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Cosgrove v. Burke

United States District Court, W.D. Michigan, Northern Division

October 7, 2016

JOHN BURKE, et al., Defendants.



         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 for failure to state a claim against Defendants Niemi, Schwab, Tucker, Spruce, Unknown Party #1 Law Librarian, Tammlin, Salewske, Raymond, Hearing Officer Unknown S. Burke, Larala, Salmi, McIntyre, Wealton, Schaub, Parrish, Hytaca, and Median. The Court will serve the complaint against Defendants John Burke, Pesola, and Dube.


         I. Factual allegations

         Plaintiff Cary Cosgrove, a state prisoner currently confined at the Marquette Branch Prison (MBP), filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against Defendants Resident Unit Manager John Burke, Acting Deputy Warden S. Niemi, Corrections Officer Unknown Schwab, Corrections Officer Unknown Tucker, Assistant Resident Unit Supervisor Joseph Spruce, Law Librarian Unknown Party #1, Corrections Officer Unknown Tammlin, Corrections Officer Unknown Salewske, Hearing Investigator Unknown Raymond, Hearing Officer Unknown S. Burke, Mental Health Worker Ann Larala, Mental Health Worker Mandi[1] Salmi, Corrections Officer Unknown McIntyre, Corrections Officer Unknown Wealton, Captain Unknown Schaub, Corrections Officer R. Parrish, Corrections Officer B. Pesola, Corrections Officer Unknown Dube, Corrections Officer Unknown Hytaca, and Mental Health Doctor Unknown Median.

         Plaintiff's complaint consists of sixteen handwritten pages, which are sometimes difficult to decipher, and is made up of disjointed and unclear descriptions of the alleged violations of his rights by the named Defendants. Plaintiff also offers one-hundred and eighty-five pages of exhibits, including copies of grievances, grievance responses, misconduct records, and other prison records and policies. After a careful review of the complaint and attached exhibits, the Court concludes that Plaintiff's complaint is subject to partial dismissal for failure to state a claim.

         Plaintiff states that, as a child, he was diagnosed as having Bipolar Dis and ADHD. Plaintiff states that he struggles with preparing legal work, sleeping at night, and other activities of daily living. Plaintiff alleges that on November 30, 2015, Plaintiff agreed to accept mental health treatment because he was not feeling safe at the Baraga Correctional Facility.

         However, his request for counseling services through Mental Health was denied. Plaintiff was also denied placement in a program for ADHD and Bipolar. Plaintiff told Defendant Larala that he was going to file a grievance regarding the denial of treatment, and Defendant Larala responded by writing a false threatening behavior ticket on Plaintiff.

         On November 30, 2015, Plaintiff received an order from the United States District Court for the Eastern District of Michigan in Case No. 2:15-cv-11419, stating that Plaintiff had until December 1, 2015, to file a response in order to prevent dismissal of his action. Plaintiff requested paper, a pen, and an envelope from Defendant Spruce, who stated that he only passed out envelopes on Thursdays. Plaintiff claims that this action caused United States Magistrate Judge Stephanie Dawkins to file a Report and Recommendation to dismiss Plaintiff's complaint on February 2, 2016.

         On December 5 or 6, 2015, Plaintiff provided an affidavit to a neighboring prisoner. On December 8, 2015, Defendant Spruce notarized the affidavit. On December 10, 2015, Plaintiff was called out of his cell to receive back x-rays and was threatened by Defendants McIntyre and Wealton, who told Plaintiff to stop pursuing lawsuits and grievances and to just worry about himself. Defendants McIntyre and Wealton told Plaintiff that it would be very easy to accuse him of spitting on staff. Plaintiff filed a grievance asserting staff corruption and sent it directly to step III pursuant to policy. Plaintiff states that the only response he received was a rejection indicating that it should not have been sent directly to step III.

         Plaintiff alleges that he received numerous false retaliatory misconduct tickets from the named Defendants. On December 17, 2015, Plaintiff filed a grievance on Defendant Schwab for warning Plaintiff against doing legal work for himself and other prisoners. On December 21, 2015, Defendant Schwab wrote a ticket on Plaintiff for threatening behavior. On December 28, 2015, Plaintiff wrote a grievance, which was reviewed with him on December 30, 2015, by Sergeant Howell. Approximately two hours later, Defendant Tucker retaliated against Plaintiff by writing a misconduct ticket on him for threatening behavior. Plaintiff claims that Defendants Hearing Officer Unknown S. Burke and Raymond violated his right to a fair hearing by ruling his request for a witness statement from his next door neighbor “unnecessary.” On January 18 and 19 of 2016, Defendant John Burke denied Plaintiff's request for notary work and oversized envelopes, which Plaintiff needed in order to send mail to the United States District Court and the Baraga Circuit Court. On January 19, 2016, Defendant John Burke told Plaintiff that he had heard that Plaintiff was suicidal. Plaintiff claims that Defendants John Burke, Pesola, and Dube denied Plaintiff a toothbrush and toothpaste on numerous occasions and only let Plaintiff brush his teeth approximately eight times in a period of twenty days. In addition, they placed Plaintiff in a room with dried poop in the air return vent. When Plaintiff asked to be moved, he was told to think of it as money for being subjected to inhumane treatment.

         On January 20, 2016, Defendant Salewske wrote two false misconduct tickets on Plaintiff for disobeying a direct order, and accused him of trying to hang himself. One of the misconduct tickets falsely claimed that Plaintiff had attempted to assault Defendant Parrish. This resulted in Plaintiff being placed on suicide watch. Plaintiff also states that Defendant Captain Schaub had him placed on a mattress restriction. Plaintiff believes that this was in retaliation for a grievance that Plaintiff had filed on Defendant Schaub's son Granite. Defendant Niemi approved the mattress restriction on January 22, 2016, which continued until February 8, 2016. Plaintiff claims that Defendant Niemi also acted in retaliation because Plaintiff had filed a grievance on Defendant Niemi on December 25, 2015.

