Lee #791018 v. Tinerella et al

Filing 4

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

GREGORY LEE,
Plaintiff,

Case No. 1:17-cv-797

v.

Honorable Robert J. Jonker

ROBERT TINERELLA et al.,
Defendants.
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OPINION
This is a civil rights action brought by a state prisoner under 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 Perez, Mote, Robinson, Vroman, Young, Simpson, Davids, and
Trierweiler. The Court will serve the complaint against Defendants Tinerella, Buchin, Rose,
Spitzley, and Piggot.

Discussion
I.

Factual allegations

Plaintiff Gregory Lee presently is incarcerated with the Michigan Department of
Corrections (MDOC) at the Ionia Correctional Facility (ICF), though the actions about which he
complains occurred while he was housed at the Bellamy Creek Correctional Facility (IBC). He sues
the following IBC officials: Correctional Officers Robert Tinerella, (unknown) Rose, (unknown)
Spitzley, and (unknown) Piggot; Assistant Resident Unit Supervisor (ARUS) Jared Buchin; Sergeant
Victoria Perez; Resident Unit Manager (RUM) R. Mote; Step-I Grievance Coordinator M. Robinson;
Step-II Grievance Coordinator Mitch Vroman; CPC Manager B. Young; Mail Room Officer B.
Simpson; Deputy Warden John Davids; and Warden Trierweiler.
Shortly before March 12, 2016, Plaintiff assisted another prisoner, Anthony Baldwin,
to file a grievance against Defendant Tinerella for allegedly harassing and degrading Baldwin. On
March 12, 2016, at 10:00 a.m., Defendant Tinerella came from his own unit into Plaintiff’s housing
unit, demanding to know why Plaintiff was assisting prisoner Baldwin. When Plaintiff refused to
respond, Tinerella told Plaintiff, “After lunch I[’]m going to give you something to write a grievance
about since you like helping people file grievances.” (Compl., ECF No. 1, PageID.11.) Plaintiff
acknowledges that he placed a small piece of paper in his window, stating, “Officer Tinerella Is
Racist.” (Id.) At about 10:15 a.m., Defendant Rose came to Plaintiff’s cell, kicking the door and
yelling, “Nigger boy I[’]m going to kill you nigger boy now take it down before we make you take
it down.” (Id., PageID.12.) At approximately 10:30 a.m., Defendants Tinerella, Rose, and Spitzley
came into Plaintiff’s cell, purportedly in violation of policy. Tinerella pushed Plaintiff in the face,
causing Plaintiff to lose his balance and strike his head.
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At about 12:30 a.m., Nurse Karen Rosa evaluated Plaintiff’s injuries, finding a knot
and an abrasion on the top right side of his head. Nurse Rosa asked how the injury occurred, and
Plaintiff told her and asked her to get a sergeant. Nurse Rosa talked to Defendant Perez at about
12:50 p.m. At about 1:30 p.m., Defendant Perez came to Plaintiff’s cell and asked Plaintiff what had
happened. Plaintiff told Perez that he was assaulted by Defendant Tinerella. Perez asked Plaintiff
to speak up, but Plaintiff had a severe headache and could not yell. Several inmates, however,
explained to Perez what had happened. Defendant Perez stated, “Oh, well, What do you want me
to do. I[’]m about to go home.” (Id., PageID.13.) She then left the wing.
Plaintiff wrote a grievance on March 19, 2017, alleging that Defendants Tinerella,
Rose, and Spitzley entered his cell improperly. He alleged that Tinerella assaulted him, and Rose
and Spitzley did nothing to intervene, thereby failing to protect Plaintiff. On March 26, 2016, as
Plaintiff was returning from the yard, Defendant Rose told Plaintiff that, if he was afraid for his life,
he should lock up. Defendant Rose also humiliated Plaintiff by telling the nurse that Plaintiff had
“bowel issues,” because he was “scared shitless.” (Id.) Plaintiff filed a grievance the next day,
accusing Defendant Rose of harassment. One week later, Defendant Buchin came to the cell to
review the grievance with Plaintiff. Buchin told Plaintiff that he had heard about the comments, that
they were inappropriate, and that he would have Rose removed from Unit-1 if Plaintiff signed off
on the grievance. Plaintiff alleges that Defendant Buchin never upheld the agreement. On April 4,
2016, Defendant Buchin stopped at Plaintiff’s cell, and allegedly admitted that MICH. DEP’T OF
CORR., Policy Directive 02.03.100 ¶ N(1)-(2) requires that a staff member being investigated by
internal affairs must be suspended or moved away from the individual involved. However, after
Plaintiff wrote a letter to internal affairs on April 26, 2016, Buchin told Plaintiff, “I[’]m not going
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to allow you to file a complaint on my coworker. All legal mail has to go through me. I’ll give you
the goldenrod copy in case I feel like it.” (Id., PageID.14) Plaintiff alleges that the letter was never
processed. Also on April 4, Plaintiff stopped Defendant Deputy Warden Davids and explained the
March 12 incident. Defendant Davids indicated that he would look into the incident, but Plaintiff
heard nothing.
On April 19, 2016, as they were escorting Plaintiff from his psychiatric visit,
