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Annabel v. Michigan Department of Corrections

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

October 14, 2016

ROBERT WAYNE ANNABEL, II, Plaintiff,
v.
MICHIGAN DEPARTMENT OF CORRECTIONS et al., Defendants.

          OPINION

          Paul L. Maloney United States District Judge

         This is a civil rights action brought by a state prisoner against 28 defendants, pursuant to 42 U.S.C. § 1983, the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132, the Rehabilitation Act (RA), 29 U.S.C. § 794, and the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1962 et seq. 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 in part for failure to state a claim and in part for improper joinder.

         Discussion

         I. Factual allegations

         Plaintiff Robert Wayne Annabel, II presently is incarcerated with the Michigan Department of Corrections (MDOC) at the Ionia Correctional Facility (ICF). He sues the MDOC, its former Director Daniel Heyns, and its former food service provider Aramark Corporation, Inc. He also sues the following ICF officials: Warden Willie Smith; Deputy Wardens Nannette Norwood, Erica Huss, and John Christiansen; Captain Kevin Woods, Lieutenants Christopher King, (unknown) Zwiker, and S. Rykse; Resident Unit Manager (RUM) E. Smith; Sergeant Dennis Grandy; Correctional Officers J. VanNortrick, (unknown) Scott, (unknown) Berrington, (unknown) Bennett, (unknown) Burns, (unknown) Eyer, D. Christiansen, and Joseph Novak; Social Workers James Apol and Robert Davis; Psychiatrist Dr. W. Yee; Nurse Practitioner (unknown) Sleight; Nurse Kronk; Food Service Manager J. Daugherty; and Chaplain C. Cheney.

         In his 42-page complaint, Plaintiff lists the many hardships he allegedly has suffered while housed with the MDOC since 2008. In his numerous prior lawsuits, Plaintiff has complained about being inadequately medicated for his bipolar disorder; being retaliated against for his many grievances and lawsuits; being defamed; being denied his Kosher diet; having his food poisoned; being subjected to the use of excessive force; having his property and mail stolen; being denied due process; and having prison officials interfere with his access to the courts. He has alleged that all prior defendants have been engaged in a conspiracy to deny him his rights. The first ten pages of the complaint describe incidents that occurred prior to the stated period of the complaint (March 24, 2014 through April 24, 2015) and recite the lawsuits previously filed by Plaintiff. The remainder of the complaint consists of allegations about a litany of disparate events between March 24, 2014 and April 24, 2015, ostensibly linked by a conclusory claim that all events were part of a single, global conspiracy headed by Defendant Heyns, the then-Director of the MDOC: claims involving retaliation against Plaintiff; denial of Plaintiff's access to the courts; interference with Plaintiff's mail; violations of Plaintiff's rights under the Eighth Amendment; violations of the Equal Protection Clause, the ADA and the RA; interference with Plaintiff's legal mail; violations of RICO; and deprivations of Plaintiff's property without due process. A substantial number of Plaintiff's allegations and the Defendants he names overlap with allegations he previously raised in Annabel v. Mich. Dep't of Corr. et al., No. 1:14-cv-756 (W.D. Mich.). Many of those claims previously were dismissed with prejudice, though a few were subsequently dismissed without prejudice after Plaintiff failed to comply with the Court's orders.[1]

         The following is a summary of Plaintiff's allegations that fall within the time-frame Plaintiff purports to cover in his complaint. On March 24, 2014, a magistrate judge from Eastern District of Michigan issued a report and recommendation (R&R) to grant one defendant's motion for summary judgment and to deny Plaintiff's motion for a temporary restraining order. See Annabel v. Heyns et al., No. 2:12-cv-13590 (E.D. Mich.) (R&R Mar. 24, 2014) (ECF No. 85). Plaintiff alleged in Annabel v. Mich. Dep't of Corr. et al., No. 1:14-cv-756 (W.D. Mich.), that interference with his mail prevented him from receiving the R&R. Also on that date, three other events allegedly occurred: (1) MI-CURE sent Plaintiff a letter declining to investigate corruption in the grievance process; (2) two of Plaintiff's grievances were rejected; and (3) Plaintiff was placed on modified grievance access. Plaintiff contends that all of these actions were retaliatory and designed to prevent him from making additional filings.

