United States District Court, W.D. Michigan, Northern Division
HOLMES BELL, UNITED STATES DISTRICT JUDGE.
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, Plaintiff's action will be dismissed for
failure to state a claim.
Cary Cosgrove, a state inmate currently confined at the
Marquette Branch Prison, filed this pro se civil
rights action pursuant to 42 U.S.C. § 1983 against
Defendants Corrections Officer Unknown Labelle, Corrections
Officer Unknown McBride, Corrections Officer Unknown
Hennings, Sergeant Unknown Heilstein, Corrections Officer
Unknown Corkin, Corrections Officer Unknown Watson,
Corrections Officer Unknown Ogle, Corrections Officer Unknown
Hemmila, Corrections Officer Unknown Frion, Corrections
Officer Unknown Johnston, Corrections Officer M. Schetter,
and Law Librarian Jodi Feliciano.
Plaintiff's complaint, he alleges that on March 28, 2016,
he was assaulted by his neighbor. Plaintiff was taken from
his cell by Defendants Hennings, Corkin, Ogle, McBride,
Watson, Hemmila, and LaBelle, who subjected Plaintiff to
excessive force on the way to a suicide watch cell. Plaintiff
later received a misconduct ticket which falsely claimed that
he had assaulted Defendants Hennings, Corkin, Ogle, McBride,
Watson, Hemmila, and LaBelle.
6, 2016, Defendant Schetter began harassing Plaintiff by
threatening to tell Plaintiff's friends that he was
bi-sexual. Defendant Schetter also threatened to withhold
Plaintiff's food unless he yelled “I'm
gay” and called Plaintiff a “faggot.”
Plaintiff states that this has resulted in him being harassed
by other prisoners and staff, which has caused Plaintiff to
be placed on suicide watch on three separate occasions.
Plaintiff states that he is suffers from depression and his
13, 2016, Defendant Johnston wrote a false misconduct ticket
on Plaintiff for refusing to give back his food tray.
Plaintiff asserts that he had previously requested to be
moved away from Defendant Johnston. Plaintiff wrote a
grievance on May 18, 2016. Plaintiff states that the ticket
was dismissed, but that while he was awaiting a hearing, he
was placed on foodloaf. On May 26, 2016, Plaintiff filed a
grievance on Defendant Feliciano for denying him photocopies
that he needed for service in Case No. 2:16-cv-110. Plaintiff
seeks damages and equitable relief.
Failure to state a claim
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)).
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);
Dominguez v. Corr. Med. Servs., 555 F.3d 543, 549
(6th Cir. 2009). 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 fails to make specific factual
allegations against Defendants Heilstein and Frion.
Government officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory
of respondeat superior or vicarious liability.
Iqbal, 556 U.S. at 676; Monell v. New York City
Dep't of Soc. Servs., 436 U.S. 658, 691(1978);
Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009).
A claimed constitutional violation must be based upon active
unconstitutional behavior. Grinter v. Knight, 532
F.3d 567, 575-76 (6th Cir. 2008); Greene v. Barber,
310 F.3d 889, 899 (6th Cir. 2002). The acts of one's
subordinates are not enough, nor can supervisory liability be
based upon the mere failure to act. Grinter, 532
F.3d at 576; Greene, 310 F.3d at 899; Summers v.
Leis, 368 F.3d 881, 888 (6th Cir. 2004). Moreover,
§ 1983 liability may not be imposed simply because a
supervisor denied an administrative grievance or failed to
act based upon information contained in a grievance. See
Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999).
“[A] plaintiff must plead that each Government-official
defendant, through the official's own individual actions,
has violated the Constitution.” Iqbal, 556
U.S. at 676. Plaintiff has failed to allege that Defendants
Heilstein and Frion engaged in any active unconstitutional
behavior. Accordingly, he fails to state a claim against
claims that Defendant Labelle wrote a retaliatory false
misconduct ticket on him on March 28, 2016, which charged him
with assault and battery on staff. Plaintiff attaches a copy
of the hearing report on this misconduct to his complaint. In
the hearing report, Hearing Officer Thomas O. Mohrman notes
that the video of the incident showed Plaintiff face down on
the bunk with several staff members on top holding him down
with the shield, and that Plaintiff was struggling on the
bunk with staff telling him to stop resisting. See
ECF No. 1-1, PageID.12. In the “Reasons for
Finding” section, Hearing Officer Mohrman states:
Assault and Battery (008) 03.03.105A (staff victim)
Intention, non-consensual touching of another person done
either in anger or for the purpose of abusing or injuring
another; physical resistance or physical interference with an
employee. The prisoner is guilty of the charge based upon the
report which is consistent with the video and statements from
the other staff who were present. This prisoner was in cuffs
and lying face down as he said. However, he was holding his
belly chains under his body. He could have ...