United States District Court, W.D. Michigan, Southern 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. §
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
these standards, and relying on the Court's inherent
authority under Fed.R.Civ.P. 21 to sua sponte dismiss parties
and claims for misjoinder, the Court reviewed Plaintiff's
42-page complaint and issued a lengthy opinion on October 14,
2016. In that opinion, the Court concluded that Plaintiff had
filed an omnibus complaint that attempted to link every
action with which he disagreed over a one-year period with a
conclusory allegation of conspiracy. The Court rejected the
conspiracy claim. The Court next determined that
Plaintiff's first claim - that the Michigan Department of
Corrections or MDOC had violated his rights to adequate
medical care under the Eighth Amendment, the Americans with
Disabilities Act (ADA), and the Rehabilitation Act (RA) - was
unrelated to any of Plaintiff's claims and Defendants and
that those other claims and Defendants were misjoined. The
Court held that Plaintiff's conspiracy claim and his
claims against the MDOC were meritless or that the MDOC was
immune. The Court therefore dismissed the MDOC with
prejudice. In addition, although technically not properly
joined, the Court also dismissed numerous claims that had
previously been decided against Plaintiff in another action,
holding that those claims were barred by the doctrine of res
judicata and therefore were frivolous. Finally, the Court,
exercising its authority under Fed.R.Civ.P. 21, concluded
that the remaining misjoined claims and Defendants should be
dismissed without prejudice.
appealed the Court's decision to the Sixth Circuit. In an
unpublished order issued on October 2, 2017, the Sixth
Circuit upheld all of the Court's merits-based
determinations: dismissal of the conspiracy claim; dismissal
of the MDOC as a Defendant; dismissal of the ADA and RA
claims; and the dismissal of numerous claims on grounds of
res judicata. The court of appeals concluded, however, that
the misjoined claims were not subject to dismissal under 28
U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. §
1997e(c). The court also concluded that Fed.R.Civ.P.
21 did not permit dismissal of a complaint for misjoinder.
Concluding that, because the properly joined claims were
addressed first, the dismissal of the misjoined claims and
Defendants amounted to an improper dismissal of the complaint
under Rule 21.
Sixth Circuit has remanded the case to this Court to take
action consistent with its appellate decision. This Court
must now consider whether any further claims raised by
Plaintiff may be dismissed on the merits in order to
determine which of the previously misjoined claims should go
forward. In order to properly ground the Court's
consideration in the lengthy facts of the case, the Court
will substantially reiterate the factual allegations set
forth in the Court's October 14, 2016, opinion.
Robert Wayne Annabel, II presently is incarcerated with the
Michigan Department of Corrections (MDOC) at the Ionia
Correctional Facility (ICF). He sues the MDOC, its former
Director Daniel Heyns, and its former food service provider
Aramark Corporation, Inc. He also sues the following ICF
officials: Warden Willie Smith; Deputy Wardens Nannette
Norwood, Erica Huss, and John Christiansen; Captain Kevin
Woods; Lieutenants Christopher King, (unknown) Zwiker, and S.
Rykse; Resident Unit Manager (RUM) E. Smith; Sergeant Dennis
Grandy; Correctional Officers J. VanNortrick, (unknown)
Scott, (unknown) Berrington, (unknown) Bennett, (unknown)
Burns, (unknown) Eyer, D. Christiansen, and Joseph Novak;
Social Workers James Apol and Robert Davis; Psychiatrist Dr.
W. Yee; Nurse Practitioner (unknown) Sleight; Nurse Kronk;
Food Service Manager J. Daugherty; and Chaplain C. Cheney.
lengthy complaint, Plaintiff lists the many hardships he
allegedly has suffered while housed with the MDOC since 2008.
