Torres #296591 v. Schafer et al
Filing
6
OPINION; Order to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
Case 1:20-cv-00257-JTN-PJG ECF No. 6 filed 04/14/20 PageID.213 Page 1 of 13
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______
JOSE R. TORRES,
Plaintiff,
v.
Case No. 1:20-cv-257
Honorable Janet T. Neff
UNKNOWN SCHAFER et al.,
Defendants.
____________________________/
OPINION
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983.
Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), 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 Ward, Miller, and Becher.
Discussion
I.
Factual Allegations
Plaintiff is presently incarcerated with the Michigan Department of Corrections
(MDOC) at the Carson City Correctional Facility (DRF) in Carson City, Michigan. The events
Case 1:20-cv-00257-JTN-PJG ECF No. 6 filed 04/14/20 PageID.214 Page 2 of 13
about which he complains occurred at that facility. Plaintiff sues DRF Prison Counselors
Unknown Schafer, Unknown Ward, and Unknown Miller; DRF Unit Officers Unknown Sutten
and Unknown McAlvey; DRF Front Desk Officer Unknown Wright; and DRF Grievance
Coordinator Lisa Becher.
Between Plaintiff’s allegations and the attached exhibits, his complaint spans
roughly four months, from July through October of 2019. Plaintiff alleges that during that period
Defendant Becher maliciously rejected or otherwise failed to process many of his grievances. It
is very apparent that Plaintiff files a lot of grievances; he attaches many of them to his complaint
as exhibits.
He contends the rest of the Defendants have violated his First Amendment rights
by retaliating against him for filing grievances and lawsuits. Plaintiff also alleges that Defendants
Miller and Ward violated Plaintiff’s First Amendment right to access the courts by refusing to
notarize and/or mail out a 42 U.S.C. § 1983 lawsuit Plaintiff intended to file.
Plaintiff seeks compensatory and punitive damages exceeding $1,500,000.00.
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
2
Case 1:20-cv-00257-JTN-PJG ECF No. 6 filed 04/14/20 PageID.215 Page 3 of 13
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.
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).
III.
Defendants Ward and Miller
The events in Plaintiff’s complaint are founded upon a dispute between Plaintiff
and Defendant Ward. On August 22, 2019, Plaintiff attempted to get Defendant Ward to notarize
a lawsuit and then mail it out. (Comp., ECF No. 1, PageID.5.) Ward informed Plaintiff that he
did not have a notary seal. (Id.) Plaintiff asked permission to see Defendant Miller and have
Miller notarize the lawsuit. Miller worked in a different unit. (Id.) Ward said he would not help
Plaintiff or get involved in Plaintiff suing Ward’s co-workers. (Id.) Plaintiff claimed his lawsuit
was against MDOC staff from a different prison. (Id.) Nonetheless, thereafter, another prisoner
3
Case 1:20-cv-00257-JTN-PJG ECF No. 6 filed 04/14/20 PageID.216 Page 4 of 13
informed Plaintiff that Miller had told the other prisoner that Defendant Ward had instructed Miller
not to notarize Plaintiff’s papers because Ward and Plaintiff had “just got into it.” (Id.; Exh. B,
ECF No. 1-2, PageID.33.)
A.
First Amendment retaliation
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. 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)).
“[P]rotected conduct . . . encompasses a prisoner’s efforts to access the courts in
direct appeals, habeas corpus actions, and civil rights claims.” Bell v. Johnson, 308 F.3d 594, 607
(6th Cir. 2002). Therefore, Plaintiff was engaged in protected conduct. Moreover, Ward’s
statement that he would not help Plaintiff sue suggests that whatever action Ward took was
motivated by Plaintiff’s proposed lawsuit. Therefore, at least with regard to Defendant Ward, the
third element is properly alleged as well.
Plaintiff’s allegations against Ward fall short, however, with regard to the alleged
“adverse action.” Refusing to notarize an affidavit, or to release Plaintiff to another unit so that
someone else could notarize an affidavit, is not so harsh a response that it would likely “deter a
person of ordinary firmness” from filing lawsuits. In Thaddeus-X, the Sixth Circuit recognized
that some threats and deprivations are too minimal to constitute adverse action. Citing Bart v.
4
Case 1:20-cv-00257-JTN-PJG ECF No. 6 filed 04/14/20 PageID.217 Page 5 of 13
Telford, 677 F.2d 622 (7th Cir. 1982), the Thaddeus-X court held that minor harassment is
insufficient to constitute adverse action, because recognition of such a standard would “‘trivialize
the First Amendment.’” Thaddeus 175 F.3d at 398-99 (citing Bart, 677 F.2d at 625). This Court
has previously described a refusal to notarize a document as “simply a de minimis inconvenience.”
