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Moore v. Johnson

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

December 28, 2016

UNKNOWN JOHNSON, 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, Plaintiff's Eighth Amendment claims against Defendants McGinn, Hubble, Gloud, Perry, Curley, and Unknown Parties #1 and #2 will be dismissed for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c), as will Plaintiff's retaliation claims against Defendants Perry, Curley, and Unknown Parties #1 and #2. However, the Court will serve the complaint against Defendants Johnson, Burke, Flatt, McGinn, Hubble, and Gloud with regard to Plaintiff's retaliation claims, and against Defendant Flatt with regard to Plaintiff's Eighth Amendment failure to protect claim.


         I. Factual allegations

         Plaintiff Anthony Lamont Moore, a prisoner currently confined at the Ojibway Correctional Facility (OCF), filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against Defendants Corrections Officers Unknown Johnson, Unknown Flatt, and Unknown Burke, Warden Unknown Perry, Lieutenant Unknown McGinn, Deputy Warden Unknown Hubble, Sergeant Unknown Gloud, Inspector Unknown Curley, Resident Unit Manager Unknown Party #1 (who might be Swanson), and Transfer Coordinator Unknown Party #2.

         In Plaintiff's complaint, he alleges that on January 13, 2015, while he was confined at the Newberry Correctional Facility (NCF), Plaintiff was standing with his Caucasian cell mate outside their cell waiting for another prisoner to finish vacuuming the cell because it had just been searched by Defendant Burke. Defendant Johnson approached Plaintiff and accused him of having his foot on the hallway wall and leaving a mark. Plaintiff states that the wall was already dirty. Plaintiff showed Defendant Johnson that his foot was not on the wall and Defendant Johnson stated, “I'll just write your black a** a fuc**g loitering ticket.” Defendant Johnson wrote a loitering ticket on Plaintiff, but not on his white cell mate. Plaintiff filed a grievance on Defendant Johnson.

         On January 26, 2015, Defendant Johson told Plaintiff that he knew Plaintiff had lied in the grievance and said that because of the lie, he was going to search Plaintiff. Plaintiff filed a grievance on Defendant Johnson asserting retaliation and harassment. On April 2, 2015, Plaintiff was placed on “00 status” and Defendants Burke and Johnson told Plaintiff that he had to ask permission to shower or go to the bathroom. However, other 00 status prisoners were not required to ask permission. Plaintiff filed a grievance on Defendants Burke and Johnson. On April 15, 2015, Defendant Johnson came into Plaintiff's cube and “tore Plaintiff's area of control up.” Defendant Johnson told Plaintiff that he was going to teach Plaintiff a lesson about what happens when prisoners write grievances. Plaintiff was prevented from speaking with the shift command about the situation by Defendant Johnson. Plaintiff filed a grievance.

         On April 16, 2015, Defendant Johnson saw Plaintiff and stated:

Moore you see how I lied on you by writing the tickets, and you see how we are only applying the double 00 status rules to you and nobody else, now keep on writing those grievances and watch what happens to you.

See ECF No. 1, PageID.10. Plaintiff filed a grievance. Plaintiff spoke to shift command and was subsequently moved from 11 unit to 10 unit.

         Later that day, when Plaintiff was leaving chow, Defendant Johnson stopped him and asked to see his prison ID card. Defendant Johnson said “you see what writing grievances on me get you . . . it gets your dumb a** two false misconduct reports and kicked out of my unit.” When Plaintiff complained that Defendant Johnson's conduct was retaliation, Defendant Johnson responded that Plaintiff could not prove that. Defendant Johnson told Plaintiff not to be surprised if a knife, razor, or drugs were found in Plaintiff's area of control. Defendant Johnson also told Plaintiff that the reason he had been moved to 10 unit was so that Plaintiff could be harassed by Defendant Johnson's friends. Plaintiff filed a grievance.

         On April 16, 2015, when Plaintiff arrived on 10 unit, Defendant Flatt told him that he was not going to behave the way that he had in 11 unit. On May 12, 2015, Plaintiff was awakened by Defendant Johnson who told Plaintiff that he was working in Plaintiff's unit that day and that he was “going to pay [Plaintiff] back for writing all them grievances” on Defendant Johnson. Later that day, Defendant Johnson wrote two grievances on Plaintiff, which were later thrown out. Plaintiff states that when he wrote a grievance on Defendant Johnson, staff returned the grievance without processing it. Plaintiff then sent the grievance to the Office of Legal Affairs, who also returned the grievance to Plaintiff, instructing him to file it at NCF. Plaintiff again attempted to submit the grievance at NCF, but it was again returned to him unprocessed.

         On August 20, 2015, Plaintiff was playing pinochle with two other prisoners. One of the prisoners became angry and threatened with physical violence. Plaintiff left the table and went to the office where Defendant Flatt was on the computer. Plaintiff told Defendant Flatt that he was having problems with prisoner Ellington, but Defendant Flatt told Plaintiff that he was busy and to come back later. Plaintiff told Defendant Flatt that prisoner Ellington had threatened to “kick his butt, ” but Defendant Flatt merely reiterated that he was busy. Plaintiff returned to the unit and found prisoner Ellington sitting with the cards still in his hands. Plaintiff said that he was not going to play pinochle with prisoner Ellington anymore. Prisoner Ellington responded by threatening Plaintiff and putting his finger in Plaintiff's face. Plaintiff told prisoner Ellington to get his finger out of Plaintiff's face. Plaintiff pushed prisoner Ellington's hand away, knocking the cards out of his hand and causing the cards to hit prisoner Ellington in the face. Prisoner Ellington then hit Plaintiff, causing Plaintiff to hit his head. Prisoner Ellington then began kicking or stomping Plaintiff in the head. Plaintiff's yelling was eventually responded to by Defendant Flatt. Plaintiff was transported to the Helen Newberry Joy Hospital for treatment of head injuries, and was later transferred to Marquette General Hospital for further treatment. Plaintiff filed a grievance on Defendant Flatt for failing to protect him from prisoner Ellington.

         On August 20, 2015, Defendant Curley asked Plaintiff about the incident with prisoner Ellington and Plaintiff relayed what he could remember about the incident. Defendant Curley told Plaintiff that he was being placed in temporary segregation pending a transfer. Plaintiff told Defendant Curley that he could not be transferred to Ojibway (OCF) because prisoner ...

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