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McDuff v. Burt

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

November 3, 2017

SHERRY L. BURT et al., Defendants.



         This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), 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 Burt and Jackson. The Court will serve the complaint against Defendants Attis, Goostre, Davis, and Dykstra.


         I. Factual allegations

         Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Lakeland Correctional Facility (LCF) in Coldwater, Branch County, Michigan, though the events about which Plaintiff complains occurred while he was housed at the Muskegon Correctional Facility (MCF). Plaintiff sues the following MCF officials: Warden Sherry L. Burt; Deputy Warden S. Jackson; Resident Unit Manager (unknown) Attis; Lieutenant (unknown) Goostre; Sergeant S. Davis; and Correctional Officer (unknown) Dykstra.

         Plaintiff alleges that, on March 12, 2015, he was assaulted by two gang members, prisoners McBride and Hamilton, while he was in the bathroom of his housing unit. Defendant Dykstra issued a misconduct report against Plaintiff for fighting, even though Dykstra did not observe Plaintiff fighting. Instead, Dykstra based his report on a discovery that Plaintiff had been stabbed several times in the face and head while he was in the bathroom. Yet Dykstra failed to file a “critical incident report” or request protection for Plaintiff. The administrative hearing officer found Plaintiff not guilty of the fighting charge.

         On March 24, while Plaintiff was in the prison yard, Plaintiff was again assaulted by gang members. Defendant Goostre issued a misconduct charge against Plaintiff for fighting, but took no action to protect Plaintiff. The hearing officer again found Plaintiff not guilty of fighting.

         Plaintiff gave Defendant Attis a hand-written request for protection from gang members on March 29, 2015. Plaintiff wrote his request on a grievance form. Defendant Attis ignored the request and did not forward it to either the deputy warden or warden's office.

         On April 2, 2015, having been released from segregation to his same housing unit, Plaintiff was assaulted for the third and fourth time by gang members. In the first of these instances, Plaintiff was assaulted by three gang members in the downstairs dayroom of the housing unit. Hours later, Plaintiff was assaulted in the upstairs hallway of the unit. Between the two assaults on April 2, 2015, Plaintiff complained to Defendant Sergeant Davis about being assaulted, but Davis did nothing about protecting Plaintiff. Only after the second assault of the day did Defendant Sergeant Davis review the videotape and issue a request for protection and investigation. Prison Counselor Jefferson (not a Defendant) investigated Sergeant Davis' request and recommended that Plaintiff be held in protective custody until he could be transferred to another facility. The recommendation was signed by Inspector P. Davis (not a Defendant).

         Also on April 2, 2015, Defendant Jackson reviewed Plaintiff's grievance about the first assault. Defendant Jackson rejected the grievance. Defendant Burt reviewed the rejection and upheld it on May 12, 2017.

         Plaintiff alleges that Defendants Jackson and Burt should have reviewed all critical incident reports and should have become aware of the risk to Plaintiff's safety, but they did not. Plaintiff also alleges that Defendants knew or should have known of hazardous conditions at the facility, but they did not abate the situation. Plaintiff contends that Defendants violated his rights under the Eighth and Fourteenth Amendments of the United States Constitution every time they did not correct the problem, allowing Plaintiff to be assaulted four times within three weeks.

         Plaintiff seeks compensatory and punitive damages.

         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 - ...

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