Jefferson #448808 v. Tollefson et al
Filing
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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
ANTWAUN LEE JEFFERSON,
Plaintiff,
Case No. 2:13-cv-297
v.
Honorable R. Allan Edgar
TODD TOLLEFSON, et al.,
Defendants.
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OPINION
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983.
The Court has granted Plaintiff leave to proceed in forma pauperis, and Plaintiff has paid the 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.
Discussion
I.
Factual allegations
Plaintiff Antwaun Lee Jefferson, a state prisoner currently confined at the Baraga
Maximum Correctional Facility (AMF), filed this civil rights action pursuant to 42 U.S.C. § 1983
against Defendants Assistant Resident Unit Supervisor Todd Tollefson, Acting Deputy Warden
William Jondreau, Acting Deputy Warden Steven Niemi, Acting Warden Kenneth Trumbley, Deputy
Warden Daniel Lesatz, Warden Thomas Mackie, Assistant Resident Unit Supervisor Gina Healey,
Sergeant Terri Harscher, Classification Specialist Bradley Haynie, MDOC Director Daniel Heyns,
Assistant Resident Unit Supervisor Ralph Sackett, and Lieutenant Unknown Koskinen.
In his complaint, Plaintiff alleges that on August 24, 2012, Plaintiff was transferred
from a level I camp to segregation for a possession of dangerous contraband misconduct. Plaintiff
was found guilty on September 7, 2012, and was given 30 days detention and loss of privileges. On
October 1, 2012, Plaintiff was interviewed by AMF Security Classification Committee (SCC)
members, who told Plaintiff that he did not fit the level V criteria. Plaintiff was told that he would
be placed in general population until a bed became available at Plaintiff’s proper security level.
Plaintiff stated that he would rather stay in segregation, but he was ordered to go to the general
population. On October 5, 2012, a security classification screen was generated showing that Plaintiff
should be housed in a level IV facility and was approved by Defendants Jondreau and Haynie. On
October 7, 2012, Plaintiff spoke with Defendant Tollefson and asked him about his transfer.
Defendant Tollefson told Plaintiff that he had been placed on the transfer list and to be patient and
wait for a bed to become available. Plaintiff alleges that other inmates were being transferred, so
he did not believe Defendant Tollefson. Plaintiff filed a grievance regarding the issue.
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On October 31, 2012, Defendants Tollefson and Niemi interviewed Plaintiff on his
grievance. Plaintiff agreed to sign off on the grievance because he was told that he would be
transferred to a level IV facility. On November 26, 2011, Plaintiff asked Defendant Tollefson why
he had not been transferred and was told that because Plaintiff had been “waived” he could remain
at AMF for up to a year. Plaintiff complained that he had been tricked into signing off on his
grievance and Defendant Tollefson stated that if Plaintiff knew what was good for him, he would
not write anymore grievances. Plaintiff filed a grievance on Defendant Tollefson, which was
rejected as duplicative. Plaintiff appealed the rejection, but his step II appeal was rejected by
Defendant Trumbley. Plaintiff wrote numerous kites to Defendant Trumbley attempted to be
transferred, to no avail.
On December 17, 2012, Plaintiff called his family and told them that Defendant
Tollefson was trying to set him up so that he could Plaintiff at level V. Plaintiff asked his family to
call Lansing and the Michigan State Police to file a complaint against Plaintiff. Plaintiff alleges that
he did not realize that Defendant Tollefson was listening to his phone calls. On December 28, 2012,
Defendant Tollefson woke Plaintiff up and asked him for a urine sample. Plaintiff complied and the
sample came back negative. A few minutes later, Defendant Tollefson told Plaintiff that he had to
redo the sample, but this time in the shower. Plaintiff complied with the order. After Plaintiff
returned to his cell, three Corrections Officers came to Plaintiff’s cell and told him to get dressed and
go to segregation.
Plaintiff remained in segregation from December 28, 2012, to January 4, 2013,
without any documentation. On January 4, 2013, Plaintiff received a false misconduct for
smuggling, which was written by Defendant Tollefson and reviewed by Defendant Koskinen. On
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January 7, 2013, the Hearing Investigator interviewed Plaintiff. Plaintiff requested specific evidence
for the hearing. On January 9, 2013, the Hearing Officer adjourned the hearing because the Hearing
Investigator did not have the evidence Plaintiff had requested.
On January 14, 2013, Plaintiff received a copy of the phone calls referenced in his
investigation and on January 16, 2013, the misconduct hearing resumed. Plaintiff asked if the phone
calls could be played at the hearing, but he was told that they were considered confidential. Plaintiff
was found guilty of attempting to introduce drugs into AMF. On February 4, 2013, Plaintiff spoke
with Defendant Healey and explained that he was set up and was being illegally held at level V
because he had written grievances. Defendant Healey told Plaintiff that if he was unhappy about the
screening classification, he should write a grievance. When Plaintiff received the security
classification screen by Defendant Healey, it indicated that Plaintiff was a level V prisoner by virtue
of the August 24, 2012, possession of dangerous contraband misconduct and was reviewed by
Defendant Jondreau and approved by Defendant Niemi.