Plaintiff has filed numerous prior lawsuits, in which he
complained about being inadequately medicated for his bipolar
disorder; being retaliated against for his many grievances
and lawsuits; being defamed; being denied his Kosher diet;
having his food poisoned; being subjected to the use of
excessive force; having his property and mail stolen; being
denied due process; and having prison officials interfere
with his access to the courts. He has alleged that all prior
defendants have been engaged in a conspiracy to deny him his
rights. The first ten pages of the instant complaint describe
incidents that occurred prior to the stated period of the
complaint (March 24, 2014, through April 24, 2015) and recite
the lawsuits previously filed by Plaintiff. The remainder of
the complaint consists of allegations about a litany of
disparate events between March 24, 2014 and April 24, 2015,
ostensibly linked by a conclusory claim that all events were
part of a single, global conspiracy headed by Defendant
Heyns, the then-Director of the MDOC; claims involving
retaliation against Plaintiff; denial of Plaintiff's
access to the courts; interference with Plaintiff's mail;
violations of Plaintiff's rights under the Eighth
Amendment; violations of the Equal Protection Clause, the ADA
and the RA; interference with Plaintiff's legal mail;
violations of RICO; and deprivations of Plaintiff's
property without due process. A substantial number of
Plaintiff's allegations and the Defendants he names
overlap with allegations he previously raised in Annabel
v. Mich. Dep't of Corr. et al., No. 1:14-cv-756
(W.D. Mich.). Many of those claims previously were dismissed
with prejudice, though a few were subsequently dismissed
without prejudice after Plaintiff failed to comply with the
following is a summary of Plaintiff's allegations that
fall within the time-frame Plaintiff purports to cover in his
complaint. On March 24, 2014, a magistrate judge from Eastern
District of Michigan issued a report and recommendation
(R&R) to grant one defendant's motion for summary
judgment and to deny Plaintiff's motion for a temporary
restraining order. See Annabel v. Heyns et al., No.
2:12-cv-13590 (E.D. Mich.) (R&R Mar. 24, 2014) (ECF No.
85). Plaintiff alleged in Annabel v. Mich. Dep't of
Corr. et al., No. 1:14-cv-756 (W.D. Mich.), that
interference with his mail prevented him from receiving the
R&R. Also on that date, three other events allegedly
occurred: (1) MI-CURE sent Plaintiff a letter declining to
investigate corruption in the grievance process; (2) two of
Plaintiff's grievances were rejected; and (3) Plaintiff
was placed on modified grievance access. Plaintiff contends
that all of these actions were retaliatory and designed to
prevent him from making additional filings.
April 30, 2014, three additional events occurred, which
Plaintiff alleges were related, in some unexplained fashion,
to one another and to Plaintiff's allegations. First, in
the absence of objections from him, the district judge
adopted the R&R in Annabel v. Heyns et al., No.
2:12-cv-13590 (E.D. Mich. Apr. 20, 2014) (ECF No. 89).
Second, prisoner Abkedya Boyd apparently committed suicide at
the Gus Harrison Correctional Facility (ARF). Third, the
defendants in Annabel v. Frost et al., No.
2:14-v-10244 (E.D. Mich.) (none of whom are Defendants in
this action) allegedly transferred the only prisoner
representative in Unit 4 to Unit 5. Plaintiff alleges that
Prisoner Boyd was housed near Plaintiff and that Plaintiff
had assisted prisoner Boyd to file a Step-II grievance and to
prepare for litigation of an incident at Macomb Correctional
Facility. Plaintiff previously raised these allegations in
Annabel v. Mich. Dep't of Corr. et al., No.
1:14-cv-756 (W.D. Mich.), and the Court concluded the
allegations failed to state a claim. Id. (Op. &
Ord. Aug. 21, 2014).
1, 2014, Officer Pigg (who is not a defendant in the instant
action) mocked Plaintiff for assisting other prisoners in
preparing affidavits for a potential suit by Boyd's
estate. Plaintiff contends that Boyd's suicide was
induced by staff harassment. Plaintiff complains that the
same pattern had occurred with another suicide in 2013, which
involved another prisoner who was engaged in protected
activity with Plaintiff.
13, 2014, Plaintiff told his therapist, James Dickson (not a
Defendant) that he wanted to be discharged from his mental
health program at ARF, ostensibly to avoid further
retaliation by ARF employees. According to Plaintiff, in
response to his request, “[D]efendants transferred him
to the MDOC's most notoriously brutal Maximum Security,
at Ionia Correctional Facility, where Plaintiff had
previously suffered substantial staff abuse.” (Compl.,
ECF No.1, PageID.13.) Plaintiff alleges that, although he had
been scored since 2008 to a Level-V security classification,
he had spent nearly six consecutive years waived down to a
Level-IV residential treatment program (RTP) or a Level-IV
Outpatient Treatment Facility. He suggests that he was
transferred to Level V at ICF in retaliation for filing
several lawsuits. Plaintiff also alleges that the transfer to
Level V reduced his parole likelihood from “average
probability” to “low probability.”
(Id., PageID.14.) Again, Plaintiff raised these
allegations in Annabel v. Mich. Dep't of Corr. et
al., No. 1:14-cv-756 (W.D. Mich.), and the Court
dismissed the claim for failure to state a claim.