         On April 30, 2014, three additional events occurred, which Plaintiff alleges were related to one another and to Plaintiff's allegations. First, in the absence of objections from him, the district judge adopted the R&R in Annabel v. Heyns et al., No. 2:12-cv-13590 (E.D. Mich. Apr. 20, 2014) (ECF No. 89). Second, prisoner Abkedya Boyd apparently committed suicide at the Gus Harrison Correctional Facility (ARF). Third, the defendants in Annabel v. Frost et al., No. 2:14-v-10244 (E.D. Mich.) (none of whom are Defendants in this action) allegedly transferred the only prisoner representative in Unit 4 to Unit 5. Plaintiff alleges that Prisoner Boyd was housed near Plaintiff and that Plaintiff had assisted prisoner Boyd to file a Step-II grievance and to prepare for litigation of an incident at Macomb Correctional Facility. Plaintiff previously raised these allegations in Annabel v. Mich. Dep't of Corr. et al., No. 1:14-cv-756 (W.D. Mich.), and the Court concluded the allegations failed to state a claim. Id. (Op. & Ord. Aug. 21, 2014).

         On May 1, 2014, Officer Pigg (who is not a defendant in this action) mocked Plaintiff for assisting other prisoners in preparing affidavits for a potential suit by Boyd's estate. Plaintiff contends that Boyd's suicide was induced by staff harassment. Plaintiff complains that the same pattern had occurred with another suicide in 2013, which involved another prisoner who was engaged in protected activity with Plaintiff.

         On May 13, 2014, Plaintiff told his therapist, James Dickson (not a Defendant) that he wanted to be discharged from his mental health program at ARF, ostensibly to avoid further retaliation by ARF employees. According to Plaintiff, in response to his request, “[D]efendants transferred him to the MDOC's most notoriously brutal Maximum Security, at Ionia Correctional Facility, where Plaintiff had previously suffered substantial staff abuse.” (Compl., ECF No.1, PageID.13.) Plaintiff alleges that, although he had been scored since 2008 as a Level-V security classification, he had spent nearly six consecutive years waived down to a Level-IV residential treatment program (RTP) or a Level-IV Outpatient Treatment Facility. He suggests that he was transferred to Level V at ICF in retaliation for filing several lawsuits. Plaintiff also alleges that the transfer to Level V reduced his parole likelihood from “average probability” to “low probability.” (Id., PageID.14.) Again, Plaintiff raised these allegations in Annabel v. Mich. Dep't of Corr. et al., No. 1:14-cv-756 (W.D. Mich.), and the Court dismissed the claim for failure to state a claim. Id. (Op. & Ord. Aug. 21, 2014).

         On May 16, 2014, shortly after Plaintiff arrived at ICF, Defendant Social Worker Apol interviewed Plaintiff. Plaintiff complains that Apol was hostile, critical and aggressive in his demeanor. Apol told Plaintiff, “Spell my name right when you sue me.” (Id., PageID.15.) When Plaintiff expressed concerns about eating or taking medication at the facility because of his fear of staff tampering, Apol vowed to keep Plaintiff at ICF, on forced medication, if necessary. Plaintiff told Apol to be sure to get a psychiatrist's signature on the forced-medication order, and Apol assured him that he understood his job. Plaintiff raised these allegations in Annabel v. Mich. Dep't of Corr. et al., No. 1:14-cv-756 (W.D. Mich.). The issues were not fully litigated before the remainder of the complaint was dismissed for lack of prosecution.

