Weatherspoon #471817 v. Williams et al

Filing 7

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

MORRIS WEATHERSPOON,
Plaintiff,

Case No. 2:14-cv-108

v.

Honorable Robert Holmes Bell

C. WILLIAMS 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. 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 Berlinger, MacLaren, Armstrong and Curley. The Court will
serve the complaint against the remaining Defendants.

Discussion
I.

Factual allegations

Plaintiff presently is incarcerated at the Muskegon Correctional Facility but complains
of events that occurred at the Kinross Correctional Facility (KCF). In his pro se complaint, Plaintiff
sues the following KCF employees:

Nurses C. Williams and Penny Rogers; Sergeants L.

Schwesinger, B. Johnson and K. Esslin; Corrections Officers B. Mastaw, R. Beaudion, J. Thibault
and Unknown McDowell; Resident Unit Manager M. Dicken; Assistant Resident Unit Manager
Marquita Marlette; Warden Duncan MacLaren; Deputy Warden K. Olson; Grievance Coordinators
Jim Armstrong, L. Berlinger and Mike Curley; Dentist Charles Simons; Dental Hygienist Kimberly
Franckowiak; Captain Unknown Raffaele; and Nurse and/or Medical Service Providers Unknown
Part(y)(ies).
Plaintiff lists his constitutional claims against Defendants in chronological order from
2012 to 2013. Between September 11, 2012 and January 3, 2013, Plaintiff alleges that Defendant
Berlinger denied him access to the courts. Plaintiff states that while he was on modified grievance
access, Berlinger improperly rejected grievances and denied Plaintiff grievance forms so that he
could not exhaust his administrative remedies.
On September 16, 2012, Plaintiff was placed in the segregation housing unit. Plaintiff
feared that he would be assaulted, raped or murdered by other prisoners in segregation. Plaintiff
complains that Defendants Thibault, McDowell and Esslin retaliated against him by falsifying a
Class I Misconduct Report for possession of a weapon to keep Plaintiff in segregation because
Plaintiff filed grievances against their peers. The misconduct ticket was eventually dismissed for

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failing to follow Michigan Department of Corrections (MDOC) Policy Directive 03.03.105,
“Prisoner Discipline” (effective Apr. 9, 2012). (See Ex. to Compl., docket #1-2, Page ID#32.)
On October 15, 2012, and October 26, 2012, Plaintiff alleges that Defendants Simons
and Franckowiak, respectively, withheld urgent and routine dental care from Plaintiff so that his
teeth and gums deteriorated. Plaintiff explains that he has on-going health problems with gums
bleeding and swelling. He also suffers excruciating pain while brushing his teeth and eating his food
due to his lack of dental care. Because Defendants Simons and Franckowiak denied Plaintiff’s
prescribed dental treatments, Plaintiff complains that he was unable to have his teeth cleaned and
receive dentures.
On December 8, 2012, Plaintiff claims that Defendants Schwesinger, Olson, Marlette,
Dicken, Johnson and Mastaw retaliated against him by filing a false request for protection because
Plaintiff filed grievances against their peers. Also, on December 8, 2012, Plaintiff claims that
Defendants Beaudion and Raffaelle retaliated against him by fraudulently filing a misconduct report
in order to keep him in the segregation housing unit. Plaintiff was eventually found guilty of the
misconduct ticket.
While confined in the segregation housing unit between December 8, 2012, and
January 3, 2013, Plaintiff claims that he suffered from an “(abscessed) left leg femur [and endures]
severe and intense ache, pain and discomfort when walking, sitting, excercis[ing] and [sleeping].”
(Compl., docket #1, Page ID#7.) Plaintiff states that Defendants Williams, Unknown Parties,
Rogers, Schwesinger, Dicken, Johnson, Mastaw, Beaudion and Raffaelle denied medical care and
pain medication for Plaintiff’s leg.

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On January 3, 2013, Plaintiff claims that Defendants MacLaren, Armstrong and
Curley retaliated against him by denying Plaintiff access to the courts. Plaintiff complains that
Defendants improperly rejected Plaintiff’s grievances and placed Plaintiff on modified access so as
to prevent Plaintiff from exhausting his administrative remedies. Plaintiff states that he was
prevented from pursuing “nonfrivolous claims [and/or] claims for relief that [were] arguable in law
and fact.” (Id., Page ID#8.)
In his complaint, Plaintiff summarizes his legal claims as follows: Defendants
Unknown Parties, Schwesinger, Dicken, Johnson, Mastaw, Beaudion, Olson, MacLaren, Williams,
Thibault, McDowell, Esslin, Marlette, Simons, Franckowiak and Rogers violated his Eighth
Amendment rights by failing to provide adequate medical care; Defendants Schwesinger, Dicken,
Johnson, Mastaw, Beaudion, Raffaele, MacLaren, Thibault, Olson, Berlinger, McDowell, Esslin,
Marlette, Armstrong and Curley retaliated against him in violation of his First Amendment rights;
Defendants Olson, Simons, Rogers, Franckowiak, Schwesinger, Dicken, Johnson, Mastaw,
Beaudion, Raffaele, MacLaren, McDowell, Esslin, Marlette, Armstrong, Thibault, Berlinger and
Curley violated Plaintiff’s due process rights; and Defendants Schwesinger, Dicken, Johnson,
Berlinger, Mastaw, Beaudion, Raffaele, Curley, Armstrong, MacLaren, Thibault, McDowell, Esslin,
Marlette and Olson violated Plaintiff’s First Amendment right to access the courts. (Compl.,
docket #1, Page ID##9-10.)
For relief, Plaintiff requests monetary damages.
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.
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v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While
a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include more
than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.”). The court must determine whether the complaint contains “enough facts to state
a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 679. Although
the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it asks for more than
a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – that the
pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting FED. R. CIV. P. 8(a)(2)); see also Hill
v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the Twombly/Iqbal plausibility
standard applies to dismissals of prisoner cases on initial review under 28 U.S.C. §§ 1915A(b)(1)
and 1915(e)(2)(B)(i)).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right
secured by the federal Constitution or laws and must show that the deprivation was committed by
a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Street v. Corr.
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).
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A.

