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Malott v. Weaver

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

March 16, 2018

LARRY WEAVER et al., Defendants.


          Paul L. Maloney United States District Judge.

         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 Mackie, Smith, Ball, Sharp, Burgess, Thomas, Black, Plamondon, and Bomer. The Court also will dismiss Plaintiff's access-to-the-courts and due process claims against the remaining Defendants. The Court will serve Plaintiff's retaliation claims against Defendants Weaver, Blow, and Carney.


         I. Factual allegations

         Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Bellamy Creek Correctional Facility (IBC) in Ionia, Ionia County, Michigan. The events about which he complains, however, occurred at the Oaks Correctional Facility (ECF) in Manistee, Manistee County, Michigan. Plaintiff sues the following ECF Officials: Assistant Resident Unit Supervisor Larry Weaver; Resident Unit Manager Jason Thomas; Administrative Assistant Eric Smith; Warden Thomas Mackie; Deputy Wardens Tim Ball and Rick Sharp; Correctional Officers (unknown) Blow and Derrick Carney; Prison Counselor (unknown) Black; Prison Librarians Amy Plamondon and (unknown) Bomer; and Business Office Manager Michael Burgess.

         Plaintiff alleges that, beginning on October 27, 2016, and continuing through April 6, 2017, Defendants or their subordinates engaged in repeated actions to interfere with Plaintiff's access to the courts. He also alleges that a number of these actions were taken in retaliation for Plaintiff being engaged in litigation against other prison officials, and he suggests that he was deprived of his right to due process.

         Plaintiff alleges that, on October 27-28, 2016, and November 16, 18, 21, and 22, 2016, Defendant Weaver refused to process Plaintiff's legal mail to the courts and the attorney general's office in regard to pending litigation. Defendant Weaver allegedly told Plaintiff that he was the boss and that nothing would be sent out if he did not want it sent. On November 16, 2016, Defendants Weaver and Blow went into Plaintiff's cell and removed documents related to Plaintiff's litigation against other ECF employees and documents related to new litigation, together with ink, pens, blank envelopes, and stamped envelopes. Defendants Blow and Weaver told Plaintiff that he should not have filed a lawsuit against their friends and that they would see how well he could litigate without the items. (Compl., ECF No. 1, PageID.8.) On November 22, 2016, Defendant Thomas ordered Plaintiff's legal documents returned to him. However, 15 minutes later, Defendant Weaver re-confiscated the items, saying he did not care what Thomas said because he was in charge of the unit. Plaintiff complains that Defendants Mackie, Smith, Ball, and Sharp effectively authorized Weaver's conduct, because they did nothing in response to Plaintiff's complaints.

         Plaintiff further alleges that, on numerous dates (December 22 and 26, 2017, and January 16, 18, and 24, 2017, February 6 and 9, 2017), Defendants Weaver, Plamondon, Bomer, Blow, Smith, Mackie, and/or Thomas either refused his requests for paper and envelopes or did not carry paper or envelopes in the prison store.

         Next, Plaintiff complains that on November 17, 18, 23, and 28, 2016, December 1, 7, and 26, 2016, and January 2, 8, 18, and 23, 2017, Defendants Plamondon and Bomer denied Plaintiff's request to use the legal-writer program at ECF, which Plaintiff contends prevented him from accessing the courts to pursue his ongoing litigation. Plaintiff also contends that he was permitted by policy to use the legal-writer program, despite the fact that he was representing himself and serving as his own lawyer.

         Plaintiff also contends that, on February 6, 2017, he confronted Defendants Plamondon and Bomer about not ever receiving the library items he requested, including the court rules, bar journals, and case law. They explained that the items were in great demand, as the prison had only one copy of the books for all four units of the prison. Plaintiff alleges that the limited copies of legal items denies him access to the courts.

         Plaintiff alleges that Defendants Smith and Mackie put him on a paper restriction for 30 days on November 23, 2016. Plaintiff contends that the restriction was taken in retaliation for the filing of his lawsuit, that it was imposed without a misconduct charge, and that it denied Plaintiff access to the courts.

         In addition, Plaintiff complains that Defendant Weaver refused to provide Plaintiff with a Class-III misconduct appeal form on November 22, November 29, and December 5, 2016. Plaintiff contends that Weaver thereby denied Plaintiff's right to due process. Plaintiff also alleges that he asked Defendant Ball to intervene with regard to the appeal form on December 13 and 19, 2016, but Defendant Ball took no action.

