Weatherspoon #471817 v. Bein et al

Filing 5

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

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

MORRIS WEATHERSPOON,
Plaintiff,

Case No. 1:14-cv-734

v.

Honorable Robert Holmes Bell

BARBARA BEIN 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(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 complaint for failure
to state a claim against Defendants Baker, Gonzalez, Hardiman, Southwick, Hall and Burgess. The
Court will serve the complaint against Defendants Bein, Hamilton, Burt, Murphy, Weaver,
Wilkinson, Byard, Eastfold, Noom and Melson with respect to Plaintiff’s Eighth Amendment claim
only.

Discussion
I.

Factual allegations

Plaintiff Morris Weatherspoon presently is incarcerated with the Michigan
Department of Corrections (MDOC) at the Muskegon Correctional Facility (MCF). Plaintiff sues
the following MCF personnel: Physician Assistant Barbara Bein; Dentists Kevin Murphy,
(Unknown) Byard and James Melson; Hygienist Cathy Weaver; Warden Sherry Burt; Health Unit
Supervisor Tamerla Hamilton; Health Unit Manager Michael Wilkinson; Correctional Officers
(Unknown) Barker and (Unknown) Noom; Sergeant (Unknown) Gonzalez; Librarian Manager
Elizabeth Hardiman; Librarian Mary Southwick; Nurse (Unknown) Eastfold; Captain (Unknown)
Hall; and Chaplain Carl Burgess.
Plaintiff alleges that on October 1 and 30, 2013, Defendant Bein denied his request
for urgent medical care to treat intense pain in his “left leg femur,” despite the obvious need for
treatment. (Compl., docket #1, Page ID#4.) Likewise, on November 1, 2013, Defendants Hamilton
and Burt denied Plaintiff’s request for urgent medical care to treat intense pain in his “left leg
femur,” despite the obvious need for treatment. Defendants Bein, Hamilton and Burt denied
Plaintiff’s request in retaliation for Plaintiff’s grievances and lawsuits against MDOC prison
officials.
On October 16, 2013, Defendants Murphy and Weaver failed to provide prescribed
dental care and treatment, despite knowing that Plaintiff had chronic problems with painful, bleeding
and swelling gums and despite the obvious need for treatment. On November 4, 2013, Defendants
Burt and Wilkinson failed to provide prescribed dental care and treatment, despite knowing that
Plaintiff had chronic problems with painful, bleeding and swelling gums and despite the obvious
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need for treatment. On April 11, 2014, Defendant Byard failed to provide prescribed dental care and
treatment, despite knowing that Plaintiff had chronic problems with painful, bleeding and swelling
gums and despite the obvious need for treatment. On April 25, 2014, Defendants Eastfold and Noom
failed to provide prescribed dental care and treatment, despite knowing that Plaintiff had chronic
problems with painful, bleeding and swelling gums and despite the obvious need for treatment. On
May 30, 2014, Defendant Melson failed to extract one of Plaintiff’s teeth and failed to provide
prescribed dentures, despite knowing that Plaintiff had chronic problems with painful, bleeding and
swelling gums and despite the obvious need for treatment. Defendants Murphy, Weaver, Burt,
Wilkinson, Byard, Eastfold, Noom and Melson failed to provide Plaintiff with dental care in
retaliation for Plaintiff’s grievances and lawsuits against MDOC prison officials.
Defendant Byard also falsified and altered documents “to work in favor of MDOC
dental care providers with attempts to shift blame on plaintiff for deterioration of plaintiff’s oral
condition or health” in retaliation for Plaintiff’s grievances and lawsuits against MDOC prison
officials. (Id. at Page ID#6 (verbatim).)
On March 27, 2014, Defendants Barker and Gonzalez conspired together to file false
misconduct reports against Plaintiff in retaliation for Plaintiff’s grievances and lawsuits against
MDOC prison officials. Additionally, Defendants Barker and Gozalez threatened Plaintiff with
destruction of his legal and personal property, placement into segregation, loss of recreation and job
privileges, transfer, false misconduct reports and cell confinement.
On April 19, 2014, Defendants Southwick and Hardiman thwarted Plaintiff’s ability
to pursue a “nonfrivolous claim and . . . claims for relief.” (Id.) Defendants Southwick and
Hardiman denied Plaintiff access to the courts by denying “plaintiff . . . access to the MDOC legal
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writer program while plaintiff had a documented mental and physical impairment[,] in retaliation
for plaintiff’s grievance activities and legal participation.” (Id.)
On June 27, 2014, Defendants Hall and Burgess conspired to unfairly restrict Plaintiff
from participating in Islamic Ramadan activities. Defendants Hall and Burgess
discriminated with personal prejudice and bias which was based on plaintiff’s shiite
belief as retaliation for plaintiff’s grievance activities and legal participation against
MDOC officials and plaitniff’s involvement with shiite islam, yet allowing sunni
islam sects to engage and/or participate in ramadan (feeding) activities . . . .”
(Id. at Page ID#8 (verbatim).)
Plaintiff seeks money damages and injunctive relief.
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, 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,

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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, 556 U.S. 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.

