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Harrison v. Mackie

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

March 7, 2017

LARRY E. HARRISON, Plaintiff,
v.
THOMAS MACKIE et al., Defendants.

          OPINION

          ROBERT J. JONKER, CHIEF UNITED STATES DISTRICT JUDGE

         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, the Court will dismiss Plaintiff's complaint for failure to state a claim against Defendants Borma and Bassette. In addition, the Court will dismiss Plaintiff's claims against Defendants Murphy, Sikon, Smith and Sharp, except for his ADA/RA claims (official capacity only) arising from the denial of access to the Talking Book Program and his retaliation claim against Defendant Sikon. The Court also will order service of Plaintiff's Eighth Amendment medical claims against Defendants Crompton, Bookheimer, Mackie and Kenisson.

         Factual Allegations

         Plaintiff currently is incarcerated in the Macomb Correctional Facility, but the events giving rise to his complaint occurred at the Oaks Correctional Facility (ECF). In his pro se complaint, [1] Plaintiff sues the following ECF employees: Warden Thomas Mackie, Dr. Robert Crompton, Health Unit Manager Rick Bookheimer, Psychologist (unknown) Kenisson, Lieutenant (unknown) Borma, Librarian John Murphy, Library Assistant (unknown) Sikon, Warden's Assistant Erick Smith, Deputy Warden Rick Sharp and Grievance Coordinator Todd Bassette. Plaintiff also sues unknown parties named as “John Doe” and “Jane Doe.”

         Plaintiff first claims that he is being denied proper medical treatment and accommodation for his serious medical conditions. Plaintiff suffers from Hirschsprung's Disease, which he describes as a rare congenital condition that caused him to be born without an anus or lower intestines. As a result of his condition, Plaintiff is unable to eat and digest most foods, and experiences chronic severe pain and spontaneous defecation. Plaintiff alleges that he does not have a colostomy bag, which creates health issues and causes him humiliation and degradation. Plaintiff also suffers from Vilitigo, a skin abnormality that causes loss of pigmentation and extreme sensitivity to direct sunlight. Plaintiff further alleges that he suffers from paralysis in his left hand as the result of a botched surgery in 2008.

         Plaintiff contends that Defendants Crompton and Bookheimer refused to refer him to a Hirschsprung's Disease specialist and ignored Plaintiff's repeated complaints about his medical condition. Defendant Bookheimer allegedly told Plaintiff that if he was not satisfied with the medical treatment he was getting, he could pay for his own treatment. On another occasion, Defendant Crompton allegedly told Plaintiff that he was a “cry baby” and ordered Plaintiff out of his office. Defendants Crompton and Bookheimer also denied special accommodations for Plaintiff's handicap aide to clean his cell, for biohazard bags to properly dispose of feces and for extra towels to clean himself. Plaintiff further claims that Defendant Crompton refused to provide a medical detail for excused absences when his medical condition caused him to miss scheduled institutional callouts. Without the medical detail, Plaintiff's absence from a scheduled call-out resulted in misconduct charges or removal from the callout list for that activity. Defendant Crompton also denied Plaintiff a medical detail for the Library of Congress Talking Books Program.

         On March 7, 2016, Plaintiff informed Defendant Bookheimer that Defendant Crompton had failed to reorder his enemas and Lactoluse before going on vacation for a week. Plaintiff was in unbearable pain from severe constipation and asked Bookheimer for medical assistance. Defendant Bookheimer allegedly walked away saying, “That's your problem now isn't it.” (Compl. ¶ 81, ECF No. 1, PageID.16.)

         Plaintiff claims that as a result of having Vitiligo, he needs a full-brimmed medical hat and sun block to protect him from sun exposure while out in the yard. Defendant Crompton denied Plaintiff medical details for the hat and to allow Plaintiff to go to the day room instead of the yard on days with intense sunlight. As a result, Plaintiff frequently is confined to his cell while other prisoners are out in the yard.

