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Hunter v. Palmer

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

April 6, 2017

CARMEN PALMER et al., Defendants.


          Paul L. Maloney 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 federal claims against Defendants Klien, DeMaeyer, Chaney and Miller for failure to state a claim. The Court also will dismiss without prejudice Plaintiff's state-law claims against Defendants Klien, DeMaeyer, Chane and Miller. In addition, the Court will dismiss with prejudice all of Plaintiff's claims, except his retaliation claims, against Defendants Palmer, Bevington and Jackson. The Court will serve Plaintiff's retaliation claim against Defendants Palmer, Bevington and Jackson.


         I. Factual allegations

         Plaintiff Jermaine Hunter presently is incarcerated with the Michigan Department of Corrections (MDOC) at the Thumb Correctional Facility, though the actions about which he complains occurred while he was housed at the Michigan Reformatory (RMI). He sues the following RMI officials: Warden Carmen Palmer; Lieutenant (unknown) Bevington; Sergeants J. Jackson and D. Klien; and Corrections Officers Zebediah DeMaeyer, (unknown) Chaney, and K. Miller.

         Plaintiff complains that, on June 3, 2015, as we was exiting the food service building at 6:58 a.m., Defendant Bevington stopped Plaintiff for a routine pat-down search, to be conducted by Defendant trainee DeMaeyer. During the search, Defendant DeMaeyer ran his hands up one of Plaintiff's legs and then allegedly deliberately and intentionally lingered over Plaintiff's testicles and buttocks. Plaintiff contends that DeMaeyer “cuff[ed] and caress[ed]” those places in a sexual manner. (Compl., ECF No. 1, PageID.7) Plaintiff jumped away, angrily saying, “He [DeMaeyer] is not supposed to be cuffing and caressing my testicles and buttocks in a sexual manner like that[.”] (Id.) Defendant DeMaeyer laughed and stated, “He's [Plaintiff is] the only one complaining[.”] (Id.) Plaintiff contends that the Prison Rape Elimination Act (PREA), 42 U.S.C. § 15601 et seq., and MDOC Policy Directive 03.03.130 required that Bevington immediately intervene and protect Plaintiff and then document Plaintiff's complaint. Instead, Defendant Bevington advised Plaintiff that DeMaeyer could do what he had done, and Bevington gave Plaintiff a direct order to allow DeMaeyer to complete his search. Plaintiff contends that Defendant DeMaeyer ran his hands up Plaintiff's other leg and again “cuffed and caressed” Plaintiff's testicles and buttocks. Plaintiff claims that he was traumatized by the search, as it made him re-experience the sexual assaults to which he had been subjected three-and-one-half years earlier at another prison.

         After the search, Plaintiff informed Defendants Bevington and DeMaeyer of his intent to file a grievance. Bevington told Plaintiff “aggressively” insisted that DeMaeyer “could do that.” (Id., PageID.9.) Plaintiff argues that, by encouraging DeMaeyer's conduct, Defendant Bevington exacerbated Plaintiff's trauma and caused a heated argument to erupt between Bevington and Plaintiff. Plaintiff contends that the incident occurred in front of other prisoners and staff members and was recorded by prison cameras.

         Plaintiff filed a grievance against Defendants Bevington and DeMaeyer on June 3, 2015, in which he alleged staff sexual misconduct and requested the video footage. On June 9, Defendant Miller allegedly circumvented the PREA process by classifying the grievance as a claim of sexual harassment rather than as staff sexual misconduct. Defendant Miller then documented the grievance as “Unfounded, ” before forwarding it to Defendant Jackson for investigation. Plaintiff claims that the PREA investigation standards required Defendants Bevington and DeMaeyer to be removed from their posts during investigation, which did not happen. Plaintiff alleges that Defendant Miller, as grievance coordinator, and Defendant Palmer, as the designated PREA administrator, did not take his claim seriously.

         On June 11, 2015, at 10:30 a.m., Defendant Jackson attempted to interview Plaintiff on his grievance. Plaintiff refused to come into the office, as Defendant DeMaeyer was also present, causing Plaintiff to feel intimidated and harassed. Jackson agreed to have DeMaeyer leave the office, and he then interviewed Plaintiff for 22 minutes on his grievance. Defendant Jackson attempted to get Plaintiff to sign off on his grievance, as DeMaeyer was a trainee. Plaintiff alleges that, when he rejected Jackson's “demands, ” Jackson threatened to file a disciplinary charge for filing a false grievance. Plaintiff complains that Defendant Jackson violated the PREA and MDOC policy by not “thoroughly” and “objectively” investigating the grievance and by not viewing the video footage. (Id., PageID.11.) In what Plaintiff describes as a “fabricated” investigative report, Defendant found the grievance unsupported. (Id.)

         About an hour later, Defendant DeMaeyer confronted Plaintiff about the grievance and told Plaintiff that “prisoners don't have any rights.” (Id., PageID.12.) He continued, saying, “[C]omplaining is gonna get you in a lot of trouble[.”] (Id.) Plaintiff claims that the “threats” caused him extreme paranoia and emotional distress.

         Six days later, on June 22, Plaintiff filed a grievance on Defendants Jackson and DeMaeyer, which Defendant Grievance Coordinator Miller classified as a claim of “Other Staff Corruption.” (Id., PageID.13.) Defendant Miller assigned Defendant Jackson to investigate, contrary to policy. Miller also sent a memo to Plaintiff on July 1, 2015, indicating that the investigation of the first grievance had been suspended, “pending referral and possible investigation under PREA guidelines[.”] (Id.)

