United States District Court, W.D. Michigan, Northern Division
L. MALONEY UNITED STATES DISTRICT JUDGE.
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. §
l997e(c). The Court must read Plaintiffs pro se
complaint indulgently, see Haines v. Kerner, 404
U.S. 519, 520 (1972), and accept Plaintiffs 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
Plaintiffs complaint for failure to state a claim against
Defendant Trinity Food Service Group. The Court will serve
the complaint against Defendants Don Plont.
is presently incarcerated with the Michigan Department of
Corrections (MDOC) at the Kinross Correctional Facility (KCF)
in Kincheloe, Michigan. The events about which he complains
occurred at that facility. Plaintiff sues Don Plont, who was
employed as a Food Steward for Trinity Food Service Group.
The Court notes that Plaintiff has filed a motion to amend
his complaint, as well as a proposed amended complaint (ECF
No. 6). Pursuant to Rule 15(a) of the Federal Rules of Civil
Procedure, a party may amend once as a matter of course
before a responsive pleading is served. Therefore, Plaintiffs
motion is properly granted and the Court will accept
Plaintiffs proposed amended complaint as the complaint in
alleges that on August 30, 2017, he discovered a maggot
crawling out of the banana on his dinner tray. Plaintiff
immediately notified Sergeant Beauliu by showing him the
maggot. Sergeant Beauliu instructed Plaintiff to get a new
tray. Plaintiff asked if the chow line should be stopped and
Sergeant Beauliu told him to go tell Defendant Plont.
Plaintiff then approached Defendant Plont and told him that
there were maggots or worms crawling out of his banana.
Defendant Plont gave the banana a cursory look and said,
"No there's not." Plaintiff again showed
Defendant Plont the maggot and asked to see a supervisor.
Defendant Plont responded by telling Plaintiff that the
maggot was just goo, and stating that if Plaintiff did not go
sit down, he was going to write him a misconduct for creating
disturbance. Plaintiff then asked Line Officer Templeton if
he saw the maggot. Officer Templeton stated, "eww."
Defendant Plont then took the banana and said, "Oh yeah,
I see. I must have looked at the wrong spot. You can get a
new tray." Defendant Plont then instructed the line
workers to pull all the bananas and serve apples.
in line to receive a new tray, Plaintiff asked the line
workers "[w]hy aren't you sanitizing? Plaintiff also
asked, "[w]hat is the food steward's name?"
Defendant Plont then interrupted, telling Plaintiff that he
had gotten a new tray and to just "leave it alone."
Plaintiff stated that he was not going to leave it alone, and
was going to file a grievance. Defendant Plont stated,
"That's it. You're getting a ticket. Give me
your ID." Plaintiff complied.
Plont wrote Plaintiff a class II ticket for creating a
disturbance, which accused Plaintiff of being loud and
slowing down chow lines. Plaintiff had a hearing on the
misconduct on September 7, 2017, and was found not guilty.
Hearing Officer Menard viewed the camera footage of the
incident, interviewed witnesses, and concluded:
Inmate had simply had a bad banana that had something on it,
he requested a replacement by showing it to the [Sergeant]
and the Food Steward [Plont]. No disturbance was observed.
See ECF No. 6-1, PageID.64.
September 14, 2017, Plaintiff wrote a grievance on Defendants
Trinity Food Service and Plont, asserting retaliation and
dereliction of duty. The grievance was denied as not
grievable. Plaintiff also filed a grievance on Sergeant
Beauliu for refusing to take a picture of the maggots. In the
grievance response, Trinity employee S. Jones stated that
there was no policy which required that a picture be taken.
claims that Defendants violated his right to be free from
retaliation from complaining about maggots in his food.
Plaintiff also claims that Defendants violated his Eighth
Amendment rights. Plaintiff seeks compensatory and punitive
Failure to state a claim
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.'" BellAtl. 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 plaintiffs 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