Johnson #324642 v. Niemi et al
OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
Case No. 2:15-cv-91
Honorable Gordon J. Quist
UNKNOWN NIEMI, et al.,
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, Plaintiff’s action will be dismissed for failure to state
Plaintiff Corielle Johnson, a state prisoner currently confined at the Ionia Correctional
Facility, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against Defendants
Resident Unit Manager Unknown Niemi, Captain Unknown Schwab, “Psych” Tonia Truesdell,
Resident Unit Manager William Jondreau, Captain Unknown Chappell, Assistant Resident Unit
Supervisor Todd Tollefson, Corrections Officer Unknown Tollefson, Corrections Officer Unknown
Velmer, Warden Thomas Mackie, Corrections Officer Unknown Pellow, Corrections Officer
Unknown Rule, Grievance Coordinator Tom LaPlante, and Inspector Unknown Petaja.
In his complaint, Plaintiff alleges that he is an “extremely litigative” inmate and files
a large amount of grievances, which causes staff to become aggravated and vindictive. On October
16, 2013, Defendants Assistant Resident Unit Supervisor Tollefson and Corrections Officer
Tollefson escorted Plaintiff to be heard on a misconduct ticket. The ticket charged Plaintiff with
assaulting the Tollefsons on August 16, 2013. Plaintiff was taken to the Security Classification
Committee (SCC) room, where Defendants Schwab, Chappell, Jondreau, Niemi and Truesdell were
looking at something and whispering in “conspiratorial tones.” As Plaintiff entered, Defendant
Chappell ordered the Tollefsons to take Plaintiff out of the room. Plaintiff was then taken to his
hearing and was found guilty.
Following the hearing, Plaintiff was returned to the SCC room, where Defendant
Chappell stated, “Why do we have to do this?” Defendant Chappell then turned to Plaintiff and
hissed, “That’s it we’re done.” Defendant Niemi then grabbed a grievance that Plaintiff had written
on Defendants Truesdell and Mackie and asked Plaintiff if he had any additional “crap” he wanted
to add. Plaintiff complained that Defendant Niemi was discussing the grievance in front of others
and Niemi responded that Plaintiff was going to stop his complaining. Defendant Niemi then had
Corrections Officer Tollefson yank Plaintiff up by his restraints and shove him into the hallway to
Defendant Velmer, who was unclasping a taser. Defendant Velmer grabbed Plaintiff, who stated
“Don’t touch me, get your hands off me.” Plaintiff saw Defendant Jondreau coming toward him as
he began to walk back to his cell. Defendant Chappell dared Plaintiff to do “something stupid,” so
that they could use the taser on him. Plaintiff expressed anger, asking why they would need to taser
him when there were at least six staff and he was in full body restraints. As Plaintiff was being led
to his cell, inmate Bannerman yelled, “They got the taser right on your back spine.” Plaintiff was
aware that another inmate had been killed after being tasered in the spine and Plaintiff was afraid
the same would happen to him, which caused Plaintiff to urinate in his shorts before he could get
inside his cell.
Later that day, Plaintiff asked Defendant Velmer why he had held the taser on
Plaintiff’s spine. Defendant Velmer stated, “‘Cause my boss told me to have it ready for you, and
to shoot ya if you moved wrong. Good for you that you kept your head straight, now grieve that.”
Plaintiff claims that Defendants’ conduct violated his rights under the First and Eighth Amendments.
Plaintiff seeks damages.
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)
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
Plaintiff claims that Defendants subjected him to excessive force in violation of the
Eighth Amendment. The Eighth Amendment embodies a constitutional limitation on the power of
the states to punish those convicted of a crime. Punishment may not be “barbarous” nor may it
contravene society’s “evolving standards of decency.” See Rhodes v. Chapman, 452 U.S. 337, 34546 (1981); Trop v. Dulles, 356 U.S. 86, 101 (1958). The Eighth Amendment also prohibits
conditions of confinement which, although not physically barbarous, “involve the unnecessary and
wanton infliction of pain.” Rhodes, 452 U.S. at 346. Among unnecessary and wanton infliction of
pain are those that are “totally without penological justification.” Id.
Plaintiff claims that Defendants threatened him with a taser despite the fact that he
was in full restraints and that this constituted excessive force. Plaintiff’s claim must be analyzed
under the Supreme Court authority limiting the use of force against prisoners. This analysis must
be made in the context of the constant admonitions by the Supreme Court regarding the deference
that courts must accord to prison or jail officials as they attempt to maintain order and discipline
within dangerous institutional settings. See, e.g., Whitley v. Albers, 475 U.S. 312, 321-22 (1986).
Plaintiff is incarcerated at IMAX, which is a Level VI facility, the highest level in the state.
Generally, restrictions and even harsh conditions of confinement are not necessarily
cruel and unusual punishment prohibited by the Eighth Amendment. Rhodes, 452 U.S. 347. The
Supreme Court has held that “whenever guards use force to keep order,” the standards enunciated
in Whitley, 475 U.S. 312, should be applied. Hudson v. McMillian, 503 U.S. 1, 7 (1992); see also
Wilkins v. Gaddy, 130 S. Ct. 1175, 1178-79 (2010). Under Whitley, the core judicial inquiry is
“whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously
and sadistically to cause harm.” Hudson, 503 U.S. at 6-7; Wilkins, 130 S. Ct. at 1178. In
determining whether the use of force is wanton and unnecessary, the court should evaluate the need
for application of force, the relationship between that need and the amount of force used, the threat
“reasonably perceived by the responsible officials,” and any efforts made to temper the severity of
the forceful response. Hudson, 503 U.S. at 6-7 (citing Whitley, 475 U.S. at 321); accord Griffin v.
