Lewis #659963 v. Axley et al

Filing 10

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
NORTHERN DIVISION

TONY DOIRELLE LEWIS,
Plaintiff,
v.

Case No. 2:15-cv-202
Honorable Gordon J. Quist

UNKNOWN AXLEY, 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 Montie, Kafczynski, and Olson. The Court will serve the
complaint against Defendants Axley, Dabb, Hamel, and Yon.

Discussion
I.

Factual allegations

Plaintiff Tony Doirelle Lewis, a state prisoner currently confined at the Ojibway
Correctional Facility (OCF), filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against
Defendants Corrections Officer Unknown Axley, Corrections Officer Unknown Dabb, Assistant
Resident Unit Supervisor Unknown Hamel, Warden Unknown Olson, Grievance Coordinator
Unknown Yon, Library Tech Unknown Kafczynski, and Ms. Montie. Plaintiff alleges that he has
experienced harassment, intimidation, and retaliation by Defendants Axley and Dabb during his
incarceration at OCF. Plaintiff states that on October 15, 2015, he sent Defendant Olson a letter
regarding the unconstitutional conduct of Defendants Axley and Dabb, but Defendant Olson failed
to take any corrective action.
On November 5, 2015, Plaintiff approached Defendant Olson and asserted retaliatory
harassment by staff. Defendant Olson stated that she did not believe Plaintiff and that anything that
happened was his fault. On November 23, 2015, Plaintiff was interviewed by Defendant Hamel
regarding a grievance he had filed on Defendant Axley. Defendant Hamel told Plaintiff that he
needed to learn to stop writing grievances. Plaintiff then filed a grievance on Defendant Hamel, but
Defendant Yon refused to respond to the grievance, despite the fact that Plaintiff was not on
modified access at that time. On November 30, 2015, Plaintiff was told by other prisoners that
Defendant Axley had shaken down his area. Plaintiff opened his locker and noticed that his property
was scattered everywhere, so he asked Defendant Axley about it. Defendant Axley told Plaintiff
to write another grievance and indicated that he did not care if Plaintiff did so because he had told
Defendant Yon to place Plaintiff on grievance restriction. Plaintiff filed a grievance on Defendant
Axley, but Defendant Yon did not respond to the grievance.
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On December 1, 2015, Plaintiff received a memorandum from Defendant Yon, which
stated that Plaintiff was being placed on modified access to the grievance procedure because five
previously filed grievances had been rejected pursuant to Policy Directive 03.02.130. Plaintiff
claims that this was false and that his placement on modified access violated prison policy. On
December 2, 2015, other inmates told Plaintiff that Defendant Axley had dismantled his area and
left his locker in disarray. Plaintiff requested grievance forms so that he could file grievances on
Defendants Axley, Yon, and Olson, but received no response from Defendant Yon. On December
3, 2015, Plaintiff complained about Defendant Axley to Defendant Hamel, but Defendant Hamel
told Plaintiff that he should not have written grievances and that he would just have to deal with it.
On December 4, 2015, Defendants Axley and Dabb were observed reading grievances from
Plaintiff’s locker during a shakedown. Plaintiff discovered his grievances crumpled up at the bottom
of his locker. Defendant Axley told Plaintiff that Defendant Yon had ordered Plaintiff’s locker to
be searched each time Plaintiff requested a grievance. On December 6, 2015, Plaintiff wrote letters
of complaint to Defendants Yon and Olson, but received no response.
Plaintiff claims that Defendant Axley placed his picture on the wall with a copy of
the modified access memorandum and told Plaintiff that it was a reminder to him that he would have
his area shaken down every time he requested a grievance. Defendants Hamel told Plaintiff that he
should not have filed so many grievances and that Defendant Yon was not going to allow Plaintiff
to file any more of them. Plaintiff’s subsequent requests for grievances were denied.
On December 7, 2015, another inmate told Plaintiff that he saw Defendant Axley
reading Plaintiff’s legal documents. Plaintiff later discovered a civil complaint that he had been
preparing against Defendants Axley, Dabb, and Yon had been torn and scattered on the bottom of
his locker along with other papers, clothing, and hygiene items. Defendant Hamel told Plaintiff that
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if he attempted to file another civil action against Defendants, he would have Plaintiff sent to
Baraga. On December 8, 2015, Plaintiff asked Defendant Axley to sign his itinerary, but Defendant
Axley threw it on the floor and told Plaintiff that if he saw his name on another civil complaint, he
would make sure Plaintiff would be in prison for a long time. On December 9, 2015, Defendant
Dabb told Plaintiff to watch himself. Plaintiff’s repeated requests for grievance forms were denied
by Defendant Yon.
On December 10, 2015, Defendant Dabb searched Plaintiff’s locker and scattered all
of Plaintiff’s papers on the floor. Defendant Dabb also took Plaintiff’s secure pack food and
hygiene items. Plaintiff protested that he had a receipt for all of the items, but Defendant Dabb
merely told Plaintiff to file a grievance. Plaintiff requested a grievance, but Defendant Yon did not
respond. On December 11, 2015, and December 13, 2015, Defendant Axley performed a shake
down of Plaintiff’s area. Plaintiff later discovered all of his property torn up and scattered on the
floor of his locker. Plaintiff’s requests for grievance forms were ignored by Defendant Yon.
On December 14, 2016, Plaintiff complained to Defendant Hamel about the conduct
of Defendants Dabb and Axley. Defendant Hamel yelled at Plaintiff, stating that Plaintiff would
learn that this is what happens to prisoners who file grievances and complaints. Plaintiff requested
a grievance form, but Defendant Yon did not respond to the request. On December 16, 2015,
Defendant Dabb asked Plaintiff if he wanted a grievance, and Defendant Axley stated, “No he wants
a fucken [sic] shank, I told him they are going to find his black ass in the hole hanging.” Plaintiff
requested a grievance form, but Defendant Yon did not respond to the request. Plaintiff received