(1:14-cv-756, ECF No. 17, PageID.176-181.)
16, 2014, shortly after Plaintiff arrived at ICF, Defendant
Social Worker Apol interviewed Plaintiff. Plaintiff complains
that Apol was hostile, critical and aggressive in his
demeanor. Apol told Plaintiff, “Spell my name right
when you sue me.” (Id., PageID.15.) When
Plaintiff expressed concerns about eating or taking
medication at the facility because of his fear of staff
tampering, Apol vowed to keep Plaintiff at ICF, on forced
medication, if necessary. Plaintiff told Apol to be sure to
get a psychiatrist's signature on the forced-medication
order, and Apol assured him that he understood his job.
Plaintiff raised these allegations in Annabel v. Mich.
Dep't of Corr. et al., No. 1:14-cv-756 (W.D. Mich.).
The issues were not fully litigated before the remainder of
the complaint was dismissed for lack of prosecution.
Dr. Yee interviewed Plaintiff on May 19, 2014. Plaintiff
explained his long history of bipolar disorder, but Yee
allegedly disregarded the proven effectiveness of the
psychotropic medications listed in Plaintiff's file. When
Plaintiff explained his concerns about eating and taking
medication, Yee told him that a hunger strike would not get
him transferred. Plaintiff indicated that he would resume
eating and taking his medications. Despite Plaintiff's
subsequent compliance in taking the medication, Defendant Yee
discontinued that medication on May 24, 2014. On May 27,
Plaintiff was interviewed by Defendant Apol, an unknown
female, and an older male social worker. Apol reviewed
Plaintiff's kite complaining about Yee's
discontinuation of his medication. Apol was dismissive and
told him that his medications would not be resumed until
Plaintiff seriously self-injured. An unknown male social
worker told Plaintiff that he remembered Plaintiff from 2008
and that he saw that Plaintiff's mental health condition
had significantly improved since 2008. The unknown social
worker therefore recommended resuming Plaintiff's
medication. Defendant Apol rejected the recommendation. These
allegations were raised in Annabel v. Mich. Dep't of
Corr. et al., No. 1:14-cv-756 (W.D. Mich.), and the
claims were ultimately dismissed without prejudice.
14, 2014, Plaintiff sent three articles of expedited legal
mail to Defendant D. Christiansen. Christiansen allegedly
signed and pre-dated the receipts as of July 12, 2014, and
then allegedly destroyed the documents. On August 4, 2014, an
individual mailed to Plaintiff a copy of the complaint in
Annabel v. MDOC et al., No. 1:14-cv-756 (W.D.
Mich.), but Defendant D. Christiansen did not deliver the
mail until October 20, 2014, after unspecified other
Defendants had read the complaint and after a first-shift
sergeant had interrogated Plaintiff about the complaint.
complains that he has invested much time and money developing
his paralegal skills, which he believes could provide a
respectable income upon his release. He contends that he
invested thousands of dollars in filing fees, legal texts,
photocopies, postage, stationery and footlockers.
Notwithstanding his alleged property interest in the
materials, in March or April 2015, unspecified Defendants
ordered the segregation porter to destroy some of
Plaintiff's legal property, including paperwork related
to one of Plaintiff's prior lawsuits against ICF staff,
Annabel v. Caruso et al., 1:09-cv-176 (W.D.
Mich.). Plaintiff ultimately filed a claim seeking
compensation for his property with the State Administrative
Board. He subsequently sent a letter to the board explaining
that the MDOC was not acknowledging or processing such
claims. He claims that he also received no satisfaction
through the grievance process. Plaintiff suggests that he
therefore was without a post-deprivation remedy. This claim
was raised in Annabel v. Mich. Dep't of Corr. et
al., No. 1:14-cv-756 (W.D. Mich.), and the claim was
dismissed with prejudice.
next sweepingly alleges that, between June 17, 2014, and
April 24, 2015, “defendants often withheld or damaged
Plaintiff's property.” During that same time and
with an allegedly retaliatory motive, Defendants Apol and Yee
allegedly denied Plaintiff psychotropic medication,
ostensibly in order to induce mental destabilization.
Defendants Apol and Yee allegedly placed him on suicide
restrictions, in order to prevent him from accessing his
legal property. Plaintiff claims that being held in the
stressful environment had caused him to become depressed,
unable to have restful sleep, and to be unable to litigate
and acquire career skills as effectively as he would like. He
asserts that Defendants collectively continue to engage in
unfair litigation tactics, as did the defendants in
Annabel v. Armstrong et al., No. 1:14-cv-796 (W.D.
