LaFountain #171248 v. Harry et al
OPINION ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc)
LaFountain #171248 v. Harry et al
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
WAYNE EARL LAFOUNTAIN,
Case No. 1:10-cv-943
Honorable Robert J. Jonker
SHIRLEE HARRY et al.,
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983.
The Court granted Plaintiff leave to proceed in forma pauperis. Following review under the Prison
Litigation Reform Act, PUB. L. NO. 104-134, 110 STAT. 1321 (1996), in an opinion and judgment
issued March 16, 2011, the Court dismissed the action for failure to state a claim upon which relief
can be granted. See 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). Plaintiff appealed the
dismissal, and, in an opinion and judgment issued May 22, 2013, the court of appeals affirmed in
part, reversed in part, and vacated in part this Court’s decision, and it remanded the case for further
proceedings consistent with its opinion. Mandate issued on June 13, 2013.
Upon due consideration of the opinion of the court of appeals, the Court will dismiss
for failure to state a claim Plaintiff’s retaliation claims based on the misconduct charges, his due
process claim based on the destruction of his typewriter, and his equal protection claim. The Court
will serve the remaining claims against all Defendants.
Plaintiff Wayne Earl LaFountain presently is incarcerated with the Michigan
Department of Corrections (MDOC) and housed at the Kinross Correctional Facility, though the
actions about which he complains occurred while he was housed at the Muskegon Correctional
Facility (MCF), the Lakeland Correctional Facility (LCF), and the Michigan Reformatory (RMI).
He sues MCF Warden Shirlee Harry, MCF Resident Unit Manager Brett J. Barbier, MCF Assistant
Deputy Warden Sharon K. Wells-Finos, LCF Assistant Deputy Warden Dan Hawkins, Deputy
Warden Bonita Hofner, LCF Captain (unknown) Cooley, and RMI Warden Carmen Palmer.
Plaintiff has been a frequent litigator in the federal system.1 He filed a complaint in
the Eastern District of Michigan in 2001, complaining about second-hand smoke, that ultimately was
settled. See LaFountain v. William Martin et al., No. 5:01-cv-60011 (E.D. Mich.) (Ord. of Dismissal
July 11, 2006). Shortly thereafter, Plaintiff was transferred to the Kinross Correctional Facility.
Plaintiff was transferred to MCF in September 2003, where he filed numerous grievances against
corrections officer Anthony Martin before his transfer in December 22, 2005. In January 2005,
Plaintiff initiated another action about second-hand smoke at the Kinross Correctional Facility. See
LaFountain v. Metrish et al., 2:05-cv-13 (W.D. Mich.) The 2005 case was settled within one month
of the 2001 case. See id. (Ord. of Dismissal Aug. 4, 2006). Plaintiff asserts that the settlement
agreement included an agreement that Plaintiff be transferred to LCF.
Plaintiff has filed a total of sixteen cases in this Court and three cases in the Eastern District of Michigan. In
the instant opinion, the Court limits its discussion of Plaintiff’s prior litigation to the cases that Plaintiff alleges are
relevant to the facts underlying the instant complaint.
Plaintiff was transferred to LCF in September 2006. He alleges that he was placed
in a non-smoking room in a housing unit occupied by prisoners 50 years of age and older. According
to Plaintiff, in January 2007, LCF Defendant Hawkins began to place young, primarily black,
“contumacious” prisoners in the same unit. (Compl., ¶ 6, Page ID#8.) Plaintiff contends that the
placements were made in retaliation for Plaintiff’s filing of an action against MCF corrections officer
Anthony Martin on January 25, 2007. See LaFountain v. Anthony Martin, No. 1:07-cv-76 (W.D.
Mich.).2 3 Plaintiff repeatedly complained to various LCF officials about problems with the new
prisoners, including excessive noise and the use of bright lights until very late hours. Plaintiff
eventually filed grievances against Defendants Hawkins, Hofner and Cooley in September 2007,
alleging that Defendants had engaged in a practice of racially discriminatory enforcement of housing
rules. On September 28, 2007, Defendants Hawkins and Hofner ordered that Plaintiff be transferred
back to MCF. Plaintiff packed his property, including his typewriter, and unidentified third-shift
officers took possession of it. Plaintiff complains that he did not receive his typewriter with the rest
of his property and that, when the typewriter arrived, it was in pieces, which cost Plaintiff $280.00
to repair. Plaintiff alleges that Hawkins, Hofner and Cooley intentionally withheld the typewriter
as an act of retaliation.