Eighth Amendment

Plaintiff alleges that Defendants Bein, Hamilton and Burt denied his request for
urgent medical care to treat intense pain in his “left leg femur,” despite the obvious need for
treatment. (Compl., docket #1, Page ID#4.) Additionally, Plaintiff alleges that Defendants Murphy,
Weaver, Burt, Wilkinson, Byard, Eastfold, Noom and Melson failed to provide prescribed dental
care and treatment despite knowing that Plaintiff had chronic problems with painful, bleeding and
swelling gums and despite the obvious need for treatment.
At this juncture in the proceedings, Plaintiff’s allegations are sufficient to warrant
service of the complaint on Defendants Bein, Hamilton, Burt, Murphy, Weaver, Wilkinson, Byard,
Eastfold, Noom and Melson.
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B.

Defendants Barker and Gonzalez

Plaintiff alleges that Defendants Barker and Gonzalez conspired together to file false
misconduct reports against Plaintiff. In his complaint, Plaintiff identifies a single misconduct report
which he attaches as an exhibit to his complaint. (See docket #1-1, Page ID#20.) The misconduct
report shows that Defendant Barker charged Plaintiff with a class II misconduct for being out of
place on March 27, 2014. The report also shows that Defendant Gonzalez imposed a ten-day loss
of privileges sanction against Plaintiff.
Plaintiff appears to allege a violation of the procedural protections of the Fourteenth
Amendment’s Due Process Clause. A prisoner’s ability to challenge a prison misconduct conviction
depends on whether the convictions implicated any liberty interest. A prisoner does not have a
protected liberty interest in prison disciplinary proceedings unless the sanction “will inevitably affect
the duration of his sentence” or the resulting restraint imposes an “atypical and significant hardship
on the inmate in relation to the ordinary incidents of prison life.” See Sandin v. Conner, 515 U.S.
472, 486-87 (1995). Under Michigan Department of Corrections Policy Directive 03.03.105, ¶ B,
a Class I misconduct is a “major” misconduct and Class II and III misconducts are “minor”
misconducts. The policy further provides that prisoners are deprived of good time or disciplinary
credits only when they are found guilty of a Class I misconduct. (See Policy Directive 03.03.105,
¶ AAAA).
The Sixth Circuit routinely has held that misconduct convictions that do not result
in the loss of good time are not atypical and significant deprivations and therefore do not implicate
due process. See, e.g., Ingram v. Jewell, 94 F. App’x 271, 273 (6th Cir. 2004); Carter v. Tucker, 69
F. App’x 678, 680 (6th Cir. 2003); Green v. Waldren, No. 99-1561, 2000 WL 876765, at *2 (6th Cir.
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June 23, 2000); Staffney v. Allen, No. 98-1880, 1999 WL 617967, at *2 (6th Cir. Aug. 12, 1999).
Plaintiff suffered no loss of good time.1 Plaintiff, therefore, fails to state a due process claim arising
from his Class II misconduct convictions.2 Consequently, Plaintiff fails to state a due process claim
against Defendants Barker and Gonzalez.
C.

Retaliation

Plaintiff alleges that Defendants Bein, Hamilton and Burt failed to treat his chronic
leg pain and Defendants Murphy, Weaver, Burt, Wilkinson, Byard, Eastfold, Noom and Melson
failed to provide Plaintiff prescribed dental care, in retaliation for Plaintiff’s grievances and lawsuits
against MDOC prison officials. Plaintiff alleges that Defendants Barker and Gonzalez retaliated
against him for submitting grievances and filing lawsuits by conspiring together to file false
misconduct reports. Plaintiff also alleges that Defendants Barker and Gonzalez retaliated against
him by threatening to destroy legal and personal property, placing Plaintiff in segregation, causing
Plaintiff to lose privileges and his job, and causing Plaintiff to be transferred or confined to his cell.
Finally, Plaintiff alleges that Defendants Southwick and Hardiman retaliated against him for
submitting grievances and filing lawsuits by denying him access to the MDOC legal writer program,
and Defendants Hall and Burgess retaliated against him by conspiring together to unfairly restrict
Plaintiff’s participation in Ramadan activities.
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

1
Indeed, 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).
2

Notably, Plaintiff waived his right to a hearing and his right to appeal the sanction imposed. The waiver also
states that Plaintiff accepts the sanction imposed. (See Docket #1-1, Page ID#20.)

