Flores #196450 v. Leece et al

Filing 7

OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
______
DAVID ANTHONY FLORES,
Plaintiff,
v.

Case No. 2:17-cv-61
Honorable Paul L. Maloney

UNKNOWN LEECE et al.,
Defendants.

____________________________/
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 against Defendants Leece, Horrocks, Laitinen, Viitala, Huss, and Napel for failure to
state a claim.

Discussion
I.

Factual allegations

Plaintiff is presently incarcerated within the Michigan Department of Corrections
(MDOC) at Ionia Correctional Facility (ICF) in Ionia, Ionia County, Michigan. The events about
which he complains, however, occurred at the Marquette Branch Prison (MBP) in Marquette,
Marquette County, Michigan.

Plaintiff sues Corrections Officer Unknown Leece, Prison

Counselor Becky Horrocks, Assistant Resident Unit Supervisor Michael T. Laitinen, Assistant
Resident Unit Manager Darrin Viitala, Deputy Warden of Housing Erica Huss, and Warden Robert
Napel.
Plaintiff alleges that on Sunday, March 13, 2016, he was assaulted by Prisoner
Robert Lee Brooks #294879. Plaintiff states that Prisoner Brooks used a weapon, which caused
“superficial abrasions that needed medical attention” and left scarring on Plaintiff’s body.
Sometime after the assault, Defendant Leece came to Plaintiff’s cell when it was time for yard and
asked Plaintiff why he was wearing shower shoes. Plaintiff stated that he was not going to yard
and only wanted to mail two items and return to his cell. Defendant Leece told Plaintiff that if he
came out of his cell, he must go to yard, or he would receive a ticket for being out of place.
Defendant Leece was aware of the fact that Plaintiff had been assaulted and had been returned
from yard for his own protection. Plaintiff asked Defendant Leece if he would mail his items, but
Defendant Leece refused. Plaintiff claims that this was his only opportunity to mail his items and
that other officers have allowed him to mail items during yard time and return to his cell without
going to yard. Plaintiff states that he is a “pre-op transgender” prisoner and that the scars he
received have caused him to suffer emotional distress.

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Plaintiff states that Defendant Horrocks conducted an investigation into the assault
and wanted Plaintiff to “lock up for protection.” Plaintiff refused protective custody because he
did not believe that he should be punished for being assaulted. Plaintiff alleges that MBP is well
known for locking up gay and transgender prisoners. Defendant Horrocks recommended that
Plaintiff be placed in involuntary protective segregation. Defendant Laitinen went along with the
recommendation.
While Plaintiff was in segregation, he had an incident with his mattress, which was
in poor condition. Defendant Laitinen expected Plaintiff to continue using the mattress, stating
that Plaintiff should be grateful to have a “home away from home.” Plaintiff filed a grievance and
Defendant Laitinen eventually told corrections officers to swap Plaintiff’s mattress with another,
less damaged mattress. Plaintiff put a plastic bag cover over the mattress because it was dirty,
smelled liked stale / sour body odor, and the vinyl was ripped open.
Plaintiff states that Defendant Viitala failed to promptly check into complaints and
to cover-up staff misconduct in response to grievances. Plaintiff contends that Defendant Huss is
supposed to ensure that housing units are in compliance with MDOC regulations, but that she
allows the deputy warden’s staffers to do as they please so long as they do not do it in front of her.
Plaintiff overheard Defendant Huss tell another prisoner that her job is easy and merely a way to
pay her bills. Plaintiff alleges that Defendant Napel allows his subordinates to do as they please
and fails to provide proper supervision. Plaintiff claims that Defendants’ conduct has caused him
permanent psychological scarring.
Plaintiff seeks damages and equitable relief.