Defendants Piggot and Rose took Plaintiff to a different unit, stating that Plaintiff was being moved
“because you’re a problem so I put you over here with the other problems.” (Id.) Plaintiff contends
that Defendants Piggot and Rose conspired to harass him and to retaliate against him for filing
grievances. When they arrived at Plaintiff’s new cell, “Defendant Piggot maliciously and sadistically
assaulted him by pulling the restraint leash through the food slot until they cut into Plaintiff’s skin
producing blood and bruises . . . .” (Id.) Plaintiff told Piggot that the cuffs were cutting into him and
that Piggot was going to break Plaintiff’s wrist if he did not stop. Defendant Piggot simply laughed
and kept pulling on the chain. Defendant Rose was present but took no action to stop Piggot from
hurting Plaintiff.
At about 1:30 p.m. on April 19, Defendant Perez came to retrieve the handcuffs from
Plaintiff. When she saw the injuries, she went to get a camera. Defendant Perez assured Plaintiff
that a nurse would see him shortly. Plaintiff was seen by Nurse Hammond at 2:30 p.m. Plaintiff
talked to Defendant Davids again, and Davids again told Plaintiff that he would look into the matter.
Plaintiff next complains that he did not receive responses to his Step-I or Step-II
grievances related to the March 12, 2016 incident. On May 5, 2017, Plaintiff attempted to file a
Step-III grievance. He gave the document to Defendant Buchin for mailing. When he did not
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receive a reply from the MDOC Director’s Office for several months, he inquired whether the office
had received the grievance. On October 21, 2016, Plaintiff was notified that the Director’s Office
had not received the Step-III grievance. In the interim, on July 13, 2016, Plaintiff finally received
his Step-I grievance response from Defendants Robinson and Young, which, he alleges, wholly
mischaracterized his grievance and mentioned another prisoner, ostensibly for malicious and
retaliatory reasons. Plaintiff alleges that Robinson and Young conspired to deprive him of his
administrative remedies.
Plaintiff next alleges that he filed a grievance concerning every issue in his complaint,
but Defendant Grievance Coordinators Robinson and Vroman deliberately ignored the harm being
done to Plaintiff when they denied his grievances. Specifically, he complains that the April 19,
2016, assault was captured on camera and was documented by the nurse’s report, yet Defendants
Robinson and Vroman found that insufficient evidence existed to support the grievance. Plaintiff
contends that Defendants Robinson and Vroman conspired to deprive him of his administrative
remedies.
On May 26, 2016, Plaintiff wrote Defendant Mail Room Officer Simpson a kite,
explaining that he was not getting his mail processed, and he asked her to send him a copy of all
outgoing legal and interdepartmental mail processed for the last six months. The kite was never
answered. Plaintiff submitted a second kite on March 13, 2017, asking for the same information,
but only with respect to mail sent on April 16, 2016 and May 5, 2016. Defendant Simpson’s
response indicated that no mail was processed on those two days.
On June 8, 2016, Plaintiff was transferred to another prison. However, he was
brought back to IBC on November 29, 2016. On February 16, 2017, Plaintiff was placed back into
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Unit 1, where he had experienced problems with staff the year before. Plaintiff sent a kite to the IBC
Inspector. Inspector Welton came to visit Plaintiff on March 9, 2017. Welton advised that he would
pass a message to Defendant Davids about Plaintiff’s discomfort with being placed back into the
same unit and having his legal mail handled by Defendant Buchin.
At approximately February 23, 2017, Plaintiff explained to Defendant Davids that he
was being harassed by Defendant Buchin, and he advised Davids that he had filed a lawsuit against
Defendants Buchin, Piggot, and Tinerella, who were all regulars in the housing unit. A few minutes
later, Plaintiff explained to Defendant Warden Trierweiler about the incidents that occurred on
March 12, 2016, and April 19, 2016, and about Buchin’s interference with Plaintiff’s legal mail.
Defendant Trierweiler advised that he would look into the matter. When Plaintiff heard nothing
from Trierweiler, he sent a “SPON Order Request” to Defendant Trierweiler on March 1, 2017. (Id.,
PageID.17.)1
On February 16, 2017, Plaintiff submitted a motion for temporary restraining order
to the Assistant Resident Unit Supervisor, for notarization. After it was notarized, Plaintiff, on
February 23, 2017, submitted the motion, to Defendant Buchin, for mailing to this Court. When
Plaintiff heard nothing from the Court for several weeks, he wrote the Court to inquire about the
motion. The Court responded that it had never received the motion. Plaintiff complains that this is
the fourth incident involving his legal mail being waylaid. Plaintiff immediately filed a grievance.
Defendants Mote and Davids responded that they would investigate. They advised Plaintiff a week

