Odom #228931 v. Hines et al
Filing
53
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
NORTHERN DIVISION
ANTHOINE DESHAW ODOM,
Plaintiff,
Case No. 2:12-cv-374
v.
Honorable Robert Holmes Bell
DANIEL HINES, 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 Sheri, McKeon, Gilbert, Govern, Lindberg, Atkins, Curley,
Wealton, Coello, Rule, Petaja, Dewar, Bush, Pesola, Lapoint, Tribley, Place, Perrish, Miller,
Haischer, Gill, Yankavitch, Snider, LaChance, Comfort, Zachy, Mackey, Reckor, Frackin, Perry (the
short one), Mayo, Dr. Fracki, Sackett, Berry, Ross, Lake, McPhearson, Betts, United States District
Judge R. Allan Edgar, Morgan, Lau, Antalia, Perry (the tall one), Latundresse, Amlie, CMS
[Corrections Medical Services], Woelek, Harris, Bursard, Masker, Attorney Peters, Attorney Peleta,
Young, Zimbleman, Taja, Ceollo, Napel, Michigan Parole Board Commission, Heyns, Beauchamp,
Cummings, Wallace, Alexander, Caron, Nardie, Talieo, Niemeisto, Yunker, James, Vietalla,
Havenor, Sibily, Larson, Steal, Chaplain Peters, Mohrman, Burns, Nelson, Eagen, Warchock,
Kutichie, Grant, Henshaw, McIntire, Verntenes, and Reddinger. The Court will serve the complaint
with regard to Plaintiff’s retaliation claims against Defendants Hill, Stecarol, Mills, Joki, Jhondreau,
Hutchinson, Minnard, Turner, Himmila, Negalie, Goodreau, Grubb, Hommer, Tehakko, Beasly,
Shainer, Kutchie, and Toleftson, as well as his Eighth Amendment claims against Defendants
Hutchinson, Minnard, Turner, Himmila, Toleftson, Wellman, Bolton, Hill, and Kutchie.
Discussion
I.
Factual allegations
Plaintiff Anthoine Deshaw Odom, a state prisoner currently incarcerated at the
Marquette Branch Prison (MBP), filed this civil rights action pursuant to 42 U.S.C. § 1983 against
Defendants Jeri Ann Sheri, Richard McKeon, Robyn Gilbert, Unknown Govern, Steven W.
Lindberg, Tane Atkins, Michael W. Curley, Unknown Stecarol, Audrey Mills, Unknown Joki,
Unknown Jhondreau, Unknown Wealton, Unknown Coello, Unknown Rule, Dr. Hutchinson, Terry
Minnard, R.N., Inspector Petaja, Assistant Resident Unit Supervisor Dewar, Kitchen Director Bush,
Corrections Officer Pesola, Unknown Lapoint, Assistant Deputy Warden Kenneth Tribley, Warden
Shane Place, Unknown Perrish, Corrections Officer Miller, Sergeant Haischer, Corrections Officer
Gill, Lieutenant Yankavitch, Nurse Snider, Unknown LaChance, Corrections Officer Turner,
Physician Assistant Margrette Comfort, Doctor Zachy, Hearing Officer Linda Mackey, Guard
-2-
Reckor, Guard Himmila, Guard Negalie, Lieutenant Frackin, Lieutenant Perry (the short one), Guard
Mayo, Dr. Fracki, Resident Unit Manager Sackett, Food Director Berry, Mailroom Supervisor Ross,
Corrections Officer Lake, Corrections Officer McPhearson, Corrections Officer Goodreau,
Corrections Officer Betts, United States District Judge R. Allan Edgar, Unknown Morgan, Unknown
Lau, Unknown Antalia, Lieutenant Perry (the tall one), Corrections Officer Latundresse,
Classification Director Amlie, CMS [Corrections Medical Services], Corrections Officer Toleftson,
Psychiatrist Tonya Woelek, Psychiatrist Harris, Librarian Bursard, Corrections Officer Masker,
Dietician Kelly Wellman, Attorney Unknown Peters, Attorney Unknown Peleta, Mathew D. Young,
Corrections Officer Unknown Grubb, Corrections Officer Unknown Hommer, Field Officer Jessica
Zimbleman, Inspector Taja, Corrections Officer Ceollo, Warden Robert Napel, Michigan Parole
Board Commission, MDOC Director Daniel Heyns, Sergeant Unknown Beauchamp, Sergeant
Unknown Cummings, Classification Director Jim Wallace, Assistant Deputy Warden Jim Alexander,
Grievance Coordinator Glenn Caron, Assistant Resident Unit Supervisor Unknown Nardie, Resident
Unit Manager Unknown Talieo, Resident Unit Manager Unknown Niemeisto, Corrections Officer
Unknown Bolton, Librarian Aaron Yunker, Sergeant Unknown James, Assistant Resident Unit
Supervisor Unknown Vietalla, Corrections Officer Unknown Hill, Sergeant Unknown Havenor,
Sergeant Unknown Sibily, Assistant Deputy Warden Unknown Larson, Corrections Officer
Unknown Steal, Chaplain Unknown Peters, Hearing Officer Unknown Mohrman, Hearing
Investigator Unknown Burns, Corrections Officer Unknown Nelson, Parole Board Judge Michael
C. Eagen, Parole Board Judge Sonia Warchock, Corrections Officer Unknown Kutichie, Unknown
Kutchie, Unknown Shainer, R.N., Unknown Grant, R.N., Nurse Unknown Henshaw, Prison Guard
-3-
Unknown Tehakko, Prison Guard Unknown Beasly, Unknown McIntire, Corrections Officer
Unknown Verntenes, and Corrections Officer Unknown Reddinger.
On October 23, 2013, Plaintiff filed a second amended complaint, in which he alleges
that on February 3, 2012, he was transferred from MBP to the Baraga Maximum Correctional
Facility (AMF). Plaintiff states that Defendant Tribley and other members of the Security
Classification Committee (SCC) were responsible for his transfer. When Plaintiff spoke to
Defendant Jhondreau about the transfer, Defendant Jhondreau stated that Plaintiff had beaten up staff
in Jackson, then he had come “up north” and filed grievances and complaints. Consequently,
Plaintiff was never going to get out of segregation.
