Thomas #811751 v. King et al

Filing 15

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

DONDRELL TYRELL THOMAS,
Plaintiff,

Case No. 2:15-cv-79

v.

Honorable Robert Holmes Bell

S. KING, 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 Corrigan, Malette, MacLaren, Teneyck, Daily, Bigger, Smith,
Woods, Hubbard, Bender, and Hough. The Court will serve the complaint against Defendants S.
King, Anderson, Brown, Cusick, Knipe, Golleday, Unknown King, Williams, and Cushman.

Discussion
I.

Factual allegations

Plaintiff Dondrell Tyrell Thomas, a state prisoner currently confined at the Chippewa
Correctional Facility (URF), filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against
numerous prison officials. Specifically, Defendants include Corrections Officer S. King, Grievance
Coordinator C. Anderson, Inspector J. Corrigan, Unknown Malette, Warden D. MacLaren, Prison
Counselor Jillion Brown, Corrections Officer Unknown Cusick, Corrections Officer Unknown
Knipe, Corrections Officer Unknown Golleday, Corrections Officer Unknown King, Corrections
Officer Unknown Teneyck, Deputy Warden Unknown Daily, Corrections Officer Unknown Bigger,
B. Smith, Warden J. Woods, P. Hubbard, Corrections Officer Unknown Williams, Unknown Bender,
Inspector Unknown Hough, and Prison Counselor Unknown Cushman.
In Plaintiff’s complaint, he alleges that while he was confined at the Kinross
Correctional Facility (KCF) on April 7, 2015, Defendant S. King walked into the bathroom stall
while Plaintiff was urinating and touched his buttock. Defendant S. King looked over Plaintiff’s
shoulder and asked if he needed any help. Plaintiff responded by exclaiming, “What the fuck!”
Another prisoner observed the incident and laughed. After Plaintiff left the bathroom, he asked
Defendant Cushman if Defendant S. King had a right to behave in that manner. Defendant Cushman
told Plaintiff that if he told anyone about the incident, he would be transferred back to the Alger
Correctional Facility (LMF). After Defendant Cushman finished talking to Plaintiff, Defendant S.
King told Plaintiff that he could do anything he wanted to him because Plaintiff was in prison.
Plaintiff filed a grievance regarding this matter.

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Three days later, on April 10, 2015, Defendant Corrigan interviewed Plaintiff.
Plaintiff was subsequently interviewed by the Michigan State Police and made an official statement.
On April 14, 2015, Defendant S. King called Plaintiff a “rat bitch.” On April 20, 2015, Defendant
Anderson called Plaintiff into his office and threatened that if Plaintiff did not sign off on his
grievance, he would make Plaintiff’s life a living hell at KCF. On May 11, 2015, Defendant
Anderson told Plaintiff that because he would not learn, he was going to write a ticket on Plaintiff.
Plaintiff walked away. Later that day, Plaintiff told Defendant Corrigan that he was being retaliated
against and was fearful for his life. Plaintiff stated that he had two witnesses, prisoners D. Crowley
and Floyd G. Perkins. Plaintiff states that as a result of him revealing his witnesses, prisoner
Crowley was transferred to another facility. Plaintiff states that Defendant Corrigan did not appear
to believe his story, and asked him to repeat his allegations over and over again.
On May 11, 2015, Plaintiff received a misconduct ticket from Defendant Anderson,
which had been written on April 30, 2015. Plaintiff was moved out of his housing unit, but then was
moved back again. Plaintiff believes that this was so Defendant S. King could continue harassing
him. Plaintiff wrote grievances on May 1 and May 20. Deputy Warden Harwood subsequently told
Plaintiff that as a result of filing grievances, he was being transferred to either LMF or URF.
Plaintiff sent a note to the Warden seeking assistance. While Plaintiff was waiting to hear from the
Warden, he was approached by some prisoners on the yard who wanted to injure him. Plaintiff
learned from these prisoners that Defendant S. King had put a hit out on him in order to deter
Plaintiff from pursuing his claims against Defendant S. King. Plaintiff states that the only reason
he was not harmed was because he knew some influential prisoners who stopped the hit.

