C. § 636
(c).  That statute provides that 
“[u]pon the consent of the parties, a full-time United States magistrate judge . . . may 
conduct any or all proceedings . . . and order the entry of judgment in the case . . .”
28 
U.S.C. § 636
(c).  Because the named Defendants have not yet been served, the 
undersigned concludes that they are not presently parties whose consent is required 
to permit the undersigned to conduct a preliminary review under the PLRA, in the 

same way they are not parties who will be served with or given notice of this opinion.  
See Neals v. Norwood,
59 F.3d 530, 532
(5th Cir. 1995) (“The record does not contain 
a consent from the defendants[; h]owever, because they had not been served, they 
were not parties to the action at the time the magistrate entered judgment.”).1 
Under the PLRA, the Court is required to dismiss any prisoner action brought 
under federal law if the complaint is frivolous, malicious, fails to state a claim upon 
which relief can be granted, or seeks monetary relief from a defendant immune from 

such relief.
28 U.S.C. §§ 1915
(e)(2), 1915A; 42 U.S.C. § 1997e(c).  The Court must read 
Plaintiff’s pro se complaint indulgently, see Haines v. Kerner,
404 U.S. 519, 520
(1972), and accept Plaintiff’s allegations as true, unless they are clearly irrational or 
wholly incredible.  Denton v. Hernandez,
504 U.S. 25, 33
(1992).  Applying these 
standards, the Court will dismiss Plaintiff’s federal claims with prejudice for failure 



1 But see Coleman v. Lab. & Indus. Rev. Comm’n of Wis.,
860 F.3d 461, 471
(7th Cir. 
2017) (concluding that, when determining which parties are required to consent to 
proceed before a United States magistrate judge under
28 U.S.C. § 636
(c), “context 
matters” and the context the United States Supreme Court considered in Murphy 
Bros. was nothing like the context of a screening dismissal pursuant to
28 U.S.C. 
§§ 1915
(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c)); Williams v. King,
875 F.3d 500
, 
503–04  (9th  Cir.  2017)  (relying  on  Black’s  Law  Dictionary  for  the  definition  of 
“parties” and not addressing Murphy Bros.); Burton v. Schamp,
25 F.4th 198
, 207 
n.26 (3d Cir. Feb. 10, 2022) (premising its discussion of “the term ‘parties’ solely in 
relation to its meaning in Section 636(c)(1), and . . . not tak[ing] an opinion on the 
meaning of ‘parties’ in other contexts”).                                 
to state a claim.  The Court will dismiss Plaintiff’s state law claim without prejudice 
because the Court declines to exercise supplemental jurisdiction over that claim. 
                       Discussion                                    
Factual allegations                                                  

Plaintiff  is  presently  incarcerated  with  the  Michigan  Department  of 
Corrections  (MDOC)  at  the  Earnest  C.  Brooks  Correctional  Facility,  (LRF)  in 
Muskegon  Heights,  Muskegon  County,  Michigan.    The  events  about  which  he 
complains occurred at the Carson City Correctional Facility (DRF) in Carson City, 
Montcalm  County,  Michigan.    Plaintiff  sues  Carson  City  Correctional  Facility 
Warden R. Rewerts, R.U.M. Unknown Blair, and P.C./A.R.U.S. Unknown Miller, in 
their respective individual and official capacities.                      

Plaintiff alleges that, in late September 2021, he had a conversation with 
Defendant  Rewerts  about  repainting  the  prison  unit.    (ECF  No.  1,  PageID.3.)  
Plaintiff informed Defendant Rewerts that he does “painting in the world.”  (Id.) 
Defendant Rewerts responded by asking, “How much would you charge to paint a 
building like this[?]”  (Id.)  When Plaintiff told Defendant Rewerts that Plaintiff 
would charge “20 to 25 thousand,” Defendant Rewerts told Plaintiff, “Get it done . . . 