Plaintiff states that he was initially sent to MBP by Defendants Gilbert, Sheri, and
McKeon to have a “fresh start” because of the retaliation he was experiencing as the result of a
lawsuit he had filed against 43 prison officials at AMF. Plaintiff claims that he had been doing well
at MBP until he “crossed paths” with Defendant Nelson, who had previously worked at AMF.
Plaintiff states that AMF staff subsequently took over MBP and Plaintiff began to receive retaliatory
misconduct tickets. Defendant Govern tried to get Plaintiff to amend a lawsuit he had filed, stating
that he knew all about Plaintiff and that he had nothing coming. Plaintiff was placed in D Block at
MBP and ceased getting misconduct tickets for a period of time, during which staff on the unit told
Plaintiff that they did not have any problem with him.
Plaintiff states that during this time period, he had a legal writer working on a petition
to the United States Supreme Court. Plaintiff claims that at one point, the legal writer sent Plaintiff
a letter requesting specific documents. Plaintiff states that he had never mentioned these documents
to the legal writer. Plaintiff believes that prison officials were using the legal writer to discover the
-4-
specific facts of Plaintiff’s action. Plaintiff states that he had already contacted Michigan State
Representative Steve W. Lindberg concerning the retaliatory conduct of staff at MBP, including the
staff who had recently arrived from AMF. Lindberg contacted Legislative Ombudsman Field Officer
Tane Atkins, who wrote saying that they would be reopening the investigation, but that it was going
to take awhile. Subsequently, Plaintiff was approached by a guard that he recognized as having
come from AMF, who told Plaintiff that he was being transferred out. When the property officer
came to Plaintiff’s cell, Plaintiff was told that he was being sent to AMF. Plaintiff protested that he
had been transferred out of AMF because of the problems he was having with staff.
Plaintiff states that once he was back at AMF, he was surrounded by numerous people
that he had previously sued. Plaintiff was bombarded with major misconduct tickets from staff.
Plaintiff states that Defendant Tehakko blocked the camera while Defendants Stecarol and Beasly
claimed that Plaintiff had grabbed four fingers of their hands. Plaintiff received a sexual misconduct
and an assault and battery, and was placed on upper slot restriction. Plaintiff was subsequently set
up again by Defendant Tehakko and was placed on shower restriction. Plaintiff states that when his
mother called Defendants Sheri and Gilbert, she was told that Plaintiff had been transferred back to
AMF because an inmate needed to be transferred in to MBP in order to receive mental health
services. Plaintiff contends that there were other inmates at MBP who could have been transferred
other than himself.
Plaintiff claims that on February 23, 2012, he gave Defendant Jhondreau a grievance
with attachments, but that Defendant Jhondreau never turned in the grievance. Plaintiff alleges that
Defendant Mills got Defendant Beasly to refuse to bring Plaintiff his snack bag and got Defendant
Joki to write a false misconduct ticket on Plaintiff. On February 24, 2012, Plaintiff showed
-5-
Defendant Mills his ingrown toenail, and she reacted with horror. Defendant Mills then told Plaintiff
that she would get back at him for filing a lawsuit against her and walked away without giving
Plaintiff his medicine. Plaintiff believes that Defendant Minnard convinced Defendant Hutchinson
to discontinue Plaintiff’s medications because of the lawsuit. In addition, Defendant Snider told
Plaintiff that nurses on second shift did not have to pick up medical kites. Also on February 24,
2012, Plaintiff submitted a store list ordering seventeen stamped envelopes, toothpaste, greeting
cards, and other items. However, Plaintiff only received one stamped envelope. Plaintiff showed
Defendant Beasly his store receipt and was told that medical had taken Plaintiff’s money when he
first arrived because Plaintiff had asked for something for his cold. Plaintiff asserts that he never
received anything for his cold. Plaintiff made an appointment with Defendant Comfort, but by the
time of his appointment two weeks later, he was no longer ill. On February 25, 2012, a nurse named
Jeff told Plaintiff that he would be required to pay for his medical call outs, despite the fact that
medical personnel were being paid by the MDOC. In addition, Plaintiff complains that Nurse Jeff
revealed his medical information in front of other prisoners, which resulted in embarrassment to
Plaintiff.
On March 11, 2012, Plaintiff gave a medical kite to Defendant Mills, after she walked
by Plaintiff’s window without giving him his medication. On March 18, 2012, Resident Unit Officer
Martie came and set Plaintiff’s pills on top of the food slot as if he was Defendant Mills, then he and
Defendant Mills ran off laughing. Plaintiff states that the Resident Unit Officers have shown the
nursing staff how to use the wing camera to make it appear as if they are offering Plaintiff his
medications, because there is no audio recording.
-6-
On July 20, 2012, Defendants Toleftson, Turner, Himmila, MacIntire, and Kutchie
were responsible for placing “flys” [sic] and “rocks” in Plaintiff’s food items. Plaintiff was not
given a replacement tray. Plaintiff claims that while confined at AMF, the heat was not turned on
until November 1st, so that the cells were uncomfortably cold. Plaintiff also states that Defendant
Himmila slammed the security cart up against his cell, violating policy regarding noise levels in the
unit. Plaintiff also claims that while on unit 3 at AMF, he was housed between two psychotic prison
informants, and that Defendants Tehakko and Beasly paid them by giving them extra food loaf.
Plaintiff claims that Defendants Tehakko and Beasly bumped into him while passing him and then
claimed that Plaintiff had assaulted them. In this manner, Defendants Tehakko and Beasly set
Plaintiff up on misconducts in order to prevent Plaintiff from being released into the general
population. Therefore, Plaintiff stopped going to the shower and the yard in order to avoid any
contact with them.