Mich.), Annabel v. Caruso et al., No. 1:09-cv-176
(W.D. Mich.), and Annabel v. Heyns et al., No.
2:12-cv-13590 (E.D. Mich.).
complains that Defendants Yee and Apol also have demonstrated
that their actions are retaliatory, because they have
referenced his litigation efforts in his psychiatric medical
file, stating on August 29, 2014:
He is quite litigious, and seems to take pleasure in
announcing various lawsuits that he files. He seems to use
these legal actions as a way to manipulate placement, with
the reasoning that it would be ‘unethical' for a
provider to continue to provide services if he/she is named
as a defendant in his legal action. He has shown himself to
be very calculating in this regard.
(Compl., ECF No. 1, PageID.19-20.) On December 29, 2014, Dr.
Summary of Progress to Dated: Prisoner is resistant to
treatment. He remains highly litigious, and uses insults to
try to evoke a response that he feels is grievable.
(Id., PageID.20.) Plaintiff contends that the
placement of such references in his medical file violates
prison policy, and he contends that unnamed officers are able
misuse the MDOC database and communications system to view
such statements. He argues that this potential for abuse
demonstrates that supervisory officials are well aware of his
next alleges that, on August 4, 2014, a woman named Zoe
Keller mailed Plaintiff a copy of his complaint in
Annabel v. Mich. Dep't of Corr. et al., No.
1:14-cv-756 (W.D. Mich.). According to the instant complaint,
Defendant D. Christiansen allegedly withheld the mail until
October 20, 2014, and, during the intervening period,
unspecified Defendants read the mail. On August 8, 2014, a
first-shift sergeant told Plaintiff that the inspector was
investigating Plaintiff for using the mail to smuggle drugs.
On August 14, 2014, Plaintiff attempted to mail an expedited
discovery request to the attorney in Annabel v. Heyns et
al., No. 2:12-cv-13590 (E.D. Mich.), but it was
discarded. Plaintiff sent the request again in November, at
which time the attorney informed Plaintiff that he had not
received the original August mailing.
alleges that, on October 20, 2014, unspecified Defendants
destroyed without delivering an order denying leave to amend
in Annabel v. Frost et al., No. 2:14-cv-10244 (E.D.
Mich.). On February 17, 2015, unspecified Defendants
allegedly destroyed without delivering a report and
recommendation issued in the same case. The case was
dismissed on March 30, 2015, after Plaintiff failed to file
objections to the report and recommendation. Plaintiff asserts
that the repeated interferences with his mail demonstrate
that Defendants participated in a common plan organized by a
central agent, such as Defendant Heyns.
alleges that, between June 9, 2014, and June 17, 2014,
Defendants W. Smith, Norwood and Huss employed prisoner
Joseph Halton to harass and threaten Plaintiff by instructing
their subordinates to give immunity to Halton for any
harassment. Plaintiff recites the following examples of the
alleged scheme to allow harassment: Halton screamed
vulgarities at Plaintiff on Halton's first morning in the
yard and threatened to attack Plaintiff, but staff did not
issue a misconduct; Halton made attempts to incite gangs
against Plaintiff; on June 17, 2014, Halton made more threats
against Plaintiff as Halton left the unit that were condoned
by an unnamed African-American officer, causing Plaintiff to
“preemptively str[ike] Halton with a bare ink
pen” (ECF No. 1, PageID.23). Halton was moved to
Segregation Unit 2 on August 4, 2014, where he continued to
harass Plaintiff with false statements and allegations. On
August 4, 2014, Halton returned from an interview with a
sergeant, bragging that he had testified against Plaintiff.
Plaintiff contends that Defendants Smith, Norwood and Huss
were the only officials who could authorize Halton's new
cell assignment. Plaintiff raised all but the last of these
allegations about Halton in Annabel v. Mich. Dep't of
Corr. et al., No. 1:14-cv-756 (W.D. Mich.), and the
Court dismissed the issue against these Defendants on the
grounds that the allegations failed to state a claim.
alleges that he arrived in Segregation Unit 2 on the
afternoon of June 17, 2014. On June 18, 2014, at 9:30 p.m.,
Plaintiff damaged a sprinkler to protest staff's failure
to provide him bedding and his legal material within the time
period required by MDOC policy. Plaintiff contends that
Defendants denied his psychotropic medications to destabilize
him and cause him harm and to cause him to be placed in
segregation. This issue was raised in Annabel v. Mich.
