Langford #156621 v. McKee et al

Filing 5

OPINION; Judgment 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

ROBERT LANGFORD,
Plaintiff,

Case No. 1:11-cv-5

v.

Honorable Janet T. Neff

KENNETH McKEE et al.,
Defendants.
____________________________________/
OPINION
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983.
The Court has granted Plaintiff leave to proceed in forma pauperis. Under the Prison Litigation
Reform Act, PUB. L. NO. 104-134, 110 STAT. 1321 (1996), 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©). 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 complaint on
immunity grounds and for failure to state a claim.

Discussion
I.

Factual allegations

Plaintiff presently is incarcerated at the Marquette Branch Prison but complains of
events that occurred at the Bellamy Creek Correctional Facility (IBC) and Chippewa Correctional
Facility (URF). In his pro se complaint, Plaintiff sues Warden Kenneth McKee, Deputy Warden
C. Stoddard, Assistant Deputy Wardens (unknown) Schooley and (unknown) Johnston, Officer D.
Trammell, Hearing Officer D. Israel, Hearing Administrator Richard Stapleton, Grievance
Administrator J. Armstrong, Manager of Internal Affairs Division Stephen H. Marschke,
Ombudsman Keith Barber and Investigator Kristi Dixon.
Plaintiff first complains of retaliation at IBC. On February 2, 2009, the Michigan
Department of Corrections (MDOC) transferred Plaintiff to IBC. At that time, Plaintiff was given
a food detail to sit at the handicap table in the chow hall.1 In the beginning, prison guards asked
Plaintiff for his food detail when he arrived at the chow hall but eventually the guards stopped
asking. This practice, however, changed after Plaintiff sent a complaint to Warden McKee and
Assistant Deputy Warden Stoddard on April 22, 2009. The complaint alleged discrimination against
African American inmates at the prison and an unlawful 10% surcharge and 6% sales tax on items
that the prisoners purchased at the prison store. After failing to receive a response from McKee and
Stoddard, Plaintiff sent a request to Assistant Deputy Warden Schooley. Plaintiff states that
Schooley spoke to him about the issues in Plaintiff’s complaint. Besides the above complaint,
Plaintiff states that he was also assisting another prisoner with that prisoner’s civil rights action.

1

According to Plaintiff, a “food detail” is an official order by the MDOC regarding a prisoner’s meal. In
Plaintiff’s case, his food detail allowed Plaintiff to receive assistance during his meals and to sit at the handicap table.
It is not apparent from Plaintiff’s complaint as to whether he had any type of physical handicap.

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On April 26, 2009, Plaintiff went to the chow hall for breakfast. After he finished
eating, Plaintiff proceeded to exit the chow hall but he was stopped by Officer Trammell. Officer
Trammell asked Plaintiff if he had a food detail to sit at the handicap table. Plaintiff replied that he
had a detail but he did not have it on him. Officer Trammell ordered Plaintiff to produce the food
detail and allegedly called Plaintiff an “asshole.” (Compl., Page ID#3, docket #1.) Plaintiff told him
that he did not have the detail because he left it at “your mom[’]s house[,] bitch.” (Id. at Page ID#4.)
Officer Trammell then gave Plaintiff a major misconduct ticket for insolence and disobeying a direct
order.
A few days later, Plaintiff alleges that Officer Trammell requested other officers to
harass him about sitting at the handicap table. One officer refused to say anything to Plaintiff and
the other officer asked Plaintiff for his identification.
On May 8, 2009, Hearing Officer Israel held Plaintiff’s major misconduct hearing.
After reviewing the evidence against Plaintiff from Defendant Trammell, Israel found Plaintiff guilty
of insolence. Israel, however, reduced the disobeying a direct order charge to a minor misconduct
charge of being out of place temporarily. Plaintiff was sentenced to fifteen days of loss of
privileges. Plaintiff complains that Israel’s decision was not supported by the evidence because his
actions did not warrant either conviction. He further contends that Defendants are impeding his First
Amendment right to freedom of speech by finding him guilty of the insolence charge when he did
not refer to Trammell in a degrading matter.