institutional mail from the MDOC in Lansing related to a step III grievance appeal he had sent. The
memorandum instructed Plaintiff to include responses and appeal forms with his step I grievances.
Plaintiff states that he had complied with this requirement, so someone must have tampered with
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his mail. The mail also included four grievances from the Warden’s office with step II responses.
Plaintiff placed the responses in his locker. On December 17, 2015, Plaintiff’s area was shaken
down and left in total disarray. Plaintiff sorted through the papers and discovered that all of the
responses pertaining to Axley and Dabb were gone. Plaintiff requested a grievance form, but
Defendant Yon did not respond to the request.
In Plaintiff’s supplemental complaint (ECF No.6), he alleges that on December 21,
2015, Defendant Hamel returned the secure food pack and hygiene items that Defendant Dabb had
taken from Plaintiff on December 10, 2015. Several items were missing and all of the food items
had been opened, which caused them to become stale. On January 3, 2016, Defendant Axley threw
Plaintiff’s itineraries on Plaintiff’s bunk and told him that if any fell on the ground, Plaintiff would
get a ticket. Plaintiff did not respond. Plaintiff later received a fabricated misconduct ticket from
Defendant Axley.
On January 3, 2016, Defendant Montie, who was in charge of the indigent prisoner
program at OCF, denied Plaintiff indigent funds, which prevented Plaintiff from being able to
purchase hygiene supplies. Plaintiff sent a kite to Defendant Montie with proof that he had a zero
spendable balance in his account, but she did not respond. Plaintiff then spoke to Defendant Montie
in person, but she told him that she was not changing her mind and that he would “think twice”
before writing another grievance. Plaintiff requested a grievance form, but Defendant Yon did not
respond.
On January 6, 2016, Defendant Axley threw half of Plaintiff’s itineraries on
Plaintiff’s bunk and half on the ground. Plaintiff later heard Axley tell his co-workers “that nigger
Lewis wanna file a complaint on me, I’m gonna make sure his black ass end up in level five.” On
January 7, 2016, Plaintiff returned to his cell to find his property in disarray and his grievances torn
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up and scattered inside his locker. Later that evening, while Plaintiff was performing his porter
duties, Defendant Axley threw Plaintiff’s itineraries on the bunk and stated that he was going to
write Plaintiff another misconduct. When Plaintiff returned, Defendant Axley stated that he was
going to make Plaintiff sorry that he ever filed a complaint on him. On January 8, 2016, Defendants
Axley and Dabb refused to sign Plaintiff’s itinerary, thereby preventing him from attending religious
services. Defendant Axley told Plaintiff that he was close with the Warden and Defendant Yon and
that he was going to make Plaintiff’s life miserable if he filed another complaint. Plaintiff requested
a grievance form, but Defendant Yon did not respond.
On January 9, 2016, Defendant Axley called Plaintiff a legal beagle, and stated that
Plaintiff would not get a dime because Defendants paid the judges, and that the judges were
“family.” Defendant Axley also stated “tell everyone why you’re in prison, you fucken [sic] child
molester.” Plaintiff requested a grievance form, but Defendant Yon did not respond. On January
10, 2016, Defendant Axley told Plaintiff to pack up his things because he was being transferred.
When Plaintiff complied, Defendant Axley told Plaintiff that he was not going anywhere because
Defendants were not done with him yet. Defendants Axley and Dabb subsequently told another
prisoner that they could make things better or worse for Plaintiff, and that all they had to do is plant
a knife in Plaintiff’s area.
Plaintiff claims that Defendants retaliated against him in violation of the United
States Constitution. Plaintiff seeks damages and equitable relief.
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
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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).
As noted above, Plaintiff claims that Defendants retaliated against him for his use
of the grievance procedure and for his conduct in filing lawsuits against prison officials. Retaliation
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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 alleges that Defendant Montie denied him indigent status in order to retaliate
against him for his grievances on other prison staff. Plaintiff further alleges that Defendant
Kafczynski denied him access to indigent legal copies and writing materials. However, Plaintiff
fails to allege any facts showing that Defendants Montie and Kafczynski were motivated by a desire
to retaliate against him. Plaintiff assertion that Defendants Montie and Kafczynski were aware of
his lawsuits is entirely conclusory. Plaintiff fails to allege any statements or conduct by Defendants
Montie and Kafczynski which would show retaliatory purpose.
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.
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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
alleges nothing more than temporal proximity with regard to Defendants Montie and Kafczynski,
his claims against these Defendants are properly dismissed.
In addition, Plaintiff fails to make specific factual allegations against Defendant
Olson, other than his claim that she failed to conduct an investigation in response to his grievances.
Government officials may not be held liable for the unconstitutional conduct of their subordinates
under a theory of respondeat 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 Olson
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engaged in any active unconstitutional behavior. Accordingly, he fails to state a claim against
Defendant Olson.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Defendants Montie, Kafczynski, and Olson 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 Axley, Dabb, Hamel, and Yon.
An Order consistent with this Opinion will be entered.

Dated: July 6, 2016

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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