Gresham #272603 v. Clute et al

Filing 13

OPINION ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)

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

MICHAEL GRESHAM,
Plaintiff,

Case No. 1:15-cv-1066

v.

Honorable Robert J. Jonker

CHRISTIAN CLUTE 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.
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 amended complaint
for failure to state a claim against Defendants Lewis and Becher. The Court will serve the amended
complaint against Defendants Clute, Barber, Thurlby, Miniard, McLeod, Fandrick, Gregory and
Deschroces.

Discussion
I.

Factual allegations

Plaintiff Michael Gresham presently is incarcerated with the Michigan Department
of Corrections (MDOC) at the Ionia Correctional Facility (ICF). He sues Michigan State Police
Detective Christian Clute and the following ICF officials: Inspector Steve Barber; Prison Counselor
Lyod Thurlby; Resident Unit Manager Gary Miniard; Correctional Officers Peri McLeod, (unknown)
Fandrick, and (unknown) Gregory; Grievance Coordinators Clarice Lewis and L. Becher; and
Sergeant Deschroces.
According to the amended complaint, Plaintiff was visited by Defendants Clute and
Barber about a violent prison gang member, Willie Clemons. Plaintiff had written to Kent County
Circuit Judges Dennis Lieber and Mark Trusock, warning them of Clemons’ attempts to kill Judge
Lieber and other state and government officials. Plaintiff explained to Clute and Barber that
Clemons was very dangerous and was out to kill Plaintiff because other staff members previously
had told Clemons that Plaintiff was a government informant. Plaintiff requested protective custody.
Both Clute and Barber refused to protect Plaintiff, despite the known risk, in violation of the Eighth
Amendment.
As Plaintiff was escorted back to his cell, he saw Defendants McLeod, Deschroces,
Fandrick and Gregory go to Clemons’ cell, and he heard them tell Clemons that Plaintiff was a snitch
who had informed the state police on Clemons. Later, Defendants Thurlby and Miniard also went
to Clemons’ cell and told Clemons that Plaintiff was a snitch who had informed the state police
about Clemons. Plaintiff yelled to Defendants Thurlby and Miniard that they were endangering his
life, and he asked for protection. Thurlby and Miniard responded, “[W]e ain’t protecting you deal
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with it.” Plaintiff contends that Defendants McLeod, Deschroces, Fandrick, Gregory, Thurlby and
Miniard have violated and continue to violate the Eighth Amendment by failing to protect him and
placing his life in danger. He also alleges that these Defendants acted and conspired to act in
retaliation for the grievances and lawsuits Plaintiff had filed against them and their colleagues.
Finally, Plaintiff contends that Defendants Becher and Lewis violated his Eighth Amendment rights
when they failed to take action on his kites and grievances about the other Defendants’ conduct.
For relief, Plaintiff seeks $20 million in compensatory and punitive damages, together
with injunctions transferring Plaintiff to another prison and awarding a contract to various non-profit
organizations to provide counsel.
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, 47 (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.” Iqbal, 556 U.S. 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).
Plaintiff fails to make specific factual allegations against Defendants Lewis and
Becher, other than his claim that they failed to adequately respond to his grievances. Government
officials may not be held liable for the unconstitutional conduct of their subordinates under a theory
of respondeat superior or vicarious liability. Iqbal, 556 U.S. at 676; 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, 575-76 (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 576; 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
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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. 1999). “[A] plaintiff must plead that each
Government-official defendant, through the official’s own individual actions, has violated the
Constitution.” Iqbal, 556 U.S. at 676. Plaintiff has failed to allege that Defendants Lewis and
Becher engaged in any active unconstitutional behavior. Accordingly, he fails to state a claim
against them.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Defendants Lewis and Becher 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
amended complaint against Defendants Clute, Barber, Thurlby, Miniard, McLeod, Fandrick, Gregory
and Deschroces.
An Order consistent with this Opinion will be entered.

Dated:

March 14, 2016

/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE

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