Holly v. Nichols, No. 1:14-cv-1301, 2015 WL 1211529, at *5 (W.D. Mich. Mar. 17, 2015). The
Sixth Circuit has similarly concluded that refusal to notarize an affidavit must carry some prejudice
before it can support a retaliation claim. Mayfield-El v. Schotty, No. 97-1937, 1998 WL 894719,
at *2 (6th Cir. Dec. 14, 1998). “Since 1976, affidavits no longer need to be notarized and will be
admissible if they are made under penalties of perjury; only unsworn affidavits will be rejected.”
Arthur R. Miller, Mary K. Kane, 10B Federal Practice & Procedure § 2738 at 363 (3d ed. 1998);
28 U.S.C. § 1746 (permitting the submission of a verified statement under penalty of perjury in
place of notarized affidavit). As a result, a refusal to notarize a document cannot cause injury to a
prisoner and thus would not deter such person from exercising his rights. Because Plaintiff has
failed to allege facts that would support the inference that the refusal to notarize an affidavit is
anything more than a minor inconvenience here, Plaintiff has failed to state retaliation claims
against Defendants Ward and Miller.
Additionally, with respect to Defendant Miller, Plaintiff’s claim also fails because
he has not alleged that Miller acted—or refused to act—with a retaliatory motive. Plaintiff alleges
only that Miller refused to notarize Plaintiff’s affidavit because Ward told him not to. Plaintiff’s
facts do not permit the inference that Miller’s actions were retaliatory.
B.
Access to the courts
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
5
Case 1:20-cv-00257-JTN-PJG ECF No. 6 filed 04/14/20 PageID.218 Page 6 of 13
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 access 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. 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).
6
Case 1:20-cv-00257-JTN-PJG ECF No. 6 filed 04/14/20 PageID.219 Page 7 of 13
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 alleges only that he wanted to file a § 1983 claim against prison officials
from another prison. He fails to allege actual injury resulting from the refusals of Ward and Miller
to notarize his affidavit. Indeed, as previously discussed, since notarization is no longer required,
see 28 U.S.C. § 1746, the refusal to notarize cannot have caused actual injury. Accordingly, he
has failed to state an “access to the courts” claim against them.
IV.
Defendant Becher
Plaintiff sues Defendant Becher for violating Plaintiff’s due process rights when
she maliciously rejected or refused to process several grievances. Construed liberally, Plaintiff’s
allegations suggest that Plaintiff intends to allege that Becher’s grievance rejections or refusals to
process grievances have interfered with his First Amendment right to petition the government for
redress and the right of access to the courts.
The First Amendment stops the government from generally prohibiting expressions
in the form of petitions for redress and from imposing sanctions on one who petitions for redress.
Smith v. Arkansas State Highway Emp., Local 1315, 441 U.S. 463, 464 (1979). In Apple v. Glenn,
183 F.3d 477 (6th Cir. 1999), the Sixth Circuit explained the nature of the right:
The First Amendment guarantees “the right of the people . . . to petition the
Government for a redress of grievances.” U.S. Const. amend. I. “The right to
petition is cut from the same cloth as the other guarantees of that Amendment, and
is an assurance of a particular freedom of expression.” McDonald v. Smith, 472
U.S. 479, 482 (1985). The First Amendment protects Apple’s right to petition, but
7
Case 1:20-cv-00257-JTN-PJG ECF No. 6 filed 04/14/20 PageID.220 Page 8 of 13
his suit is founded completely on a mistaken reading of that Amendment. A
citizen’s right to petition the government does not guarantee a response to the
petition or the right to compel government officials to act on or adopt a citizen’s
views.
Apple, 183 F.3d at 479; see also BPNC, Inc. v. Taft, 147 F. App’x 525, 531 (6th Cir. 2005) (“The
purpose of the Petition Clause, though, is to ensure that citizens may communicate their will
through direct petition to the legislature and government officials.”). Thus, Plaintiff has a First
Amendment right to file grievances against prison officials, Herron v. Harrison, 203 F. 3d 410,415
(6th Cir. 2000), but the amendment does not require the government to consider, respond to, or
grant relief on that grievance.
Plaintiff’s allegations reveal that he is trying to expand his right to petition for
redress—to complain about prison officials—into a right to compel those officials to listen, or at
least to follow their own procedures. The protections afforded by the right to petition are not that
broad. It is a right of expression, not a right to process following the expression. “[A] state has
no federal due process obligation to follow all of its own grievance procedures . . . .” Carlton v.
Jondreau, 76 F. App’s 642, 644 (6th Cir. 2003). An inmate does not have a constitutionally
protected interest in a jail or prison grievance procedure or the right to an effective procedure.
Walker v. Michigan Dep’t of Corrections, 128 F. App’x 441, 445 (6th Cir. 2005); Argue v.