         Defendant Dr. Yee interviewed Plaintiff on May 19, 2014. Plaintiff explained his long history of bipolar disorder, but Yee allegedly disregarded the proven effectiveness of the psychotropic medications listed in Plaintiff's file. When Plaintiff explained his concerns about eating and taking medication, Yee told him that a hunger strike would not get him transferred. Plaintiff indicated that he would resume eating and taking his medications. Despite Plaintiff's subsequent compliance in taking the medication, Defendant Yee discontinued that medication on May 24, 2014. On May 27, Plaintiff was interviewed by Defendant Apol, an unknown female, and an older male social worker. Apol reviewed Plaintiff's kite complaining about Yee's discontinuation of his medication. Apol was dismissive and told him that his medications would not be resumed until Plaintiff seriously self-injured. An unknown male social worker told Plaintiff that he remembered Plaintiff from 2008 and that he saw that Plaintiff was significantly improved since 2008. The unknown social worker therefore recommended resuming Plaintiff's medication. Defendant Apol rejected the recommendation. These allegations were raised in Annabel v. Mich. Dep't of Corr. et al., No. 1:14-cv-756 (W.D. Mich.), and the claims were ultimately dismissed without prejudice.

         On July 14, 2014, Plaintiff sent three articles of expedited legal mail to Defendant D. Christiansen. Christiansen allegedly signed and pre-dated the receipts as of July 12, 2014, and then he destroyed the documents. On August 4, 2014, an individual mailed to Plaintiff a copy of the complaint in Annabel v. MDOC et al., No. 1:14-cv-756 (W.D. Mich.), but Christiansen did not deliver the mail until October 20, 2014, after unspecified Defendants had read the complaint and after a first-shift sergeant had interrogated Plaintiff about the complaint.

         Plaintiff complains that he has invested much time and money developing his paralegal skills, which he believes could provide a respectable income upon his release. He contends that he invested thousands of dollars in filing fees, legal texts, photocopies, postage, stationery and footlockers. Notwithstanding this property interest, in March or April 2015, unspecified Defendants ordered the segregation porter to destroy some of Plaintiff's legal property, including paperwork related to one of Plaintiff's prior lawsuits against ICF staff, Annabel v. Caruso et al., 1:09-cv-176 (W.D. Mich.).[2] Plaintiff ultimately filed a claim seeking compensation for his property to the State Administrative Board. He subsequently sent a letter to the board explaining that the MDOC was not acknowledging or processing such claims. He claims that he also received no satisfaction through the grievance process. Plaintiff suggests that he therefore was without a post-deprivation remedy. This claim was raised in Annabel v. Mich. Dep't of Corr. et al., No. 1:14-cv-756 (W.D. Mich.), and the claim was dismissed with prejudice.

         Plaintiff sweepingly alleges that, between June 17, 2014 and April 24, 2015, “defendants often withheld or damaged Plaintiff's property.” During that same time and with an allegedly retaliatory motive, Defendants Apol and Yee allegedly denied Plaintiff psychotropic medication, ostensibly in order to induce mental destabilization. Defendants Apol and Yee allegedly placed him on suicide restrictions, in order to prevent him from accessing his legal property. Plaintiff claims that being held in the stressful environment had caused him to be depressed, unable to have restful sleep, and to be unable to litigate and acquire career skills as effectively as he would like. He asserts that Defendants collectively continue to engage in unfair litigation tactics, as did the defendants in Annabel v. Armstrong et al., No. 1:14-cv-796 (W.D. Mich.), Annabel v. Caruso et al., No. 1:09-cv-176 (W.D. Mich.), and Annabel v. Heyns et al., No. 2:12-cv-13590 (E.D. Mich.).

         Plaintiff complains that Defendants Yee and Apol also have demonstrated that their actions are retaliatory, because they have referenced his litigation efforts in his psychiatric medical file, stating on August 29, 2014:

He is quite litigious, and seems to take pleasure in announcing various lawsuits that he files. He seems to use these legal actions as a way to manipulate placement, with the reasoning that it would be ‘unethical' for a provider to continue to provide services if he/she is named as a defendant in his legal action. He has shown himself to be very calculating in this regard.