Plaintiff claims that he suffers from numerous psychiatric disorders, such as obsessive
compulsive disorder, bipolar disorder, suicidal tendencies, dysthmia, borderline personality traits
with narcissistic features, antisocial personality disorder, and schizo affective disorder. Plaintiff
states that Defendant Woelek refused to treat him at AMF. In addition, Plaintiff states that the
psychiatrist at MBP told him that he was not going to treat Plaintiff at the present time.
Plaintiff claims that Defendant Wellman, a registered dietician, discontinued his
medically prescribed snack bags, stating that Plaintiff had been placed on a “minnus” [sic] diet.
Plaintiff claims that Defendant Attorneys Peters and Peleta breached a contract with Plaintiff by
failing to ensure that his pleadings were filed with the “Jackson Court” before his deadline was up.
Plaintiff claims that he was improperly found guilty of assault by Defendant Young, and that he
-7-
never received his findings from Young’s supervisor so that he could file an appeal of the
misconduct.
Plaintiff alleges that Defendant Hutchinson improperly discontinued medication to
treat Plaintiff’s terminal condition, at the behest of Defendant Minnard. Plaintiff claims that the
discontinuation of his medication caused him to suffer excruciating headaches. Defendant Minnard
also allowed a Corrections Officer to reveal Plaintiff’s medical condition in front of other prisoners.
Plaintiff claims that Defendants Turner, Negalie, MacIntire, Goodreau, Himmila, Lapoint, Grubb,
Hommer, and Reddinger told him that they did not care about his grievances or lawsuits, telling
Plaintiff that his last lawsuit did not get him very far. Plaintiff contends that Defendant Lachance
falsely claimed that Plaintiff had refused to go to his annual dental cleaning appointment, depriving
Plaintiff of dental care. Plaintiff alleges that while in segregation at AMF, his weight dropped from
210 pounds to 158 pounds and that he became delirious and talked to himself.1
On January 19, 2013, Plaintiff was transferred back to MBP and was placed on a cell
block reserved for mentally ill prisoners. Plaintiff had been ticket free for approximately 8 months
and was on stage 5 of the incentive program. Plaintiff states that he has a RPA [Regional Prison
Administrator] hold and that inmates must be ticket free for one year in order to be released from
such a hold. Plaintiff states that Defendant Hill, who was a defendant in Plaintiff’s previous lawsuit,
told him that he needed to straighten his cell, even though it was already neat. Plaintiff states that
1
According to the biographical information for Plaintiff on the MDOC’s Offender Tracking System, he is 5 feet
and 7 inches tall. Based on this information, it appears that Plaintiff’s asserted weight loss was likely beneficial to his
health. Moreover, as of September 23, 2010, Plaintiff weighed 175 pounds. Therefore, considering the fact that Plaintiff
was not transferred to AMF from MBP until February 3, 2012, his claim that he went from 210 pounds to 158 pounds
while in segregation at AMF appears to be suspect. At the very least, Plaintiff would have had to gain 35 pounds in less
than a year and half prior to his transfer to AMF. See http://mdocweb.state.mi.us/otis2/otis2profile.aspx?mdocNumber
=228931.
-8-
he showed both Sergeant Hennings and the Assistant Resident Unit Supervisor his cell, and they
stated that it was neat and in order. Defendant Hill subsequently told Plaintiff that he was “f$#ked,”
because he wanted to file lawsuits and that he should not “cry about not moving” to a higher stage
in the incentive program. Defendant Hill also told Plaintiff that he was responsible for Plaintiff’s
transfer back to MBP. Plaintiff complained about Defendant Hill’s conduct to Defendant Talieo,
who stated that Plaintiff was not going to be transferred to another unit and would have to work
things out with Defendant Hill.
On January 28, 2013, psychologist M. Salmi wrote a ticket on Plaintiff for being nude
with an erect penis. On January 30, 2013, Plaintiff complained to Defendant Talieo about the sexual
misconduct ticket. Defendant Talieo stated that he did not care and that Plaintiff had been sent back
to AMF as punishment for filing lawsuits. On January 31, 2013, Plaintiff went before the Security
Classification Committee (SCC) and confronted the Captain and Inspector with his claims of a
conspiracy to give him misconduct tickets in order to keep him in segregation, to no avail.
Plaintiff asserts that Defendant Govern improperly denied him legal copies on two
occasions in 2011, and that his access to the courts was “delayed” by this conduct. On another
occasion, Defendant Govern told Plaintiff that mail to the Legislative Correction Ombudsman’s
office does not qualify as legal mail. Plaintiff asserts that on another occasion in 2011, Defendant
Hill refused to go through the chain of command, and told Plaintiff that his complaints should be
reported to a supervisor. Plaintiff also claims that on February 4, 2013, staff told him that he did not
have anything coming from the store, so that Defendant Nardie, who had taken Plaintiff’s store
order, must have failed to submit the order on Plaintiff’s behalf. Plaintiff states that his mother had
-9-
put money on his phone card, but that when he attempted to use the card he was told that there was
no money on it.
Plaintiff claims that the false misconduct tickets he has received have caused him to
be denied parole. Plaintiff states that he is constantly worried about dying, and is not receiving
appropriate treatment for his depression. Plaintiff alleges that he has been seen by numerous
psychiatric professionals, but that they are unwilling to let him talk openly about his concerns. On
March 10, 2013, Plaintiff spoke to Defendant Shainer regarding a kite he submitted on March 7,
2013, regarding the fact that Plaintiff had become sick after eating oatmeal with some “film” on top
of it. Defendant Shainer responded by swearing at Plaintiff and telling him that he was going to
suffer because he had sued Defendant Shainer’s friends.