When he arrived at MCF on September 28, 2007, Plaintiff talked to Defendant
Barbier, advising him that the transfer had been retaliatory and requesting transfer back to LCF. His
request was denied. Plaintiff was placed in a cell with Jimmy Riley, a prisoner long known to
Plaintiff’s action against Anthony Martin remains pending in this Court, notwithstanding Martin’s death on July
Shortly thereafter, Plaintiff filed a habeas corpus petition challenging a misconduct conviction that resulted
in the loss of good-time credits. See LaFountain v. Howes, No. 1:07-cv-264 (W.D. Mich.). The action was dismissed
on June 12, 2007, for failure to raise a meritorious federal claim. See id. (Mem. Op. & J. June 12, 2007).
Plaintiff and to others at MCF as being mentally ill. Plaintiff also was given a top bunk, though he
purportedly had a permanent bottom-bunk accommodation that was issued in 1996 because of an
ankle problem. Plaintiff alleges that Riley engaged in aberrant behavior: keeping cell lights on until
3:00 a.m.; playing the television at loud volume; typing and shuffling papers loudly; wearing a
heavy, winter coat, wool hat and sunglasses at all times, shadow-boxing around the cell and in the
showers; and making insults and threats to Plaintiff. Defendants Barbier and Wells-Finos denied
Plaintiff’s request for a cell move and indicated that the bottom-bunk accommodation would be
honored only if an MCF doctor issued it. Plaintiff filed a grievance on October 2, 2007, alleging that
his placement with prisoner Riley and his denial of a bottom bunk were retaliatory and the product
of racially discriminatory selective rules enforcement.
On October 3, 2007, Riley threw Plaintiff’s wash cloth into the wastebasket. Plaintiff
was given an extra wash cloth. Riley continued to curse and threaten Plaintiff. That same date,
Plaintiff informed corrections officer Hallowell that he intended to refuse to cell with Riley any
longer. Plaintiff asked Hallowell to obtain permission from Defendant Barbier to have Plaintiff’s
property secured in the MCF property room. Barbier authorized that the property be secured, but
issued Plaintiff a ticket containing two misconduct charges for being out of place and disobeying a
direct order. Plaintiff took his property to the property room. As he walked back to the housing unit,
officer Anthony Martin allegedly blocked his path and, when Plaintiff told Martin that Plaintiff
intended to win his civil-rights action against Martin, Martin issued another misconduct charge for
insolence, of which Plaintiff ultimately was found not guilty. When he arrived at his housing unit,
Plaintiff refused to return to the cell with Riley. Defendants Barbier and Wells-Finos ordered that
Plaintiff be placed in temporary segregation. During the eight days that he remained in temporary
segregation, Defendants Wells-Finos and Harry allegedly directed each shift officer to issue Plaintiff
a direct order to return to his cell. When he refused, Plaintiff was issued another misconduct ticket.
Plaintiff received a total of twelve misconduct tickets.
On October 8, 2007, a third-shift officer ordered that Plaintiff be placed in a bottom
bunk in a cell other than that occupied by Riley. Plaintiff complied. However, twenty minutes later,
a team of MCF officers arrived, hand-cuffed Plaintiff, and returned him to segregation until after the
misconduct hearing had taken place. On October 7 and 9, 2007, Plaintiff was found guilty of the
misconduct charges. As the result of the convictions, Defendant Harry revoked 500 days of
Plaintiff’s earned good-time credits, and, after Plaintiff arrived at RMI, Defendant Palmer revoked
an additional 270 days. Plaintiff alleges that the revocations were disproportionate and that
Defendants Harry and Palmer, as black females, engaged in racially discriminatory conduct.
Plaintiff was transferred to RMI on October 11, 2007. Plaintiff was transported with
a black prisoner, Scott Bradley, who had refused to cell with another prisoner. Bradley, however,
was not issued multiple misconduct tickets. Plaintiff alleges that Bradley’s disparate treatment is
evidence of Defendants’ retaliatory and racially discriminatory selective enforcement of prison rules.
