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Lee v. Unknown Wagner

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

June 16, 2017

GREGORY LEE #791018, Plaintiff,
v.
UNKNOWN WAGNER, et al., Defendants.

          OPINION

          Janet T. Neff United States District Court 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) . T h e C o u r t m u s t r e a d P l a i n t i f f ' 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 Harrison, Dewey, Milanowski, Weber, and Viglianco. The Court will serve the complaint against Defendant Wagner.

         Factual Allegations

         Plaintiff Gregory Lee is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Ionia Correctional Facility (ICF) in Ionia, Michigan. The events of which he complains, however, occurred while he was incarcerated across the street at the Bellamy Creek Correctional Facility (IBC).[1] He sues IBC Sergeants Unknown Wagner and Unknown Harrison, as well as IBC Corrections Officers Unknown Dewey, Unknown Milanowski, Unknown Weber, and Unknown Viglianco.

         Plaintiff alleges that during the afternoon of February 8, 2017, he was escorted to housing unit 8 for placement into temporary segregation because of a sexual misconduct ticket. Plaintiff encountered Defendant Wagner and asked him whether he was still holding a grudge because of an incident on June 7, 2016, involving both men, where chemical agents were deployed to subdue Plaintiff. Defendant Wagner responded “Yes I am.” Plaintiff told Wagner that his grudge was retaliatory. Defendant Wagner responded that Plaintiff should not file lawsuits.

         Later that afternoon, Defendant Wagner sent Defendant Milanowski to Plaintiff's cell to confiscate Plaintiff's underwear. When Plaintiff asked for an explanation, Defendant Milanowski responded: “I don't know. You have to ask Sergeant Wagner.”

         About one-half hour later, Plaintiff attempted to commit suicide. To secure Plaintiff, the officers used chemical agents and placed Plaintiff in restraints. Plaintiff was put on close observation (suicide watch) in cell 2 in the segregation unit.

         Plaintiff discovered that there was no mattress in cell 2. When he asked Defendant Wagner about it, Wagner said: “You know why.” Plaintiff asked again. Wagner then responded: “I'm entitled to my opinion of you just as you are in your lawsuit with Tinarella.” Plaintiff accused Wagner of retaliation. Wagner responded: “Well, file another lawsuit.” Plaintiff inquired of Defendant Harrison, while Harrison reviewed Plaintiff on several misconduct tickets, how long Plaintiff would be on mattress restriction. Harrison responded that there was no mattress restriction. Defendant Wagner then interrupted and said there was a restriction.

         Plaintiff asked Defendant Milanowski if Plaintiff was on mattress restriction. Milanowski responded: “That's my boss, I gotta do what I'm told.” Plaintiff later asked Defendant Dewey if he could have a mattress. Dewey said no, but acknowledged that Plaintiff was not on mattress restriction as far as Dewey knew.

         On February 10, 2017, Plaintiff asked Defendants Weber and Viglianco for a mattress. Both Defendants declined based on a message from second shift, Wagner's shift.

         On February 16, 2017, after eight days without any suicidal incidents, Plaintiff was removed from close observation and placed in a regular segregation cell with a mattress. The next day, Plaintiff claims that he started to experience pain in his right shoulder and hip.

         The MDOC has a written policy directive that describes the circumstances where a prisoner in segregation may be deprived of certain otherwise permitted property items, such as a mattress. MDOC Policy Directive 04.05.120 (eff. 9/27/2010). The directive explains that a mattress may be withheld from a prisoner in segregation for serious reasons of safety or security related to the item or privilege upon written approval from the Warden or Deputy Warden. Id., ¶ CC. The policy directive requires that the reason for the restriction be documented on a particular form, the Restriction of Segregation Property and Privileges form (CAJ-687). Id.

         After his release from close observation, Plaintiff sought the property restriction form regarding his mattress. On March 6, 2017, Plaintiff's suspicion that proper procedure had not been followed was confirmed. At that point, three weeks after the restriction had ended, he filed a grievance regarding the matter and concluded that he should get medical treatment for his pain. He was treated with ibuprofen and instructed as to exercises he could perform to loosen up his bicep muscle and tendon.

         Plaintiff contends the removal of his mattress for eight days constitutes cruel and unusual punishment, in violation of the Eighth Amendment. Although Plaintiff alleges that Defendant Wagner is principally responsible for the removal of Plaintiff's mattress, Plaintiff argues that the other Defendants are liable as well for failing to correct the situation when they became aware of it. Plaintiff further contends that Defendant Wagner's decision to remove the ...


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