         On November 30, 2016, Defendant Black allegedly denied Plaintiff a fair hearing on the Notice of Intent issued by Defendant Weaver for the property taken from Plaintiff. Plaintiff contends that Black thereby deprived Plaintiff of due process.

         Plaintiff also alleges that, on December 12 and 19, 2016, Defendant Administrative Assistant Smith took no action to prevent the grievance coordinator from ignoring Plaintiff's requests. In addition, Plaintiff alleges that, on December 5 and 19, 2016, Defendant Warden Mackie took no action to require the grievance coordinator to provide Plaintiff grievance forms. Similarly, Plaintiff alleges that Defendant Deputy Wardens Ball and Sharp refused to stop the grievance coordinator from ignoring or denying Plaintiff's requests for grievance forms. Plaintiff contends that, because he could not get grievance forms, he was prevented from exhausting his administrative remedies and therefore from accessing the courts.

         Plaintiff also argues that Defendant Burgess refused to remove a photocopy debt from Plaintiff's account on December 5 and 12, 2016, even after Defendant Black ordered the debt removed from the account.

         Defendant Weaver allegedly denied Plaintiff access to the courts by not allowing him to have writing supplies on December 22 and December 26, 2016, and January 16, 2017. Defendants Weaver and Bomer also allegedly denied Plaintiff envelopes to mail his documents to the court on January 18, 2017, and February 9, 2017, again allegedly violating Plaintiff's right to access the courts.

         Plaintiff alleges that, on January 24, 2017, Defendants Weaver, Mackie, Sharp, and Thomas denied him “the opportunity to get paper, envelopes and writing supplies to communicate to the courts, ” thereby depriving him of due process and the right to access the courts. (Id., PageID.13.) He more specifically asserts that Weaver and Thomas would not allow him to submit a disbursement form for a blank envelope to write the court on that same date, but he does not allege what conduct Defendants Mackie and Sharp are alleged to have taken.

         Plaintiff complains that Defendant Weaver delivered legal mail to Plaintiff on January 30, 2017, more than a month after it was mailed. When questioned, Weaver told Plaintiff that he was lucky to get the mail at all, as Weaver should have thrown it away. Plaintiff similarly complains that Defendant Blow gave him legal mail that was more than one-month old on February 2, 2017. Plaintiff asserts that the delays in legal mail deprived him of access to the courts.

         On February 10, 2017, Plaintiff confronted Defendants Weaver, Thomas, Mackie, Sharp, and Ball to complain about writing paper not being available for purchase in the prisoner store, as required by policy. Defendants allegedly did not correct the problem that day, thereby purportedly depriving Plaintiff of his right of access the courts.

         Plaintiff generally alleges that, on February 13, 2017, Defendants Weaver, Thomas, Mackie, and Sharp “allow[ed] legal documents and other papers to be removed from my cell and to not be returned to me.” (Id., PageID.15.) Again, Plaintiff does not specify which, if any, of the four Defendants actually removed the papers from his cell.

         Plaintiff contends that Defendants Blow and Weaver took his legal documents and personal items from his cell on February 24, 2017. At that time, Defendant Blow gave Defendant Weaver the grievances Plaintiff had written so that Weaver could throw them away. Plaintiff alleges that Blow and Weaver took his property to retaliate against Plaintiff for pursuing legal action. Defendant Weaver then gave Plaintiff a bunch of pills, saying that, if Plaintiff did not like what was happening, he could just take the pills and kill himself.

         Plaintiff contends that, because of the interferences with his access to the courts, one of his cases was dismissed on a motion for summary judgment. See Malott v. Haas et al., No. 1:16-cv-13014 (E.D. Mich. Apr. 5, 2017) (Order & J.) (adopting R&R entered Feb. 8, 2017). He also alleges that he was prevented from filing an appeal in another case in the Eastern District of Michigan. See Malott v. Haas et al., No. 2:15-cv-14059 (Dec. 7, 2016) (Order & J. granting summary judgment for lack of exhaustion and rejecting claim of staff interference with grievances in late 2014).

         Plaintiff next alleges that Defendant Carney came to Plaintiff's cell on April 26, 2017. After telling Plaintiff that Defendant Weaver had told Carney to remove Plaintiff's writing paper, Defendant Carney removed legal forms that Plaintiff claims he needed in order to send out unspecified expedited legal mail.

         Plaintiff seeks injunctive relief, together with nominal, 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 - 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 § 1983 is a method for vindicating federal rights, not a source of substantive rights itself, the first step in an action under § 1983 is to identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994).

         A. ...

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