Robinson #602273 v. Amble et al

Filing 4

OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
______
ALBERT REGINALD ROBINSON,
Plaintiff,
v.

Case No. 2:18-cv-11
Honorable Gordon J. Quist

R. AMBLE et al.,
Defendants.

____________________________/
OPINION
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983.
Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), 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.
Discussion
I.

Factual allegations

Plaintiff is presently incarcerated with the Michigan Department of Corrections
(MDOC) at the Chippewa Correctional Facility (URF) in Kincheloe, Chippewa County, Michigan.

The events about which he complains occurred at that facility. Plaintiff sues Corrections Officer
R. Amble, Hearing Officer Unknown O’Brien, and Sergeant Unknown Henderson.
Plaintiff alleges that on August 10, 2017, at 6:00 a.m., he was late for work in the
chow hall and asked Defendant Amble if he could go to work. Defendant Amble told Plaintiff that
the lobby was closed. Plaintiff replied that chow hall workers go to work every morning when the
lobby was closed. Plaintiff states that Defendant Amble’s comment regarding the lobby being
closed was merely harassment. Defendant Amble then told Plaintiff he could go to work. While
Plaintiff was heading toward the lobby, Defendant Amble yelled, “What’s your fuckin attitude?”
Plaintiff returned to the unit podium and said, “I don’t have an attitude.” Plaintiff turned to leave
the unit, but Defendant Amble came up behind him. Defendant Amble then pointed his finger in
Plaintiff’s face and called him an asshole. Plaintiff responded by stating, “Stop pointing your
finger in my face, don’t disrespect me, I’m not your slave.” Defendant Amble told Plaintiff to
leave the lobby and pushed his security button. As Plaintiff attempted to leave, other officers met
Plaintiff. Defendant Amble told the officers to lock Plaintiff up.
Plaintiff was escorted to the control center, where Defendant Henderson instructed
Plaintiff to sit while he checked the security video. When Defendant Henderson returned, he asked
Plaintiff what had happened. Plaintiff described the events and Defendant Henderson stated that
he had observed Defendant Amble pointing his finger in Plaintiff’s face, so he would not place
Plaintiff in segregation, but would instead move Plaintiff to another unit.
Defendant Amble falsified a misconduct ticket on Plaintiff for insolence and
disobeying a direct order, claiming that Plaintiff had refused a direct order to leave the lobby. The
misconduct ticket claimed that Plaintiff had asked Defendant Amble what his problem was, and
had walked toward Defendant Amble stating, “Why are you fucking with me I aint your slave.”
Defendant Henderson reviewed the misconduct ticket with Plaintiff and told Plaintiff that he was
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elevating the misconduct from a class II to a class I because he believed Defendant Amble, despite
the video evidence. Plaintiff was found guilty of the misconduct by Defendant O’Brien, despite
the fact that the video evidence supported Plaintiff’s version of the events.
Plaintiff was unable to file a grievance regarding Defendants Amble and O’Brien
because he had been placed on modified access to the grievance process. Plaintiff’s request for
rehearing was denied. Plaintiff offers affidavits from other prisoners in support of his claim that
Defendant Amble lied on the misconduct ticket.
Plaintiff states that Defendant Amble violated his Eighth Amendment and
Fourteenth Amendment rights when he yelled at him and pointed his finger in Plaintiff’s face.
Plaintiff also claims that his misconduct conviction, which was the result of a conspiracy by all
Defendants, violated his right to be free from retaliation, as well as his right to due process.
Plaintiff seeks compensatory and punitive 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
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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).
Plaintiff claims that Defendant Amble violated his Eighth Amendment rights when
he stuck his finger in Plaintiff’s face and yelled that Plaintiff was an asshole. 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
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*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 Amble.
Plaintiff also claims that Defendant Amble’s conduct violated his Fourteenth
Amendment right to equal protection. Plaintiff states that Defendant Amble is white and that when
he pointed his finger in Plaintiff’s face and yelled, he was treating Plaintiff as if he were a slave.
The Equal Protection Clause of the Fourteenth Amendment provides that a state may not “deny to
any person within its jurisdiction the equal protection of the laws,” which is essentially a direction
that all persons similarly situated should be treated alike. U.S. Const., amend. XIV; City of
Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). When a law adversely impacts
a “suspect class” such as one defined by race, alienage, or national origin, or invades a
“fundamental right” such as speech or religious freedom, the rigorous “strict scrutiny” standard
ordinarily governs, whereby such laws “will be sustained only if they are suitably tailored to serve
a compelling state interest.” City of Cleburne, 473 U.S. at 440. However, while a convicted
prisoner does not forfeit all constitutional protections by virtue of his confinement, “lawful
incarceration brings about the necessary withdrawal or limitation of many privileges and
rights . . . .” Price v. Johnston, 334 U.S. 266, 285 (1948). “The limitations on the exercise of
constitutional rights arise both from the fact of incarceration and from valid penological
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objectives B including deterrence of crime, rehabilitation of prisoners, and institutional security.”
O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) (citing, inter alia, Turner v. Safley, 482
U.S. 78, 84 (1987)).
To establish a violation of the Equal Protection Clause, an inmate must show that
the defendants purposefully discriminated against him. Vill. of Arlington Heights v. Metro. Hous.
Dev. Corp., 429 U.S. 252, 265 (1977). Such discriminatory purpose must be a motivating factor
in the actions of the defendants. Id. at 265-66. “A plaintiff presenting a race-based equal
protection claim can either present direct evidence of discrimination, or can establish a prima facie
case of discrimination under the burden-shifting scheme set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).” Umani v. Mich. Dep’t of Corr., 432 F. App’x 453, 458
(6th Cir. 2011). Plaintiff alleges no facts constituting direct evidence of discriminatory motive or
purpose in Defendant Amble’s treatment of Plaintiff. See Umani v. Mich. Dep’t of Corr., 432 F.
App=x 453, 458 (6th Cir. 2011). Therefore, Plaintiff’s equal protection claim is properly dismissed.
Plaintiff claims that the major misconduct charges against him were “false.” A
prisoner’s ability to challenge a prison misconduct conviction depends on whether the convictions
implicated any liberty interest. In the seminal 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 good-time 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,
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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
abrogated.
Wolff, 418 U.S. at 557 (citations omitted).
Plaintiff does not allege that his major misconduct convictions resulted in any loss
of good-time credits, nor could he. The Sixth Circuit has examined Michigan statutory law, as it
relates to the creation and forfeiture of disciplinary credits 1 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).