         During the January 20, 2016, incident leading up to the mattress restriction, Plaintiff claims that Corrections Officers used three cans of pepper spray and a “ram bar” on Plaintiff, who had placed his mattress over the door in an attempt to protect his legal material. Plaintiff states that Corrections Officer Majesko, who filmed the incident, told Plaintiff that he would testify as to the use of force, as well as to the fact that MDOC employees violated the rules by not having their names on the outside of their gear. Plaintiff claims that during this incident, officers had Plaintiff's hand wedged in the door slot with the ram bar. Once Plaintiff was removed from his cell, more force was used to remove his clothing in the medical room. Plaintiff states that the RN agreed to testify as to the use of force, which caused an injury to Plaintiff's left hand. Plaintiff continues to suffer from numbness and nerve damage as a result. Plaintiff also states that another Corrections Officer is willing to testify to the harassment and retaliation he was subjected to by staff.

         Plaintiff also claims that Defendants improperly denied him grievance forms while on suicide watch. Plaintiff alleges that Defendant Hytaca sexually harassed him by making a sexual comment while Plaintiff was in the shower. Plaintiff attempted to grieve this issue, but he never received a grievance tracking number.

         Plaintiff alleges that Defendants Larala and Salmi refused to help Plaintiff after he complained of having nightmares and fearing for his safety. Plaintiff was told that he was fine and was merely seeking attention. At the time Plaintiff filed his complaint, Defendant Salmi was Plaintiff's social worker and had kept him on suicide watch for approximately twenty-three days. While Plaintiff was in observation, he told Defendants Salmi and Median that he feared for his safety. Defendants Salmi and Median kept him on suicide watch for twenty-three days, despite the fact that they kept telling Plaintiff that he was not suicidal. Plaintiff states that he was kept in a mold infested room and that Defendants failed to provide him with adequate mental health treatment. Plaintiff seeks damages and equitable relief.

         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 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).

         As noted above, Plaintiff claims that he received retaliatory misconduct tickets from Defendants Larala, Schwab, Tucker, and Salewske. 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)).

         A review of Plaintiff's complaint, as well as the attachments thereto, shows that Plaintiff was found guilty of each of the misconduct tickets he complains of in this case. A prisoner's claim that he was falsely accused of a major misconduct is barred where there has been a finding of guilt. See Peterson v. Johnson, 714 F.3d 905, 917 (6th Cir. 2013) (holding that a factual finding in a major misconduct proceeding has preclusive effect and is not subject to challenge in a § 1983 action). “A finding of guilt based upon some evidence of a violation of prison rules ‘essentially checkmates [a] retaliation claim.'” Burton v. Rowley, 234 F.3d 1267, *2 (6th Cir. 2000) (unpublished) (quoting Henderson v. Baird, 29 F.3d 464, 469 (8th Cir. 1994)). See also Annabel v. Frost, No. 14-10244, 2015 WL 1322306, at *5 (E.D. Mich. Feb.17, 2015) report and recommendation adopted, No. 14-10244, 2015 WL 1510680 (E.D. Mich. Mar. 30, 2015) (noting that the checkmate doctrine has been involved in sixteen unpublished Sixth Circuit opinions). Therefore, Plaintiff's claims that he received false retaliatory misconduct tickets from Defendants Larala, Schwab, Tucker, and Salewske are properly dismissed.

         Plaintiff further claims that Defendants Schaub and Niemi retaliated against him by having him placed on a mattress restriction following the incident on January 20, 2016. It is well recognized that “retaliation” is easy to allege and that it can seldom be demonstrated by direct evidence. See Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6th Cir. 2005); Murphy v. Lane, 833 F.2d 106, 108 (7th Cir. 1987). “[A]lleging merely the ultimate fact of retaliation is insufficient.” Murphy, 833 F.2d at 108. “[C]onclusory allegations of retaliatory motive ‘unsupported by material facts will not be sufficient to state . . . a claim under § 1983.'” Harbin-Bey, 420 F.3d at 580 (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1538-39 (6th Cir. 1987)); see also Murray v. Unknown Evert, 84 F. App'x 553, 556 (6th Cir. 2003) (in complaints screened pursuant to 28 U.S.C. § 1915A, “[c]onclusory allegations of retaliatory motive with no concrete and relevant particulars fail to raise a genuine issue of fact for trial”) (internal quotations omitted); Lewis v. Jarvie, 20 F. App'x 457, 459 (6th Cir. 2001) (“bare allegations of malice on the defendants' parts are not enough to establish retaliation claims” that will survive § 1915A screening). In some circumstances, 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).

         Plaintiff merely alleges the ultimate fact of retaliation. He alleges no facts from which to reasonably infer that the actions of Defendants Schaub and Niemi were motivated by any of his protected conduct. He merely concludes that because he filed some grievances within a few days, weeks or months before Defendants' actions, their actions must have been motivated by his grievances. The Sixth Circuit, however, has been reluctant to find that temporal proximity between the filing of a grievance and an official's adverse conduct, standing alone, is sufficient to establish a retaliation claim. See Hill v. Lappin, 630 F.3d 468, 476 (6th Cir. 2010). This is especially true where, as here, the plaintiff is a prolific filer of grievances. Coleman v. Bowerman, 474 F. App'x 435, 437 (6th Cir. 2012) (holding that temporal proximity to the filing of a grievance is insufficient because any adverse action “would likely be in ‘close temporal proximity' to one of [the plaintiff's] many grievances or grievance interviews”). Plaintiff merely alleges temporal proximity between Defendants' ...

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