Lewis #659963 v. Seames et al

Filing 8

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,

Case No. 2:16-cv-222

v.

Honorable Gordon J. Quist

S. V. SEAMES, 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, Plaintiff’s action will be dismissed for failure to state
a claim.

Discussion
I.

Factual allegations

Plaintiff Tony Doirelle Lewis, a Michigan prisoner currently incarcerated at the
Newberry Correctional Facility (NCF), filed this pro se civil rights action pursuant to 42 U.S.C. §
1983 against Defendants Corrections Officer S. V. Seames, Assistant Resident Unit Supervisor C.
Brown, Resident Unit Manager Ronald Bailey, Grievance Coordinator Mike McLean, and Warden
Jeffrey Woods. Plaintiff was incarcerated at the Chippewa Correctional Facility (URF) during the
pertinent time period.
Plaintiff alleges that on April 30, 2013, Defendant Seames retaliated against Plaintiff
by writing a false misconduct on him. On May 1, 2013, Defendant Seames wrote another false
misconduct on Plaintiff. On May 29, 2013, Plaintiff filed a grievance on Defendant Seames. On
July 11, 2013, Defendant Seames retaliated against Plaintiff by writing another false misconduct
ticket on him. Plaintiff appealed the misconduct ticket and it was removed from his file.
On October 21, 2013, Defendant Brown “skimmed” through Plaintiff’s outgoing
expedited legal mail, which was addressed to the federal court. Defendant Brown then told Plaintiff
that she dared him to file a civil complaint against her or her staff. Defendant Brown told Plaintiff
that she would be sending his “black ass to the eastside.” Plaintiff was subsequently transferred to
the East side of URF, where prisoner movement was restricted and where prisoners were typically
placed for punishment. Plaintiff filed a grievance regarding the retaliatory transfer and sent kites
to both Defendant Bailey and Defendant Woods. Defendant Bailey responded to Plaintiff’s
grievance by stating that he had been moved to accommodate religious lines, and that he remained
in the same security level, which was a level II. Plaintiff concedes that both areas were level II, but
asserts that the Eastside facility had restricted movement. Plaintiff asserts that the failure of
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Defendants Bailey and Woods to intervene on Plaintiff’s behalf against Defendant Brown violated
his rights.
Plaintiff claims that Defendants violated his rights under the First, Fourth, Fifth,
Eighth, and Fourteenth Amendments. Plaintiff seeks damages.
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
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)).
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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).
Initially, the Court notes that the vast majority of Plaintiff’s claims are barred by the
applicable statute of limitations. State statutes of limitations and tolling principles apply to
determine the timeliness of claims asserted under 42 U.S.C. § 1983. Wilson v. Garcia, 471 U.S.
261, 268-69 (1985). For civil rights suits filed in Michigan under § 1983, the statute of limitations
is three years. See MICH. COMP. LAWS § 600.5805(10); Carroll v. Wilkerson, 782 F.2d 44, 44 (6th
Cir. 1986) (per curiam); Stafford v. Vaughn, No. 97-2239, 1999 WL 96990, at *1 (6th Cir. Feb. 2,
1999). Accrual of the claim for relief, however, is a question of federal law. Collyer v. Darling, 98
F.3d 211, 220 (6th Cir. 1996); Sevier v. Turner, 742 F.2d 262, 272 (6th Cir. 1984). The statute of
limitations begins to run when the aggrieved party knows or has reason to know of the injury that
is the basis of his action. Collyer, 98 F.3d at 220.1
Plaintiff asserts claims arising in April, May, and July of 2013, as well as on October
21, 2013. Plaintiff had reason to know of the “harms” done to him at the time they occurred.
Hence, Plaintiff’s claims accrued at the time of the alleged violations. However, Plaintiff did not

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28 U.S.C. § 1658 created a “catch-all” limitations period of four years for civil actions arising under federal
statutes enacted after December 1, 1990. The Supreme Court’s decision in Jones v. R.R. Donnelley & Sons Co., 541 U.S.
369 (2004), which applied this federal four-year limitations period to a suit alleging racial discrimination under § 1981
does not apply to prisoner claims under 28 U.S.C. § 1983 because, while § 1983 was amended in 1996, prisoner civil
rights actions under § 1983 were not “made possible” by the amended statute. Id. at 382.