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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)).
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

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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 Plaintiff fails to make specific factual allegations
against Defendants Viitala, Huss, and Napel, other than his claim that they failed to conduct an
investigation in response to his grievances or to properly supervise their subordinates.
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, Section 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[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 Defendants Viitala, Huss, and Napel engaged in any active unconstitutional behavior.
Accordingly, he fails to state a claim against them.
Plaintiff claims that Defendants Horrocks and Laitinen violated his rights when
they had him placed in protective custody against his will. Plaintiff attaches a copy of a “Request
for Protection / Investigation Report,” dated March 13, 2016, which states:

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Prisoner Flores #196450 . . . was involved in an altercation with
another inmate while on the Level V yard. Prisoner Flores was
assaulted by prisoner Brooks #294879 . . . . It was also determined
that prisoner Brooks was in possession of a weapon during the
assault. No significant injuries were sustained. The weapon was
processed and placed in the [Michigan State Police] locker. Prisoner
Flores has refused Protective Custody at this time.
Additional information: After investigation prisoner Flores has been
assaulted on 3/12, then again on 3/13 which involved a weapon.
Prisoner sustained minor injuries.
Prisoner Flores is known to holler out obscenities from his cell such
as “nigger” which has caused a magnitude of conflict for prisoner
Flores. However since the two assaults in the same weekend
prisoner Flores is requesting to be returned to [general population]
and states if it gets worse he will notify staff. I feel that LTPC [longterm protective custody] placement is a must due to the conflict he
has caused himself here and other facilities. A SPON [special
problem offender notice] is being issued against Brooks who
assaulted Flores with a weapon.
See ECF No. 1-1, PageID.20. In the SCC Review and Decision section of the report, Defendant
Huss noted:
Investigation into this matter has concluded that a long term
protective environment is warranted and that a conflict situation
exists. However, it is clear that inmate Flores is not eligible for level
IV placement at this time. Prisoner Flores will remain in level V
temporary segregation pending placement at an alternate level V for
SPON separation, while awaiting eligibility for level IV and return
to a protective housing unit.
Id.
Plaintiff appears to be claiming that his placement in segregation violated his due
process rights. The Supreme Court long has held that the Due Process Clause does not protect
every change in the conditions of confinement having an impact on a prisoner. See Meachum v.
Fano, 427 U.S. 215, 225 (1976). In Sandin v. Conner, 515 U.S. 472, 484 (1995), the Court set
forth the standard for determining when a prisoner=s loss of liberty implicates a federally
cognizable liberty interest protected by the Due Process Clause. According to the Sandin Court, a
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prisoner is entitled to the protections of due process only when a deprivation Awill inevitably affect
the duration of his sentence@ or imposes an Aatypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.@ Sandin, 515 U.S. at 486-87; see also Jones v.
Baker, 155 F.3d 810, 812 (6th Cir. 1998); Rimmer-Bey v. Brown, 62 F.3d 789, 790-91 (6th Cir.
1995).
Confinement in segregation Ais the sort of confinement that inmates should
reasonably anticipate receiving at some point in their incarceration.@ Hewitt v. Helms, 459 U.S.
460, 467-73 (1983).

Thus, it is considered atypical and significant only in Aextreme

circumstances.@ Joseph v. Curtin, 410 F. App=x 865, 868 (6th Cir. 2010). Generally, courts will
consider the nature and duration of a stay in segregation to determine whether it imposes an
Aatypical and significant hardship.@ HardenBBey v. Rutter, 524 F.3d 789, 794 (6th. Cir. 2008).
In Sandin, the Supreme Court concluded that the segregation at issue in that case
(disciplinary segregation for 30 days) did not impose an atypical and significant hardship. Sandin,
515 U.S. at 484. Similarly, the Sixth Circuit has held that mere placement in administrative
segregation, and placement for a relatively short period of time, do not require the protections of
due process. Rimmer-Bey, 62 F.3d at 790-91; see Joseph v. Curtin, 410 F. App=x 865, 868 (6th Cir.
2010) (61 days in segregation is not atypical and significant). The Sixth Circuit has also held, in
specific circumstances, that confinement in segregation for a relatively long period of time does
not implicate a liberty interest. See, e.g., Baker, 155 F.3d at 812-23 (two years of segregation
while the inmate was investigated for the murder of a prison guard in a riot); Mackey v. Dyke, 111
F.3d 460 (6th Cir. 1997) (one year of segregation following convictions for possession of illegal
contraband and assault, including a 117-day delay in reclassification due to prison crowding). But
cf. Selby v. Caruso, 734 F.3d 554, 559 (6th Cir. 2013) (13 years of segregation implicates a liberty