I’ll put you on payroll.”  (Id.)  Plaintiff began painting the unit, working three shifts 
for three months, based upon the assumption that he would be paid.  (Id.)  Plaintiff 
was also told by Defendants Blair and Miller that he would be “taken care of.”  (Id.) 
However, Plaintiff was never paid.                                        
Failure to state a claim                                             
A complaint may be dismissed for failure to state a claim if it fails “to give the 
defendant fair notice of what the . . . claim is and the grounds upon which it rests.”  
Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555
(2007) (quoting Conley v. Gibson,
355 

U.S. 41, 47
(1957)).  While a complaint need not contain detailed factual allegations, 
a plaintiff’s allegations must include more than labels and conclusions.  Id.; Ashcroft 
v. Iqbal,
556 U.S. 662, 678
(2009) (“Threadbare recitals of the elements of a cause of 
action, supported by mere conclusory statements, do not suffice.”).  The court must 
determine whether the complaint contains “enough facts to state a claim to relief that 
is plausible on its face.”  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.”  Iqbal,
556 U.S. at 
679
.    Although  the  plausibility  standard  is  not  equivalent  to  a  “‘probability 
requirement,’ . . . it asks for more than a sheer possibility that a defendant has acted 
unlawfully.”
Id.
at 678 (quoting Twombly,
550 U.S. at 556
).  “[W]here the well-
pleaded facts do not permit the court to infer more than the mere possibility of 
misconduct, the complaint has alleged—but it has not ‘show[n]’—that the pleader is 

entitled to relief.”
Id.
at 679 (quoting Fed. R. Civ. P. 8(a)(2)); see also Hill v. Lappin,
630 F.3d 468
, 470–71 (6th Cir. 2010) (holding that the Twombly/Iqbal plausibility 
standard applies to dismissals of prisoner cases on initial review under 28 U.S.C. 
§§ 1915A(b)(1) and 1915(e)(2)(B)(i)).                                     
To state a claim under
42 U.S.C. § 1983
, a plaintiff must allege the violation of 
a  right  secured  by  the  federal  Constitution  or  laws  and  must  show  that  the 
deprivation was committed by a person acting under color of state law.  West v. Atkins,
487 U.S. 42, 48
(1988); Street v. Corr. Corp. of Am.,
102 F.3d 810, 814
(6th Cir. 1996). 
Because § 1983 is a method for vindicating federal rights, not a source of substantive 
rights  itself,  the  first  step  in  an  action  under  § 1983  is  to  identify  the  specific 
constitutional right allegedly infringed.  Albright v. Oliver,
510 U.S. 266, 271
(1994). 
A.   Federal Claims                                                  
Plaintiff does not articulate the legal claims that he intends to bring against 
each Defendant.  To state a claim under
42 U.S.C. § 1983
, a plaintiff must allege the 

violation of a right secured by the federal Constitution or laws and must show that 
the deprivation was committed by a person acting under color of state law.  Winkler 
v. Madison Cnty.,
893 F.3d 877, 890
(6th Cir. 2018); West v. Atkins,
487 U.S. 42, 48
(1988).  Though the Court assumes that each named Defendant is a person acting 
under color of law for purposes of § 1983, the Court finds that Plaintiff fails to allege 
a violation of any right secured by federal law.                          
Plaintiff claims that Defendants breached their oral agreement with Plaintiff, 

refusing to pay Plaintiff for work performed.  This most closely resembles a common 
law claim for breach of contract.  However, claims under § 1983 can only be brought 
for “deprivations of rights secured by the Constitution and laws of the United States.” 
Lugar v. Edmondson Oil Co.,
457 U.S. 922, 924
(1982).  Section 1983 does not provide 
redress for a violation of a state law.  Pyles v. Raisor,
60 F.3d 1211, 1215
(6th Cir. 
1995); Sweeton v. Brown,
27 F.3d 1162, 1166
(6th Cir. 1994).  The Sixth Circuit has 
consistently held that a claim for breach of contract is not cognizable under Section 
1983.  Kaminski v. Coulter,
865 F.3d 339, 348
(6th Cir. 2017); Taylor Acquisitions, 
L.L.C. v. City of Taylor,
313 F. App’x 826, 832
(6th Cir. 2009).  “Breach of contract is 

a state law issue.  ‘Neither the Eighth Amendment nor any other provision of the 
United States Constitution provides a basis for a prisoner to recover against prison 
officials for breach of a contract.’”  Peltier v. Valone, No. 2:16-CV-10209,
2016 WL 
1170800
, at *2 (E.D. Mich. Mar. 25, 2016) (quoting Jordan v. Brown, No. 1:16-CV-
0001,
2016 WL 128520
, at *2 (M.D. Tenn. Jan. 12, 2016)).                  
To the extent that Plaintiff seeks to bring a claim for deprivation of property 
under the Due Process Clause, he likewise fails to state a claim.  “The Fourteenth 