1
Under MICH. DEP’T OF CORR., Policy Directive 03.03.110, “SPON” is the acronym for “special problem
offender notice.” Id. A SPON is issued whenever an offender is likely to be a danger to another inmate or employee
or when an offender will require protection from another offender. Id. ¶ E. Plaintiff appears to suggest that he sought
a SPON against one or more officers, rather than against another inmate.

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later that his mail was sent and that it was out of their hands. Plaintiff asked for the tracking number,
but Davids refused.
Four days later, Defendant Buchin came to Plaintiff’s door, asking if Plaintiff was still
filing grievances. Plaintiff responded, “If I have to.” Defendant Buchin walked away, saying “Well
Ima [sic] send you where you don[’]t want to be.” (Id., PageID.19.) Two days later, on April 19,
2017, Defendant Davids came to Plaintiff’s cell and told him, “Buchin got you riding out on a
emergency rideout to Level 5.” (Id.) When Plaintiff asked why, Defendant Davids responded,
“Buchin felt it was a good move.” (Id.) Plaintiff complains that the placement was improper,
because, when he was seen by the Security Classification Committee on February 10, 2017, they
indicated that, if he remained ticket-free for two months, he would be transferred to an alternate
Level-4 confinement. Plaintiff alleges that Defendant Buchin took the actions he did in order to
retaliate against Plaintiff for filing grievances and lawsuits.
In his claims for relief, Plaintiff alleges Defendant Tinerella maliciously assaulted him
for assisting another inmate to file a grievance, in violation of both the First and Eighth
Amendments. He also alleges that Defendant Piggot maliciously and sadistically used excessive
force in pulling on the restraint leash, without penological justification. Plaintiff next claims that
Defendants Tinerella, Rose, Spitzley, Piggot, and Buchin all retaliated against Plaintiff for filing
grievances, in violation of the First Amendment. Plaintiff further claims that all Defendants “failed
to prevent a conspiracy in relation to the other facts alleged in the complaint, by not taking action
against those who harmed Plaintiff, thereby allowing them to continue to retaliate, including the
retaliatory transfer. For relief, Plaintiff seeks compensatory and punitive damages, together with an
injunction requiring the MDOC to relieve Defendants of their duties.
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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,
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.
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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.

Defendants Perez, Mote, Robinson, Vroman, Young, Simpson,
Davids, & Trierweiler

Plaintiff fails to make specific factual allegations against Defendants Perez, Mote,
Robinson, Vroman, Young, Simpson, Davids, and Trierweiler, other than his claim that they failed
to supervise their subordinates, failed to process his grievances, and failed to conduct an
investigation into or take action on his grievances and kites. Plaintiff alleges that, by these actions,
Defendants permitted other Defendants to engage in a conspiracy.
To the extent Plaintiff relies on these officials’ failures to supervise, investigate, or
respond to his grievances, Plaintiff fails to state a claim. 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 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