         On July 2, 2015, Defendant Jackson filed a misconduct report charging Plaintiff with interference with the administration of the rules, a Class II misconduct. The charge alleged that Defendant Jackson had conducted a full investigation under PREA guidelines and, based on that investigation, determined that Plaintiff had intentionally filed a false grievance. Plaintiff complains that the investigation did not include review of the video or interviews with prisoners or staff who were present. Defendant Klien interviewed Plaintiff on the misconduct the following day, and he attempted to convince Plaintiff to plead guilty and accept 15 days' loss of privileges. When Plaintiff refused, Defendant Klien “threatened” Plaintiff by saying that he would document that Plaintiff had refused the offer to plead guilty, which Plaintiff contends violates prison policy and deliberately tainted the misconduct hearing process. (Id., PageID.15.) On July 5, Plaintiff filed a grievance against Defendants Palmer and Jackson for conspiring to file a false disciplinary charge in retaliation for Plaintiff's having reported sexual abuse. That same day, Plaintiff filed a grievance against Defendant Klien for allegedly retaliating and interfering with Plaintiff's right to a fair hearing process.

         Two days later, on July 7, Defendant Jackson gave Plaintiff a copy of the Notification of Sexual Abuse and Sexual Harassment Investigative Findings and Action, which indicated that the investigation was completed on July 1, 2015, and that no evidence was found to support his claim. Defendant Jackson confronted Plaintiff about meetings he had recently attended with Captain Cusack about Plaintiff's multiple grievances, and he demanded that Plaintiff sign off on those grievances. When Plaintiff refused, Defendant Jackson threatened to file additional false misconduct charges against Plaintiff. Defendant Jackson also allegedly discussed Plaintiff's grievances with numerous prisoners, expressing his vendetta against Plaintiff and boasting that he had filed a misconduct against Plaintiff for interfering with the administration of rules.

         On June 13, Defendant Bevington intercepted Jackson's misconduct report and improperly held a hearing. During the hearing, Plaintiff told Bevington that his hearing was illegal under Policy Directive 03.03.105, which precludes officers who are involved in the misconduct from acting as hearing officers. Defendant Bevington “vindictively” told Plaintiff that he should not have filed a grievance against Bevington and that prisoners have no rights. (Id., PageID.16.) He also told Plaintiff that the warden was behind the misconduct and that Plaintiff therefore was guilty. Plaintiff threatened to file another grievance and to report Defendant Bevington to Captain Cusack. Plaintiff spoke with Cusack, who, on July 4, discarded Bevington's hearing report, conducted a new hearing, and found Plaintiff not guilty of interfering with the administration of rules. Cusack concluded that, based on a complete investigation of the search incident, including review of prisoner statements and the video footage, Plaintiff had not intentionally filed a false grievance.

         Plaintiff then kited Defendant Miller about properly addressing Defendant Bevington's retaliatory misconduct. Defendant Miller allegedly “downplayed” Bevington's conduct and “misled” Plaintiff to believe that it was not a grievable issue. (Id., PageID.17.) Nevertheless, Plaintiff filed a grievance against Defendant Bevington for conspiring with Defendants DeMaeyer, Palmer, Jackson, and Klien to retaliate against Plaintiff for initiating a PREA investigation. In conducting a hearing on the grievance, Defendant Chaney allegedly failed to properly process and document the grievance and failed to attach Captain Cusack's misconduct determination. Plaintiff kited Miller about his neglect and then filed a grievance against Defendant Miller for failing to provide a copy of the July 14, 2015, misconduct hearing packet.

         Plaintiff alleges nine multi-part, ostensibly federal, claims for relief: (1) a claim against Defendant DeMaeyer for violating his bodily privacy; (2) a Fourth, Fifth, Eighth and Fourteenth Amendment claim against DeMaeyer for sexual assault and unreasonable search; (3) an claim against Bevington for permitting and approving DeMaeyer's repeated sexual assault, failure to supervise, and obstruction of the misconduct hearing report; (4) a claim against Jackson for being deliberately indifferent to his claim of sexual assault, filing a false misconduct, harassing Plaintiff, and discussing Plaintiff's grievances with other prisoners; (5) a claim against Defendant Palmer by being deliberately indifferent to Plaintiff's claims, allowing Jackson to investigate the PREA claim, intentionally approving or allowing Jackson to file a false PREA report, and conspiring with Jackson to discredit Plaintiff and retaliate against him for filing grievances; (6) a claim against Defendant Klien for being deliberately indifferent to the sexual assault, ignoring Plaintiff's retaliation defense, informing Bevington that Plaintiff refused the plea offer, and deliberately tainted the hearing process in retaliation for filing grievances; (7) a claim against Defendant Chaney for deliberate indifference to the assault, suppressing the July 15, 2015, hearing report and the not-guilty finding, and doing so to retaliate against Plaintiff; (8) a claim against Defendant Miller for deliberately ignoring the sexual assault, initiating a conspiracy with Jackson, Palmer, Klien, Bevington, DeMaeyer, and Chaney to violate the PREA investigation, falsely classifying the grievance, circumventing the investigation, issuing a false memorandum, and falsely representing the Bevington's obstruction of the misconduct hearing process was non-grievable; and (9) a claim against all Defendants for causing extreme emotional distress. He also raises state-law claims of assault and battery, gross negligence, and intentional infliction of emotional distress. Plaintiff contends that he has suffered extreme emotional distress and anxiety, resulting in loss of sleep and appetite and continuing flashbacks.

         II. Failure to state a claim

         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 ยง 1983 is a method for vindicating federal rights, not a source of substantive rights itself, the first step in an action ...

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