Plaintiff claims that Sergeant Hennings reviewed him on misconduct tickets, and took
the side of staff despite knowing that the misconduct tickets were false. On March 12, 2013,
Defendant Hill told Plaintiff that if he did not expose himself and masturbate, he would not receive
his breakfast tray. On March 15, 2013, Plaintiff received a sexual misconduct ticket from
Psychologist Salmi, asserting that Plaintiff had exposed himself, when in fact Plaintiff was in the
bathroom area and was not aware that he was being observed. On September 23, 2013, Defendant
Nardie told Plaintiff that he would be transferred to I-Max, but Plaintiff’s roommate was transferred
instead. Plaintiff claims that Defendants did not interview him on grievances and that Defendant
Napel failed to properly supervise his subordinates. Plaintiff states that he has been harassed and
discriminated against in order to prevent him from advancing through the incentive program
throughout his incarceration at AMF and MBP.
-10-
On August 30, 2013, Plaintiff placed a store order when an unknown officer told
Plaintiff that neither he nor officer Jennings would give Plaintiff anything. Plaintiff complains that
the fan is left on in the segregation unit during the night, causing Plaintiff and other inmates to suffer
from the cold temperatures. Plaintiff complained to Defendant Niemisto about being harassed by
staff and being kept in administrative segregation longer than necessary, to no avail. Plaintiff claims
that he requested a hearing packet from the Hearing Investigator, so that he could challenge his major
misconduct, but he never received the packet.
Plaintiff claims that Defendant Bolton assaulted him by using Plaintiff’s belly chains
to pull his feet out from under him, causing Plaintiff to fall and hit his head on the floor. Defendant
Bolton then yelled at Plaintiff to stay down and acted as if Plaintiff was resisting and had caused the
incident. Plaintiff subsequently received a misconduct ticket regarding this incident. Plaintiff states
that he suffers from migraine headaches as a result of the trauma to his head.
Plaintiff claims that on September 26, 2013, while he was at health services,
Defendants Nelson and Hill went into his cell and removed an original complaint that was filed with
the court. Plaintiff stopped Defendant Napel when he was making rounds and told him about all the
problems he had been having with former AMF staff since he had been transferred back to MBP,
including the false misconduct tickets he had received. Plaintiff claims that staff are using the
misconduct tickets to keep Plaintiff in administrative segregation, and that the real reason they want
to keep Plaintiff out of the general population is his HIV and HCV status. Plaintiff asserts that this
constitutes discrimination and is illegal. Plaintiff states that this also allows staff to prevent Plaintiff
from obtaining a job as a porter.
-11-
On October 7, 2013, Plaintiff was told that he was at Stage 4 of the Incentive
Program. At this stage, Plaintiff should have been allowed to have a television or radio, to order
candy and chips, and to use the telephone to call family and friends. However, when Plaintiff
attempted to use the telephone he was told that he did not have a valid PIN number. Once that was
resolved, Plaintiff was told that he did not have money in his account to pay for the call, even though
Plaintiff’s family had just put money in the account. In addition, staff claimed that Plaintiff had
destroyed his television in 2011, so that Plaintiff was not allowed to obtain a new television.
Plaintiff alleges that on August 20, 2013, he gave Defendant Nardie a regular
disbursement to send mail to his mother’s home via certified mail. Plaintiff received a receipt on
September 19, 2013, but never received the green card indicating that the mail had been received by
his mother. Plaintiff states that the money was deducted from his account to pay for this service, but
he still has not received the green card. On October 13, 2013, Plaintiff asked Defendant Vietalla
about the green card, to no avail.
On October 11, 2013, Plaintiff asked Defendant Kutchie why he was ignoring
Plaintiff and why he had influenced medical staff to also ignore Plaintiff. Plaintiff states that
Defendant Kutchie harassed Plaintiff by trying to get into verbal disputes with Plaintiff over word
definitions, revealing Plaintiff’s medical information to others on second shift, and belittling Plaintiff
over his “sexual organs” and behavior. Plaintiff states that Defendant Kutchie is motivated by the
fact that Plaintiff is suing Defendant Kutchie’s brother at AMF. Plaintiff complained to Sergeant
Barnette, but he refused to take any corrective action.
Plaintiff claims that there is too much fraternization between medical staff and
security staff and that security staff influences medical personnel to give them information about
-12-
Plaintiff or to cover up the misconduct of security staff. Plaintiff claims that Defendants have
violated his rights under the First, Eighth and Fourteenth Amendments. Plaintiff seeks damages and
equitable 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, 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)).
-13-
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).
Initially, the court notes that liability under Section 1983 must be based on more than
merely the right to control employees. Polk Co. v. Dodson, 454 U.S. 312, 325-26 (1981); Monell
v. New York City Department of Social Services, 436 U.S. 658 (1978). Thus, Section 1983 liability
cannot be premised upon mere allegations of respondeat superior. Monell, 436 U.S. at 691; Polk,
454 U.S. at 325. A party cannot be held liable under Section 1983 absent a showing that the party
personally participated in, or otherwise authorized, approved or knowingly acquiesced in, the
allegedly unconstitutional conduct. See e.g. Leach v. Shelby Co. Sheriff, 891 F.2d 1241, 1246 (6th
Cir. 1989), cert. denied, 495 U.S. 932 (1990); Hays v. Jefferson, 668 F.2d 869, 874 (6th Cir.), cert.
denied, 459 U.S. 833 (1982). See also Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.), cert. denied
469 U.S. 845 (1984).
Supervisory officials can be held liable for the acts of their subordinates only if
plaintiff establishes that the supervisor failed to appropriately discharge his supervisory duties, and
that this failure resulted in a denial or deprivation of plaintiff’s federal rights. See e.g. Leach, 891
F.2d at 1246; Hayes v. Vessey, 777 F.2d 1149, 1154 (6th Cir. 1985). However, the failure of a
supervisor to supervise, control or train the offending employee is not actionable absent a showing
that the official implicitly encouraged, authorized, approved or knowingly acquiesced in, or in some
-14-
other way directly participated in, the offensive conduct. Leach, 891 F.2d at 1246. Such a claim
requires, at a minimum, that the official had knowledge of the offending employee’s conduct at a
time when the conduct could be prevented, or that such conduct was otherwise foreseeable or
predictable. See e.g. Gibson v. Foltz, 963 F.2d 851, 854 (6th Cir. 1992). In addition, plaintiff must
show that defendant had some duty or authority to act. See e.g. Birrell v. Brown, 867 F.2d 956, 959
(6th Cir. 1989) (lower level official not liable for shortcomings of building); Ghandi v. Police Dept.
of City of Detroit, 747 F.2d 338, 351 (6th Cir. 1984) (mere presence at the scene is insufficient
grounds to impose Section 1983 liability in the absence of a duty to act); accord Hall v. Shipley, 932
F.2d 1147 (6th Cir. 1991). In addition, merely bringing a problem to the attention of a supervisory
official is not sufficient to impose such liability. See Shelly v. Johnson, 684 F. Supp. 941, 946 (W.D.
