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Turner v. Gilbertson

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

April 25, 2017

GREGORY S. TURNER, Plaintiff,
v.
UNKNOWN GILBERTSON et al., Defendants.

          OPINION

          GORDON J. QUIST 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, Plaintiff's action will be dismissed for failure to state a claim.

         Factual Allegations

         Plaintiff Gregory S. Turner presently is incarcerated with the Michigan Department of Corrections (MDOC) at the Baraga Maximum Correctional Facility (AMF). He sues AMF Correctional Officer (unknown) Gilbertson, and the following Trinity Food Service employees: Supervisor (unknown) Mattison; Supervisor and Food Steward (unknown) Hakola; and other unnamed food service staff (Unknown Part(y)(ies)).

         Plaintiff's complaint consists of the allegations contained in his form complaint, as well as an attached supplemental complaint. (Compl., ECF No 1, Page ID.5.) Plaintiff alleges that, on February 12, 2016, Defendant Gilbertson delivered his food tray. Plaintiff discovered that the food tray was missing two of the three packages of crackers it was supposed to contain. Plaintiff complained to Defendant Gilbertson, who told Plaintiff that he did not have any more crackers, and Plaintiff demanded that Gilbertson call food service or to give him another tray. Gilbertson allegedly responded, “I ain't got no more food trays.” (Id.) Plaintiff complains that other food trays were still awaiting distribution. Plaintiff also complained that he possessed a broken plastic spoon, and he demanded another.

         According to Plaintiff, prisoner Howard received six packets of crackers and told Defendant Gilbertson that Plaintiff could have his extras. Gilbertson told Howard that Plaintiff had nothing coming. Plaintiff told Gilbertson that, if he did not get him more crackers and a spoon, he would write a grievance. He also told Gilbertson that, until he could see the sergeant and get his crackers and a spoon, he would hold his food slot hostage. After hearing this threat, Gilbertson did not collect Plaintiff's food tray. Plaintiff complains that, rather than skip Plaintiff's cell during tray collection, Gilbertson should have given him a direct order and called another officer to assist, as protocol required. He further contends that Defendant Gilbertson should have called the sergeant or the shift commander rather than leave the food tray in Plaintiff's cell until the morning. Plaintiff asserts that Gilbertson left the food tray in Plaintiff's cell in retaliation for Plaintiff's threat to hold the food slot hostage and for threatening to hold his food slot hostage until he could report Plaintiff to the shift commander.

         During this period, Nurse Sunberg came to Plaintiff's cell during her rounds to deliver medications. Defendant Gilbertson told Nurse Sunberg not to give Plaintiff his medications, because Plaintiff would hold the food slot hostage. Plaintiff alleges that he told Sunberg that he had only been trash-talking to Gilbertson and that he wanted his medicine, but Gilbertson told Sunberg, “No.” (Id., PageID.6.)

         As a result of the interaction, Plaintiff was placed on food-loaf restriction.[1] Gilbertson also wrote a Class-I misconduct ticket[2] against Plaintiff for Threatening Behavior and Insolence, making the following allegations:

While passing food [t]rays in unit 3 A-Wing, I gave prisoner Turner #160637 which locks in cell 3-121 his food tray. Prisoner Turner stated he only received one pack of crackers. I told prisoner Turner that [I] would get him another pack of crackers when I was done passing trays. Prisoner Turner [s]tated “Get me those crackers now Bitch.” I told [T]urner to wait a minute and [I] would take care of it. Turner replied, “You can suck a dick until you hick up, Bitch! Open my slot and I'll beat your f*cking ass. Prisoner ID'd by frequent [contact] and unit 3 master count board.

(Class I Misconduct Report, ECF No. 1-1, PageID.19.) Gilbertson issued a second, Class-II misconduct the same day, February 15, 2016, for disobeying a direct order. That misconduct report alleged the following facts:

At approx. 1830 hours, I approached cell 3-121 solely occupied by prisoner Turner 169637 to retrieve his food trays. Prisoner Turner said in a loud and clear voice “I ain't giving you shit back, bitch”! I gave Turner a direct order to return his food trays to which Turner replied “Get off the wing, fu*k boy! Get a Sargent [sic] down here if you want these trays back”!

