United States District Court, W.D. Michigan, Southern Division
L. Maloney United States District Judge
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
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.
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
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.
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).
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
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).
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.
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.
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.
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.). 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.
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.).
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.
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
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
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
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.
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.
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.
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.
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.
10, 2014, Plaintiff's food tray was mockingly labeled
“Alleshia.” (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.
told Defendant Apol on August 19, 2014 that he had filed a
lawsuit against Apol. In response, ...