In addition, Plaintiff alleges that Defendant Barbier and the MCF hearings
investigator Barbara Brinkman failed to provide the hearings officer with a copy of Plaintiff’s
bottom-bunk accommodation from 1996. Plaintiff also alleges that Brinkman failed to obtain
answers to Plaintiff’s interrogatories to various officers and prisoners. In addition, Plaintiff alleges
that the hearing officer refused to consider his defenses of vindictive prosecution, selective
enforcement, entrapment and duress.
Plaintiff claims that Defendants deprived him of due process at his misconduct
hearings. He also alleges that Defendants Harry, Wells-Finos and Barbier used his placement in the
cell with Riley to entrap him into violating a direct order and incurring multiple misconduct tickets,
ostensibly in retaliation for the exercise of his First Amendment right to file a lawsuit and grievances
and because he was white. Plaintiff contends that Defendants Harry and Palmer deprived him of his
770 days of good-time credits on the basis of the retaliatory and discriminatory misconducts, in
violation of the First Amendment and the Equal Protection Clause.
For relief, Plaintiff seeks compensatory and punitive damages.
On March 16, 2011, the Court dismissed the entire action for failure to state a claim.
The Court held that Plaintiff’s due process claim against Defendants Hawkins, Cooley and Hofner
was 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). The Court also held that Plaintiff’s retaliation claims against all
Defendants based on the allegedly retaliatory misconduct tickets were barred by the doctrine of Heck
v. Humphrey, 512 U.S. 477 (1994). In addition, the Court dismissed Plaintiff’s remaining retaliation
and equal protection claims for failure to state a claim.
Plaintiff appealed the dismissal. In an opinion and judgment issued May 22, 2013,
the Sixth Circuit affirmed this Court’s dismissal of the retaliation claims based on the allegedly
retaliatory misconduct charges and the retaliation claim against Defendants Hofner and Hawkins
based on the destruction of his typewriter. The court also affirmed the Court’s dismissal of
Plaintiff’s equal protection claim. The Sixth Circuit did not address this Court’s dismissal of his
Parrett-barred claim, which therefore left that part of the decision undisturbed. However, the Sixth
Circuit reversed this Court’s dismissal of Plaintiffs retaliation claim based on his transfer from LCF
to MCF. The Sixth Circuit also reversed this Court’s dismissal of Plaintiff’s retaliation claims
against Defendants for placing him and keeping him in a cell with prisoner Riley, and his retaliation
claim against Defendant Cooley for damaging his typewriter. In addition, the Sixth Circuit overruled
its longstanding decision in McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997), to the extent
that it held that a prisoner could not amend his complaint to avoid dismissal. The court of appeals
therefore remanded the case for further proceedings to conform with its decision and directed this
Court to consider whether LaFountain should be permitted to amend his complaint with respect to
any of the dismissed claims. See LaFountain v. Harry, 716 F.3d 944 (6th Cir. 2013).
Under Rule 15(a) of the Federal Rules of Civil Procedure, a party is permitted to
amend its pleadings once as a matter of course within 15 days after serving it. Id. In all other cases,
leave to amend should be freely given “when justice so requires.” In LaFountain, the Sixth Circuit
concluded that the right to amend under Rule 15 extends to prisoner plaintiffs. Id. at 951.
In the instant case, Plaintiff has filed no motion to amend his complaint to cure a
defect in one or more of the claims deemed insufficient by this Court and the Sixth Circuit.
Moreover, any attempt to amend his Parratt or Heck-barred claims would be futile. Given the
wholly conclusory nature of Plaintiff’s equal protection claim, it appears unlikely that Plaintiff could
successfully amend his complaint at this time. At this juncture, therefore, the Court sees no basis
for permitting amendment. Plaintiff remains free to seek amendment under Rule 15(a) at some
future point in the litigation.
For the foregoing reasons, Plaintiff’s equal protection claim, his due process claim
involving his typewriter, his retaliation claim against Defendants Hawkins and Hofner based on the
destruction of his typewriter, and his retaliation claim based on allegedly false miconduct charges
will be dismissed for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and
42 U.S.C. § 1997e(c). The Court will serve the remainder of the complaint on all Defendants.
An Order consistent with this Opinion will be entered.
August 12, 2013
/s/ Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE
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