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interest); Harden-Bey, 524 F.3d at 795 (remanding to the district court to consider whether the
plaintiff's allegedly Aindefinite@ period of segregation, i.e., three years without an explanation from
prison officials, implicates a liberty interest); Harris v. Caruso, 465 F. App=x 481, 484 (6th Cir.
2012) (eight years of segregation implicates a liberty interest).
Even where a liberty interest is shown, the due process claim Ais not complete
unless and until the State fails to provide due process.@ Zinermon v. Burch, 494 U.S. 113, 126
(1990). The Supreme Court has indicated that A[p]rison officials must engage in some sort of
periodic review of the confinement of . . . inmates [in segregation].@ Hewitt, 459 U.S. at 477 n.9.
AThis review will not necessarily require that prison officials permit the submission of any
additional evidence or statements.@ Id. However, the decision to continue confinement must be
supported by Asome evidence.@ Superintendent v. Hill, 472 U.S. 445, 454 (1985).

AThis

requirement balances the procedural rights of prisoner against the need of prison officials to have
freedom to operate their facilities on a day-to-day basis.@ Harris, 465 F. App=x at 484. In short,
where an inmate=s confinement in segregation implicates a liberty interest, he is entitled to a
Aperiodic review of his confinement, supported by some evidence or indicia of reliability.@ Id. at
485; see also Selby, 734 F.3d at 559-60 (holding that the mere formality of holding reviews is not
sufficient; whether a given process is meaningful and adequate is a question of fact).
In this case, Plaintiff fails to allege any facts indicating that his confinement in
temporary segregation constituted an atypical and significant hardship. Therefore, Plaintiff’s
claims regarding this confinement are properly dismissed.
Plaintiff also appears to be claiming that the condition of his mattress violated his
rights under the Eighth Amendment. The Eighth Amendment imposes a constitutional limitation
on the power of the states to punish those convicted of crimes. Punishment may not be Abarbarous@

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nor may it contravene society=s Aevolving standards of decency.@ Rhodes v. Chapman, 452 U.S.
337, 345-46 (1981). The Amendment, therefore, prohibits conduct by prison officials that involves
the Aunnecessary and wanton infliction of pain.@ Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987)
(per curiam) (quoting Rhodes, 452 U.S. at 346). The deprivation alleged must result in the denial
of the Aminimal civilized measure of life=s necessities.@ Rhodes, 452 U.S. at 347; see also Wilson
v. Yaklich, 148 F.3d 596, 600-01 (6th Cir. 1998). The Eighth Amendment is only concerned with
Adeprivations of essential food, medical care, or sanitation@ or Aother conditions intolerable for
prison confinement.@

Rhodes, 452 U.S. at 348 (citation omitted). Moreover, A[n]ot every

unpleasant experience a prisoner might endure while incarcerated constitutes cruel and unusual
punishment within the meaning of the Eighth Amendment.@ Ivey, 832 F.2d at 954.
In order for a prisoner to prevail on an Eighth Amendment claim, he must show
that he faced a sufficiently serious risk to his health or safety and that the defendant official acted
with A>deliberate indifference= to [his] health or safety.@ Mingus v. Butler, 591 F.3d 474, 479-80
(6th Cir. 2010) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994) (applying deliberate
indifference standard to medical claims); see also Helling v. McKinney, 509 U.S. 25, 35 (1993)
(applying deliberate indifference standard to conditions of confinement claims)).

