Sango #252200 v. Place

Filing 5

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

ROBERT D. SANGO,
Plaintiff,

Case No. 2:16-cv-136

v.

Honorable Gordon J. Quist

SHANE PLACE,
Defendant.
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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, Plaintiff’s action will be dismissed for failure to state
a claim.

Factual Allegations
Plaintiff Robert D. Sango presently is incarcerated at the Baraga Maximum
Correctional Facility (AMF). He sues AMF Warden Shane Place.
Plaintiff alleges that he has filed numerous actions against prison officials, including
two actions against AMF Prisoner Counselor (unknown) Bastain and correctional officer (unknown)
Sohlden. See Sango v. Bastian et al., No. 2:15-cv-105 (W.D. Mich.)1; Sango v. Sohden et al., No.
2:16-cv-18 (W.D. Mich.).2 Plaintiff contends that, sometime after he received notice that the above
cases were being served by this Court, Officer Sohlden began working in Plaintiff’s unit and Officer
Bastain was made the new unit prison counselor, meaning that Plaintiff was required to process his
legal filings through Bastain. Plaintiff alleges that Defendant Bastain immediately came to
Plaintiff’s cell and announced to the other prisoners that he would reduce the security classification
(from Level V to Level II) of any prisoner who stabbed Plaintiff. Plaintiff also alleges that other
unspecified staff members increased property searches and confiscations and told the prisoners that
Plaintiff was to blame for the increased enforcement. In addition, officers directed prisoners to go
to the showers dressed only in their underwear, dramatically shortened the length of showers, and
turned off the ventilation system, again telling the other prisoners that the limitations were Plaintiff’s
fault for snitching on officers. Plaintiff alleges that he faces ongoing risks of assault from the other
prisoners. Plaintiff contends that Defendant Place is responsible for the organized conspiracy to hurt
Plaintiff as punishment for filing lawsuits against Bastain and Sohlden. He seeks compensatory and
punitive damages, together with injunctive relief.
1

Plaintiff spells the officer’s name as “Bastain” in the instant complaint, but he previously spelled the name as
“Bastian” in some of his earlier complaints, including Case No. 2:15-cv-105.
2

Plaintiff has filed a total of thirty-eight lawsuits in this Court, nine of which remain open at the time of this

writing.

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Discussion
I.

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)
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); Dominguez v.
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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
(1994).
Plaintiff makes no allegation that Defendant Warden Place took any specific negative
action against him. He merely makes the sweeping allegation that Defendant Place orchestrated a
conspiracy to retaliate against him and place his life at risk.
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).
Plaintiff’s allegations that Defendant Place organized or participated in a conspiracy
are conclusory and speculative. While Defendant Bastain may have been given different job duties
and Officer Sohlden may have been assigned Plaintiff’s unit at some time after lawsuits were served
against them, such changes in assignments do not themselves indicate that Defendant Place
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conspired or otherwise participated in any retaliatory or threatening actions taken by unit officers.
In addition, the mere allegation that Defendant Place would have known that the lawsuits were
served does not tend to prove that Defendant Place organized a retaliatory conspiracy against
Plaintiff. As the Supreme Court has held, such allegations, while hinting at a “possibility” of
conspiracy, do not contain “enough factual matter (taken as true) to suggest that an agreement was
made.” Twombly, 550 U.S. at 556. Instead, the Court has recognized that although parallel conduct
may be consistent with an unlawful agreement, it is insufficient to state a claim where that conduct
“was not only compatible with, but indeed was more likely explained by, lawful, unchoreographed
. . . behavior.” Iqbal, 556 U.S. at 680. In light of the far more likely possibility that the various
incidents occurring over the long history of Plaintiff’s incarceration were unrelated to any action
taken by Defendant Place, Plaintiff fails to state a plausible claim of conspiracy.
Moreover, Defendant Place may not be held liable simply because he had supervisory
authority over the officers who committed the alleged misconduct. 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
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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 Place engaged
in any active unconstitutional behavior. Accordingly, he fails to state a claim against Place.
Conclusion
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: July 6, 2016

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

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