Mich. 1987) (Hillman, C.J.), aff’d 849 F.2d 228 (6th Cir. 1988). Finally, supervisory liability claims
cannot be based on simple negligence. Leach, 891 F.2d at 1246; Weaver v. Toombs, 756 F. Supp.
335, 337 (W.D. Mich. 1989), aff’d 915 F.2d 1574 (6th Cir. 1990).
A review of Plaintiff’s second amended complaint shows that Defendants Lindberg,
Atkins, Curley, Wealton, Coello, Rule, Petaja, Dewar, Bush, Pesola, Place, Perrish, Miller, Haischer,
Gill, Yankavitch, Comfort, Zachy, Mackey, Reckor, Frackin, Perry ( the short one), Mayo, Fracki,
Sackett, Berry, Ross, Lake, McPhearson, Betts, Morgan, Lau, Antalia, Perry (the tall one),
Latundresse, Amlie, CMS, Harris, Bursard, Masker, Zimbleman, Taja, Ceollo, Napel, Heyns,
Beauchamp, Cummings, Wallace, Alexander, Caron, Niemisto, Yunker, James, Havenor, Sibily,
Larson, Steal, Chaplain Peters, Morhman, Burns, Eagen, Warchock, Kutichie, Grant, Henshaw,
McIntire, Verntenes, and Reddinger were either not mentioned in the body of the complaint or were
only named because of their failure to act. Plaintiff has not alleged facts establishing that these
-15-
Defendants were personally involved in the activity which forms the basis of his claim. The only
roles that these Defendants had in this action involve the denial of administrative grievances or the
failure to act. Individuals cannot be liable for such conduct under § 1983. Shehee v. Luttrell, 199
F.3d 295, 300 (6th Cir. 1999), cert. denied, 530 U.S. 1264 (2000). Accordingly, the Court concludes
that Plaintiff’s claims against Defendants Lindberg, Atkins, Curley, Wealton, Coello, Rule, Petaja,
Dewar, Bush, Pesola, Place, Perrish, Miller, Haischer, Gill, Yankavitch, Comfort, Zachy, Mackey,
Reckor, Frackin, Perry ( the short one), Mayo, Fracki, Sackett, Berry, Ross, Lake, McPhearson,
Betts, Morgan, Lau, Antalia, Perry (the tall one), Latundresse, Amlie, CMS, Harris, Bursard, Masker,
Zimbleman, Taja, Ceollo, Napel, Heyns, Beauchamp, Cummings, Wallace, Alexander, Caron,
Niemisto, Yunker, James, Havenor, Sibily, Larson, Steal, Chaplain Peters, Morhman, Burns, Eagen,
Warchock, Kutichie, Grant, Henshaw, McIntire, Verntenes, and Reddinger are properly dismissed
for lack of personal involvement.
In addition, Plaintiff has named the Michigan Parole Board as a defendant. The
Michigan Parole Board is part of the Michigan Department of Corrections. MICH . COMP . LAWS §
791.231a(1). Regardless of the form of relief requested, the states and their departments are immune
under the Eleventh Amendment from suit in the federal courts, unless the state has waived immunity
or Congress has expressly abrogated Eleventh Amendment immunity by statute. See Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-101 (1984); Alabama v. Pugh, 438 U.S. 781, 782
(1978); O’Hara v. Wigginton, 24 F.3d 823, 826 (6th Cir. 1994). Congress has not expressly
abrogated Eleventh Amendment immunity by statute, Quern v. Jordan, 440 U.S. 332, 341 (1979),
and the State of Michigan has not consented to civil rights suits in federal court. Abick v. Michigan,
803 F.2d 874, 877 (6th Cir. 1986). Therefore, the Michigan Parole Board, as part of the Michigan
-16-
Department of Corrections, is immune from injunctive and monetary relief. See Horton v. Martin,
137 F. App’x 773, 775 (6th Cir. 2005) (Michigan Parole Board entitled to Eleventh Amendment
immunity); Lee v. Mich. Parole Bd., 104 F. App’x 490, 492 (6th Cir. 2004) (same); Fleming v.
Martin, 24 F. App’x 258, 259 (6th Cir. 2001) (same).
Plaintiff has also named United States District Judge R. Allan Edgar and Hearing
Officer Mathew D. Young as defendants. Hearing officers are 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, they are entitled to absolute judicial immunity from inmates’ §
1983 suits for actions taken in their capacities as hearing officers. Id.; and 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).
With regard to Defendant United States District Judge R. Allan Edgar, a judge is
absolutely immune from a suit for monetary damages. Mireles v. Waco, 502 U.S. 9, 9-10 (1991)
(“[I]t is a general principle of the highest importance to the proper administration of justice that a
judicial officer, in exercising the authority vested in him, shall be free to act upon his own
-17-
convictions, without apprehension of person consequences to himself.”) (internal quotations
omitted); Barrett v. Harrington, 130 F.3d 246, 254 (6th Cir. 1997); Barnes v. Winchell, 105 F.3d
1111, 1115 (6th Cir. 1997). Absolute judicial immunity may be overcome in only two instances.