Dep't of Corr. et al., No. 1:14-cv-756 (W.D. Mich.),
and the claim was dismissed for failure to state a claim.
next alleges that Defendants W. Smith, Norwood and Huss
frequently acted in concert with Defendant Novak to deny
Plaintiff's requests for law library materials and
photocopies. He alleges that the denial of photocopies
resulted in the dismissal of his complaint in Annabel v.
Mich. Dep't of Corr., No. 1:14-cv-756 (W.D. Mich.).
Plaintiff contends that Defendants use prisoner law clerks to
retaliate, having them provide only a few cases, marking
those cases with “pitchfork gang signs, ” and
marking most requests as “Out: Re-Order.” (ECF
No. 1, PageID.25.) Plaintiff alleges that, after he
confronted unspecified Defendants and Defendant Christiansen
(presumably D. Christiansen) in December 2014 and January
2015, the allegedly retaliation increased. Defendant Norwood
placed Plaintiff on a law book restriction, allegedly without
adequate proof of the misuse of books. Plaintiff also alleges
that Defendants used prisoner-porter Jason to attempt to
extort fees and sexual favors. Plaintiff complained to
Defendant Novak on February 10, 2015. In April 2015,
Plaintiff received a misconduct ticket for making false
allegations that interfered with the administration of rules.
Plaintiff claims that unspecified Defendants frequently used
prisoner Jason to enter cells in Segregation Unit 1, so that
Jason could pack up or destroy other prisoners' property.
alleges that, on July 9, 2012, he engaged in discussions to
settle a civil action, Annabel v. Caruso et al., No.
1:09-cv-176 (W.D. Mich.). Plaintiff signed the settlement
agreement on July 18, 2012, in which he obtained a small cash
amount and an agreement to provide him a Kosher diet.
Plaintiff alleges that Defendants have all acted to impede
his rights under that settlement agreement. Between June 17
and July 2, 2014, Plaintiff became afraid of food tampering
and refused to accept all meals. During that time, Defendant
Kronk allegedly failed to ensure that Plaintiff received
medical evaluations at intervals required by prison policies,
and Defendants Yee and Apol allegedly examined him for only a
few minutes on a date later than required under prison
policy. On June 18, Plaintiff was threatened with foodloaf,
followed by one week in which Defendant Zwiker brought him
“special delivery duty” meals, consisting of
unsealed Kosher meal trays. (ECF No. 1, PageID.26.) Zwiker
allegedly denigrated Plaintiff's religion and mockingly
described the delicious food. Defendant Zwiker also allegedly
withheld legal mail from Plaintiff on three occasions during
this period. Plaintiff discovered a staple in his scalloped
potatoes on July 7, 2014. Plaintiff also complained about the
uncovered food trays. Defendant RUM E. Smith advised
Plaintiff in a memorandum that the Kosher trays were never
wrapped in cellophane, as it presented a security concern.
Plaintiff disputes the truth of that response. On June 24,
2014, Defendants Yee and Apol began forcibly medicating
Plaintiff with Thorazine, allegedly in order to prevent
Plaintiff from effectively litigating his claims.
9, 2014, Plaintiff's hot tray was mockingly marked with
the name “Adiline.” Plaintiff demanded to speak
with Sergeant Zwiker and took his food tray hostage.
Defendant Vannortrick wrote a misconduct against Plaintiff,
in which he allegedly defamed Plaintiff by saying that
Plaintiff had stated that his “‘hemorr[h]oids
were inflamed and felt like they were about to set his cell
on fire!!'” (ECF No. 1, PageID.27.) Plaintiff
alleges that Vannortrick thereby intentionally revealed
Plaintiff's embarassing health condition, which,
Plaintiff alleges, implied that Plaintiff was a homosexual.
Defendant Vannortrick read aloud the statement to an audience
of nearly 40 prisoners. Defendant Rykse found Plaintiff
guilty of the misconduct on July 21, 2014.
10, 2014, Plaintiff's food tray was mockingly labeled
“Alleshia.” (Id., PageID.28.) On July
13, 2014, Plaintiff received ketchup packets with his
breakfast, instead of jelly. On July 30, 2014,
Plaintiff's breakfast tray was missing the powdered soy
milk. Plaintiff complained to Defendants Scott and Norwood,
neither of whom corrected the problems. On August 12, 2014,
his dinner tray held only a peanut butter and jelly sandwich
and a half-cup of potatoes.
told Defendant Apol on August 19, 2014, that he had filed a
lawsuit against Apol. In response, Apol allegedly berated
August 27, 2014, after allegedly being denied photocopies and
expedited legal mail by Defendants Grandy, Zwiker, and E.