On February 6, 2013, Plaintiff sent a kite to Defendant Jondreau, which went
unanswered. On February 7, 2013, Plaintiff wrote another grievance regarding his classification,
which was denied at each level. Plaintiff also wrote letters of complaint to the new warden, Mr.
Mackie, and the new Deputy Warden, Mr. Lesatz, to no avail. On May 16, 2013, Plaintiff called his
family regarding his situation and was told that they had attempted to call the MDOC Director, but
he was still on vacation. Plaintiff told them to call Defendant Haynie and while he was talking to
his mother, his sister called Defendant Haynie on her cell phone. During the phone call, corrections
officers rushed to Plaintiff’s cell and terminated his phone call by pulling the cord out of the wall.
Plaintiff believes this was to prevent him from telling the Central Office about corruption at AMF.
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On May 18, 2013, Plaintiff received a Notice of Intent to conduct an administrative
hearing for a telephone restriction based on the destruction or misuse of property. On May 21, 2013,
Plaintiff was found not guilty of a ticket for destruction or misuse of property written by Defendant
Harscher. On June 5, 2013, Defendant Healey told Plaintiff that he would be released to the general
population in the next week. Plaintiff stated that he was afraid to be in the general population
because of all the “retaliatory conduct” by staff. On June 11, 2013, Plaintiff had an interview with
the SCC and was told that he was being released to the general population. Plaintiff again stated that
he feared being released to the general population because of all the “retaliatory conduct” by staff
and asked to be transferred to another facility. Defendant Healey told Plaintiff that he would not be
transferred and that if he refused to go to the general population, he would receive a misconduct for
disobeying a direct order. Plaintiff refused to go and received a misconduct ticket.
On June 14, 2013, Corrections Officer Karppinen removed Plaintiff’s television from
his cell while he was in the shower. When Plaintiff inquired why, he was told that Defendant Healey
had ordered it because of Plaintiff’s refusal to go to the general population. On June 20, 2013,
Plaintiff had another interview with the SCC and was told that he would be interviewed each week
and if he continued to refuse to go to the general population, he would continue to received
misconducts. Plaintiff agreed to go to the general population.
Plaintiff continued to attempt to be moved to a level IV facility by writing letters to
Defendants Lesatz, Mackie, Sackett, Haynie, and Heyns, as well as to Peter J. Martel of the
American Friends Service Committee. On July 11, 2013, Defendant Sackett told Plaintiff that he
had reviewed his file and that he was correctly classified to level V. Plaintiff complained that his
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classification screen had been altered, to no avail. On September 6, 2013, Plaintiff was forced to
dispose of the portion of his property that was not allowed in level V.
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)).
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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
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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).
Plaintiff has not alleged facts establishing that Defendants Trumbley, Lesatz, Haynie,
Mackie, Heyns, and Sackett were personally involved in the activity which forms the basis of his
claim. The only roles that Defendants Trumbley, Lesatz, Haynie, Mackie, Heyns, and Sackett had
in this action involve the denial of administrative grievances or the failure to act. Defendants
Trumbley, Lesatz, Haynie, Mackie, Heyns, and Sackett 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 Trumbley, Lesatz,
Haynie, Mackie, Heyns, and Sackett are properly dismissed for lack of personal involvement.
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Plaintiff claims that the remaining Defendants retaliated against him for his use of
the grievance system. 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)).
Plaintiff claims that Defendant Lesatz terminated his phone call in retaliation for his
attempt to inform the Central Office of corruption at AMF. However, as noted above, Plaintiff failed
to allege any facts indicating that Defendant Lesatz was personally involved in this action.
Plaintiff also claims that Defendants Tollefson, Niemi, Jondreau, and Healey
retaliated against Plaintiff for his use of the grievance system when they wrote a fictitious
misconduct report and altered his security classification screen in order to keep Plaintiff confined
at a level V facility. The filing of a prison grievance is constitutionally protected conduct for which
a prisoner cannot be subjected to retaliation. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir.
2001); Hall v. Nusholtz, No. 99-2442, 2000 WL 1679458, at *2 (6th Cir. Nov. 1, 2000); Burton v.
Rowley, No. 00-1144, 2000 WL 1679463, at *2 (6th Cir. Nov. 1, 2000).
Plaintiff claims that Defendant Tollefson wrote a false, retaliatory misconduct ticket
on him in response to his conduct in filing grievances. The court notes that a prisoner’s claim that
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he was falsely accused of a major misconduct is barred where there has been a finding of guilt. See
Peterson v. Johnson, 714 F.3d 905, 917 (6th Cir. 2013) (holding that a factual finding in a major
misconduct proceeding has preclusive effect and is not subject to challenge in a § 1983 action). As
noted above, Plaintiff was found guilty of the misconduct ticket written by Defendant Tollefson.