Hofmeyer, 80 F. App’x 427, 430 (6th Cir. 2003). Section 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).
Even if Plaintiff had been 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, 518 U.S. at 355;
8
Case 1:20-cv-00257-JTN-PJG ECF No. 6 filed 04/14/20 PageID.221 Page 9 of 13
Bounds, 430 U.S. at 821-24. 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).
Finally, it does not appear that Plaintiff intended to file a First Amendment
retaliation claim against Defendant Becher. See, e.g., § III A, above. For example, he does not
allege that she acted with a retaliatory motive. If Plaintiff was trying to state such a claim, he
failed. Many courts, including this one, have held that the denial or refusal to process a grievance
is not an adverse action. See, e.g., Cameron v. Gurnoe, No. 2:19-cv-71, 2019 WL 2281333, at *4
(W.D. Mich. May 29, 2019) (citing cases); Ross v. Westchester Cty. Jail, No. 10 Civ. 3937(DLC),
2012 WL 86467, at *8 (S.D.N.Y. Jan. 11, 2012) (the refusal to file a single grievance is, without
more, insufficient to constitute an adverse action); Stone v. Curtin, No. 1:11-cv-820, 2011 WL
3879505, at *4 (W.D. Mich. Aug. 31, 2011) (the failure to process a prison grievance would not
deter a prisoner of ordinary firmness from exercising his right to file a grievance); Green v. Caruso,
No. 1:10-cv-958, 2011 WL 1113392, at *10 (W.D. Mich. Mar. 24, 2011) (the denial of a prisoner’s
grievances was not sufficiently adverse to support a retaliation claim); Burgos v. Canino, 641 F.
Supp. 2d 443, 454 (E.D. Pa. 2009), aff’d, 358 F. App’x 302 (3d Cir. 2009) (the rejection or denial
of prison grievances does constitute an adverse action for purposes of a retaliation claim).
Accordingly, Plaintiff has failed to state a claim against Defendant Becher.
9
Case 1:20-cv-00257-JTN-PJG ECF No. 6 filed 04/14/20 PageID.222 Page 10 of 13
V.
Defendant Schafer
Plaintiff contends that Defendant Schafer retaliated against Plaintiff by generally
harassing him from August 22 to September 6, 2019. Plaintiff suggests that he engaged in
protected conduct of which Schafer was aware, including the proposed lawsuit and many
grievances Plaintiff filed against Schafer. Indeed, based on the allegations in Plaintiff’s complaint,
it appears that Plaintiff filed a grievance against Defendant Schafer after each interaction between
them. Plaintiff has adequately alleged protected conduct.
Plaintiff has also alleged adverse action. Most of Plaintiff’s allegations reflect petty
verbal harassment—suggesting Plaintiff was a woman or a “piece of shit”—or vague threats—
“I’m going to make your life a living hell.” (Compl., ECF No. 1, PageID.5-11.) The Sixth Circuit
has never said that verbal abuse is sufficient to demonstrate adverse action. Taylor v. City of
Falmouth, 187 F. App’x 596, 600 (6th Cir. 2006); see also Carney v. Craven, 40 F. App’x 48, 50
(6th Cir. 2002) (“Even if the grievance was not frivolous, he did not state a claim for retaliation in
the form of verbal harassment. An inmate has no right to be free from verbal abuse . . . and minor
threats do not rise to the level of a constitutional violation.”); Hilton v. Mish, 224 F. Supp. 3d 595,
603 (W.D. Mich. 2016) (“[V]erbal abuse, foul language, and insensitive comments made to or
about a plaintiff generally do not constitute adverse action.”).
But, Plaintiff’s allegations also include specific threats to place a knife in Plaintiff’s
area of control and writing a false misconduct. Between these more serious actions and the entire
pattern of behavior, the Court concludes that Plaintiff has adequately alleged adverse action.
Finally, Plaintiff has adequately alleged that Schafer acted with a retaliatory motive.
Accordingly, Plaintiff has stated a First Amendment retaliation claim against Defendant Schafer.
10
Case 1:20-cv-00257-JTN-PJG ECF No. 6 filed 04/14/20 PageID.223 Page 11 of 13
VI.
Defendant Sutten
Plaintiff alleges that Defendant Sutten retaliated against Plaintiff because Plaintiff
convinced his family members to file complaints against Schafer and Ward. The retaliation
occurred between August 26 and September 1, 2019. After the retaliation started, Plaintiff grieved
Sutten, which, according to Plaintiff, prompted additional rounds of retaliation. Plaintiff has
adequately alleged protected conduct.