First, a judge is not immune from liability for non-judicial actions, i.e., actions not taken in the
judge’s judicial capacity. Mireles, 502 U.S. at 11; see Forrester v. White, 484 U.S. 219, 229 (1988)
(noting that immunity is grounded in “the nature of the function performed, not the identity of the
actor who performed it”). Second, a judge is not immune for actions, though judicial in nature, taken
in complete absence of all jurisdiction. Id. at 12. Plaintiff fails to do more than name Judge Edgar
as a defendant in this case and does not specifically allege the nature of his claim against Judge
Edgar. Therefore, Plaintiff has clearly fail to implicate either of the exceptions to judicial immunity.
Moreover, injunctive relief is also not available under § 1983, because that statute
provides that injunctive relief “shall not be granted” in an action against “a judicial officer for an act
or omission taken in such officer’s judicial capacity . . . unless a declaratory decree was violated or
declaratory relief was unavailable.” 42 U.S.C. § 1983; accord Savoie v. Martin, 673 F.3d 488, 496
(6th Cir. 2012). Plaintiff does not allege that a declaratory decree was violated or that declaratory
relief was unavailable. Consequently, his claim for injunctive relief is barred. Montero v. Travis,
171 F.3d 757, 761 (2d Cir. 1999).
Plaintiff claims that Defendant Attorneys Peters and Peleta breached a contract with
Plaintiff. The court notes that Section 1983 does not provide redress for a violation of a state law.
Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir. 1995); Sweeton v. Brown, 27 F.3d 1162, 1166 (6th Cir.
1994). Plaintiff’s assertion that Defendants violated state law therefore fails to state a claim under
§ 1983. Moreover, to the extent that Plaintiff seeks to invoke this Court’s supplemental jurisdiction
-18-
over a state-law claim, the Court declines to exercise jurisdiction. In determining whether to retain
supplemental jurisdiction, “[a] district court should consider the interests of judicial economy and
the avoidance of multiplicity of litigation and balance those interests against needlessly deciding
state law issues.” Landefeld v. Marion Gen. Hosp., Inc., 994 F.2d 1178, 1182 (6th Cir. 1993).
Ordinarily, where a district court has exercised jurisdiction over a state-law claim solely by virtue
of supplemental jurisdiction and the federal claims are dismissed prior to trial, the court will dismiss
the remaining state-law claims. Id. Dismissal, however, remains “purely discretionary.” Carlsbad
Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009) (citing 28 U.S.C. § 1367(c)); Orton v.
Johnny’s Lunch Franchise, LLC, 668 F.3d 843, 850 (6th Cir. 2012). Here, the balance of the
relevant considerations weighs against the continued exercise of supplemental jurisdiction.
Accordingly, Plaintiff’s state-law claim will be dismissed without prejudice.
Plaintiff’s claim against Defendant Nelson consists of the fact that things allegedly
got worse for Plaintiff at MBP after he “ran into” Defendant Nelson. While a complaint need not
contain detailed factual allegations, a plaintiff’s allegations must include more than labels and
conclusions. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 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. The court need not accept “threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements . . . .” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than
a sheer possibility that a defendant has acted unlawfully.” Id. 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
-19-
entitled to relief.” Id. at 679 (quoting FED . R. CIV . P. 8(a)(2)). Because Plaintiff’s claim against
Defendant Nelson is entirely conclusory, he is properly dismissed.
Plaintiff claims that Defendant Nardie took a store order from Plaintiff, which
Plaintiff did not receive. Plaintiff was eventually told that he had insufficient funds to pay for the
order. Plaintiff also states that Defendant Nardie took a mail disbursement from Plaintiff for
certified mail and gave him a receipt, but that Plaintiff never got confirmation that the mail was
actually delivered to the intended recipient. Finally, Plaintiff contends that Defendant Nardie told
him that he would be transferred to I-Max, although Plaintiff was not actually transferred. Moreover,
Plaintiff claims that Defendant Vietalla did not respond to Plaintiff’s request for a confirmation that
his certified mail was delivered. The court concludes that Plaintiff’s allegations against Defendant
Nardie and Defendant Vietalla do not permit the court to infer more than the mere possibility of
misconduct. Therefore, Defendants Nardie and Vietalla are properly dismissed as conclusory.
Plaintiff claims that Defendants Hill and Nelson violated his due process rights when
they took an original complaint from the floor of his cell. Plaintiff’s due process claim is barred by
the doctrine of Parratt v. Taylor, 451 U.S. 527 (1981), overruled in part by Daniels v. Williams, 474
U.S. 327 (1986). Under Parratt, a person deprived of property by a “random and unauthorized act”
of a state employee has no federal due process claim unless the state fails to afford an adequate postdeprivation remedy. If an adequate post-deprivation remedy exists, the deprivation, although real,
is not “without due process of law.” Parratt, 451 U.S. at 537. This rule applies to both negligent
and intentional deprivation of property, as long as the deprivation was not done pursuant to an
established state procedure. See Hudson v. Palmer, 468 U.S. 517, 530-36 (1984). Because
Plaintiff’s claim is premised upon allegedly unauthorized acts of a state official, he must plead and
-20-
prove the inadequacy of state post-deprivation remedies. See Copeland v. Machulis, 57 F.3d 476,
479-80 (6th Cir. 1995); Gibbs v. Hopkins, 10 F.3d 373, 378 (6th Cir. 1993). Under settled Sixth
Circuit authority, a prisoner’s failure to sustain this burden requires dismissal of his § 1983 dueprocess action. See Brooks v. Dutton, 751 F.2d 197 (6th Cir. 1985).
Plaintiff has not sustained his burden in this case. Plaintiff has not alleged that state
post-deprivation remedies are inadequate. Moreover, numerous state post-deprivation remedies are
available to him. First, a prisoner who incurs a loss through no fault of his own may petition the
institution’s Prisoner Benefit Fund for compensation. MICH . DEP ’T
OF
CORR., Policy Directive
04.07.112, ¶ B (effective Jul. 9, 2012). Aggrieved prisoners may also submit claims for property
loss of less than $1,000 to the State Administrative Board. MICH . COMP . LAWS § 600.6419; Policy
Directive, 04.07.112, ¶ B. Alternatively, Michigan law authorizes actions in the Court of Claims
asserting tort or contract claims “against the state and any of its departments, commissions, boards,
institutions, arms, or agencies.” MICH . COMP . LAWS § 600.6419(1)(a). The Sixth Circuit
specifically has held that Michigan provides adequate post-deprivation remedies for deprivation of
property. See Copeland, 57 F.3d at 480. Plaintiff does not allege any reason why a state-court action
would not afford him complete relief for the deprivation, either negligent or intentional, of his
personal property. Accordingly, Plaintiff’s complaint will be dismissed.