Smith, Plaintiff held his food slot hostage. He was sprayed
with chemical agents, and he was hogtied. Defendants left a
noose hanging inside his rear window, low enough for
Plaintiff to put the noose around his neck. Defendants
Zwiker, Berrington, Bennett, and Scott all observed the noose
around Plaintiff's neck for five hours, but they refused
to release him, simply writing him false misconduct tickets
for disobeying a direct order. At about 10:15 p.m., Officer
Braman called the third-shift lieutenant to remove both the
noose and the chains.
following day, Plaintiff held his food slot hostage to
protest alleged tampering with his breakfast tray and denial
of legal access. Defendants Grandy, Eyer, Burns, and Jensen
hogtied Plaintiff again. Later that day, Plaintiff asked King
to loosen the belly chain, but King refused, hissing,
“You're a piece of shit. In three days I hope you
die in those chains.” (Id., PageID.32.)
Defendants Zwiker, Berrington, Bennett, and Kronk also denied
pleas to loosen the chains and denied Plaintiff's
requests for water. Plaintiff alleges that he was hogtied in
his cell for seven days, from August 28 to September 4, 2014,
during which time Defendants Grandy, Eyer, Burns, Zwiker,
Bennett, Scott, Berrington, and King all denied Plaintiff
meals. Grandy told Plaintiff that Defendant Willie Smith said
that Plaintiff needed to stop filing grievances and lawsuits
so that he would not have the problems. When the chains were
finally removed on September 4, 2014, Plaintiff dropped to
the floor screaming, because the removal of the belly chain
tore off skin and scabs. Plaintiff also had sores on his
ankles, wrists, and knees. All requests for medical care were
denied, and no Defendant documented Plaintiff's injuries.
Plaintiff eventually showed his scars to Defendants Sleight
and Davis, but they refused to report that Plaintiff had been
was placed on suicide observation status from August 28
through October 10, 2014, and most of the meals he received
were non-Kosher finger food or foodloaf. Plaintiff alleges
that the deprivations violated his settlement agreement.
Plaintiff was told that Defendant Cheney had removed him from
the Kosher menu. Cheney did not respond to Plaintiff's
complaints. On September 25, 2014, Defendant Scott allegedly
forced Plaintiff to accept a non-Kosher foodloaf, and Scott
told Plaintiff that he did not care about the Jews. Defendant
Zwiker made derogatory remarks about Plaintiff being a child
molester and denigrated Plaintiff's mother and his
religion. On October 29, 2014, Plaintiff discovered a
pea-size stone in his Kosher dinner, and the Islamic crescent
moon was marked on his dinner tray. Plaintiff complained to
Daugherty, who found Plaintiff's grievances to be
November 6, 2014, Plaintiff concluded that Defendants would
not be honest, so he sent Defendant Cheney “an accusing
kite to end Kosher trays.” (Id., PageID.31.)
On November 17, 2014, Defendant Daugherty
“scorned” Plaintiff in a notice that Plaintiff
was being removed from Kosher meals. (Id.)
contends that his poor mental health treatment and the poor
treatment of others, as evidenced by the four suicides,
demonstrate that Defendant Heyns is deliberately indifferent
to the quality of prisoner medical care, that Heyns
wrongfully diverts funds from medical care to weapons, and
that Heyns orchestrated the retaliatory punishment of
mentally ill prisoners. Plaintiff also alleges that the long
history of staff abuse is well known and condoned by
Defendants Heyns, Willie Smith, Norwood and Huss. In
addition, he contends that Heyns, W. Smith, Norwood and Huss
maintain their corrupt system by promoting the worst
offenders: Defendants Christiansen, Woods, King, Zwiker,
Rykse and Grandy.
Plaintiff alleges that all Defendants conspired to deny
Plaintiff grievance forms and Step-II appeals, refused to
deliver or process those grievances, or placed Plaintiff on
modified grievance access.
contends that all Defendants have violated his rights under
the First Amendment by denying him access to the courts,
interfering with his mail, interfering with his religious
exercise, and retaliating against him for filing grievances
and lawsuits. In addition, Plaintiff contends that Defendants
violated his rights under the Fourteenth Amendment (as well
as the First Amendment) by repeatedly harassing him on the
basis of his religion and coercing him to forfeit his
religion and religious diet. He also contends that all
Defendants have been deliberately indifferent to his serious
medical and mental health needs and to his risks of harm from
known staff and prisoner attacks. Further, he argues that the
MDOC has denied him the benefits of mental health programs
and legal research materials because of his mental illness,
ostensibly in violation of the ADA, the RA, and the
Fourteenth Amendment. Moreover, Plaintiff alleges that
Defendants have violated RICO by their multiple illegal
actions taken against Plaintiff. Finally, Plaintiff complains
that Defendants have violated a variety of state laws.
seeks declaratory and injunctive relief and specific
performance of his settlement agreement, together with
compensatory and punitive damages.
