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Banks v. Torrey

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

June 6, 2018

DAMIEN BANKS, Plaintiff,
GREG TORREY et al., Defendants.


          Janet T. Neff 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 Defendant Cline. The Court also will dismiss Plaintiff's due process, conspiracy, and state-law claims against Defendant Torrey. The Court will serve Plaintiff's retaliation claim against Defendant Torrey.


         I. Factual allegations

         Plaintiff presently is incarcerated with the Michigan Department of Corrections (MDOC) at the Lakeland Correctional Facility (LCF) in Coldwater, Branch County, Michigan. The events about which he complains occurred at that facility. Plaintiff sues Trinity Food Service Director Greg Torrey and LCF Classification Supervisor Scott Cline.

         Plaintiff alleges that he held a prison job in food services. On an unspecified date before November 2, 2017, Plaintiff filed a grievance about unfair treatment in his job assignment. The grievance apparently was resolved in Plaintiff's favor, and he was returned to his job assignment. On November 2, 2017, Plaintiff asked food service employee (unknown) Knight to move him to a different work station, because a prisoner with a gender identity disorder was harassing Plaintiff. Knight refused to move Plaintiff and instructed him that, if he asked again, he would be terminated from his job in food service. After Defendant Torrey came to work, Knight informed Torrey of Plaintiff's request. Defendant Torrey issued Plaintiff a Class-II misconduct ticket for disobeying a direct order, and he was laid off from his work assignment on November 3, 2017, pending his hearing on the misconduct charge.[1]

         Plaintiff never received a copy of the misconduct charge or a hearing on that charge. Defendant Cline, however, apparently received a copy of the ticket. On November 12, 2017, Plaintiff filed a grievance, claiming that his due process rights were violated when he was removed from his position for a misconduct, but never received a hearing. During the investigation of Plaintiff's grievance, Defendant Cline sent a memorandum to the Step-I grievance responder J. Houtz. Cline reported that Defendant Torrey claimed to have turned in three tickets on November 2, 2017. However, the ticket on Plaintiff Banks was never logged in at the control center, and, consequently the ticket was never processed. (ECF No. 1-1, PageID.13.) Defendant Cline advised Houtz that Plaintiff must be returned to his job, and he indicated that he would instruct Defendant Torrey about the need to enter misconducts into the control center misconduct log in the future. (Id.) Plaintiff was thereafter returned to his assignment, and his grievance was denied on November 21, 2017, because it had been resolved. The grievance response noted that policy required the temporary suspension of a prisoner charged with a misconduct and that, under the policy, when a prisoner is found not guilty, the prisoner must be paid for the time he was removed from his assignment. (Step-I Grievance Response, ECF No. 1-1, PageID.12; Mich. Dep't of Corr. Policy Directive 05.01.100 ¶ GG.)

         Plaintiff appealed his grievance response to both Step II and Step III, contending that it had not been fully resolved. Plaintiff stated that Defendant Torrey's account of the missing misconduct was not credible, and Plaintiff believed that he was a victim of a conspiracy to deprive him of due process. (Grievance Appeal Form, ECF No. 1-1, PageID.10.) Plaintiff's grievance appeal was denied at both Step II and Step III. (Id., PageID.10-11.)

         Plaintiff alleges that, after he returned to work, Defendants Torrey and Cline “trumped up” a rule violation, in retaliation for Plaintiff having won his grievance. Plaintiff provides no details of the alleged rule violation or the resulting misconduct determination. However, he alleges that, after Torrey issued the misconduct ticket, Plaintiff lost his job and was placed on “OO” or “unemployable” status, under which he cannot be employed for at least 30 days and cannot have out-of-cell activities during working hours. (Compl., ECF No. 1, PageID.5; Mich. Dep't of Corr. Policy Directive 05.01.100 ¶¶ Z, BB-DD.)

         Plaintiff contends that Defendants Torrey and Cline retaliated against him and conspired to retaliate against him for filing and succeeding on his grievance prior to November 2, 2017, and his grievance filed on November 12, 2017, in violation of the First Amendment. He also claims that he was deprived of his right to procedural due process when he did not receive a hearing on the November 2, 2017 misconduct charge. In addition, he claims that Defendants' actions constituted harassment of and retaliation against a prisoner, in violation of Mich. Comp. Laws § 19.142. Finally, Plaintiff contends that Defendants' actions, including conduct that violated state law and customs, amounted to deliberate indifference to his state and federal rights.

         Plaintiff seeks declaratory and injunctive relief, together with 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 ยง 1983 is a method for vindicating federal rights, not a source of substantive rights itself, the first step in an action ...

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