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Solano-Moreta v. Washington

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

April 3, 2019

JORGE SOLANO-MORETA, Plaintiff,
v.
HEIDI WASHINGTON et al., Defendants.

          OPINION

          HONORABLE GORDON J. QUIST, JUDGE

         This is a civil rights action brought by a federal prisoner, who was formerly housed in a Michigan State prison, under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 U.S. 388 (1971). 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 Schroeder, Billingslly, Call, Washington, and Durand. The Court also will dismiss all of the claims against Defendants Napel and Huss, with the exception of Plaintiff's claim in Count 5 that he was denied out-of-cell exercise.

         Discussion

          I. Factual Allegations

         Plaintiff is presently incarcerated with the Federal Bureau of Prisons (BOP) at the United States Penitentiary (USP), McCreary, located in Pine Knot, Kentucky. The actions about which he complains, however, occurred while he was under the jurisdiction of the BOP, but housed in the Michigan Department of Corrections (MDOC) at the Marquette Branch Prison (MBP) in Marquette, Marquette County, Michigan. In his amended complaint (ECF No. 16), Plaintiff sues MDOC Director Heidi Washington and MDOC Psychiatric Director/Supervisor (unknown) Bradshaw, together with the following MBP officials: Warden Erica Huss; former Warden Robert Napel; Health Service Administrator (unknown) Scott; Assistant Administrator Sarah Schroeder; Hearing Officer (unknown) Mohan; Food Service Administrator Ann Bousquet; Dentist (unknown) Gillet; Property Department Supervisor (unknown) Durand; and Nurse/Nurse Supervisor Brenda James. Plaintiff also sues the following officials at the Federal Correctional Institution (FCI), Milan, Michigan: Case Manager Matthew Call; and Unit Manager James Billingslly.

         In his amended complaint, Plaintiff aggregates all of the allegedly unconstitutional actions that occurred during his two-year confinement at MBP, between August 4, 2016, and August 14, 2018.

         In his first set of allegations, Plaintiff complains that Defendants Schroeder, Huss, and Napel violated his First Amendment rights and BOP policy by refusing to permit Plaintiff to correspond with his brother, who is also a prisoner in the custody of the BOP. In Count 2, Plaintiff alleges that Defendants Billingslly, Call, Napel, and Washington deprived him of his rights under the Fifth and Fourteenth Amendments, by transferring him to and keeping him in a Level-V prison[1] without due process. In Count 3, Plaintiff alleges that Defendant Hearing Officer Mohan denied him due process when, on June 19, 2017, Mohan found Plaintiff guilty of two misconduct charges that Plaintiff alleges were false.

         In his fourth cause of action, Plaintiff claims that Defendants Billingslly, Call, Washington, Napel, and Huss subjected him to cruel and unusual punishment by placing him and keeping him at MBP,

Because MBP: (A) Is contaminated with Asbestos, Led [sic] poison, Black Mold, etc.; (B) Is Bugs Infected with no fumigation policy; (C) Is Amazingly Dirty with old Food smashed on the inside walls of the inmates' Housing Units; (D) Is Birds' feces infected in the inmates' recreation yard and side walks, etc.

(Am. Compl., ECF No. 16, PageID.71.) Plaintiff asserts that, as a result of the conditions, he has suffered unspecified health complications and bug bites.

         Fifth, Plaintiff complains that Defendants Napel and Huss violated his rights under the Eighth Amendment when they denied him out-of-cell exercise on 250 days between April 2017 and August 2018, including 60 days straight from January 1, 2018, and March 2018. In his sixth count, Plaintiff alleges that Defendant Bousquet violated his rights under the Eighth Amendment by providing fewer than 2, 000 calories per day in his segregation diet, causing him to lose 25 pounds and to become fragile and weak by the time of his transfer back to the BOP.

         In his seventh cause of action, Plaintiff alleges that Defendants Warden Huss, Assistant Administrator Schroeder, and unspecified other staff have harassed him in retaliation for filing grievances. Plaintiff contends that Defendant Durand “disappeared personal and legal properties of Plaintiff in or about February 2017, June 13, 2017, December 22, 2017, and in or about February 2018.” (Id., PageID.73.) In addition, when Plaintiff transferred to the BOP on August 14, 2018, Defendant Huss did not allow him to take his property, informing him that his property and his trust account funds would be forwarded to the BOP. Plaintiff complains that neither the money nor the property has yet arrived. Among the missing property are approximately 50, 000 pages of legal documents, including court transcripts; miscellaneous legal journals, books, and magazines; a television; an MP3 player; family letters and pictures; religious material; a radio; clothes and shoes; personal hygiene and food items; and an address book. Further, Plaintiff alleges that he was subjected to other forms of harassment, including interference with his access to the telephone, denial of out-of-cell exercise, and access to medical care, all of which were retaliatory and violated the Eighth Amendment.

         Eighth, Plaintiff contends that Defendant Bradshaw violated his Eighth Amendment rights when she discontinued Plaintiff's Wellbutrin on February 6, 2018. Plaintiff complains that he had taken Wellbutrin for over 10 years for his depression and PTSD. Plaintiff contends that Bradshaw's action was based on the fact that Wellbutrin was off-formulary for the MDOC.

         In his ninth cause of action, Plaintiff complains that, for the two years he was housed at MBP, Defendants Brenda James and (unknown) Scott denied him medical care for his folliculitis and dermatitis, his dislocated left shoulder, his lower back problem, his foot problems requiring medical shoes with arch support, and his skin allergy requiring a cotton blanket and special creams.

         Tenth, Plaintiff complains that Defendant Dentist Gillet deprived him of necessary dental care from August 2017 to October 2017, in violation of the Eighth Amendment, thereby subjecting Plaintiff to significant pain.

         In his eleventh claim, Plaintiff alleges that Defendant Washington has an unconstitutional policy to deny inmates root canals to save their teeth. Plaintiff claims that he was denied three necessary root canals.

         In his twelfth claim, Plaintiff alleges that Defendant Washington violated his Eighth Amendment right to adequate medical care by having a policy that prevents federal inmates like Plaintiff from participation in a Residential Treatment Program (RTP).

         In Count 13, Plaintiff alleges that the Defendant Washington's policy of excluding federal inmates from RTP also violates the Equal Protection Clause.

         Plaintiff seeks declaratory and injunctive relief, together with compensatory and punitive damages.

         In a prior opinion and order, the Court dropped Defendants Mohan, Bousquet, Bradshaw, James, Scott, and Gillet from this action because they were misjoined, and Plaintiff's claims against them (Counts 3, 6, and 8-12) were dismissed without prejudice. The Court also dismissed without prejudice Count 13 against Defendant Washington, because it was misjoined. As a consequence, the Court now considers only Counts 1, 2, 4, 5, and 7 against Defendants Schroeder, Huss, Napel, Billingslly, Call, Washington, and Durand.

         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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