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file his complaint until October 12, 2016. Michigan law no longer tolls the running of the statute
of limitations when a plaintiff is incarcerated. See MICH. COMP. LAWS § 600.5851(9). Further, it
is well established that ignorance of the law does not warrant equitable tolling of a statute of
limitations. See Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991); Jones v. Gen. Motors Corp.,
939 F.2d 380, 385 (6th Cir. 1991); Mason v. Dep’t of Justice, No. 01-5701, 2002 WL 1334756, at
*2 (6th Cir. June 17, 2002). Therefore, Plaintiff’s allegations of wrongdoing that occurred prior to
October 12, 2013, are barred by the statute of limitations and are subject to dismissal for failure to
state a claim. Jones v. Bock, 549 U.S. 199, 215 (2007).
Plaintiff’s claims that Defendants Brown, Bailey, and Woods engaged in wrongdoing
in October of 2013 are not barred by the statute of limitations. As noted above, Plaintiff claims that
on October 21, 2013, Defendant Brown “skimmed” through Plaintiff’s outgoing expedited legal
mail, which was addressed to the federal court, in a manner which was more in depth than was
necessary to determine that the mail constituted legal mail. Defendant Brown then told Plaintiff that
she dared him to file a civil complaint against her or her staff and stated that she would be sending
his “black ass to the eastside.” Plaintiff was subsequently transferred to the East side of the prison,
where prisoner movement was restricted. Plaintiff claims that prisoners were typically sent to the
East side of URF as punishment. Defendant Bailey responded to Plaintiff’s grievance on the issue
by stating that he had been moved to accommodate religious lines, and that he remained in the same
security level, which was a level II. Plaintiff concedes that both areas were level II, but asserts that
the Eastside facility had restricted movement.
Plaintiff claims that Defendant Brown retaliated against him for filing a lawsuit by
having him transferred to a less desirable area of the prison. Retaliation based upon a prisoner’s
exercise of his or her constitutional rights violates the Constitution. See Thaddeus-X v. Blatter, 175
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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)).
The Court notes that “[s]ince prisoners are expected to endure more than the average
citizen, and since transfers are common among prisons, ordinarily a transfer would not deter a
prisoner of ordinary firmness from continuing to engage in protected conduct.” Siggers-El v.
Barlow, 412 F.3d 693, 701 (6th Cir. 2005). See, e.g., Smith v. Yarrow, 78 F. App’x. 529, 543 (6th
Cir. 2003) (“transfer from one prison to another prison cannot rise to the level of an adverse action
because it would not deter a person of ordinary firmness from the exercise of his First Amendment
rights”) (internal quotation marks omitted). If, however, a foreseeable consequence of a transfer
would be to substantially inhibit a prisoner’s ability to access the courts, then such a transfer could
be considered an “adverse action” that would deter a person of ordinary firmness from continuing
to engage in the protected conduct. See Hill v. Lappin, 630 F.3d 468, 474 (6th Cir. 2010) (holding
that transfer to administrative segregation or another prison’s lock-down unit or can be sufficient
to constitute adverse action); Siggers-El, 412 F.3d at 702 (holding that a transfer was an “adverse
action,” where the transfer resulted in plaintiff losing a high paying job that paid for his lawyer fees
and moved him further from the attorney); Johnson v. Beardslee, No. 1:06-CV-374, 2007 WL
2302378, at *5 (W.D. Mich. Aug. 8, 2007). Similarly, the Sixth Circuit has held that a transfer to
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segregation or to an area of the prison used to house mentally disturbed inmates could be sufficiently
adverse. See Thaddeus-X, 175 F.3d at 398; see also Hill, 630 F.3d at 468.
Plaintiff’s transfer was from one level II facility to another level II facility. Transfers
to the general population of another prison are not typically an adverse action. See Smith v. Yarrow,
78 F. App’x 529, 543 (6th Cir. 2003) (collecting cases); see also Hill, 630 F.3d at 473; Thaddeus-X,
175 F.3d at 398. Plaintiff alleges that he was transferred to a “restricted movement” unit from a unit
which did not have such a restriction. However, Plaintiff fails to allege any specific facts indicating
that such a transfer is sufficiently adverse to support a retaliation claim. Therefore, Plaintiff’s
retaliation claim against Defendant Brown is properly dismissed.
Plaintiff claims that Defendants Bailey and Woods conspired with Defendant Brown
to retaliate against him. 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).

