Harris #218238 v. Lebarre

Filing 15

OPINION; Order to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CURTIS HARRIS,
Plaintiff,

Case No. 1:10-cv-1301

v.

Honorable Janet T. Neff

PRISON HEALTH SERVICES, INC. et al.,
Defendants.
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OPINION
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983.
Shortly after the complaint was filed, as required under the Prison Litigation Reform Act, PUB. L.
NO. 104-134, 110 STAT. 1321 (1996), the Court reviewed the complaint to determine whether it was
frivolous, malicious, failed to state a claim upon which relief can be granted, or sought monetary
relief from a defendant immune from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C.
§ 1997e(c). Following that review, the Court dismissed the action against all Defendants on
February 18, 2011, concluding that Plaintiff had failed to allege an Eighth Amendment claim.
Plaintiff appealed the dismissal to the Sixth Circuit. The court of appeals affirmed
the Court’s Eighth Amendment determinations, but concluded that this Court had failed to address
Plaintiff’s retaliation claim. According to the Sixth Circuit, Plaintiff alleged that “he filed a previous
action against the defendants and was told by Defendant Jody LeBarre that, if he would stop filing
grievances and lawsuits, he would not have any more problems with prison staff.” Harris v. Prison
Health Serv., Inc., No. 11-1306, slip op. at 3 (6th Cir. Oct. 24, 2011). The court acknowledged that

the allegation was “somewhat vague,” but concluded that, liberally construed, the allegation was
sufficient to state a First Amendment retaliation claim. The Sixth Circuit remanded the case to this
Court “for consideration of th[e] claim.” Id.
Upon due consideration, the Court concludes that Plaintiff’s conclusory allegations
fail to state a retaliation claim against any Defendant except Defendant LeBarre. As a consequence,
the Court will dismiss all Defendants except LeBarre from the action and will serve only the
retaliation claim against Defendant LeBarre.
I.

Factual Allegations

Plaintiff Curtis Harris is incarcerated with the Michigan Department of Corrections
(MDOC) and housed at the Ionia Maximum Correctional Facility (ICF). The events underlying
Plaintiff’s complaint occurred while he was housed at ICF and at the Marquette Branch Prison
(MPB). Plaintiff sued Prison Health Services, Inc. (PHS), PHS Doctors Richard Czop, Scott
Holmes, Richard Bohjanen, and PHS Physician Assistants Michael Kennerly and Joshua Kocha.
He also sued the following ICF employees: Registered Dietician Patricia Wallard; Health Unit
Manager Nurse Jody LeBarre; Nurses J. Schad, Byran Deeren, Betty Jo Kemp, Ann Maroulis, Jodi
Swain, Magen Johnson, Christy Jastifer, Angela Todd, Rebacca Delano, (unknown) Smith, and
(unknown) Epharim. In addition, Plaintiff sued MDOC Region I Risk Management Nurse Jeannie
Stephenson and the following MBP health-care officials: Nurses Larry Hill, Sandra Shaker, John
Kimsel, Michael Grant; and Registered Dietician Kelly Wellman.
The gravamen of Plaintiff’s complaint was that Defendants had violated the Eighth
Amendment by providing inadequate medical treatment between February 11, 2010 and the time
of the complaint. Plaintiff objected to the adequacy of treatment for his hypoglycemia and hiatal

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hernia and the adequacy of follow-up testing after a 2005 procedure to repair a cerebral aneurysm.
The bulk of his 25-page pleading consisted of the specifics and dates of his medical concerns. The
Sixth Circuit has affirmed the Court’s dismissal of Plaintiff’s Eighth Amendment claims against all
Defendants, and those allegations are not presently before the Court.
Plaintiff’s allegations about retaliation are extremely limited. First, he alleges that,
on June 8, 2010, “Defendant - LeBarre told Plaintiff this is only the beginning of having problems
with Medical and Custody staff and told Plaintiff to stop filing grievances, suits and complaints in
general, I would not have the problems I am having.” (Compl., docket #1, Page ID#20.) Second,
he alleges that he “was interviewed by Defendant - LeBarre, 10-15-2010; who was extremely upset
and told Plaintiff Health Care here at (I.C.F.) was t[ir]ed of him.” (Id., Page ID#22.)
II.

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, 45-46 (1957)).
While a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include
more than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (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, 129 S. Ct.
at 1949. Although the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it

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asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 129 S. Ct. at
1949 (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.” Iqbal, 129 S. Ct. at 1950 (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).
Retaliation based upon a prisoner’s exercise of his or her constitutional rights violates
the Constitution. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). In order
to set forth a First Amendment retaliation claim, a plaintiff must establish that: (1) he was engaged
in protected conduct; (2) an adverse action was taken against him that would deter a person of
ordinary firmness from engaging in that conduct; and (3) the adverse action was motivated, at least
in part, by the protected conduct. Thaddeus-X, 175 F.3d at 394. Moreover, a plaintiff must be able
to prove that the exercise of the protected right was a substantial or motivating factor in the
defendant’s alleged retaliatory conduct. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001)
(citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).

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Plaintiff’s allegations of retaliation are limited to two comments made by Defendant
Nurse LeBarre on June 8, 2010 and October 15, 2010, which referenced Plaintiff’s many complaints
and grievances. Filing a grievance or a lawsuit is constitutionally protected conduct under the First
Amendment. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001); Noble v. Schmitt, 87 F.3d
157, 162 (6th Cir. 1996). Plaintiff, however, fails to allege with any specificity what alleged conduct
taken by which Defendants constituted adverse action. Instead, he sweepingly suggests that all
treatment decisions at two prison institutions were collectively adverse because he was unsatisfied
with them. Such an allegation falls far short of identifying adverse action taken by a specific
Defendant.
Moreover, Plaintiff fails entirely to allege facts suggesting that any Defendant (with
the possible exception of LeBarre) acted with a retaliatory motive. Statements made by LeBarre as
a nurse in the ICF health unit do not provide evidence of any other Defendant’s retaliatory motive
in taking any action. A defendant’s statements or conduct are not evidence of retaliation if the
defendant is not the decisionmaker taking the alleged adverse action. Smith v. Campbell, 250 F.3d
1032, 1038 (6th Cir. 2001); Shehee v. Luttrell, 199 F.3d 295, 301 (6th Cir. 1999).1 Moreover, as the
Court noted in its February 18, 2011 opinion, Plaintiff’s complaint repeatedly alleges that
Defendants were incompetent and negligent – not that they acted with a deliberate intent of any sort.
(See 2/18/11 Op., docket #4 at 11, Page ID#96.) Plaintiff therefore fails to allege a retaliation claim
against any Defendant other than LeBarre.

1
Indeed, the Court notes that Defendants Hill, Shaker, Kimsel, Grant, Stephenson, and Wellman were not even
located at the same prison facility as Defendant LeBarre.

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Conclusion
Having conducted the review required on remand from the Sixth Circuit, the Court
determines that Plaintiff’s retaliation claim against all Defendants except Defendant LeBarre 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’s February 18, 2011 decision dismissing the Eighth Amendment
claims against all Defendants was affirmed by the Sixth Circuit. As a consequence, all claims
against all Defendants except Defendant LeBarre are dismissed and they are entitled to dismissal
from the action. The Court will serve the retaliation claim against Defendant LeBarre.
An Order consistent with this Opinion will be entered.

Dated: December 6, 2011

/s/ Janet T. Neff
Janet T. Neff
United States District Judge

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