Sango #252200 v. Bastian 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
ROBERT D. SANGO,
Case No. 2:15-cv-100
Honorable Gordon J. Quist
UNKNOWN BASTIAN, 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, the Court will dismiss Plaintiff’s complaint for failure
to state a claim against Defendants Kevin Burns and Unknown Joyals. The Court will serve the
complaint against Defendant Unknown Bastian.
Plaintiff Robert D. Sango, a state prisoner currently confined at the Baraga Maximum
Correctional Facility (AMF), filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against
Defendants Corrections Officer Unknown Bastian, Corrections Officer Kevin Burns, and
Corrections Officer Unknown Joyals. In Plaintiff’s complaint, he alleges that upon arriving at AMF,
he received a letter from Defendant Burns, stating that Plaintiff would not live to see September and
that he would definitely not survive until his outdate. A couple of days later, Plaintiff became very
sick, suffered from diarrhea and vomiting, and noticed that his skin was “turning orangish green.”
Plaintiff then asked Corrections Officer Dubb if he could see the nurse. Shortly thereafter,
Defendant Bastian came to Plaintiff’s cell and told him that Food Service had been putting flour in
his soy milk. Plaintiff filed a grievance and Food Service responded that they did not have any flour
in the kitchen and that all of the food comes pre-prepared. In addition, health services told Plaintiff
that flour in any quantity would not make him that sick. A week or so later, Defendant Bastian told
prisoner Oliver #381382 that he had poisoned Plaintiff.
Plaintiff states that after that date, Defendant Bastian repeatedly tried to pick a fight
with Plaintiff, threatening him and getting in his face when he came out of his cell for a shower.
Plaintiff stopped coming out of his cell for a shower because of the harassment. Plaintiff asked
health services for a thorough examination and was told that his condition was caused by bacteria
that he must have swallowed from his own skin. Plaintiff asserts that many prisoners die at AMF
and that staff in segregation strive to find creative ways to kill them. Plaintiff was told to let the
issue go, and when Plaintiff continued to pursue his complaints against Defendant Bastian, he was
released to the general population. Plaintiff alleges that one of Defendant Bastian’s friends from
segregation began to work overtime on Plaintiff’s general population unit and recruited officers to
target Plaintiff. One of these officers was Defendant Joyals.
Plaintiff states that Defendant Joyals had previously allowed prisoners to give
Plaintiff extra food that they did not want. One day, Corrections Officer Rozine allowed the kitchen
worker to give Plaintiff extra vegetables because no one wanted them. This was caught on camera.
Defendant Joyals ran from the base onto the wing and wrote Plaintiff a misconduct ticket for
violating a Kosher diet, despite the fact that Plaintiff is not on a Kosher diet and is Buddhist.
Plaintiff states that extra vegetables did not violate the tenets of his religion. Plaintiff was found
guilty of the misconduct by one of Defendant Joyals’ friends.
Plaintiff further alleges that when Defendant Bastian came to Plaintiff’s unit, he
rallied the officers in an intense campaign against Plaintiff. As a result, Plaintiff’s food trays came
late, were already opened, and had food missing. Plaintiff states that on one occasion, he discovered
a thumb tack in his potato salad after he bit on it and had to pull it out of his gums. Kitchen workers
told Plaintiff that they observed Defendant Bastian “messing with” his trays on a daily basis, but
were afraid to say anything because they feared becoming a target for the same harassment.
Plaintiff sues Defendants in their individual and official capacities and seeks both
damages and equitable relief.
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); 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).
Plaintiff claims that Defendant Burns sent him a threatening letter, telling Plaintiff
that he would not live long enough to serve his prison sentence. The use of harassing or degrading
language by a prison official, although unprofessional and deplorable, does not rise to constitutional
dimensions. See Ivey v. Wilson, 832 F.2d 950, 954-55 (6th Cir. 1987); see also Johnson v. Dellatifa,
357 F.3d 539, 546 (6th Cir. 2004) (harassment and verbal abuse do not constitute the type of
infliction of pain that the Eighth Amendment prohibits); Violett v. Reynolds, No. 02-6366, 2003 WL
22097827, at *3 (6th Cir. Sept. 5, 2003) (verbal abuse and harassment do not constitute punishment
that would support an Eighth Amendment claim); Thaddeus-X v. Langley, No. 96-1282, 1997 WL
205604, at *1 (6th Cir. Apr. 24, 1997) (verbal harassment is insufficient to state a claim); Murray
v. U.S. Bureau of Prisons, No. 95-5204, 1997 WL 34677, at *3 (6th Cir. Jan. 28, 1997) (“Although
we do not condone the alleged statements, the Eighth Amendment does not afford us the power to
correct every action, statement or attitude of a prison official with which we might disagree.”); Clark
v. Turner, No. 96-3265, 1996 WL 721798, at *2 (6th Cir. Dec. 13, 1996) (“Verbal harassment and
idle threats are generally not sufficient to constitute an invasion of an inmate’s constitutional
rights.”); Brown v. Toombs, No. 92-1756, 1993 WL 11882 (6th Cir. Jan. 21, 1993) (“Brown’s
allegation that a corrections officer used derogatory language and insulting racial epithets is
insufficient to support his claim under the Eighth Amendment.”). Accordingly, Plaintiff fails to
state an Eighth Amendment claim against Defendant Burns arising from his threatening letter.