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Soon thereafter, Plaintiff was transferred to URF “as a Special Problem Offender
Notification (SPON).”2 Plaintiff complains that he was transferred to URF in retaliation for sending
his complaint to Warden McKee and Assistant Deputy Warden Stoddard. Plaintiff then argues that
he was subject to the following unconstitutional conduct at URF: Plaintiff can only make one phone
call per day, he has to sign up to use the phone and shower, he has been harassed by officers, he has
been denied copies from the law library, he has been denied call-outs for the law library, he has been
denied medical treatment for his shoulder, he has had an officer attempt to close a cell door on him,
and his incoming and outgoing mail has been delayed or confiscated. Because of those incidents,
Plaintiff states that he became depressed and stopped eating for over thirty days.
While at URF, Plaintiff requested a rehearing on the April 26, 2009 major misconduct
ticket from Hearing Administrator Stapleton. Plaintiff states that Warden McKee intercepted his
legal mail and forged Stapleton’s signature. Plaintiff also states that Defendants conspired against
him to delay his appeal for his major misconduct convictions. Plaintiff was later transferred to
Woodland Center Correctional Facility.
In summary, Plaintiff claims that Defendants violated his First, Eighth and Fourteenth
Amendment rights. Plaintiff also alleges a conspiracy claim against Defendants. For relief, Plaintiff
requests monetary damages.
II.

Immunity

Plaintiff sues Hearing Officer Israel in his complaint. Defendant is a hearing officer
whose duties are set forth at MICH. COMP. LAWS § 791.251 through § 791.255. Hearing officers are

2

A Special Problem Offender Notification is used to document those situations where an offender is considered
a threat to the safety of another offender or a Michigan Department of Corrections’ employee, or a threat to the order
or security of the facility. See MICH. DEP’T OF CORR. Policy Directive 03.03.110, ¶ E (effective 5/20/02).

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required to be attorneys and are under the direction and supervision of a special hearing division in
the Michigan Department of Corrections. See MICH. COMP. LAWS § 791.251(e)(6). Their
adjudicatory functions are set out in the statute, and their decisions must be in writing and must
include findings of facts and, where appropriate, the sanction imposed. See MICH. COMP. LAWS
§ 791.252(k). There are provisions for rehearings, see MICH. COMP. LAWS § 791.254, as well as for
judicial review in the Michigan courts. See MICH. COMP. LAWS § 791.255(2). Accordingly, the
Sixth Circuit has held that Michigan hearing officers are professionals in the nature of administrative
law judges. See Shelly v. Johnson, 849 F.2d 228, 230 (6th Cir. 1988). As such, Israel is entitled to
absolute judicial immunity from inmates’ § 1983 suits for actions taken in his capacity as a hearing
officer. Id.; see Barber v. Overton, 496 F.3d 449, 452 (6th Cir. 2007); Dixon v. Clem, 492 F.3d 665,
674 (6th Cir. 2007); cf. Pierson v. Ray, 386 U.S. 547, 554-55 (1967) (judicial immunity applies to
actions under § 1983 to recover for alleged deprivation of civil rights). Therefore, the complaint
against Defendant Israel will be dismissed.
III.

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

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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
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).
A.

Lack of Factual Allegations

Beyond naming them as Defendants, Plaintiff does not provide any allegations
against the following Defendants in the body of his complaint: Johnston, Stapleton,3 Armstrong,
Marschke, Barber and Dixon. While Plaintiff alleges violations of his constitutional rights during

3

Defendant Stapleton denied the rehearing of Plaintiff’s major misconduct ticket on May 19, 2009. However,
Plaintiff does not state any allegations against Stapleton in his complaint. Rather, Plaintiff claims that Warden McKee
forged Stapleton’s signature on the Major Misconduct Rehearing Report.