Amendment  protects  an  individual  from  deprivation  of  life,  liberty  or  property, 
without due process of law.”  Bazzetta v. McGinnis (Bazzetta II),
430 F.3d 795, 801
(6th Cir. 2005).  It contains both a procedural and a substantive component.  Howard 
v. Grinage,
82 F.3d 1343, 1349
(6th Cir. 1996).                           
To establish a Fourteenth Amendment procedural due process violation, a 
plaintiff must show that an interest of life, liberty or property is at stake.  Wilkinson 

v. Austin,
545 U.S. 209, 221
(2005).  Analysis of a procedural due process claim 
involves two steps: “[T]he first asks whether there exists a liberty or property interest 
which has been interfered with by the State; the second examines whether the 
procedures attendant upon that deprivation were constitutionally sufficient.”  K’y 
Dep’t of Corr. v. Thompson,
490 U.S. 454, 460
(1989) (citations omitted). 
As to the first step, the Sixth Circuit consistently has found that prisoners have 
no constitutionally protected interest in prison employment under the Fourteenth 
Amendment.  See, e.g., Dellis v. Corr. Corp. of America,
257 F.3d 508
, 511 (6th Cir. 

2001) (district court properly dismissed as frivolous the plaintiff’s claim that he was 
fired from his prison job); Newsom v. Norris,
888 F.2d 371, 374
(6th Cir.1989) (no 
constitutional right to prison employment); Carter v. Tucker, No. 03–5021,
2003 WL 
21518730
, at *2 (6th Cir. July 1, 2003) (same).  Moreover, “as the Constitution and 
federal law do not create a property right for inmates in a job, they likewise do not 
create a property right to wages for work performed by inmates.”  Carter,
2003 WL 
21518730
, at *2 (citing Williams v. Meese,
926 F.2d 994
, 997 (10th Cir.1991), and 

James v. Quinlan,
866 F.2d 627
, 629–30 (3d Cir. 1989)).  Under these authorities, 
Plaintiff fails to state a due process claim arising from his lack of pay for prison 
employment.                                                               
But even if Plaintiff were able to satisfy the first step of a procedural due 
process claim, Plaintiff’s claim is barred by the doctrine of Parratt v. Taylor,
451 U.S. 
527
(1981), overruled in part by Daniels v. Williams,
474 U.S. 327
(1986).  Under 

Parratt, a person deprived of property by a “random and unauthorized act” of a state 
employee has no federal due process claim unless the state fails to afford an adequate 
post-deprivation  remedy.    If  an  adequate  post-deprivation  remedy  exists,  the 
deprivation, although real, is not “without due process of law.”  Parratt,
451 U.S. at 
537
.  This rule applies to both negligent and intentional deprivations of property, as 
long as the deprivation was not done pursuant to an established state procedure.  See 
Hudson v. Palmer,
468 U.S. 517
, 530–36 (1984).  Because Plaintiff’s claim is premised 
upon allegedly unauthorized acts of a state official, he must plead and prove the 
inadequacy of state post-deprivation remedies.  See Copeland v. Machulis,
57 F.3d 

476
, 479–80 (6th Cir. 1995); Gibbs v. Hopkins,
10 F.3d 373, 378
(6th Cir. 1993).  Under 
settled Sixth Circuit authority, a prisoner’s failure to sustain this burden requires 
dismissal of his § 1983 due-process action.  See Brooks v. Dutton,
751 F.2d 197
(6th 
Cir. 1985).                                                               
Plaintiff has not alleged that state post-deprivation remedies are inadequate.  
Indeed,  state  post-deprivation  remedies  are  available  to  him  as  Michigan  law 
authorizes actions in the Court of Claims asserting tort or contract claims “against 

the state and any of its departments or officers.”
Mich. Comp. Laws § 600.6419
(1)(a) 
(eff. Nov. 12, 2013).  And the Sixth Circuit has held that a state court action provides 
an adequate remedy for the deprivation of a contractually created property interest. 
Kaminski,
865 F.3d at 348
.  Accordingly, Plaintiff cannot state a procedural due 
process claim.                                                            
Plaintiff also fails to state a substantive due process claim.  “Substantive due 