Similarly, Plaintiff’s access to courts claim against Defendants Hill and Nelson are
properly dismissed. In Bounds v. Smith, 430 U.S. 817 (1977), the Supreme Court recognized a
prisoner’s fundamental right of access to the courts. While the right of access to the courts does not
allow a State to prevent an inmate from bringing a grievance to court, it also does not require the
State to enable a prisoner to discover grievances or litigate effectively. Lewis v. Casey, 518 U.S. 343
-21-
(1996). Thus, Bounds did not create an abstract, free-standing right to a law library, litigation tools,
or legal assistance. Id. at 351 (1996). Further, the right may be limited by legitimate penological
goals, such as maintaining security and preventing fire or sanitation hazards. See Acord v. Brown,
No. 91-1865, 1992 WL 58975 (6th Cir. March 26, 1992); Hadix v. Johnson, No. 86-1701, 1988 WL
24204 (6th Cir. March 17, 1988); Wagner v. Rees, No. 85-5637, 1985 WL 14025 (6th Cir. Nov. 8,
1985).
To state a claim, an inmate must show that any shortcomings in the library, litigation
tools, or legal assistance caused actual injury in his pursuit of a legal claim. Lewis, 518 U.S. at 351;
Talley-Bey, 168 F.3d at 886; Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996); Pilgrim v. Littlefield,
92 F.3d 413, 416 (6th Cir. 1996); Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir. 1985). An inmate
must make a specific claim that he was adversely affected or that the litigation was prejudiced.
Vandiver v. Niemi, No. 94-1642, 1994 WL 677685, at *1 (6th Cir. Dec. 2, 1994). Particularly, an
inmate cannot show injury when he still has access to his legal materials by request, Kensu, 87 F.3d
at 175, when he fails to state how he is unable to replicate the confiscated documents, Vandiver,
1994 WL 677685, at *1, or when he could have received the material by complying with the limits
on property, e.g., where he had the opportunity to select the items that he wanted to keep in his cell,
or when he had an opportunity to purchase a new footlocker that could hold the property. Carlton
v. Fassbender, No. 93-1116, 1993 WL 241459, at *2 (6th Cir. July 1, 1993). In this case, Plaintiff
failed to allege actual injury to pending or contemplated litigation. Dellis v. Corrections Corp. of
America, 257 F.3d 508, 511 (6th Cir. 2001)(citing Lewis v. Casey, 518 U.S. 343, 351 (1996)).
With regard to Plaintiff’s access to the courts claim against Defendant Govern, the
court notes that although Plaintiff claims that his access was delayed by Defendant Govern’s
-22-
conduct, he does not allege that he suffered an actual injury to pending or contemplated litigation.
Therefore, Plaintiff’s access to courts claim against Defendant Govern lacks merit.
Plaintiff claims that Defendants Lapoint and Snider violated his Eighth Amendment
rights when they verbally harassed him. Allegations of verbal harassment or threats by prison
officials toward an inmate do not constitute punishment within the meaning of the Eighth
Amendment. Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir.1987). Nor do allegations of verbal
harassment rise to the level of unnecessary and wanton infliction of pain proscribed by the Eighth
Amendment. Id. Even the occasional or sporadic use of racial slurs, although unprofessional and
reprehensible, does not rise to a level of constitutional magnitude. See Torres v. Oakland County,
758 F.2d 147, 152 (6th Cir. 1985).
Plaintiff claims that Defendant Woelek refused to treat Plaintiff’s mental illness while
he was at AMF. The Eighth Amendment requires prison officials to provide medically necessary
mental health treatment to inmates. See Estelle v. Gamble, 429 U.S. 97, 103 (1976); Government
of the Virgin Islands v. Martinez, 239 F.3d 293, 301 (3d Cir. 2001); Lay v. Norris, No. 88-5757,
1989 WL 62498, at *4 (6th Cir. June 13, 1989); Potter v. Davis, No. 82-5783, 1985 WL 13129, at
* 2 (6th Cir. April 26, 1985). However, Plaintiff fails to specifically allege his need for mental
health treatment, whether he was treated by other medical personnel, or whether he suffered any
harm as a result of Defendant Woelek’s conduct. Therefore, Plaintiff’s claim against Defendant
Woelek is properly dismissed.
Plaintiff claims that Defendant LaChance violated his Eighth Amendment rights by
falsely reporting that Plaintiff had refused his annual dental cleaning appointment, causing Plaintiff
to miss his annual cleaning.
-23-
The Eighth Amendment imposes a constitutional limitation on the power of the states
to punish those convicted of crimes. Punishment may not be “barbarous” nor may it contravene
society’s “evolving standards of decency.” Rhodes v. Chapman, 452 U.S. 337, 345-46 (1981). The
Amendment, therefore, prohibits conduct by prison officials that involves the “unnecessary and
wanton infliction of pain.” Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987) (per curiam) (quoting
Rhodes, 452 U.S. at 346). The deprivation alleged must result in the denial of the “minimal civilized
measure of life’s necessities.” Rhodes, 452 U.S. at 347; see also Wilson v. Yaklich, 148 F.3d 596,
600-01 (6th Cir. 1998). The Eighth Amendment is only concerned with “deprivations of essential
food, medical care, or sanitation” or “other conditions intolerable for prison confinement.” Rhodes,
452 U.S. at 348 (citation omitted). Moreover, “[n]ot every unpleasant experience a prisoner might
endure while incarcerated constitutes cruel and unusual punishment within the meaning of the Eighth
Amendment.” Ivey, 832 F.2d at 954.