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his incarceration at URF, he does not name any employees of URF as Defendants in this action.4
It is a basic pleading essential that a plaintiff attribute factual allegations to particular defendants.
See Twombly, 550 U.S. at 544 (holding that, in order to state a claim, Plaintiff must make sufficient
allegations to give a defendant fair notice of the claim). Where a person is named as a defendant
without an allegation of specific conduct, the complaint is subject to dismissal, even under the
liberal construction afforded to pro se complaints. See Gilmore v. Corr. Corp. of Am., 92 F. App’x
188, 190 (6th Cir. 2004) (dismissing complaint where plaintiff failed to allege how any named
defendant was involved in the violation of his rights); Frazier v. Michigan, 41 F. App’x 762, 764
(6th Cir. 2002) (dismissing plaintiff’s claims where complaint did not allege with any degree of
specificity which of the named defendants were personally involved in or responsible for each
alleged violation of rights); Griffin v. Montgomery, No. 00-3402, 2000 WL 1800569, at *2 (6th Cir.
Nov. 30, 2000) (requiring allegations of personal involvement against each defendant); Rodriguez
v. Jabe, No. 90-1010, 1990 WL 82722, at *1 (6th Cir. June 19, 1990) (“Plaintiff’s claims against
those individuals are without a basis in law as the complaint is totally devoid of allegations as to
them which would suggest their involvement in the events leading to his injuries”); see also Iqbal,
129 S. Ct. at 1949 (The court need not accept “threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements . . . .”). Plaintiff’s claims fall far short of the
minimal pleading standards under FED. R. CIV. P. 8 (requiring “a short and plain statement of the
claim showing that the pleader is entitled to relief”). Therefore, his complaint must be dismissed
against Defendants Johnston, Stapleton, Armstrong, Marschke, Barber and Dixon. The Court will

4

Reading Plaintiff’s complaint liberally, he appears to allege a First Amendment access-to-the-courts claim for
the denial of library call outs and copies and Eighth Amendment violations for the denial of medical treatment,
harassment by officers and restrictions on his phone and shower during his incarceration at URF. See Haines, 404 U.S.
at 520.

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also dismiss Plaintiff’s First and Eighth Amendments claims arising at URF because he does not
attribute that conduct to any of the named Defendants.
B.

Supervisory Liability

Several Defendants are entitled to dismissal from Plaintiff’s complaint because
Plaintiff fails to allege that they actively engaged in unconstitutional conduct. Plaintiff claims that
he sent a complaint to Defendants McKee5 and Stoddard concerning discrimination against African
American prisoners and an unlawful 6% sales tax and 10% surcharge on items sold in the prison
store. Defendants McKee and Stoddard, however, never responded to Plaintiff’s complaint.
Plaintiff also alleges that he spoke to Defendant Schooley about the complaint to no avail.
Government officials may not be held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat superior or vicarious liability. Iqbal, 129 S. Ct. at 1948;
Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691(1978); Everson v. Leis, 556 F.3d
484, 495 (6th Cir. 2009).

A claimed constitutional violation must be based upon active

unconstitutional behavior. Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008); Greene v. Barber,
310 F.3d 889, 899 (6th Cir. 2002). The acts of one’s subordinates are not enough, nor can
supervisory liability be based upon the mere failure to act. Grinter, 532 F.3d at 575; Greene, 310
F.3d at 899; Summers v. Leis, 368 F.3d 881, 888 (6th Cir. 2004). Moreover, § 1983 liability may
not be imposed simply because a supervisor denied an administrative grievance or failed to act based
upon information contained in a grievance. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir.

5

Plaintiff also claims that Defendant McKee forged Defendant Stoddard’s signature on the rehearing decision
of his major misconduct convictions. Plaintiff has not alleged any constitutional right that Defendant McKee has
violated. Moreover, Plaintiff has attached several rehearing decisions signed by Stoddard to his complaint. Defendant
Stoddard’s signature was identical in each one. See Mich. Dep’t of Corr. Request for Rehearing, Attach. A to Compl.,
Page ID##14, 17, 34; see also Mich. Dep’t of Corr. Request for Rehearing, Attach. B to Compl., Page ID##62, 71, 77.)