Eighth Amendment - Defendant MacLaren

The Eighth Amendment prohibits the infliction of cruel and unusual punishment
against those convicted of crimes. U.S. Const. amend. VIII. The Eighth Amendment obligates
prison authorities to provide medical care to incarcerated individuals, as a failure to provide such
care would be inconsistent with contemporary standards of decency. Estelle v. Gamble, 429 U.S.
102, 103-04 (1976). The Eighth Amendment is violated when a prison official is deliberately
indifferent to the serious medical needs of a prisoner. Id. at 104-05; Comstock v. McCrary, 273 F.3d
693, 702 (6th Cir. 2001). 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, 47980 (6th Cir. 2010) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994) (applying deliberate
indifference standard to medical claims).
Plaintiff claims that Warden MacLaren violated his Eighth Amendment rights by not
providing him adequate medical care. Plaintiff, however, has not alleged any facts as to how Warden
MacLaren denied him medical care. Notably, Plaintiff only mentions his Eighth Amendment claim
against MacLaren in the conclusory summation of his legal claims. (See Compl., docket #1, Page
ID#9). Conclusory allegations of unconstitutional conduct without specific factual allegations fail
to state a claim under § 1983. See Iqbal, 556 U.S. at 678-69; Twombly, 550 U.S. at 555.
Accordingly, Plaintiff fails to state an Eighth Amendment claim against MacLaren.
To the extent Plaintiff is asserting that Defendant MacLaren is liable as a supervisor
for his subordinates’ actions, Plaintiff also fails to state a claim. Government officials may not be
held liable for the unconstitutional conduct of their subordinates under a theory of respondeat
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superior or vicarious liability. Iqbal, 556 U.S. at 676; Monell v. New York City Dep’t of Soc. Servs.,
436 U.S. 658, 691(1978); Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009). A claimed
constitutional violation must be based upon active unconstitutional behavior. Grinter v. Knight, 532
F.3d 567, 575-76 (6th Cir. 2008); Greene v. Barber, 310 F.3d 889, 899 (6th Cir. 2002). The acts of
one’s subordinates are not enough, nor can supervisory liability be based upon the mere failure to
act. Grinter, 532 F.3d at 576; Greene, 310 F.3d at 899; Summers v. Leis, 368 F.3d 881, 888 (6th Cir.
2004). Moreover, § 1983 liability may not be imposed simply because a supervisor denied an
administrative grievance or failed to act based upon information contained in a grievance. See
Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). “[A] plaintiff must plead that each
Government-official defendant, through the official’s own individual actions, has violated the
Constitution.” Iqbal, 556 U.S. at 676. Plaintiff has failed to allege that Defendant MacLaren
engaged in any active unconstitutional behavior to violate his Eighth Amendment rights.
Accordingly, he fails to state an Eighth Amendment claim against Defendant MacLaren.
B.

First and Fourteenth Amendments - Defendants Berlinger,
MacLaren, Armstrong and Curley

Plaintiff complains that Defendants Berlinger, MacLaren, Armstrong and Curley
retaliated against him by denying him access to the courts. Plaintiff explains that Defendants
improperly rejected Plaintiff’s grievances and placed Plaintiff on modified access1 in order to prevent
him from exhausting his administrative remedies.

1

Under MDOC policy, a prisoner is placed on modified access for filing “an excessive number of grievances
which are vague, duplicative, raise non-grievable issues, or contain prohibited language . . .or is found guilty of [a]
misconduct for filing an unfounded grievance . . . .” MICH. DEP’T OF CORR. Policy Directive 03.02.130, ¶ HH. (effective
July 9, 2007). The modified access period is ninety days and may be extended an additional thirty days for each time
the prisoner continues to file a prohibited type of grievance. Id. While on modified access, the prisoner can only obtain
grievance forms through the Step I Grievance Coordinator, who determines whether the issue is grievable and otherwise
meets the criteria under the grievance policy. Id., ¶ KK.