1

For crimes committed after April 1, 1987, Michigan prisoners earn “disciplinary credits” under a statute that
abolished the former good-time system. Mich. Comp. Laws § 800.33(5).

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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 a
significant, atypical deprivation. See Sandin v. Connor, 515 U.S. 472 (1995). Plaintiff has not
identified any significant deprivation arising from his convictions. 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).
Plaintiff also claims that his misconduct ticket and conviction were retaliatory.
Retaliation 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 claims that he was retaliated against for filing a grievance on Defendant
O’Brien on June 11, 2017. However, Plaintiff fails to allege any facts showing that Defendants
were motivated by a desire to retaliate against him. 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).
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[Moreover,] Muhammad does not stand for the proposition that temporal proximity
alone is sufficient to create an issue of fact as to retaliatory motive. 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). For the same
reason as those set forth in Brandon v. Bergh, Plaintiff’s retaliation claims are properly dismissed
as conclusory.
Finally, Plaintiff claims that Defendants conspired to violate his rights with regard
to his false misconduct conviction. “A civil conspiracy is an agreement between two or more
persons to injure another by unlawful action.” Hooks v. Hooks, 771 F.2d 935, 943–44 (6th Cir.
1985). “Express agreement among all the conspirators is not necessary to find the existence of a
civil conspiracy. Each conspirator need not have known all of the details of the illegal plan or all
of the participants involved.” Id. at 944. Instead, the plaintiff must show that: (1) “a single plan”
existed; (2) “the alleged coconspirator shared in the general conspiratorial objective” to deprive
the plaintiff of a constitutional right (or a federal statutory right); and (3) “an overt act was
committed in furtherance of the conspiracy that caused injury” to the plaintiff. Id. 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

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1534, 1538 (6th Cir. 1987). Because Plaintiff’s conspiracy claim is based on vague and conclusory
allegations without supporting facts, it is properly dismissed.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the
Court determines that Plaintiff’s complaint will be dismissed for failure to state a claim, under 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: August 27, 2018

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

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