Previously Dismissed Claims
earlier discussed, the Sixth Circuit has affirmed this
Court's dismissal of numerous claims and Defendants:
dismissal of the conspiracy claims against all Defendants;
dismissal of the MDOC as a Defendant; dismissal of the ADA
and RA claims against all Defendants; and the dismissal of
numerous claims on grounds of res judicata, which this Court
summarized as follows in its October 14, 2016, opinion:
As a consequence, the following issues were frivolously
brought in this action, because they are barred by res
judicata: Plaintiff's conspiracy claim preceding July
2014[;] Plaintiff's claims involving his transfer to ICF
on May 16, 2014; the claims involving Plaintiff's
inability to practice his “business” as a prison
paralegal; Plaintiff's claims that Defendant Heyns and
two ARF officials interfered with his legal mail between
March 24, 2014[, ] and April 10, 2014, and that Defendant
Zwiker interfered with delivery of his incoming mail between
June 17 and July 2, 2014; Plaintiff's claim that
Defendant MDOC violated his rights under the ADA and the RA
by not adequately treating his mental illness and forcibly
medicating him; Plaintiff's RICO claims; Plaintiff's
allegations that Defendants Smith, Norwood, and Huss
retaliated against him for filing suit by having Prisoner
Halton harass Plaintiff; Plaintiff's claim that Defendant
Zwiker violated Plaintiff's First Amendment religious
rights by mocking his Kosher diet by regularly uncovering his
food tray and saying how delicious the food
looked; Plaintiff's claim [that] Defendant
Heyns participated in the denial of medical care to Plaintiff
by Defendants Apol and Yee; and Plaintiff's claims that
Defendants denied him grievance forms and placed him on
modified grievance access in retaliation for his exercise of
his First Amendment rights.
(Op., ECF No. 9, PageID.203; see also 6th Cir. Ord.,
ECF No. 19, PageID.297-298.) As a consequence, this
Court's October 14, 2016, determinations on these issues
remain the law of this case.
Merits Review of Remaining Claims
light of the Sixth Circuit's remand, which held that this
Court may not dismiss Plaintiff's misjoined claims, the
Court will now consider whether any of the remaining claims
may be properly dismissed as frivolous or for 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.'” 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)).
a claim may be dismissed as frivolous if “it lacks an
arguable basis either in law or in fact.” Neitzke
v. Williams, 490 U.S. 319, 325 (1989); Brown v.
Bargery, 207 F.3d 863, 866 (2000); Lawler v.
Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990). Claims
that lack an arguable or rational basis in law include claims
for which the defendants are clearly entitled to immunity and
claims of infringement of a legal interest which clearly does
not exist; claims that lack an arguable or rational basis in
fact describe fantastic or delusional scenarios.
Neitzke, 490 U.S. at 327-28; Lawler, 898
F.2d at 1199. The Court has the “unusual power to
pierce the veil of the complaint's factual allegations
and dismiss those claims whose factual contentions are
clearly baseless.” Id., 490 U.S. at 327.
“A finding of factual frivolousness is appropriate when
the facts alleged rise to the level of the irrational or the
wholly incredible, whether or not there are judicially
noticeable facts available to contradict them.”
Denton v. Hernandez, 504 U.S. 25, 32 (1992).
Examples of claims lacking rational facts include a
prisoner's assertion that Robin Hood and his Merry Men
deprived prisoners of their access to mail or that a genie
granted a warden's wish to deny prisoners any access to
legal texts. See Neitzke, 490 U.S. at 327-28;
Lawler, 898 F.2d at 1198-99. An in forma
pauperis complaint may not be dismissed, however, merely
because the court believes that the plaintiff's
allegations are unlikely. Id.
Allegations Unattributed to Individual Defendants
the litany of Plaintiff's allegations about individual
Defendants, Plaintiff alleges a series of ostensible
violations that he conclusorily attributes to Defendants
generally. First, he alleges that “defendants
authorized a prisoner segregation porter to pack and destroy
some of Plaintiff's legal property . . . .”