(Compl., ECF No. 1, PageID.19-20.) On December 29, 2014, Dr. Yee wrote:

Summary of Progress to Dated: Prisoner is resistant to treatment. He remains highly litigious, and uses insults to try to evoke a response that he feels is grievable.

(Id., PageID.20.) Plaintiff contends that the placement of such references in his medical file violates prison policy, and he contends that officers are able misuse the MDOC database and communications system to view such statements. He argues that this potential for abuse demonstrates that supervisory officials are well aware of his litigation.

         Plaintiff next alleges that, on August 4, 2014, a woman named Zoe Keller mailed Plaintiff a copy of his complaint in Annabel v. Mich. Dep't of Corr. et al., No. 1:14-cv-756 (W.D. Mich.). Defendant D. Christiansen allegedly withheld the mail until October 20, 2014 and that, during the intervening period, many of the Defendants read the mail. On August 8, 2014, a first-shift sergeant told Plaintiff that the inspector was investigating Plaintiff for using the mail to smuggle drugs. On August 14, 2014, Plaintiff attempted to mail an expedited discovery request to the attorney in Annabel v. Heyns et al., No. 2:12-cv-13590 (E.D. Mich.), but it was discarded. Plaintiff sent the request again in November, at which time the attorney informed Plaintiff that he had not received the original August mailing.

         Plaintiff alleges that, on October 20, 2014, unspecified Defendants destroyed without delivering an order denying leave to amend in Annabel v. Frost et al., No. 2:14-cv-10244 (E.D. Mich.). On February 17, 2015, unspecified Defendants allegedly destroyed without delivering a report and recommendation issued in the same case. The case was dismissed on March 30, 2015, after Plaintiff failed to file objections to the report and recommendation. Plaintiff asserts that the repeated interferences with his mail demonstrate that Defendants participated in a common plan organized by a central agent, such as Defendant Heyns.[3]

         Plaintiff alleges that, between June 9, 2014 and June 17, 2014, Defendants W. Smith, Norwood and Huss employed prisoner Joseph Halton to harass and threaten Plaintiff by instructing their subordinates to give immunity to Halton for any harassment. Plaintiff recites the following examples of the alleged scheme to allow harassment: Halton screamed vulgarities at Plaintiff on Halton's first morning in the yard and threatened to attack Plaintiff, but staff did not issue a misconduct; Halton made attempts to incite gangs against Plaintiff; on June 17, 2014, Halton made more threats against Plaintiff as Halton left the unit that were condoned by an unnamed African-American officer, causing Plaintiff to “preemptively str[ike] Halton with a bare ink pen” (ECF No. 1, PageID.23). Halton was moved to Segregation Unit 2 on August 4, 2014, where he continued to harass Plaintiff with false statements and allegations. On August 4, 2014, Halton returned from an interview with a sergeant, bragging that he had testified against Plaintiff. Plaintiff contends that Defendants Smith, Norwood and Huss were the only officials who could authorize Halton's new cell assignment. Plaintiff raised all but the last of these allegations about Halton in Annabel v. Mich. Dep't of Corr. et al., No. 1:14-cv-756 (W.D. Mich.), and the Court dismissed the issue against these Defendants on the grounds that the allegations failed to state a claim.

         Plaintiff alleges that he arrived in Segregation Unit 2 on the afternoon of June 17, 2014. On June 18, 2014, at 9:30 p.m., Plaintiff damaged a sprinkler to protest staff's failure to provide him bedding and his legal material, well beyond the time authorized under MDOC policy. Plaintiff contends that Defendants denied his psychotropic medications to destabilize him and cause him harm and to cause him to be placed in segregation. This issue was raised in Annabel v. Mich. Dep't of Corr. et al., No. 1:14-cv-756 (W.D. Mich.), and the claim was dismissed for failure to state a claim.

