United States District Court, W.D. Michigan, Northern Division
GREGORY S. TURNER, Plaintiff,
UNKNOWN GILBERTSON et al., Defendants.
J. QUIST 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, Plaintiff's action will be dismissed for
failure to state a claim.
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)).
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.
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.
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.”
result of the interaction, Plaintiff was placed on food-loaf
restriction. Gilbertson also wrote a Class-I misconduct
ticket 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
(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.)
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'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
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,
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 ...