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1999). “[A] plaintiff must plead that each Government-official defendant, through the official’s own
individual actions, has violated the Constitution.” Iqbal, 129 S. Ct. at 1948. Plaintiff has failed to
allege that Defendants McKee, Stoddard and Schooley engaged in any active unconstitutional
behavior, and, thus, Plaintiff fails to state a claim against those Defendants.
C.

Due Process - Misconduct Ticket

Plaintiff claims that Defendant Trammell issued a false misconduct against him for
insolence and disobeying a direct order. A prisoner’s ability to challenge a prison misconduct
conviction depends on whether the convictions implicated any liberty interest. In the seminal case
in this area, Wolff v. McDonnell, 418 U.S. 539 (1974), the Court prescribed certain minimal
procedural safeguards that prison officials must follow before depriving a prisoner of good-time
credits on account of alleged misbehavior. The Wolff Court did not create a free-floating right to
process that attaches to all prison disciplinary proceedings; rather the right to process arises only
when the prisoner faces a loss of liberty, in the form of a longer prison sentence caused by forfeiture
of good-time credits:
It is true that the Constitution itself does not guarantee good-time credit for
satisfactory behavior while in prison. But here the State itself has not only provided
a statutory right to good time but also specifies that it is to be forfeited only for
serious misbehavior. Nebraska may have the authority to create, or not, a right to a
shortened prison sentence through the accumulation of credits for good behavior, and
it is true that the Due Process Clause does not require a hearing “in every
conceivable case of government impairment of private interest.” But the State
having created the right to good time and itself recognizing that its deprivation is a
sanction authorized for major misconduct, the prisoner’s interest has real substance
and is sufficiently embraced within Fourteenth Amendment “liberty” to entitle him
to those minimum procedures appropriate under the circumstances and required by
the Due Process Clause to insure that the state-created right is not arbitrarily
abrogated.
Wolff, 418 U.S. at 557 (citations omitted).

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Plaintiff does not allege that his major misconduct conviction resulted in any loss of
good-time credits, nor could he. The Sixth Circuit has examined Michigan statutory law, as it
relates to the creation and forfeiture of disciplinary credits6 for prisoners convicted for crimes
occurring after April 1, 1987. In Thomas v. Eby, 481 F.3d 434 (6th Cir. 2007), the court determined
that loss of disciplinary credits does not necessarily affect the duration of a prisoner’s sentence.
Rather, it merely affects parole eligibility, which remains discretionary with the parole board. 481
F.3d at 440. Building on this ruling, in Nali v. Ekman, 355 F. App’x 909 (6th Cir. 2009), the court
held that a misconduct citation in the Michigan prison system does not affect a prisoner’s
constitutionally protected liberty interests, because it does not necessarily affect the length of
confinement. 355 F. App’x at 912; accord, Wilson v. Rapelje, No. 09-13030, 2010 WL 5491196,
at *4 (E.D. Mich. Nov. 24, 2010) (Report & Recommendation) (“plaintiff’s disciplinary hearing and
major misconduct sanction does not implicate the Fourteenth Amendment Due Process Clause”),
adopted as judgment of court, Order of Jan. 4, 2011. In the absence of a demonstrated liberty
interest, plaintiff has no due-process claim. See Bell v. Anderson, 301 F. App’x 459, 461-62 (6th
Cir. 2008).
Even in the absence of a protectible liberty interest in disciplinary credits, a prisoner
may be able to raise a due-process challenge to prison misconduct convictions that result in a
significant, atypical deprivation. See Sandin v. Connor, 515 U.S. 472 (1995). Unless a prison
misconduct conviction results in an extension of the duration of a prisoner’s sentence or some other
atypical hardship, a due-process claim fails. Ingram v. Jewell, 94 F. App’x 271, 273 (6th Cir. 2004).