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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. 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)).
The filing of a prison grievance is constitutionally protected conduct for which a
prisoner cannot be subjected to retaliation. See Smith, 250 F.3d at 1037; Shehee, 199 F.3d at
300–301. Plaintiff, however, fails the second prong of a retaliation claim. See Thaddeus-X, 175
F.3d at 394. Plaintiff cannot demonstrate that Defendants Berlinger, MacLaren, Armstrong and
Curley engaged in an adverse action when they rejected his grievances and placed him on modified
access.
First, Defendants’ rejection of Plaintiff’s grievances did not prevent Plaintiff from
filing additional grievances. In several MDOC memos regarding Plaintiff’s abuse of the grievance
process, the MDOC compiled a list of the grievances Plaintiff had filed. For example, eight
grievances are listed in a April 30, 2012 memo, thirteen grievances are listed in a September 7, 2012
memo, and eight grievances are listed in a January 2, 2013 memo. (See Ex. to Compl., docket #1-2,
Page ID##59, 61, 63.) Obviously, Plaintiff continued to file grievances regularly regardless of the
outcome of the grievances. Even if Plaintiff had been improperly prevented from exhausting his
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grievances through the three-step grievance process, his right of access to the courts to petition for
redress of his grievances (i.e., by filing a lawsuit) cannot be compromised by his inability to file
institutional grievances. See, e.g., Lewis v. Casey, 518 U.S. 343, 355 (1996) (requiring actual
injury); Bounds v. Smith, 430 U.S. 817, 821-24 (1977). The exhaustion requirement only mandates
exhaustion of available administrative remedies. See 42 U.S.C. § 1997e(a). If Plaintiff were
improperly denied access to the grievance process, the process would be rendered unavailable, and
exhaustion would not be a prerequisite for initiation of a civil rights action. In light of the foregoing,
the Court finds that Plaintiff fails to state a cognizable retaliation claim for the rejection of his
grievances.
Moreover, Plaintiff’s placement on modified access did not prevent him from filing
grievances. The Sixth Circuit repeatedly has held that placement on modified access does not
constitute an adverse action for purposes of a retaliation claim. See, e.g., Jackson v. Madery, 158
F. App’x 656, 660 (6th Cir. 2005); Walker v. Mich. Dep’t of Corr., 128 F. App’x 441, 446 (6th Cir.
2005); Kennedy v. Tallio, 20 F. App’x 469, 471 (6th Cir. 2001); Corsetti, 24 F. App’x at 241.
Placement on modified access does not prohibit an inmate from utilizing the grievance process.
Walker, 128 F. App’x at 445; Corsetti v. McGinnis, 24 F. App’x 238, 241 (6th Cir. 2001). An
inmate may still submit grievances to the Step I Grievance Coordinator, who reviews the grievance
to determine whether it complies with institutional rules regarding the filing of grievances. See
MDOC Policy Directive 03.02.130, ¶ KK. There is nothing constitutionally improper about this
review process for a prisoner who has demonstrated an inability to properly utilize the grievance
process in the past. Even though Plaintiff was on modified access, he still attempted to file
grievances. (See Ex. to Compl., docket #1-2, Page ID #60.) Further, a prisoner’s right of access to
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the courts to petition for redress of his grievances cannot be compromised by his inability to file an
institutional grievance. See 42 U.S.C. § 1997e(a); see also Lewis, 518 U.S. at 351-55; Bounds, 430
U.S. at 821–24; Walker, 128 F. App’x at 446. As a result, being on modified grievance access did
not deprive Plaintiff of the ability to file a lawsuit.
To the extent Plaintiff complains that Defendants Berlinger, MacLaren, Armstrong
and Curley violated his due process rights by rejecting his grievances and placing him on modified
access, he also fails to state a claim. Plaintiff has no due process right to file a prison grievance. The
Sixth Circuit and other circuit courts have held that there is no constitutionally protected due process
right to an effective prison grievance procedure. Walker, 128 F. App’x at 445; Argue v. Hofmeyer,
80 F. App’x 427, 430 (6th Cir. 2003); Young v. Gundy, 30 F. App’x 568, 569-70 (6th Cir. 2002);
Carpenter v. Wilkinson, No. 99-3562, 2000 WL 190054, at *2 (6th Cir. Feb. 7, 2000); see also
Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Adams v. Rice, 40 F.3d 72, 75 (4th Cir.
1994). Michigan law does not create a liberty interest in the grievance procedure. See Olim v.
Wakinekona, 461 U.S. 238, 249 (1983); Keenan v. Marker, 23 F. App’x 405, 407 (6th Cir. 2001);
Wynn v. Wolf, No. 93-2411, 1994 WL 105907, at *1 (6th Cir. Mar. 28, 1994). Because Plaintiff has
no liberty interest in the grievance process, Defendants’ conduct did not deprive him of due process.
In light of the foregoing, Plaintiff’s allegations against Defendants Berlinger,
MacLaren, Armstrong and Curley fail to state First and Fourteenth Amendment claims.
C.

Service

At this stage of the proceedings, the Court will serve Plaintiff’s complaint against the
remaining Defendants.

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Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Defendants Berlinger, MacLaren, Armstrong, and Curley 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 against the remaining Defendants.
An Order consistent with this Opinion will be entered.

Dated: May 6, 2015

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE

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