(Class II Misconduct Report, ECF No. 1-1, PageID.28.)

         On February 22, 2016, Petitioner was found guilty of the misconduct charges of insolence and threatening behavior:

EVIDENCE/STATEMENTS IN ADDITION TO MISCONDUCT REPORT
AMF misconduct scheduled for hearing on prisoner at AMF with Hearing Officer at LMF through tele-video hearing.
PRISONER'S APPEARANCE: Prisoner appeared for his hearing.
EVIDENCE IN RECORD: Misconduct report, one page, read to the prisoner.
PRISONER'S TESTIMONY AT HEARING: At the hearing the prisoner state, “Not guilty. To make a long story short, Gilbertson passed out trays and gave me one packet of crackers.” He is entitled to three packets. He told the officer, “I want you to bring me my crackers.” He told the officer not to forget the crackers or else he would take the food slot. He also told the officer he wanted a new spoon as his spoon was cracked. The officer never came back. The officer then came to pick up trays and passed his cell and didn't say anything to Turner. With the other officers they would have opened his slot and then just write him a DDO [Disobeying a Direct Order] if he took the slot hostage. Prisoner had no other comment when asked other than to start talking about the second misconduct report he had received the following day. Prisoner informed of the decision and sanction prior to leaving the hearings room.
REASONS FOR FINDINGS
INSOLENCE: On 2/15/16 the prisoner told the officer, “Get me those crackers now, bitch.” This statement was made to harass and degrade the officer as there was no other purpose for his comment. Prisoner intended to harass and degrade the officer as the prisoner directed his comment to the officer when the prisoner received only one package of crackers. Prisoner claims that he never said this to the officer. He just ordered the officer several times to get his crackers. Prisoner's admission that he was demanding of the officer over crackers shows an attitude that certainly would be consistent with the officer's claims as to what had happened. Reporting staff member factual and is credible as to what occurred. Prisoner was not. Charge upheld
THREAT: Prisoner then told the officer, “You can suck a dick until you hick up, bitch. Open my slot and I'll beat your fucking ass.” This expressed the intent to physically assault the officer. Prisoner intended to cause fear of physical harm in the officer as the prisoner directed his comment to the officer when the officer told him to wait a minute as far as his crackers. Prisoner claims that he never said this to the officer. Again, he is not believed. First, as already mentioned, his acknowledged demanding attitude would be consistent with the officer's claims. Prisoner made it easy to visualize him threatening the officer by what he had admitted. Second, prisoner did not present his claims in a credible manner at the hearing. Prisoner focused more on what occurred after the officer came back to pick up trays and the following day that what had happened at the time in question. Third, the fact that the officer refused to open up the prisoner's slot when the officer came back to pick up trays would be consistent with the officer's claim that the prisoner had threatened him. Reporting staff member factual and is credible as to what occurred. Prisoner was not. Charge upheld.

(Class I Misconduct Hr'g Report, ECF No. 1-1, PageID.20-21.)

         Plaintiff complains that, as a result of the misconduct charges and findings, he was placed on food loaf for seven days, or twenty-one meals. He claims that “[e]ach loaf was 93% of the time half-cooked, loose, and always wet. Not only that but they were all [the same loafs]. (Compl., ECF No. 1, PageID.7-8.) At another place in his complaint, Plaintiff alleges that “these loafs [] were either half-cooked, rotten, spoiled, wet, or dried up and broken. (Id., PageID.11.) Plaintiff contends that the use of the same food loaf for seven days violated policy. He also alleges that Defendants Mattison and Hakola knew they were sending the same loaves for all meals and that the meals were either unsanitary or inedible. He alleges that these ...


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