In order for a prisoner to prevail on an Eighth Amendment claim, he must show that
he faced a sufficiently serious risk to his health or safety and that the defendant official acted with
“‘deliberate indifference’ to [his] health or safety.” Mingus v. Butler, 591 F.3d 474, 479-80 (6th Cir.
2010) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994) (applying deliberate indifference
standard to medical claims); see also Helling v. McKinney, 509 U.S. 25, 35 (1993) (applying
deliberate indifference standard to conditions of confinement claims)).
In Flanory v. Bonn, 604 F.3d 249, 253-54 (6th Cir. 2010), the Sixth Circuit held that
allegations that an inmate had been deprived of toothpaste for 337 days and experienced dental
health problems were sufficient to state an Eighth Amendment claim. In this case, Plaintiff fails to
allege that he was deprived of basic hygiene needs, such as in Flanory, nor does Plaintiff allege that
-24-
he suffered dental health problems as a result of the denial of his yearly dental appointment.
Therefore, Plaintiff’s Eighth Amendment claim against Defendant LaChance is properly dismissed.
Plaintiff claims that Defendant Talieo refused to transfer Plaintiff to a different unit
in order to get away from Defendant Hill, telling Plaintiff he had to work it out. Plaintiff also claims
that Defendant Talieo refused to help him overturn his misconduct ticket that he received from
Psychologist Salmi. Finally, Plaintiff states that Defendant Talieo told him that he had been sent
back to AMF as punishment for filing lawsuits. Plaintiff states that Defendant Talieo’s conduct was
motivated by a desire to retaliate against him.
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)).
In this case, Plaintiff fails to allege that Defendant Talieo took an adverse action
against him. It appears that Defendant Talieo merely failed to act on Plaintiff’s behalf when Plaintiff
asked him to intervene. Moreover, the fact that Defendant Talieo told Plaintiff that his transfer had
been a punishment does not indicate that Defendant Talieo agreed with this conduct, or that he was
-25-
motivated by the same desire to retaliate. Therefore, Plaintiff’s retaliation claim against Defendant
Talieo is properly dismissed.
Plaintiff also claims that Defendants Sheri, McKeon, Gilbert, and Tribley transferred
him to AMF in order to retaliate against him. Plaintiff states that when his mother called Defendants
Sheri and Gilbert, she was told that Plaintiff had been transferred back to AMF because an inmate
needed to be transferred in to MBP in order to receive mental health services. Plaintiff contends that
there were other inmates at MBP who could have been transferred other than himself. As noted
above, Plaintiff fails to allege any specific facts showing that Defendants Sheri, McKeon, Gilbert
and Tribley were motivated by a desire to retaliate against him. Therefore, Plaintiff’s retaliation
claims against these Defendants are properly dismissed.
Moreover, there is no right under federal law allowing a prisoner to prevent a transfer
to another facility or giving him any choice concerning the facility where he will be incarcerated.
Meachum v. Fano, 427 U.S. 215 (1976); Olim v. Wakinekona, 461 U.S. 238 (1983). Therefore, the
decision to transfer Plaintiff does not implicate his due process rights.
Finally, the court concludes that Plaintiff has stated non-frivolous retaliation claims
against Defendants Hill, Stecarol, Mills, Joki, Jhondreau, Hutchinson, Minnard, Turner, Himmila,
Negalie, Goodreau, Grubb, Hommer, Tehakko, Beasly, Shainer, Kutchie, and Toleftson. In addition,
Plaintiff’s Eighth Amendment claims against Defendants Hutchinson, Minnard, Turner, Himmila,
Toleftson, Wellman, Bolton, Hill, and Kutchie are also non-frivolous and may not be dismissed on
initial screening.
-26-
Plaintiff’s motion to amend his complaint (docket #45) to include a retaliation claim
against Defendant Kutchie for tampering with Plaintiff’s food is denied as unnecessary as Plaintiff
is already asserting such conduct in his second amended complaint, as noted above.
Plaintiff’s motions for order or penalty (docket #43), to enforce his rights (docket
#46), and for declaratory judgment (docket #51), are denied as premature. Defendants have not yet
been served or had the opportunity to respond to Plaintiff’s complaint.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Defendants Sheri, McKeon, Gilbert, Govern, Lindberg, Atkins, Curley, Wealton,
Coello, Rule, Petaja, Dewar, Bush, Pesola, Lapoint, Tribley, Place, Perrish, Miller, Haischer, Gill,
Yankavitch, Snider, LaChance, Comfort, Zachy, Mackey, Reckor, Frackin, Perry (the short one),
Mayo, Dr. Fracki, Sackett, Berry, Ross, Lake, McPhearson, Betts, United States District Judge R.
Allan Edgar, Morgan, Lau, Antalia, Perry (the tall one), Latundresse, Amlie, CMS [Corrections
Medical Services], Woelek, Harris, Bursard, Masker, Attorney Peters, Attorney Peleta, Young,
Zimbleman, Taja, Ceollo, Napel, Michigan Parole Board Commission, Heyns, Beauchamp,
Cummings, Wallace, Alexander, Caron, Nardie, Talieo, Niemeisto, Yunker, James, Vietalla,
Havenor, Sibily, Larson, Steal, Chaplain Peters, Mohrman, Burns, Nelson, Eagen, Warchock,
Kutichie, Grant, Henshaw, McIntire, Verntenes, and Reddinger 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 with regard to Plaintiff’s retaliation claims against
Defendants Hill, Stecarol, Mills, Joki, Jhondreau, Hutchinson, Minnard, Turner, Himmila, Negalie,
Goodreau, Grubb, Hommer, Tehakko, Beasly, Shainer, Kutchie, and Toleftson, as well as his Eighth
-27-
Amendment claims against Defendants Hutchinson, Minnard, Turner, Himmila, Toleftson, Wellman,
Bolton, Hill, and Kutchie.
An Order consistent with this Opinion will be entered.
Dated: November 27, 2013
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
-28-
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?