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Cromer v. Michigan Department of Corrections

United States District Court, E.D. Michigan, Southern Division

January 29, 2015

BILLY CROMER, Plaintiff,

Billy Cromer, Plaintiff, Pro se, MANISTEE, MI.

For J Bugbee, Rose, Lieutenant, Steve Rivard, Kelly Barnett, D Heinze, Wayne M. Groat, J Jacobs, L McCormick, Susan Havelka, E Scott, F Tchorzynski, D. Jackson, T Keirkau, Defendants: Allan J. Soros, Michigan Department of Attorney General, Lansing, MI.




Plaintiff Billy Cromer, currently a prisoner at the Oaks Correctional Facility located in Manistee, Michigan, filed this pro se civil rights action on November 22, 2013, pursuant to 42 § 1983. (Docket no. 1.) This matter comes before the Court on three motions. The first motion is a Motion for Summary Judgment filed by Defendants Jeremy Bugbee, Warren Rose, Steve Rivard, Kelly Barnett, Jeremy Heinze, Wayne Groat, Jon Jacobs, Laura McCormick, Lori Scott, Daniel Tchorzynski, Latanya Jackson, and Kirk Kerkau. (Docket no. 28.) The second motion is Plaintiff's Motion for Default Judgment. (Docket no. 30.) The third motion is Defendant Susan Havelka's Motion for Summary Judgment. (Docket no. 35.) Plaintiff responded to Defendants' Motions (docket no. 39), and Defendants replied to Plaintiff's Response (docket no. 40). This action has been referred to the undersigned for all pretrial purposes. (Docket no. 26.) The Court dispenses with oral argument on the motions pursuant to Eastern District of Michigan Local Rule 7.1(f) and issues this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).


For the reasons that follow, the undersigned recommends that Defendants' Motions for Summary Judgment (docket nos. 28 and 35) be GRANTED and that Plaintiff's Motion for Default Judgment (docket no. 30) be DENIED.


A. Background

The events giving rise to Plaintiff's Complaint occurred while he was incarcerated at the St. Louis Correctional Facility (SLF) in St. Louis, Michigan. (Docket no. 1 ¶ 2.) Plaintiff alleges that on April 24, 2013, he received a bag of items that he had ordered from the commissary, and it was missing five bags of protein powder. (Id. ¶ ¶ 25-26.) Plaintiff claims that he notified the storekeeper, who reviewed the bag, confirmed that the protein powder was missing, and told Plaintiff that his account would be credited accordingly. (Id. ¶ ¶ 27-28.) According to Plaintiff, the storekeeper subsequently ordered a shakedown of Plaintiff's cell to search for the missing protein powder and then suggested that Plaintiff had to take the loss. (Id. ¶ 29.) Plaintiff asserts that he filed grievance SLF-13-05-0587-01h regarding the matter, to no avail. (Id. ¶ 31.) The Michigan Department of Corrections' (MDOC) investigation into Plaintiff's grievance revealed that Plaintiff's cellmate had purchased an identical commissary order except for the protein powder and that after receiving their orders, Plaintiff and his cellmate switched bags so that Plaintiff could claim the missing protein powder.[1] (Docket no. 40-2 at 18.) The MDOC denied Plaintiff's grievance on the basis that he was being untruthful and trying to circumvent the system by seeking reimbursement to which he was not entitled. (Id.)

Plaintiff alleges that after he filed a grievance regarding the commissary store incident, Defendant Kerkau began making racial slurs, insults, and threats toward Plaintiff. (Docket no. 1 ¶ 33.) Plaintiff claims that Defendant Kerkau then performed a shakedown of his cell, poured Plaintiff's coffee into the toilet, opened multiple bags of food and poured them all over his cell, poured shampoo all over his legal papers, law books, and family pictures, and placed Plaintiff's grievance and its response on his pillow and a knife under his mattress between one of his magazines. (Id. ¶ 34.) Plaintiff alleges that he took the knife to Defendant McCormick to show her that Defendant Kerkau was making good on his threats against him, and he requested an immediate transfer out of his cell block.. (Id. ¶ 36.) According to Plaintiff, Defendant McCormick told him to stay out of Defendant Kerkau's way and to " learn how to jail." (Id. ¶ 37.) Plaintiff claims that he then filed grievance SLF-13-05-0569-17a regarding this incident. (Id. ¶ 39.) Plaintiff asserts that after he filed this grievance, he began receiving threats from Defendant McCormick. (Id. ¶ 41.) Plaintiff alleges that Defendant Barnett denied his Step II grievance appeal on June 5, 2013, and shortly thereafter, Defendant Jacobs summoned Plaintiff to his office and threatened him about making any further grievances. (Id. ¶ ¶ 42-43.)

Next, Plaintiff claims that on October 29, 2013, Defendant Rose accused him of spilling Kool-Aid on the floor. (Id. ¶ 44.) Plaintiff alleges that he tried to explain that he didn't do it, but Defendant Rose ordered Plaintiff to " cuff-up." (Id. ¶ ¶ 45-46.) Plaintiff claims that Defendant Tchorzynski put the handcuffs on so tight that he lost circulation in his fingers, wrist, and arms. (Id. ¶ 46.) Plaintiff asserts that Defendants Tchorzynski and Jackson escorted Plaintiff to segregation while walking him backwards at such an accelerated pace that Plaintiff's shoes came off. (Id. ¶ 48.) Plaintiff further asserts that he kept telling Defendant Tchorzynski that his handcuffs were too tight and that Defendant Tchorzynski then started to bend Plaintiff's fingers backwards and upwards, which caused Plaintiff to scream and holler in pain. (Id. ¶ 49.) According to Plaintiff, Defendant Tchorzynski then kneed Plaintiff's abdomen, causing serious bruises and intense swelling. (Id. ¶ 51.) Plaintiff claims that he asked Defendant Heinze to be seen by a nurse for medical treatment, who denied his request. (Id. ¶ ¶ 53-54.) Plaintiff alleges that Defendant Scott appeared at his cell days later and asked him if he wanted to make a statement regarding his misconduct; Plaintiff claims to have answered in the affirmative and requested video footage of his escort to segregation. (Id. ¶ 55.) Plaintiff avers that on November 6, 2013, he appeared before Defendant Groat for an administrative hearing on his misconduct, who found that Plaintiff was guilty of assault and battery against prison staff and ordered Plaintiff to serve ten days detention in segregation and 30 days loss of privileges. (Id. ¶ ¶ 56, 59.) Plaintiff alleges that Defendant Groat's decision deprived Plaintiff of his constitutional right to marry his fiancé e on November 14, 2013. (Id. ¶ 60.)

Plaintiff further alleges that Defendants Bugbee, Rose, Jacobs, McCormick, Havelka, Groat, Barnett, and Rivard all engaged in retaliatory conduct to cover up the acts of their subordinates, Defendants Jackson, Kerkau, Scott, Tchorzynski, and Heinze. (Id. ¶ 67.) Plaintiff claims that Defendants' actions described above violated his rights under the First, Eighth, and Fourteenth Amendments. (Id. ¶ ¶ 66-69.)

All of the Defendants except for Defendant Havelka filed a Motion for Summary Judgment on April 22, 2014. (Docket no. 28.) Plaintiff filed a Motion for Default Judgment on May 2, 2014. (Docket no. 30.) After being served, Defendant Havelka filed a Motion for Summary Judgment on May 21, 2014. (Docket no. 35.) On November 12, 2014, the Court ordered Plaintiff to file a response to Defendants' Motions for Summary Judgment. (Docket no. 37.) Plaintiff did so on ...

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