         Plaintiff next alleges that Defendants W. Smith, Norwood and Huss frequently acted in concert with Defendant Novak to deny Plaintiff's requests for law library materials and photocopies. He alleges that the denial of photocopies resulted in the dismissal of his complaint in Annabel v. Mich. Dep't of Corr., No. 1:14-cv-756 (W.D. Mich.). Plaintiff contends that Defendants use prisoner law clerks to retaliate, having them provide only a few cases, marking those cases with “pitchfork gang signs, ” and marking most requests as “Out: Re-Order.” (ECF No. 1, PageID.25.) Plaintiff alleges that, after he confronted unspecified Defendants and Defendant Christiansen in December 2014 and January 2015, the retaliation increased. Defendant Norwood placed Plaintiff on a law book restriction, allegedly without adequate proof of the misuse of books. Plaintiff also alleges that Defendants used prisoner-porter Jason to attempt to extort fees and sexual favors. Plaintiff complained to Defendant Novak on February 10, 2015. In April 2015, Plaintiff received a misconduct ticket for making false allegations that interfered with the administration of rules. Plaintiff claims that unspecified Defendants frequently used prisoner Jason to enter cells in Segregation Unit 1, so that Jason could pack up or destroy other prisoners' property.

         Plaintiff alleges that, on July 9, 2012, he engaged in discussions to settle a civil action, Annabel v. Caruso et al., No. 1:09-cv-176 (W.D. Mich.). Plaintiff signed the settlement agreement on July 18, 2012, in which he obtained a small cash amount and an agreement to provide him a Kosher diet. Plaintiff alleges that Defendants have all acted to impede his rights under that settlement agreement. Between June 17 and July 2, 2014, Plaintiff became afraid of food tampering and refused to accept all meals. During that time, Defendant Kronk allegedly failed to ensure he received timely medical evaluations in compliance with prison policies, and Defendants Yee and Apol allegedly examined him for only a few minutes on a later date. On June 18, Plaintiff was threatened with food loaf, followed by one week in which Defendant Zwiker brought him “special delivery duty” meals, consisting of unsealed Kosher meal trays. (ECF No. 1, PageID.26.) Zwiker allegedly denigrated Plaintiff's religion and mockingly described the delicious food. Defendant Zwiker also allegedly withheld legal mail from Plaintiff on three occasions during this period. Plaintiff discovered a staple in his scalloped potatoes on July 7, 2014. Plaintiff also complained about the uncovered food trays. Defendant RUM E. Smith advised Plaintiff in a memorandum that the Kosher trays were never wrapped in cellophane, as it presented a security concern. Plaintiff disputes the truth of that response. On June 24, 2014, Defendants Yee and Apol began forcibly medicating Plaintiff with Thorazine, allegedly in order to prevent Plaintiff from effectively litigating his claims.

         On July 9, 2014, Plaintiff's hot tray was mockingly marked with the name “Adiline.” Plaintiff demanded to speak with Sergeant Zwiker and took his food tray hostage. Defendant Vannortrick wrote a misconduct against Plaintiff, in which he allegedly defamed Plaintiff by saying that Plaintiff had stated that his “‘hemorr[h]oids were inflamed and felt like they were about to set his cell on fire!!'” (ECF No. 1, PageID.27.) Plaintiff alleges that Vannortrick thereby intentionally revealed Plaintiff's embarassing health condition, which, Plaintiff alleges, implied that Plaintiff was a homosexual. Defendant Vannortrick read aloud the statement to an audience of nearly 40 prisoners. Defendant Rykse found Plaintiff guilty of the misconduct on July 21, 2014.

         On July 10, 2014, Plaintiff's food tray was mockingly labeled “Alleshia.”[4] (Id., PageID.28.) On July 13, 2014, Plaintiff received ketchup packets with his breakfast, instead of jelly. On July 30, 2014 Plaintiff's breakfast tray was missing the powdered soy milk. Plaintiff complained to Defendants Scott and Norwood, neither of whom corrected the problems. On August 12, 2014, his dinner tray held only a peanut butter and jelly sandwich and a half-cup of potatoes.

         Plaintiff told Defendant Apol on August 19, 2014 that he had filed a lawsuit against Apol. In response, ...


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