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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. Id. 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)).
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);
Murphy v. Lane, 833 F.2d 106, 108 (7th Cir. 1987). “[A]lleging merely the ultimate fact of
retaliation is insufficient.” Murphy, 833 F.2d at 108. “[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)); see also
Murray v. Unknown Evert, 84 F. App’x 553, 556 (6th Cir. 2003) (in complaints screened pursuant
to 28 U.S.C. § 1915A, “[c]onclusory allegations of retaliatory motive with no concrete and relevant
particulars fail to raise a genuine issue of fact for trial”) (internal quotations omitted); Lewis v.
Jarvie, 20 F. App’x 457, 459 (6th Cir. 2001) (“bare allegations of malice on the defendants’ parts
are not enough to establish retaliation claims” that will survive § 1915A screening). 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,
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89 F. App’x 579, 580 (6th Cir. 2004).
Plaintiff merely alleges the ultimate fact of retaliation. He alleges no facts from
which to reasonably infer that the actions of Defendants Bein, Hamilton, Murphy, Weaver, Burt,
Wilkinson, Byard, Eastfold, Noom and Melson were motivated by any of Plaintiff’s protected
conduct. To the extent Plaintiff alleges that these Defendants retaliated against him for filing
grievances and lawsuits, there is no indication that any of these Defendants was a party to any
grievance or legal action.3 Even if Defendants Bein, Hamilton, Murphy, Weaver, Burt, Wilkinson,
Byard, Eastfold, Noom and Melson were parties to a grievance or lawsuit, there is no indication that
the alleged denial of medical and dental care took place after the grievance or lawsuit was filed.
Consequently, there are no facts from which to infer even a bare temporal relationship between
Plaintiff’s protected conduct and Defendants’ adverse actions.
The same analysis applies to Plaintiff’s claim that Defendant Byard retaliated against
him for filing grievances and lawsuits by falsifying or altering documents to blame him, rather than
MDOC dental care providers, for the deteriorating state of his dental health. Plaintiff entirely fails
to alleges facts suggesting that his protected conduct was a motivating factor in Defendant Byard’s
alleged retaliatory actions. See Smith, 250 F.3d at 1037.
Likewise, Plaintiff fails to state a retaliation claim against Defendants Barker,
Gonzalez, Southwick, Hardiman, Hall and Burgess. Plaintiff fails to set forth any facts from which
a factfinder could infer that his protected conduct was a motivating factor in these Defendants
allegedly retaliatory actions. See e.g., Murphy, 833 F.2d at 108; Harbin-Bey, 420 F.3d at 580.

3

Although Plaintiff indicates that he attached a July 18, 2012, grievance to his complaint in support of his
retaliation claim, upon reviewing the 58 pages of supporting documents attached to Plaintiff’s complaint, no such
grievance could be found.

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Moreover, with respect to Defendants Barker’s and Gonzalez’s alleged threats, even if these threats
could be considered adverse action, Plaintiff still does not sufficiently allege causation. See Smith,
250 F.3d at 1037. Consequently, Plaintiff fails to state a retaliation claim against Defendants Bein,
Hamilton, Murphy, Weaver, Burt, Wilkinson, Byard, Eastfold, Noom, Melson, Barker, Gonzalez,
Southwick, Hardiman, Hall and Burgess.
D.

Equal Protection

Plaintiff alleges that Defendants Hall and Burgess conspired to unfairly restrict
Plaintiff from participating in Islamic Ramadan activities because of their personal prejudice against
Shiite Muslims. Plaintiff alleges that Defendants Hall and Burgess did not similarly restrict Sunni
Muslims.
“To state an equal protection claim, a plaintiff must adequately plead that the
government treated the plaintiff disparately ‘as compared to similarly situated persons and that such
disparate treatment either burdens a fundamental right, targets a suspect class, or has no rational
basis.’” Bible Believers v. Wayne Cnty., No. 13-1635, 2014 WL 4211190 (6th Cir. Aug. 27, 2014)
(quoting Ctr. for Bio–Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 379 (6th Cir. 2011)). “The
threshold element of an equal protection claim is disparate treatment; once disparate treatment is
shown, the equal protection analysis to be applied is determined by the classification used by
government decision-makers.” Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 260 (6th
Cir. 2006).
Plaintiff makes only a conclusory allegation of disparate treatment. Plaintiff does not
state how his Ramadan activities were restricted by Defendants Hall and Burgess or in what way
these Defendants restricted his Ramadan activities but not the Ramadan activities of Sunni Muslim
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prisoners. Conclusory allegations of unconstitutional conduct without specific factual allegations
fail to state a claim under § 1983. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555. Therefore,
Plaintiff fails to state an equal protection claim against Defendants Hall and Burgess.
E.