Hardrick, 604 F.3d 949, 953-54 (6th Cir. 2010); McHenry v. Chadwick, 896 F.2d 184 (6th Cir.
1990). Physical restraints are constitutionally permissible where there is penological justification
for their use. Rhodes, 452 U.S. at 346; Jones v. Toombs, No. 95-1395, 1996 WL 67750, at *1 (6th
Cir. Feb. 15, 1996); Hayes v. Toombs, No. 91-890, 1994 WL 28606, at * 1 (6th Cir. Feb. 1, 1994);
Rivers v. Pitcher, No. 95-1167, 1995 WL 603313, at *2 (6th Cir. Oct. 12, 1995).
Plaintiff’s allegations are that Defendant Velmer threatened him with a taser while
he was being escorted to his cell in restraints and that other Defendants “roughly handled him.”
Plaintiff fails to allege that he was actually subjected to being tasered, nor does Plaintiff state that
he was physically assaulted, or even that the use of restraints was improper in light of the
circumstances. Had Defendants actually used a taser on Plaintiff’ while he was restrained and
surrounded by staff, such conduct may have constituted excessive force. However, the mere threat
of such force does not rise to the level of an Eighth Amendment violation.
Plaintiff also claims that Defendants each had the duty to protect him from excessive
force. However, as noted above, Plaintiff was not subjected to excessive force. Therefore, his
failure to protect claim lacks merit.
Plaintiff claims that Defendants retaliated against him for his use of the grievance
procedure. 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’s use of the grievance procedure is protected conduct for purposes of a
retaliation claim. 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). However, Plaintiff’s allegations do not show that he
was retaliated against for engaging in that conduct.
Plaintiff states that he has a history of filing numerous grievances and then explains
that he was taken to a misconduct hearing in restraints. While out for the hearing, Plaintiff was
taken to the SCC room and was questioned about a grievance he had written on Defendants
Truesdell and Mackie. When Plaintiff complained, Defendant Niemi stated that Plaintiff was going
to stop complaining and ordered Defendant Corrections Officer Tollefson to take Plaintiff into the
hallway. Defendant Velmer then grabbed Plaintiff and with a taser pressed to Plaintiff’s back,
escorted Plaintiff to his room. Plaintiff claims that he was afraid of being tasered in the spine and
urinated in his shorts. Plaintiff does not allege that he was tasered or otherwise harmed. Finally,
Plaintiff states that Defendant Velmer later told Plaintiff that he had been told to taser Plaintiff if
he “moved wrong.” Defendant Velmer congratulated Plaintiff for following directions and said,
“now grieve that.”
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 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
Brandon v. Bergh, 2010 WL 188731, slip op. at 1 (W.D. Mich., Jan. 16, 2010). In this case, Plaintiff
fails to allege any specific facts showing that the treatment he received was the result of a desire to
retaliate against him for his use of the grievance procedure. In addition, any claim that Plaintiff’s
major misconduct ticket was retaliatory is barred because Plaintiff was found guilty following a
hearing. See Peterson v. Johnson, 714 F.3d 905, 914-17 (6th Cir. 2013) (holding that a factual
finding in a major misconduct proceeding is not subject to challenge in a § 1983 action). Finally,
the court notes that the use of restraints along with the threat of being tasered if Plaintiff resisted
while he was being returned to his cell was not sufficiently adverse to deter a person of ordinary
firmness from filing grievances.
Plaintiff also claims that Defendants conspired to retaliate against him for his use of
the grievance procedure. A civil conspiracy under § 1983 is “an agreement between two or more
persons to injure another by unlawful action.’” See Hensley v. Gassman, 693 F.3d 681, 695 (6th Cir.
2012) (quoting Hooks v. Hooks, 771 F.2d 935, 943-44 (6th Cir. 1985)). The plaintiff must show the
existence of a single plan, that the alleged coconspirator shared in the general conspiratorial
objective to deprive the plaintiff of a federal right, and that an overt action committed in furtherance
of the conspiracy caused an injury to the plaintiff. Hensley, 693 F.3d at 695; Bazzi v. City of
Dearborn, 658 F.3d 598, 602 (6th Cir. 2011). Moreover, a plaintiff must plead a conspiracy with
particularity, as vague and conclusory allegations unsupported by material facts are insufficient.
Twombly, 550 U.S. at 565 (recognizing that allegations of conspiracy must be supported by
allegations of fact that support a “plausible suggestion of conspiracy,” not merely a “possible” one);
Fieger v. Cox, 524 F.3d 770, 776 (6th Cir. 2008); Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir.
2003); Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987). However, as noted above, there is
no indication that Defendants’ conduct toward Plaintiff was motivated by a desire to retaliate against
him, much less that Defendants were all engaged in a plan to retaliate against Plaintiff.
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
$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: September 3, 2015
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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