         Plaintiff spoke to Defendant Mackie about Defendant Crompton's failure to provide him with proper medical care and accommodations.[2] According to Plaintiff, Mackie instructed Plaintiff to write him a short letter because he would not respond to a long one. When Plaintiff told Mackie that the medical issues were “quite long, ” he allegedly responded, “I guess that's jes' the way it is. I won't be responding.” (Compl. ¶92, PageID.18.) Plaintiff wrote a 2-page letter to Mackie, but never received a response. Plaintiff alleges that Defendant Mackie had first-hand knowledge that he was being denied proper medical treatment and failed to take corrective action.

         Upon his transfer to ECF on November 25, 2014, Plaintiff's Library of Congress Talking Books equipment was confiscated by the property officer. According to Plaintiff, ECF did not want prisoners at the facility to participate in the program. Plaintiff alleges that Defendants Murphy, Sharp and Smith, engaged in a concerted effort to deny him access to the program. Plaintiff contends that Defendant Murphy “went out of his way to retaliate against Plaintiff, without cause, specifically because the ECF Oaks staff encouraged Defendant Murphy to interfere with Plaintiff's ability to continue to participate in the Library of Congress Talking Book Program.” (Compl. ¶ 142, PageID.29). Defendant Murphy also violated Plaintiff's constitutional rights when he took on the role of health care staff by policing the standards for the Talking Book Program and caused Plaintiff to be black-balled by the Library of Congress. Plaintiff alleges that Defendants Smith and Sharp ignored proof of Plaintiff's acceptance into the program and violated Plaintiff's federal rights by encouraging Defendant Murphy and health care staff to deny him the medical detail necessary for him to possess the talking books equipment.

         Plaintiff further claims that “because he continued to fight for his right to participate in the Library of Congress Talking Books Program, and continued to file grievances regarding the matter, the ECF administration retaliated against [him] by alerting the Library of Congress that their equipment had been altered by Plaintiff who they suspected remov[ed] a rechargeable battery from one of the machines.” (Compl. ¶ 59, PageID.12.) Defendant Sikon allegedly wrote a false misconduct charge against Plaintiff for destruction of state property on or about April 1, 2015. Plaintiff denied the charges and claimed that he had not had access to the machines since November 2014. During the misconduct hearing, Defendant Borma refused Plaintiff's request to see a photo of the altered or damaged talking book machine, in violation of Plaintiff's due process rights. Borma found Plaintiff guilty of the offense and punished him with 10 days' loss of privileges. Plaintiff asserts violations of his First and Fourteenth Amendment rights, as well as the Rehabilitation Act (RA) and the Americans with Disabilities Act (ADA), for denying him access to the Talking Book Program.

         In late December 2015, Plaintiff was called to a meeting with Defendants Sharp, Crompton and Kenisson. During the meeting, which was conducted by Defendant Kenisson, Plaintiff was lead to believe that he finally would be provided with necessary medical care and treatment for his conditions. During a subsequent meeting with Defendant Kenisson, Plaintiff complained that his medical treatment had not improved since the December meeting. Plaintiff asked Kenisson to communicate with Defendant Crompton and act as his medical advocate. Defendant Kenisson allegedly responded that while Plaintiff had valid medical complaints, she could do nothing more than offer Plaintiff a forum to vent his frustrations. Plaintiff cancelled his appointment with Kenisson, returned to his cell and wrote a grievance against her. Plaintiff contends that in light of the obvious deprivation of necessary medical treatment, Defendant Kenisson's refusal to assist him in obtaining treatment violated his Eighth Amendment rights. He further claims that her “deceptive actions, aided the Defendant in an evil and deceptive act with malice intent to continue to manipulate Plaintiff into curbing his grievance activity.” (Compl., ¶ 159, PageID.33.)

         Plaintiff filed numerous grievances related to the claims set forth in his complaint. He contends that Defendant Bassette continuously rejected his grievances or assigned them to unqualified individuals to respond. Plaintiff maintains that the ECF medical staff was not qualified to respond to his complex medical issues. He further claims that Bassette retaliated against him by not sending him adequate copies of receipts at Step I, rejecting grievances and allowing staff members to respond to grievances written against them, which also violated department policy.

         For relief, Plaintiff seeks monetary damages.

         Discussion

         A 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)).

         To 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).

         I. Denial of Medical ...


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