Access to Courts

Plaintiff alleges that Defendants Southwick and Hardiman thwarted his ability to
pursue a nonfrivolous claim by denying him access to the MDOC legal writer program despite his
documented mental and physical impairments.
It is well established that prisoners have a constitutional right of access to the courts.
Bounds v. Smith, 430 U.S. 817, 821 (1977). The principal issue in Bounds was whether the states
must protect the right of access to the courts by providing law libraries or alternative sources of legal
information for prisoners. Id. at 817. The Court further noted that in addition to law libraries or
alternative sources of legal knowledge, the states must provide indigent inmates with “paper and pen
to draft legal documents, notarial services to authenticate them, and with stamps to mail them.” Id.
at 824-25. The right of access to the courts also prohibits prison officials from erecting barriers that
may impede the inmate’s accessibility to the courts. See Knop v. Johnson, 977 F.2d 996, 1009 (6th
Cir. 1992).
An indigent prisoner’s constitutional right to legal resources and materials is not,
however, without limit. In order to state a viable claim for interference with his access to the courts,
a plaintiff must show “actual injury.” Lewis v. Casey, 518 U.S. 343, 349 (1996); see also Talley-Bey
v. Knebl, 168 F.3d 884, 886 (6th Cir. 1999); Knop, 977 F.2d at 1000. In other words, a plaintiff must
plead and demonstrate that the shortcomings in the prison legal assistance program or lack of legal
materials have hindered, or are presently hindering, his efforts to pursue a nonfrivolous legal claim.
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Lewis, 518 U.S. at 351-53; see also Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996). The
Supreme Court has strictly limited the types of cases for which there may be an actual injury:
Bounds does not guarantee inmates the wherewithal to transform themselves into
litigating engines capable of filing everything from shareholder derivative actions to
slip-and-fall claims. The tools it requires to be provided are those that the inmates
need in order to attack their sentences, directly or collaterally, and in order to
challenge the conditions of their confinement. Impairment of any other litigating
capacity is simply one of the incidental (and perfectly constitutional) consequences
of conviction and incarceration.
Lewis, 518 U.S. at 355. “Thus, a prisoner’s right to access the courts extends to direct appeals,
habeas corpus applications, and civil rights claims only.” Thaddeus-X v. Blatter, 175 F.3d 378, 391
(6th Cir. 1999) (en banc). Moreover, the underlying action must have asserted a non-frivolous claim.
Lewis, 518 U.S. at 353; accord Hadix v. Johnson, 182 F.3d 400, 405 (6th Cir. 1999) (Lewis changed
actual injury to include requirement that action be non-frivolous).
In addition, the Supreme Court squarely has held that “the underlying cause of
action . . . is an element that must be described in the complaint, just as much as allegations must
describe the official acts frustrating the litigation.” Christopher v. Harbury, 536 U.S. 403, 415
(2002) (citing Lewis, 518 U.S. at 353 & n.3). “Like any other element of an access claim, the
underlying cause of action and its lost remedy must be addressed by allegations in the complaint
sufficient to give fair notice to a defendant.” Id. at 416.
Plaintiff entirely fails to establish actual injury. Plaintiff alleges that he was thwarted
in his ability to pursue a nonfrivolous claim, but Plaintiff reveals nothing about the nature of the
claim, the remedy Plaintiff sought or how not having an MDOC legal writer prevented Plaintiff from
pursuing his claim.4 As noted above, conclusory allegations of unconstitutional conduct without

4

Nowhere does Plaintiff suggest that he needed a legal writer to prepare and file the instant 17 pages complaint.

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specific factual allegations fail to state a claim under § 1983. See Iqbal, 556 U.S. at 678; Twombly,
550 U.S. at 555. Therefore, Plaintiff fails to state an equal protection claim against Defendants
Southwick and Hardiman.
Conclusion
Having conducted the review now required by the Prison Litigation Reform Act, the
Court determines that Defendants Barker, Gonzalez, Hardiman, Southwick, Hall and Burgess 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 complaint against Defendants Bein, Hamilton, Burt,
Murphy, Weaver, Wilkinson, Byard, Eastfold, Noom and Melson with respect to Plaintiff’s Eighth
Amendment claim only.
An Order consistent with this Opinion will be entered.

Dated: September 10, 2014

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE

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