process prevents the government from engaging in conduct that shocks the conscience 
or interferes with rights implicit in the concept of ordered liberty.”  Prater v. City of 
Burnside,
289  F.3d  417,  431
(6th  Cir.  2002).    Unlike  procedural  due  process, 
substantive due process protects only a very narrow class of interests, including those 
enumerated in the Constitution, “so rooted in the traditions and conscience of our 
people as to be ranked as fundamental.”  Charles v. Baesler,
910 F.2d 1349, 1353
(6th 
Cir. 1990) (quoting Michael H. v. Gerald D.,
491 U.S. 110, 121
,
109 S. Ct. 2333, 2341
,
105 L. Ed. 2d 91
(1989)).  It is well-settled that “[t]he substantive Due Process Clause 
is not concerned with the garden variety issues of common law contract.”  Bowers v. 

City of Flint,
325 F.3d 758
, 763–64 (6th Cir. 2003).  Because Plaintiff fails to state a 
due  process  claim—procedural  or  substantive—the  Court  will dismiss Plaintiff’s 
federal claims against all Defendants.                                    
B.   State Law Claim                                                 
As discussed above, Plaintiff’s complaint is most logically construed as a state 
law claim for breach of contract against the named Defendants.  In determining 
whether to retain supplemental jurisdiction over state law claims, “[a] district court 

should consider the interests of judicial economy and the avoidance of multiplicity of 
litigation and balance those interests against needlessly deciding state law issues.”  
Landefeld v. Marion Gen. Hosp., Inc.,
994 F.2d 1178, 1182
(6th Cir. 1993); see also 
Moon  v.  Harrison  Piping  Supply,
465  F.3d  719,  728
(6th  Cir.  2006)  (“Residual 
jurisdiction should be exercised only in cases where the interests of judicial economy 
and the avoidance of multiplicity of litigation outweigh our concern over needlessly 
deciding state law issues.” (internal quotation marks omitted)).  Dismissal, however, 

remains “purely discretionary.”  Carlsbad Tech., Inc. v. HIF Bio, Inc.,
556 U.S. 635, 
639
(2009) (citing
28 U.S.C. § 1367
(c)); Orton v. Johnny’s Lunch Franchise, LLC,
668 
F.3d 843, 850
(6th Cir. 2012).                                            
Because Plaintiff’s federal claims will be dismissed in their entirety, the Court 
will decline to exercise supplemental jurisdiction over Plaintiff’s state law claims.  
Therefore,  Plaintiff’s  state  law  claims  will  be  dismissed  without  prejudice  to 

Plaintiff’s ability to bring those claims in the state courts.            
                      Conclusion                                     
Having conducted the review required by the Prison Litigation Reform Act, the 
Court determines that Plaintiff’s federal claims will be dismissed for failure to state 
a claim, under
28 U.S.C. §§ 1915
(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c).  The 
Court will dismiss Plaintiff’s state law claim because the Court declines to exercise 
supplemental jurisdiction over that claim.                                

The Court must next decide whether an appeal of this action would be in good 
faith within the meaning of
28 U.S.C. § 1915
(a)(3).  See McGore,
114 F.3d at 611
.  
Although the Court concludes that Plaintiff’s claims are properly dismissed, the 
Court does not conclude that any issue Plaintiff might raise on appeal would be 
frivolous.  Coppedge v. United States,
369 U.S. 438, 445
(1962).  Accordingly, the 
Court does not certify that an appeal would not be taken in good faith.  Should 
Plaintiff appeal this decision, the Court will assess the $505.00 appellate filing fee 

pursuant to § 1915(b)(1), see McGore,
114 F.3d at 610-11
, unless Plaintiff is barred 
from proceeding in forma pauperis, e.g., by the “three-strikes” rule of § 1915(g).  If he 
is barred, he will be required to pay the $505.00 appellate filing fee in one lump sum.  
This is a dismissal as described by
28 U.S.C. § 1915
(g).             
A judgment consistent with this opinion will be entered.             


Dated:  November 14, 2022          /s/ Phillip J. Green                   
                              PHILLIP J. GREEN                       
                              United States Magistrate Judge