6
For crimes committed after April 1, 1987, Michigan prisoners earn “disciplinary credits” under a statute that
abolished the former good-time system. MICH. COMP. LAWS § 800.33(5).

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Because Plaintiff only lost fifteen days of privileges, he has not identified any significant deprivation
arising from his misconduct conviction. Therefore, Plaintiff’s due process claim fails against
Defendant Trammell for his misconduct ticket.
D.

First Amendment - Retaliation

Plaintiff alleges that Defendant Trammell retaliated against him for sending a
complaint to Defendants McKee and Stoddard and for working on another prisoner’s civil rights
action. Specifically, Plaintiff alleges that Defendant Trammell asked for his food detail and then
gave him a “false” misconduct when he could not produce the food detail and called him a “bitch.”
Plaintiff also claims that Defendant Trammell coerced other officers to retaliate against him.
Plaintiff further complains that Defendants retaliated against him by transferring him to another
prison.
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)).
By sending his complaint to Defendants McKee and Stoddard, this Court assumes
that Plaintiff satisfies the first element for a retaliation claim.

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As for the second element, Plaintiff lists the following adverse actions in his
complaint: Defendants transferred Plaintiff to another prison, Defendant Trammell asked Plaintiff
for his food detail and then issued a major misconduct against Plaintiff, and Defendant Trammell
coerced other prison guards to harass Plaintiff. The adverseness inquiry is an objective one, and
does not depend on how a particular plaintiff reacted. The relevant question is whether the
defendants’ conduct is “capable of deterring a person of ordinary firmness;” the plaintiff need not
show actual deterrence. Bell v. Johnson, 308 F.3d 594, 606 (6th Cir. 2002) (emphasis added).
First, Plaintiff cannot show that his transfer to URF was an adverse action taken
against him for sending a complaint to Defendants McKee and Stoddard. “Since prisoners are
expected to endure more than the average citizen, and since transfers are common among prisons,
ordinarily a transfer would not deter a prisoner of ordinary firmness from continuing to engage in
protected conduct.” Siggers-El v. Barlow, 412 F.3d 693, 701 (6th Cir. 2005). See, e.g., Smith v.
Yarrow, 78 F. App’x. 529, 543 (6th Cir. 2003) (“transfer from one prison to another prison cannot
rise to the level of an adverse action because it would not deter a person of ordinary firmness from
the exercise of his First Amendment rights”) (internal quotation marks omitted). If, however, a
foreseeable consequence of a transfer would be to substantially inhibit a prisoner’s ability to access
the courts, then such a transfer could be considered an “adverse action” that would deter a person
of ordinary firmness from continuing to engage in the protected conduct. See Siggers-El, 412 F.3d
at 702 (holding that a transfer was an “adverse action,” where the transfer resulted in plaintiff losing
a high paying job that paid for his lawyer fees and moved him further from the attorney); Johnson
v. Beardslee, No. 1:06-CV-374, 2007 WL 2302378, at *5 (W.D. Mich. Aug. 8, 2007). Similarly,
the Sixth Circuit has held that a transfer to segregation or to an area of the prison used to house