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On May 28, 2015, Plaintiff contacted a Sergeant and explained the situation. The
Sergeant placed Plaintiff in segregation. When Plaintiff spoke to Defendants Daily and Malette, they
stated that his story regarding Defendant S. King’s sexual misconduct was not credible. Defendants
Daily and Malette also stated that Plaintiff had a misconduct coming and that his security level
would be increased. Plaintiff was then moved to a “dry cell” where the toilet wouldn’t flush, so
Plaintiff was forced to tolerate the odor of his own bodily waste, which caused him to feel nauseated.
On June 11, 2015, Plaintiff was transferred to URF. On June 18, 2015, Defendant
Brown informed unit officers of Plaintiff’s allegations against Defendant S. King. The officers told
Plaintiff that Defendant Brown had told them to keep Plaintiff out of the yard and day rooms, and
to prevent Plaintiff from participating in activities, so Plaintiff would be receiving a lot of
misconduct tickets. Defendants Williams, Golladay, Knipe, Cusick, and Unknown King, who is
related to Defendant S. King, began to write tickets on Plaintiff.
Plaintiff alleges that during his placement at URF, he received many false misconduct
tickets for alleged rule violations. Plaintiff states that officers would laugh at him about receiving
the tickets because they knew the tickets were “bogus.” Plaintiff asserts that Defendants Williams,
Golladay, Knipe, Cusick, and Unknown King engaged in a conspiracy to retaliate against Plaintiff
by continually subjecting him to false misconduct convictions. Plaintiff states that inmates Allan
#656633, Conley #645840, Lamont #347175, and Buttler #160557 witnessed this conduct. Plaintiff
states that on June 21, 2015, a night when Defendant Unknown King was not working, a ticket was
written in Unknown King’s name asserting that he had witnessed Plaintiff violating a housing rule.
Plaintiff alleges that one of the above named officers told Plaintiff’s cellmate that it was not a good
idea to remain in a cell with Plaintiff and, three days later, Plaintiff was moved to another cell.

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When Plaintiff contacted Defendants Woods and Hubbard, Plaintiff simply received
more bogus tickets. Defendant Williams explained that all of Plaintiff’s problems were because the
people that he was filing grievances on had friends and family working in the prison who would lie,
cheat, and steal to protect each other. The next day, Defendant Knipe told Plaintiff that all of the
officers in the Upper Peninsula are tied together through family and friends. Plaintiff states that he
has been told that it would not take much to have another prisoner “take him out,” or for officers to
take him to segregation and beat him to death, and then cover it up by claiming self-defense or
making it look as if Plaintiff took his own life. During this period, Defendant Brown called Plaintiff
a snitch in front of other prisoners and told Plaintiff that he could not have a job or attend religious
services.
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

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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).
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

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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
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).

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Plaintiff has not alleged facts establishing that Defendants Corrigan, Malette,
MacLaren, Teneyck, Daily, Bigger, Smith, Woods, Hubbard, Bender, and Hough were personally
involved in the activity which forms the basis of his claims. The only roles that Defendants
Corrigan, Malette, MacLaren, Teneyck, Daily, Bigger, Smith, Woods, Hubbard, Bender, and Hough
had in this action involve the denial of administrative grievances or the failure to act. Defendants
Corrigan, Malette, MacLaren, Teneyck, Daily, Bigger, Smith, Woods, Hubbard, Bender, and Hough
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 Corrigan, Malette, MacLaren, Teneyck, Daily, Bigger, Smith, Woods, Hubbard,
Bender, and Hough are properly dismissed for lack of personal involvement.
The court concludes that Plaintiff’s claims against Defendant S. King for sexual
harassment and retaliation are nonfrivolous and may not be dismissed on initial review. Nor are
Plaintiff’s retaliation claims against Defendants Anderson, Brown, Cusick, Knipe, Golleday,
Unknown King, Williams, and Cushman properly dismissed on initial review.
In addition, on September 8, 2015, Plaintiff sent the court a letter seeking an
“emergency injunction.” See ECF No. 9. In the letter, Plaintiff indicates that prison officials were
preventing him from mailing out paperwork which had been requested by the court. A review of the
docket sheet indicates that the only paperwork requested by the court was an amended complaint on
the proper form. Because Plaintiff has now filed his amended complaint, this motion is properly
denied as moot.

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Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Defendants Corrigan, Malette, MacLaren, Teneyck, Daily, Bigger, Smith, Woods,
Hubbard, Bender, and Hough 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
Defendants S. King, Anderson, Brown, Cusick, Knipe, Golleday, Unknown King, Williams, and
Cushman.
An Order consistent with this Opinion will be entered.

Dated: November 20, 2015

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

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