United States District Court, W.D. Michigan, Northern Division
L. Maloney 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, the Court will dismiss Plaintiff's complaint
for failure to state a claim against Defendants Napel,
Nurkala, Caron, Mohrman, Mohr, and Calzetta. The Court will
serve the complaint against Defendants Huss, Govern, Viitala,
and Leach with regard to Plaintiff's retaliation claims.
Plaintiff Dandre Alexander, a state prisoner currently
confined at the Macomb Correctional Facility, filed that
pro se civil rights action pursuant to 42 U.S.C.
§ 1983 against Defendants Sergeant Unknown Nurkala,
Warden Robert Napel, Deputy Warden Erica Huss, Grievance
Coordinator Glen Caron, Assistant Resident Unit Supervisor
Fred Govern, Resident Unit Manager Unknown Viitala, Assistant
Resident Unit Supervisor Nicholas Calzetta, Hearing Officer
Thomas O. Morhman, Hearing Investigator Unknown Mohr, and
Corrections Officer Unknown Leach.
alleges that in December of 2015, while he was confined at
the Marquette Branch Prison (MBP), Defendant Leach subjected
Plaintiff to various harassing conduct in retaliation for
Plaintiff filing a grievance on one of Defendant Leach's
co-workers. Plaintiff states that Defendant Leach tampered
with his food on multiple occasions by crushing the contents
of his snack bags and spitting in his tray. On December 15,
2015, Defendant Leach told Plaintiff that he was being
subjected to harassment because he had written a grievance on
Defendant Leach's co-worker, Gluesing. On one occasion,
Defendant Leach stole Plaintiff's snack bag, stating
“I hope you starve tonight nigger.” Defendant
Leach also denied Plaintiff showers on multiple occasions.
December 15, 2015, Plaintiff filed a complaint with Defendant
Napel. Plaintiff also notified Defendant Govern of Defendant
Leach's retaliatory actions. Defendant Govern told
Plaintiff that it was funny that he thought Defendant Govern
would help him. Plaintiff had previously filed grievances on
Defendant Govern. On December 17, 2015, Plaintiff notified
Defendant Huss of Defendant Leach's threat to write a
false misconduct on Plaintiff. Defendant Huss refused to
investigate, stating that it was not her job to help him and
that she knew Defendant Leach. On December 20, 2015,
Plaintiff asked his neighbor Lorenzo Kilgore to generate a
sworn declaration attesting that Defendant Leach had
threatened to write a false misconduct ticket on Plaintiff.
On December 21, 2015, Officer Smith escorted Plaintiff to the
shower. While Plaintiff was away from his cell, Defendant
Leach conducted a retaliatory cell search, messing up
Plaintiff's cell, breaking his Sony ear buds, and taking
Plaintiff's legal papers and grievances. On December 22,
2015, Defendant Leach threw a piece of paper meant for
Plaintiff on the floor and stated, “Pick that shit up
nigger!” On December 24, 2015, Defendant Leach wrote a
false misconduct ticket on Plaintiff.
claims that on December 30, 2015, Defendant Viitala told him
that prison officials “all knew [Plaintiff] deserve
everything bad that happens to [him].” Plaintiff
asserts that Defendant Viitala was aware of Defendant
Leach's retaliatory conduct, but failed to intervene.
Plaintiff alleges that Defendant Napel also failed to conduct
an investigation into Plaintiff's grievances or to
intervene on Plaintiff's behalf because of
Plaintiff's prior complaints against him. Plaintiff
states that Defendant Nurkala also knew of Plaintiff's
situation, but failed to take any corrective action.
Mohr conducted the investigation into the misconduct that had
been written on Plaintiff by Defendant Leach and failed to
obtain video footage of Defendant Leach tampering with
Plaintiff's food and harassing Plaintiff. Defendant Mohr
told Plaintiff that if he incriminated officers, no one would
have his back if he were attacked by inmates. On January 6,
2016, Defendant Mohrman conducted a hearing on the misconduct
and found Plaintiff guilty. See ECF No. 1-1,
PageID.24. Plaintiff offers the affidavit of prisoner Joe W.
Laird #454396, who attests that he overheard Defendant
Mohrman during the hearing stating that he did not care what
Plaintiff had to say and ordering Plaintiff to leave.
See ECF No. 1-1, PageID.26. Plaintiff also offers
the affidavit of prisoner Hersey #273259, who attests that he
overheard Defendant Morhman talking to Defendant Calzetta.
According to Hersey, Defendant Calzetta said that he was
close friends with Defendant Leach and asked Defendant
Mohrman to find Plaintiff guilty of the misconduct as a
personal favor to Defendant Calzetta. Defendant Mohrman
responded that he would sentence Plaintiff to 21 days loss of
privileges if Defendant Calzetta bought him lunch for the
next two days, and Defendant Calzetta agreed. See
ECF No. 1-1, PageID.25.
alleges that Defendant Caron violated the grievance policy
when he assigned Defendant Govern as a grievance respondent
to a grievance that Plaintiff had written on Defendant
Govern. In addition, Defendant Govern violated policy when he
responded to the grievance.
claims that Defendants violated his rights under the First,
Eighth, and Fourteenth Amendments, as well as under state
law. Plaintiff seeks compensatory and punitive damages, as
well as declaratory and injunctive 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); 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).
Plaintiff claims that Defendant Leach retaliated against him
in violation of the First Amendment. 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.