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mentally disturbed inmates could be sufficiently adverse. See Thaddeus-X, 175 F.3d at 398; see also
Hill v. Lappin, 630 F.3d 468, 474-75 (6th Cir. 2010).
Plaintiff’s transfer was from one level I, II and IV facility (IBC) to another level I,
II and IV facility (URF). Transfers to the general population of another prison are not typically an
adverse action. See Smith v. Yarrow, 78 F. App’x 529, 543 (6th Cir. 2003) (collecting cases); see
also Hill, 630 F.3d at 474-75 ; Thaddeus-X, 175 F.3d at 398. Plaintiff does not allege that he was
transferred to a lock-down unit at the new facility or that his access to courts was compromised as
a result of the transfer. Once he arrived at URF, Plaintiff claims that he was subject to several
unconstitutional acts under the First and Eighth Amendments. Plaintiff claims that his phone calls
were limited, he had to sign up to use the phone and shower, he was harassed by officers, he was
denied copies from the law library and call-outs, he was denied medical treatment for his shoulder,
an officer attempted to close a cell door on him and his incoming and outgoing mail were delayed.
IBC Defendants would not have had any reason to know or to foresee what would occur at URF
once Plaintiff arrived. Furthermore, IBC Defendants could not control the actions of individuals at
URF. Therefore, Plaintiff fails to state a claim for retaliation for his transfer to URF.
Second, Plaintiff cannot show that Defendant Trammell’s request for Plaintiff’s food
detail was an adverse action. In his complaint, Plaintiff contends that Defendant Trammell had
stopped asking for his food detail at the chow hall because Trammell had become used to seeing
Plaintiff at the handicap table. Plaintiff, however, conceded that prisoners are required to have the
food detail on his or her person in the chow hall. (Compl., Page ID#3, docket #1.) On April 26,
2009, Trammell asked to see Plaintiff’s food detail but Plaintiff could not produce the detail.
Because it is requirement for prisoners to have a food detail on his or her person in the chow hall,

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it was entirely reasonable for Trammell to ask for Plaintiff’s food detail. Accordingly, Defendant
Trammell’s request for Plaintiff’s food detail was not sufficiently adverse.
Third, Plaintiff fails to allege a causal connection between the complaint that he sent
to Defendants McKee and Stoddard and Defendant Trammell’s conduct. It is well recognized that
“retaliation” is easy to allege and that it can seldom be demonstrated by direct evidence. See
Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6th Cir. 2005). Plaintiff sent the complaint to Defendants
McKee and Stoddard on April 22, 2009 and he received the major misconduct from Defendant
Trammell on April 26. Plaintiff, however, fails to allege any connection between the two events.
Temporal proximity may be “‘significant enough to constitute indirect evidence of a causal
connection so as to create an inference of retaliatory motive.’” Muhammad v. Close, 379 F.3d 413,
417-18 (6th Cir. 2004) (quoting DiCarlo v. Potter, 358 F.3d 408, 422 (6th Cir. 2004)). However,
“[c]onclusory allegations of temporal proximity are not sufficient to show a retaliatory motive.”
Skinner v. Bolden, 89 F. App’x 579, 580 (6th Cir. 2004). Plaintiff also acknowledged that the guards
could request his food detail at any time. When Plaintiff could not produce his food detail for
Defendant Trammell in the chow hall on April 26, Plaintiff admittedly told Trammell that he did not
have the detail because he left it at “your mom[’]s house[,] bitch.” (Id. at Page ID#4.) Trammell
then issued Plaintiff a major misconduct ticket for insolence for the degrading remark towards him
and for disobeying a direct order for failing to produce the food detail. The facts strongly suggest
that the motivating factor of the major misconduct was Plaintiff’s degrading remark to Defendant
Trammell and his inability to produce the food detail. In the absence of any communication between
Trammell and McKee and Stoddard, Plaintiff’s allegations are wholly conclusory and fail to
demonstrate that retaliation was plausible under Iqbal and Twombly. See Twombly, 550 U.S. at 570;

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Iqbal, 129 S. Ct. at 1949. “[C]onclusory allegations of retaliatory motive ‘unsupported by material
facts will not be sufficient to state . . . a claim under § 1983.’” Harbin-Bey, 420 F.3d at 580 (quoting
Gutierrez v. Lynch, 826 F.2d 1534, 1538-39 (6th Cir. 1987)). Because Plaintiff has failed to allege
any retaliatory motive on behalf of Defendant Trammell, Plaintiff fails to state a First Amendment
retaliation claim for the major misconduct ticket.
Finally, Plaintiff alleges that Defendant Trammell retaliated by coercing other prison
guards to harass Plaintiff in the chow hall. As Plaintiff stated in his complaint, one prison guard
refused to do anything to Plaintiff and the second prison guard just asked Plaintiff for his
identification. (Id. at Page ID#4.) Prison guards are free to ask prisoners for their identification.
Those actions therefore are wholly insufficient to support a First Amendment retaliation claim.
F.

