Flakes #407798 v. Schiebner et al

Filing 4

OPINION ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cam)

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

JASON FLAKES,
Plaintiff,

Case No. 2:13-cv-211

v.

Honorable R. Allan Edgar

JAMES R. SCHIEBNER, 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 without payment of an initial
partial filing fee. 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, Plaintiff’s action will be dismissed for failure to state a claim.
Factual Allegations
Plaintiff Jason Flakes, a state prisoner currently incarcerated at the Alger Maximum
Correctional Facility (LMF), filed this civil rights action against Defendants Hearing Investigator

James R. Schiebner, Deputy Warden Lavern Sharp, Warden Cindi Curtin, Grievance Coordinator M.
E. McDonald, Deputy Warden Linda Tribley, Baraga Maximum Correctional Facility (AMF) Warden
Unknown Party #1, and AMF Resident Unit Manager Unknown Party #2.
In Plaintiff’s complaint, he reasserts claims of assault and battery and excessive force,
which he previously asserted in Case No. 1:10-cv-25. In that complaint, Plaintiff claimed that while
he was confined at the Oaks Correctional Facility (ECF), he was forced to take a cold shower by
Resident Unit Officer Van Gordon. As Officers Van Gordon and Bennett were escorting Plaintiff
back to his cell, Plaintiff told them that he wanted to speak to the Lieutenant about the cold shower.
Plaintiff claims that when he stopped walking, Van Gordon and Bennett immediately twisted his arm,
which was handcuffed behind his back, and kicked his legs out from under him, causing him to fall
on his head. To cover up the assault, Plaintiff claims that Officer Van Gordon wrote a false major
misconduct report charging Plaintiff with assault and battery. According to the report, the officers
guided Plaintiff to the floor only after he refused a direct order to go back to his cell and resisted the
officers. Following an administrative hearing, Hearing Officer Buren found Plaintiff guilty of the
misconduct. Plaintiff requested a rehearing, which was denied by Richard Stapleton. Thereafter,
Plaintiff sought relief in the Ingham County Circuit Court. The Court found that the major
misconduct was not supported by competent, material and substantial evidence and reversed the
conviction.
Plaintiff alleged that Officers Van Gordon and Bennett assaulted him and wrote a false
misconduct report against him in retaliation for attempting to lodge a complaint in violation of his
First Amendment rights. Plaintiff further asserts that Van Gordon and Bennett assaulted him without
cause in violation of his Eighth Amendment rights and that the defendants in that case violated his
Fourteenth Amendment due process rights and conspired against him in the misconduct proceedings
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and the prison grievance process. Defendants filed a motion for summary judgment in that case, in
which they asserted that Plaintiff had failed to exhaust his administrative remedies as to any of his
claims. In support of the motion for summary judgment, Richard Stapleton attested that although
Plaintiff filed a grievance regarding this incident, he failed to appeal the denial of that grievance to
step III. Plaintiff insisted that he did file a step III appeal, but failed to provide specific information
about such an appeal. The court found Defendants’ brief to be persuasive and granted the motion
for summary judgment on March 29, 2011. Flakes v. VanGordon, 1:10-cv-25 (W.D. Mich), docket
#52. Plaintiff filed an appeal in 1:10-cv-25, which was granted by the Sixth Circuit on February 8,
2013 Id., docket #77. The court notes that Case No. 1:10-cv-25 is currently pending in this court.
In the instant case, Plaintiff appears to be asserting that Defendants Schiebner, Sharp,
Curtin, McDonald, Tribley, and Unknown Parties #1 and #2, improperly interfered with his use of
the grievance system and with his ability to obtain copies of grievances that he had filed. Plaintiff
claims that such interference was retaliatory and interfered with his ability to access the courts with
regard to Case No. 1:10-cv-25. Plaintiff seeks compensatory and punitive damages, as well as
declaratory and injunctive relief.
Discussion
I.