“Routine

discomfort is >part of the penalty that criminal offenders pay for their offenses against society.=@
Hudson v. McMillian, 503 U.S. 1, 9 (1992) (quoting Rhodes, 452 U.S. at 347). As a consequence,
Aextreme deprivations are required to make out a conditions-of-confinement claim.” Id. Plaintiff’s
claim regarding the condition of his mattress fails to rise to the level of an Eighth Amendment
violation.
Finally, Plaintiff claims that Defendant Leece violated his rights when he refused
to allow Plaintiff to mail items during yard time without also going to yard. Plaintiff does not

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specifically allege that his mail was legal mail, but he does claim that he needed to mail it on that
particular date. Plaintiff also fails to allege whether he mailed the items and went to yard, or
returned to his cell. In Bounds v. Smith, 430 U.S. 817 (1977), the Supreme Court recognized a
prisoner=s fundamental right of access to the courts. While the right of access to the courts does
not allow a State to prevent an inmate from bringing a grievance to court, it also does not require
the State to enable a prisoner to discover grievances or litigate effectively. Lewis v. Casey, 518
U.S. 343 (1996). Thus, Bounds did not create an abstract, free-standing right to a law library,
litigation tools, or legal assistance. Id. at 351 (1996). Further, the right may be limited by
legitimate penological goals, such as maintaining security and preventing fire or sanitation
hazards. See Acord v. Brown, No. 91-1865, 1992 WL 58975 (6th Cir. March 26, 1992); Hadix v.
Johnson, No. 86-1701, 1988 WL 24204 (6th Cir. March 17, 1988); Wagner v. Rees, No. 85-5637,
1985 WL 14025 (6th Cir. Nov. 8, 1985).
To state a claim, an inmate must show that alleged misconduct caused actual injury
in his pursuit of a legal claim. Lewis, 518 U.S. at 351; Talley-Bey, 168 F.3d at 886; Kensu v.
Haigh, 87 F.3d 172, 175 (6th Cir. 1996); Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996);
Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir. 1985). An inmate must make a specific claim that
he was adversely affected or that the litigation was prejudiced. Vandiver v. Niemi, No. 94-1642,
1994 WL 677685, at *1 (6th Cir. Dec. 2, 1994). Because Plaintiff fails to allege any actual injury
to pending litigation, he has not stated an access to courts claim under the First Amendment.
Moreover, Plaintiff has failed to show a violation of the First Amendment for
interference with outgoing non-legal mail. Generally, Aisolated instances of interference with
prisoners= mail@ do not rise to the level of a constitutional violation under the First Amendment.
See Johnson v. Wilkinson, 229 F.3d 1152 (6th Cir. 2000) (citing Gardner v. Howard, 109 F.3d

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427, 431 (8th Cir. 1997) (holding that an Aisolated incident, without any evidence of improper
motive or resulting interference with [the inmate=s] right to counsel or to access to the courts, does
not give rise to a constitutional violation.@)); Colvin v. Caruso, 605 F.3d 282, 293 (6th Cir. 2010)
(citing Johnson for the holding that Aisolated incidents@ of interference with prisoners= rights do
not rise to the level of a First Amendment violation). Plaintiff=s inability to send non-legal mail
on one occasion appears to have been an isolated occurrence. Thus, Plaintiff=s allegations are not
sufficient to state a First Amendment claim.
Finally, assuming that Plaintiff sent out his mail and went to the yard despite his
desire to return to his cell, such allegations do not rise to the level of an Eighth Amendment
violation. Plaintiff fails to allege that his presence in the yard resulted in any injury to himself, or
that there was any imminent danger of such an injury.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the
Court determines that Defendants Leece, Horrocks, Laitinen, Viitala, Huss, and Napel 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). This is a dismissal as described by 28 U.S.C. § 1915(g).
An Order consistent with this Opinion will be entered.

Dated: October 17, 2017

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

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