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Plaintiff’s allegations of conspiracy are conclusory and speculative. Plaintiff alleges
no facts showing a link between the alleged conspirators or any agreement between them. He relies
entirely on a highly attenuated inference from the mere fact that Defendant Bailey denied his
grievance regarding the transfer and that neither Defendant Bailey or Woods prevented the transfer.
Such allegations fall far short of containing “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. Therefore, the Court concludes
that Plaintiff fails to state a plausible claim of conspiracy.
Finally, Plaintiff claims that Defendants Brown, Bailey, and Woods failed to have
him transferred to a level I facility despite the fact that Plaintiff was classified as a level I prisoner.
The Supreme Court has held that a prisoner does not have a protected liberty interest in the
procedures affecting his classification and security because the resulting restraint does not impose
an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison
life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). In Rimmer-Bey v. Brown, 62 F.3d 789, 79091(6th Cir. 1995), the Sixth Circuit applied the Sandin test to the claim of a Michigan inmate that
the mandatory language of the MDOC’s regulations created a liberty interest that he receive notice
and hearing before being placed in administrative segregation. The court held that regardless of the
mandatory language of the prison regulations, the inmate did not have a liberty interest because his
placement in administrative segregation did not constitute an atypical and significant hardship
within the context of his prison life. Id; see also Mackey v. Dyke, 111 F.3d 460, 463 (6th Cir. 1997).
Without a protected liberty interest, plaintiff cannot successfully claim that his due process rights
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were violated because, “[p]rocess is not an end in itself.” Olim v. Wakinekona, 461 U.S. 238, 250
(1983).
Moreover, the Supreme Court repeatedly has held that a prisoner has no
constitutional right to be incarcerated in a particular facility or to be held in a specific security
classification. See Olim, 461 U.S. at 245; Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976); Meachum
v. Fano, 427 U.S. 215, 228-29 (1976). The Sixth Circuit has followed the Supreme Court’s rulings
in a variety of security classification challenges. See, e.g., Harris v. Truesdell, 79 F. App’x 756, 759
(6th Cir. 2003) (holding that prisoner had no constitutional right to be held in a particular prison or
security classification); Carter v. Tucker, 69 F. App’x 678, 680 (6th Cir. 2003) (same); O’Quinn v.
Brown, No. 92-2183, 1993 WL 80292, at *1 (6th Cir. Mar. 22, 1993) (prisoner failed to state a due
process or equal protection claim regarding his label as a “homosexual predator” because he did not
have a constitutional right to a particular security level or place of confinement). Because Plaintiff
does not have a constitutional right to be held in a particular security level, this claim is properly
dismissed.
Finally, Plaintiff has filed a motion to supplement his complaint (ECF No. 7) by
adding Defendants and claims. However, a review of the proposed supplemental claims reveals that
they occurred between December 8, 2011, and August 20, 2013. For the reasons set forth above,
these claims are barred by the applicable statute of limitations. Therefore, Plaintiff’s motion is
properly denied as futile.
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).
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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: February 9, 2017

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

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