First Amendment - Free Speech Clause

Plaintiff alleges that Hearing Officer Israel violated Plaintiff’s First Amendment right
to freedom of speech when Plaintiff was found guilty of the charge of insolence in a major
misconduct. Plaintiff claims that telling Defendant Trammell that Plaintiff’s food detail was at
Trammell’s “mom[’]s house[,] bitch,” was protected speech under the First Amendment. (Id. at
Page ID#4.)
The Supreme Court has explained that although “incarceration does not divest
prisoners of all constitutional protections,” the “constitutional rights that prisoners possess are more
limited in scope than the constitutional rights held by individuals in society at large.” Shaw v.
Murphy, 532 U.S. 223, 228-29 (2001). In the specific context of the First Amendment, the Court
has stated that “some rights are simply inconsistent with the status of a prisoner or ‘with the
legitimate penological objectives of the corrections system.’ ” Id. at 229 (quoting Pell v. Procunier,

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417 U.S. 817, 822 (1974)). Plaintiff was disciplined for making a derogatory remark to a prison
guard. In light of the narrowed scope of the First Amendment in the prison context, disciplining
Plaintiff for this speech was reasonably related to the legitimate interests of prison officials in
maintaining order and ensuring stability in the prison. See Heard v. Caruso, 351 F. App’x 1, 10 (6th
Cir. 2009). Plaintiff therefore fails to state a claim for a violation of his First Amendment rights
under the Free Speech Clause.
G.

Conspiracy

Plaintiff states that Defendants conspired against him to delay his appeal for his major
misconduct convictions. To state a claim for conspiracy, a plaintiff must plead with particularity,
as vague and conclusory allegations unsupported by material facts are insufficient. Twombly, 550
U.S. at 565 (recognizing that allegations of conspiracy must be supported by allegations of fact that
support a “plausible suggestion of conspiracy,” not merely a “possible” one); Fieger v. Cox, 524
F.3d 770, 776 (6th Cir. 2008); Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir. 2003); Gutierrez
v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987); Smith v. Rose, 760 F.2d 102,106 (6th Cir. 1985);
Pukyrys v. Olson, No. 95-1778, 1996 WL 636140, at *1 (6th Cir. Oct. 30, 1996). A plaintiff’s
allegations must show (1) the existence or execution of the claimed conspiracy, (2) overt acts
relating to the promotion of the conspiracy, (3) a link between the alleged conspirators, and (4) an
agreement by the conspirators to commit an act depriving plaintiff of a federal right. Lepley v.
Dresser, 681 F.Supp. 418, 422 (W.D. Mich. 1988). “[V]ague allegations of a wide-ranging
conspiracy are wholly conclusory and are, therefore, insufficient to state a claim.” Hartsfield v.
Mayer, No. 95-1411, 1996 WL 43541, at *3 (6th Cir. Feb. 1, 1996). A simple allegation that
defendants conspired to cover up wrongful actions is too conclusory and too speculative to state a

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claim of conspiracy. Birrell v. State of Mich., No. 94-2456, 1995 WL 355662, at *2 (6th Cir. June
13, 1995).
Plaintiff’s allegations of conspiracy are conclusory and speculative. Plaintiff has
provided no allegations establishing a link between the alleged conspirators or any agreement
between them. Therefore, Plaintiff fails to state a claim for conspiracy.
Conclusion
Having conducted the review now required by the Prison Litigation Reform Act, the
Court determines that Plaintiff’s action will be dismissed on immunity grounds and 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 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 v. Wrigglesworth, 114 F.3d 601, 611
(6th Cir. 1997), overruled in other part by Jones v. Bock, 549 U.S. 199, 206, 211-12 (2007). For
the same reasons that the Court dismisses the action, the Court discerns no good-faith basis for an
appeal. Should Plaintiff appeal this decision, the Court will assess the $455.00 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 $455.00 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: July 12, 2011

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

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