Plaintiff contends that Sutten’s adverse action took the form of repeated verbal
harassment and one shakedown that resulted in a misconduct ticket for contraband. Plaintiff
suggests the misconduct ticket was false, but Sutten principally charged that Plaintiff possessed
contraband. (Misconduct Hr’g Rep., ECF No. 1-11, PageID.71.) That charge was sustained and
Plaintiff does not dispute it. Additional charges that the contraband included forged or stolen
property were rejected. (Id.) A JP5 tablet was confiscated because it included a “sexually explicit”
photo of a bikini-clad woman. (Id.) It was returned because the photos were not “nudes.” (Id.)
In Reynolds-Bey v. Harris, 428 F. App’x 493, 503 (6th Cir. 2011), the court
concluded that a course of conduct over time might constitute “adverse action.” The court
reasoned:
Here, Reynolds-Bey alleges that Kingsbury searched him (either once or twice in
quick succession) and used a racial slur and a thinly-veiled threat in retaliation for
Reynolds-Bey’s protected conduct. Although this is a close issue, we find that the
alleged events could constitute action sufficient to deter a prisoner of ordinary
firmness from engaging in protected activities in the future. A single shakedown,
unaccompanied by excessive use of force, verbal threats, a pattern of previous
questionable shakedowns or other such factors, would not meet the adverse action
standard. See Tate, 85 F. App’x at 417. Here, however, Reynolds-Bey further
asserts that Kingsbury “use[d] . . . racial threats to advocate physical violence.”
(Pro Se Appellant Br. 9.) Although the alleged threats of violence or other
retaliation were not explicit, the words Reynolds-Bey attributes to Kingsbury can
be construed as an implicit, and nontrivial, threat. First, the use of racial slurs by
an individual in a position of authority is repugnant and often carries with it an
implicit threat of violence. Cf. Ward v. Washington Mut., No. 03 C 3566, 2004 WL
2534628, at *3 (N.D. Ill. Sept. 30, 2004) (in workplace racial discrimination claim,
11
Case 1:20-cv-00257-JTN-PJG ECF No. 6 filed 04/14/20 PageID.224 Page 12 of 13
noting that the use of “odious [racial] epithets . . . reasonably could have conjured
up disturbing episodes from our society’s checkered history of inter-racial
relations”). Second, Kingsbury’s alleged statements that Reynolds–Bey “will
always stay on my list” (Am. Compl. ¶ 27) and that “Reynolds was the one”
(Grievance No. OTF-04-06-0361-18B), as well as his purported reference to the
district court decision mentioning Kingsbury (Am. Compl. ¶57(b)), could
reasonably be interpreted by a person of ordinary firmness as a serious threatparticularly when coupled with the dining hall searches.
Reynolds-Bey, 428 F. App’x at 503-04. Although Sutten’s actions were not as egregious as
Kingsbury’s, it appears that Sutten’s actions might also have been interpreted as a serious threat
and, therefore, at least for purposes of this preliminary review, might suffice as adverse actions to
support a retaliation claim. Moreover, Plaintiff has adequately alleged that Sutten’s actions were
motivated by Plaintiff’s protected conduct. Accordingly, the Court concludes that Plaintiff has
adequately stated a First Amendment retaliation claim against Defendant Sutten.
VII.
Defendant McAlvey
Plaintiff alleges that Defendant McAlvey harassed him on August 26 and 27, 2019.
Plaintiff has adequately alleged protected conduct, adverse action—specifically the threat that
Plaintiff would end up with a shank and a case (Compl., ECF No. 1, PageID.14.),1—and a
retaliatory motive. Accordingly, Plaintiff had adequately stated a First Amendment retaliation
claim against Defendant McAlvey.
VIII. Defendant Wright
Plaintiff claims Defendant Wright, on September 18, 2019, broke Plaintiff’s
typewriter when Wright confiscated it. Plaintiff alleges that when Wright took the typewriter he
stated: “Let’s see if you can file more grievances and lawsuit[s] without it.” (Compl., ECF No.
1, PageID.15.) The Court concludes that Plaintiff has sufficiently alleged protected conduct,
1
Plaintiff’s allegations that McAlvey “watch[ed] Plaintiff[‘s] every move” and discouraged another prisoner from
talking to Plaintiff, however, do not rise to the level of adverse action.
12
Case 1:20-cv-00257-JTN-PJG ECF No. 6 filed 04/14/20 PageID.225 Page 13 of 13
adverse action, and a retaliatory motive. Accordingly, Plaintiff’s First Amendment retaliation
claim against Defendant Wright may proceed.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the
Court determines that Defendants Becher, Ward, and Miller 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). Plaintiff’s First
Amendment retaliation claims against Defendants Schafer, Sutten, McAlvey, and Wright remain
in the case.
An order consistent with this opinion will be entered.
Dated:
April 14, 2020
/s/ Janet T. Neff
Janet T. Neff
United States District Judge
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?