(Compl., ECF No. 1, PageID.18.) He argues that such
authorization was barred by prison policy. (Id.,
PageID.25-26.) Plaintiff next alleges that “defendants
often withheld or damaged Plaintiff's property without a
legitimate penological objective to deprive him of use and
equitable title thereof and to diminish the principle
investment.” (Id., PagedID.18) At another
point, Plaintiff alleges that “defendants destroyed
without delivery a Report & Recommendation [R&R],
” which resulted in the dismissal of Plaintiff's
complaint on the grounds of Plaintiff's failure to file
objections to the R&R. (Id., PageID.22.) And he
alleges generally that, between June 17, 2014, and April 24,
2015, he has suffered recurrent interference with his ingoing
and outgoing mail by unnamed persons, though ostensibly
orchestrated by Defendant Heyns. (Id., PageID.18.)
Further, Plaintiff contends that Defendants generally have
mishandled his grievances. (Id., PageID.35.)
Plaintiff also alleges that unknown Defendants marked his
meals with the names of “Alleshia” and
“Adiline, ” to retaliate against Plaintiff for
his religious views. Finally, Plaintiff complains about
certain problems with his food trays. he alleges that unknown
Defendants provided him meal trays that were deficient in one
or more ways: on July 13, 2014, Plaintiff's breakfast
tray contained ketchup instead of jelly; on July 30, 2014,
his breakfast tray was missing the powdered soy milk; on
August 12, 2014, his dinner tray included only a peanut
butter and jelly sandwich and a half-cup of potatoes. He also
claims that unspecified Defendants are responsible for the
presence of a staple in his scalloped potatoes on July 7,
2014, and a pea-sized stone in his Kosher dinner on October
allowing prisoner to pack and destroy legal property
allegations respecting the packing and destroying of his
legal property are without merit for numerous reasons. First,
Plaintiff utterly fails to name an individual Defendant who
was responsible for the alleged violations, and his claim is
wholly conclusory, containing no facts concerning the what,
where, or when of the alleged takings. Conclusory allegations
of unconstitutional conduct without specific factual
allegations fail to state a claim under § 1983.
Iqbal, 556 U.S. at 678-79; Twombly, 550
U.S. at 555.
Plaintiff's due process claim is barred by the doctrine
of Parratt v. Taylor, 451 U.S. 527 (1981),
overruled in part by Daniels v. Williams, 474 U.S.
327 (1986). Under Parratt, a person deprived of
property by a “random and unauthorized act” of a
state employee has no federal due process claim unless the
state fails to afford an adequate post-deprivation remedy. If
an adequate post-deprivation remedy exists, the deprivation,
although real, is not “without due process of
law.” Parratt, 451 U.S. at 537. This rule
applies to both negligent and intentional deprivation of
property, as long as the deprivation was not done pursuant to
an established state procedure. See Hudson v.
Palmer, 468 U.S. 517, 530-36 (1984). Because
Plaintiff's claim is premised upon allegedly unauthorized
acts of a state official, he must plead and prove the
inadequacy of state post-deprivation remedies. See
Copeland v. Machulis, 57 F.3d 476, 479-80 (6th Cir.
1995); Gibbs v. Hopkins, 10 F.3d 373, 378 (6th Cir.
1993). Under settled Sixth Circuit authority, a
prisoner's failure to sustain this burden requires
dismissal of his § 1983 due-process action. See
Brooks v. Dutton, 751 F.2d 197 (6th Cir. 1985).
has not sustained his burden in this case. Plaintiff has not
alleged that state post-deprivation remedies are inadequate.
Moreover, numerous state post-deprivation remedies are
available to him. First, a prisoner who incurs a loss through
no fault of his own may petition the institution's
Prisoner Benefit Fund for compensation. Mich. Dep't of
Corr., Policy Directive 04.07.112, ¶ B (effective Dec.
12, 2013). Aggrieved prisoners may also submit claims for
property loss of less than $1, 000 to the State
Administrative Board. Mich. Comp. Laws § 600.6419; MDOC
Policy Directive 03.02.131 (effective Oct. 21, 2013).
Alternatively, Michigan law authorizes actions in the Court
of Claims asserting tort or contract claims “against
the state and any of its departments, commissions, boards,
institutions, arms, or agencies.” Mich. Comp. Laws
§ 600.6419(1)(a). The Sixth Circuit specifically has
held that Michigan provides adequate ...