Therefore, Plaintiff’s claim against Defendant Tollefson regarding the allegedly false retaliatory
misconduct ticket is properly dismissed.
In addition, Plaintiff claims that his security classification screen was improperly
altered to indicate that Plaintiff was a level V prisoner by virtue of the August 24, 2012, possession
of dangerous contraband misconduct. Plaintiff received this misconduct prior to his transfer AMF
unsecure level 1 camp. Plaintiff does not claim that this misconduct was false or retaliatory.
Plaintiff’s only claim is that this must be incorrect because he was initially told that he was a level
IV prisoner by virtue of the August 24, 2012, misconduct. However, the court notes that on January
16, 2013, Plaintiff was found guilty of attempting to introduce drugs into AMF. By the time that
Plaintiff received the security classification screen by Defendant Healey on February 4, 2013, he had
been found guilty of the second misconduct, which when taken into account with the first
misconduct, could have increased Plaintiff’s security classification screen.
In addition, Plaintiff fails to allege any facts showing that Defendants Healey,
Jondreau and Niemi were motivated by a desire to retaliate against him. Temporal proximity may
be “‘significant enough to constitute indirect evidence of a causal connection so as to create an
inference of retaliatory motive.’” Muhammad v. Close, 379 F.3d 413, 417-18 (6th Cir. 2004)
(quoting DiCarlo v. Potter, 358 F.3d 408, 422 (6th Cir. 2004)). However, “[c]onclusory allegations
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of temporal proximity are not sufficient to show a retaliatory motive.” Skinner v. Bolden, 89 F.
App’x 579, 580 (6th Cir. 2004).
Moreover, Muhammad does not stand for the proposition that temporal proximity
alone is sufficient to create an issue of fact as to retaliatory motive.
In Muhammad the Sixth Circuit did not resolve the issue, but merely
observed that “temporal proximity alone may be ‘significant enough
to constitute indirect evidence of a causal connection so as to create
an inference of retaliatory motive.’” Id. at 418 (quoting DiCarlo v.
Potter, 358 F.3d 408, 422 (6th Cir.2004) (emphasis added). Even if
temporal proximity may in some cases create an issue of fact as to
retaliatory motive, it would only be sufficient if the evidence was
“significant enough.” Plaintiff’s conclusory and ambiguous evidence
is not “significant enough” to create an issue of fact as to retaliatory
motive.
Brandon v. Bergh, 2010 WL 188731, slip op. at 1 (W.D. Mich., Jan. 16, 2010). Because Plaintiff
has failed to allege facts showing that the conduct of Defendants Healey, Jondreau and Niemi
regarding his security classification screen was retaliatory, these claims are properly dismissed.
Plaintiff claims that Defendant Harscher retaliated against him by writing a
misconduct ticket for destruction or misuse of property. Plaintiff was found not guilty of the
misconduct. However, Plaintiff fails to allege any facts showing that Defendant Harscher was
motivated by a desire to retaliate against him. Therefore, this claim is properly dismissed.
Finally, Plaintiff claims that Defendant Koskinen violated his due process rights by
covering up the failure to conduct Plaintiff’s misconduct hearing within the required time limits,
which resulted in Plaintiff being confined to segregation for 175 days. To determine whether
segregation of an inmate from the general prison population involves the deprivation of a liberty
interest protected by the due process clause, the Court must determine if the segregation imposes an
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“atypical and significant” hardship on the inmate “in relation to the ordinary incidents of prison life.”
Jones v. Baker, 155 F.3d 810, 811 (6th Cir. 1998) (quoting Sandin v. Conner, 515 U.S. 472, 483
(1995)). Under various circumstances, the Sixth Circuit has repeatedly found that confinement to
administrative segregation does not present an “atypical and significant” hardship implicating a
protected liberty interest. See Jones, 155 F.3d at 812-23 (two years of segregation while inmate was
investigated for murder of prison guard in riot); Rimmer-Bey v. Brown, 62 F.3d 789, 790-91 (6th Cir.
1995) (inmate serving life sentence was placed in segregation after serving thirty days of detention
for misconduct conviction of conspiracy to commit assault and battery); Mackey v. Dyke, 111 F.3d
460 (6th Cir.1997) (one year of segregation after inmate was found guilty of possession of illegal
contraband and assault and where reclassification was delayed due to prison crowding). Although
plaintiff states that his placement in segregation has been “atypical and significant,” he merely uses
the legal jargon and presents no factual allegations to support his conclusion. The only allegation
he presents regarding his segregation is that its duration has been for more than one year. The length
of the placement is not determinative. See Jones, 155 F.3d at 812. Plaintiff has failed to make any
allegations which that his segregation is “atypical and significant.” In fact, in his complaint Plaintiff
alleges that he was subjected to misconduct tickets for refusing to leave segregation and go to the
general population. Consequently, the court concludes that no liberty interest is implicated by his
placement.
Conclusion
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).
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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
$505.00 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 $505.00 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:
3/24/2014
/s/ R. Allan Edgar
R. Allan Edgar
United States District Judge
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