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Government-official defendant, through the official’s own individual actions, has violated the
Constitution.” Iqbal, 556 U.S. at 676. Plaintiff therefore fails to state a claim against these
Defendants because of their failures to supervise or respond to grievances.
To the extent that Plaintiff alleges that these Defendants interfered with the
processing of his grievances, Plaintiff also fails to state a claim. Plaintiff has no due process right
to file a prison grievance. The courts repeatedly have held that there exists no constitutionally
protected due process right to an effective prison grievance procedure. See Hewitt v. Helms, 459
U.S. 460, 467 (1983); Walker v. Mich. Dep’t of Corr., 128 F. App’x 441, 445 (6th Cir. 2005); Argue
v. Hofmeyer, 80 F. App’x 427, 430 (6th Cir. 2003); Young v. Gundy, 30 F. App’x 568, 569-70 (6th
Cir. 2002); Carpenter v. Wilkinson, No. 99-3562, 2000 WL 190054, at *2 (6th Cir. Feb. 7, 2000);
see also Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Adams v. Rice, 40 F.3d 72, 75
(4th Cir. 1994) (collecting cases). Michigan law does not create a liberty interest in the grievance
procedure. See Olim v. Wakinekona, 461 U.S. 238, 249 (1983); Keenan v. Marker, 23 F. App’x 405,
407 (6th Cir. 2001); Wynn v. Wolf, No. 93-2411, 1994 WL 105907, at *1 (6th Cir. Mar. 28, 1994).
Because Plaintiff has no liberty interest in the grievance process, Defendants’ conduct did not
deprive him of due process.
Moreover, Defendants’ actions have not barred Plaintiff from seeking a remedy for
his grievances. See Cruz v. Beto, 405 U.S. 319, 321 (1972). “A prisoner’s constitutional right to
assert grievances typically is not violated when prison officials prohibit only ‘one of several ways
in which inmates may voice their complaints to, and seek relief, from prison officials’ while leaving
a formal grievance procedure intact.” Griffin v. Berghuis, 563 F. App’x 411, 415-416 (6th Cir.
2014) (citing North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 130 n.6 (1977)). Indeed,
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Plaintiff’s ability to seek redress is underscored by his pro se invocation of the judicial process. See
Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982). Even if Plaintiff was improperly prevented
from filing a grievance, his right of access to the courts to petition for redress of his grievances (i.e.,
by filing a lawsuit) cannot be compromised by his inability to file institutional grievances, and he
therefore cannot demonstrate the actual injury required for an access-to-the-courts claim. See, e.g.,
Lewis v. Casey, 518 U.S. 343, 355 (1996) (requiring actual injury); Bounds v. Smith, 430 U.S. 817,
821-24 (1977). The exhaustion requirement only mandates exhaustion of available administrative
remedies. See 42 U.S.C. § 1997e(a). If Plaintiff were improperly denied access to the grievance
process, the process would be rendered unavailable, and exhaustion would not be a prerequisite for
initiation of a civil rights action. See Ross v. Blake, 136 S. Ct. 1850, 1858-59 (2016) (reiterating that,
if the prisoner is barred from pursuing a remedy by policy or by the interference of officials, the
grievance process is not available, and exhaustion is not required); Kennedy v. Tallio, 20 F. App’x
469, 470 (6th Cir. 2001). In light of the foregoing, the Court finds that Plaintiff fails to state a
cognizable claim against Defendants Perez, Mote, Robinson, Vroman, Young, Simpson, Davids, and
Trierweiler for interference with his grievances.
In his final allegation against these Defendants, Plaintiff alleges that Defendants
Perez, Mote, Robinson, Vroman, Young, Simpson, Davids, and Trierweiler “failed to prevent a
conspiracy” among Defendants Tinerella, Buchin, Rose, Spitzley, and Piggot. This claim fails on
the principles just discussed. Plaintiff does not allege that Defendants engaged in active conduct that
could render them liable under § 1983.
For all these reasons, Plaintiff fails to state a claim against Defendants Perez, Mote,
Robinson, Vroman, Young, Simpson, Davids, and Trierweiler.
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B.

Defendants Tinerella, Buchin, Rose, Spitzley, and Piggot

Upon initial review, the Court concludes that Plaintiff has sufficiently alleged at least
one claim against Defendants Tinerella, Buchin, Rose, Spitzley, and Piggot. The Court therefore
will order service of the complaint on these Defendants.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Defendants Perez, Mote, Robinson, Vroman, Young, Simpson, Davids, and
Trierweiler will be dismissed for failure to state a claim under 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
Tinerella, Buchin, Rose, Spitzley, and Piggot.
An Order consistent with this Opinion will be entered.

Dated:

October 18, 2017

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

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