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,
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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); Dominguez v. Corr.
Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009). 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 to the extent that Plaintiff wishes to reassert the claims
set forth in Case No. 1:10-cv-25, such an action would be improper, given that those claims remain
pending before this court in that case.
As noted above, Plaintiff claims that the instant Defendants interfered with his ability
to exhaust grievances and to obtain copies of grievances in order to retaliate against Plaintiff.
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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. Thaddeus-X, 175 F.3d at 394. Moreover, a plaintiff must be able to prove
that the exercise of the protected right was a substantial or motivating factor in the defendant’s
alleged retaliatory conduct. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001) (citing
Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).
It is well recognized that “retaliation” is easy to allege and that it can seldom be
demonstrated by direct evidence. See Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6th Cir. 2005);
Murphy v. Lane, 833 F.2d 106, 108 (7th Cir. 1987); Vega v. DeRobertis, 598 F. Supp. 501, 506 (C.D.
Ill. 1984), aff’d, 774 F.2d 1167 (7th Cir. 1985). “[A]lleging merely the ultimate fact of retaliation
is insufficient.” Murphy, 833 F.2d at 108. “[C]onclusory allegations of retaliatory motive
‘unsupported by material facts will not be sufficient to state . . . a claim under § 1983.’” Harbin-Bey,
420 F.3d at 580 (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1538-39 (6th Cir. 1987)); see also
Skinner v. Bolden, 89 F. App’x 579, 579-80 (6th Cir. 2004) (without more, conclusory allegations
of temporal proximity are not sufficient to show a retaliatory motive); Birdo v. Lewis, No. 95-5693,
1996 WL 132148, at *1 (6th Cir. Mar. 21, 1996); Fields v. Powell, No. 94-1674, 1995 WL 35628,
at *2 (6th Cir. Jan. 30, 1995); Williams v. Bates, No. 93-2045, 1994 WL 677670, at *3 (6th Cir. Dec.
2, 1994). Plaintiff merely alleges the ultimate fact of retaliation in this action. He has not presented
any facts to support his conclusion that Defendants retaliated against him because he engaged in
protected conduct. Accordingly, his speculative allegation fails to state a claim.
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Plaintiff also claims that Defendants conduct violated his right of access to the courts
in Case No. 1:10-cv-25. It is well established that prisoners have a constitutional right of access to
the courts. Bounds v. Smith, 430 U.S. 817, 821 (1977). The principal issue in Bounds was whether
the states must protect the right of access to the courts by providing law libraries or alternative
sources of legal information for prisoners. Id. at 817. The Court further noted that in addition to law
libraries or alternative sources of legal knowledge, the states must provide indigent inmates with
“paper and pen to draft legal documents, notarial services to authenticate them, and with stamps to
mail them.” Id. at 824-25. The right of access to the courts also prohibits prison officials from
erecting barriers that may impede the inmate’s accessibility to the courts. See Knop v. Johnson, 977
F.2d 996, 1009 (6th Cir. 1992).
An indigent prisoner’s constitutional right to legal resources and materials is not,
however, without limit. In order to state a viable claim for interference with his access to the courts,
a plaintiff must show “actual injury.” Lewis v. Casey, 518 U.S. 343, 349 (1996); see also Talley-Bey
v. Knebl, 168 F.3d 884, 886 (6th Cir. 1999); Knop, 977 F.2d at 1000. In other words, a plaintiff must
plead and demonstrate that the shortcomings in the prison legal assistance program or lack of legal
materials have hindered, or are presently hindering, his efforts to pursue a nonfrivolous legal claim.
Lewis, 518 U.S. at 351-53; see also Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996).
In this case, Plaintiff is claiming that Defendants’ interference with his ability to
grieve the underlying misconduct asserted in Case No. 1:10-cv-25 violated his First Amendment
rights. However, as stated previously, Case No. 1:10-cv-25 has been reopened and Plaintiff’s claims
continue to be pending before the court. Therefore, Plaintiff has not suffered an actual injury.
Consequently, Plaintiff’s access to courts claims are properly dismissed.
Conclusion
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Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff’s action 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 must next decide whether an appeal of this action would be in good faith
within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611
(6th Cir. 1997). For the same reasons that the Court dismisses the action, the Court discerns no
good-faith basis for an appeal. Should Plaintiff appeal this decision, the Court will assess the
$455.00 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless
Plaintiff is barred from proceeding in forma pauperis, e.g., by the “three-strikes” rule of § 1915(g).
If he is barred, he will be required to pay the $455.00 appellate filing fee in one lump sum.
This is a dismissal as described by 28 U.S.C. § 1915(g).
A Judgment consistent with this Opinion will be entered.

Dated:

10/3/2013

/s/ R. Allan Edgar
R. Allan Edgar
United States District Judge