Plaintiff claims that Defendant Joyals wrote a false misconduct ticket on Plaintiff in
violation of his due process rights. A prisoner’s ability to challenge a prison misconduct conviction
depends on whether the conviction implicated any liberty interest. In the leading case in this area,
Wolff v. McDonnell, 418 U.S. 539 (1974), the Court prescribed certain minimal procedural
safeguards that prison officials must follow before depriving a prisoner of good-time credits on
account of alleged misbehavior. The Wolff Court did not create a free-floating right to process that
attaches to all prison disciplinary proceedings; rather, the right to process arises only when the
prisoner faces a loss of liberty in the form of a longer prison sentence caused by forfeiture of goodtime credits:
It is true that the Constitution itself does not guarantee good-time
credit for satisfactory behavior while in prison. But here the State
itself has not only provided a statutory right to good time but also
specifies that it is to be forfeited only for serious misbehavior.
Nebraska may have the authority to create, or not, a right to a
shortened prison sentence through the accumulation of credits for
good behavior, and it is true that the Due Process Clause does not
require a hearing “in every conceivable case of government
impairment of private interest.” But the State having created the
right to good time and itself recognizing that its deprivation is a
sanction authorized for major misconduct, the prisoner’s interest has
real substance and is sufficiently embraced within Fourteenth
Amendment “liberty” to entitle him to those minimum procedures
appropriate under the circumstances and required by the Due Process
Clause to insure that the state-created right is not arbitrarily
Wolff, 418 U.S. at 557 (citations omitted).
Plaintiff alleges that he “could lose good time” and disciplinary credits as a result of
his misconduct conviction. However, Plaintiff committed the crime for which he is currently
s e r v i n g
s e n t e n c e
M a y
1 9 9 6 .
S e e
http://mdocweb.state.mi.us/OTIS2/otis2profile.aspx?mdocNumber =252200. The Sixth Circuit has
examined Michigan statutory law, as it relates to the creation and forfeiture of disciplinary credits1
for prisoners convicted of crimes occurring after April 1, 1987. In Thomas v. Eby, 481 F.3d 434 (6th
Cir. 2007), the court determined that loss of disciplinary credits does not necessarily affect the
duration of a prisoner’s sentence. Rather, it merely affects parole eligibility, which remains
discretionary with the parole board. Id. at 440. Building on this ruling, in Nali v. Ekman, 355 F.
App’x 909 (6th Cir. 2009), the court held that a misconduct citation in the Michigan prison system
does not affect a prisoner’s constitutionally protected liberty interests, because it does not
necessarily affect the length of confinement. 355 F. App’x at 912; accord, Taylor v. Lantagne, 418
F. App’x 408, 412 (6th Cir. 2011); Wilson v. Rapelje, No. 09-13030, 2010 WL 5491196, at * 4
(E.D. Mich. Nov. 24, 2010) (Report & Recommendation) (holding that “plaintiff’s disciplinary
hearing and major misconduct sanction does not implicate the Fourteenth Amendment Due Process
Clause”), adopted as judgment of court, 2011 WL 5491196 (Jan. 4, 2011). In the absence of a
demonstrated liberty interest, Plaintiff has no due-process claim based on the loss of disciplinary
credits. See Bell v. Anderson, 301 F. App’x 459, 461-62 (6th Cir. 2008).
Even in the absence of a protectible liberty interest in disciplinary credits, a prisoner
may be able to raise a due-process challenge to prison misconduct convictions that result in
significant, atypical deprivations. See Sandin v. Connor, 515 U.S. 472 (1995). Plaintiff has not
identified any significant deprivation arising from his misconduct conviction. Unless a prison
misconduct conviction results in an extension of the duration of a prisoner’s sentence or some other
atypical hardship, a due-process claim fails. Ingram v. Jewell, 94 F. App’x 271, 273 (6th Cir. 2004).
Finally, the court notes that a finding of guilt in a major misconduct proceeding has preclusive
For crimes committed after April 1, 1987, Michigan prisoners earn “disciplinary credits” under a statute that abolished
the former good-time system. M IC H . C O M P . L AW S § 800.33(5).
effect against claims dependent on the same issues of fact. See Peterson v. Johnson, 714 F.3d 905
(6th Cir. 2013). Therefore, Defendant Burns is properly dismissed from this action.
Plaintiff claims that Defendant Bastian placed some sort of poison in his food, which
caused him to become extremely ill. Plaintiff states that Defendant Bastian actually told another
prisoner that he had poisoned Plaintiff. If true, such conduct violates the Eighth Amendment.
Therefore, Plaintiff’s claims against Defendant Bastian are not properly dismissed upon initial
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Defendants Burns and Joyals 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 Defendant Bastian.
An Order consistent with this Opinion will be entered.
Dated: September 29, 2015
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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