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Hinds v. Lewis

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

May 23, 2019

ROBERT HINDS, Plaintiff,
v.
UNKNOWN LEWIS et al., Defendants.

          OPINION

          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 Defendants Lewis and Tanner. The Court also will dismiss, for failure to state a claim, all of Plaintiff's claims against Defendant Maschino, with the exception of his retaliation claim.

         Discussion

         I. Factual Allegations

         Plaintiff is presently 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, however, occurred at the Gus Harrison Correctional Facility (ARF) in Adrian, Lenawee County, Michigan, and the Earnest C. Brooks Correctional Facility, (LRF) in Muskegon Heights, Muskegon County, Michigan. Plaintiff sues ARF Property Room Correctional Officer (unknown) Lewis, ARF Prison Counselor J. Tanner, and LRF Correctional Officer (unknown) Maschino.

         Plaintiff's complaint centers on a series of decisions by three MDOC officials at two different institutions to confiscate Plaintiff's keyboard, which he used “to praise and worship his God with sounds of music and songs of joy and love . . . .” (Compl., ECF No. 1-1, PageID.10, 13, 19.) Plaintiff alleges that, on March 23, 2015, while he was housed at the Kinross Correctional Facility (KCF), he purchased a Sonic Syn-Ky B54 electronic keyboard from Music Manor. (See Ex. 5 to Compl., Catalog Order Form, ECF No. 1-1, PageID.49; Ex. 6 to Compl., Receipt, ECF No. 1-1, PageID.51.) Plaintiff's possession of the keyboard was approved by the facility between April 3, 2015 and April 14, 2015.

         When Plaintiff was transferred to ARF on May 11, 2016, Defendant Lewis confiscated the keyboard as excessive property, because it would not fit inside Plaintiff's state-issued duffel bag, as required under MDOC Policy Directive (PD) 04.07.112 ¶ C (eff. Dec. 12, 2012). Lewis issued a Notice of Intent to Conduct an Administrative Hearing (NOI) on the confiscation. Plaintiff complained that Lewis' interpretation of PD 04.07.112 was incorrect, because it failed to account for the provisions of ¶ W of the policy, which states, in relevant part,

musical instruments that are difficult to pack with personal property (e.g. guitar; keyboard) also may be packed separately either in a case owned by the prisoner or, if a case is not owned, in an appropriate container with adequate packing materials.

Id. Plaintiff alleges or suggests that Lewis' action to confiscate the keyboard violated MDOC and ARF policies, deprived him of his property without compensation, wantonly inflicted pain and suffering on him, deprived him of his right to freely exercise his religion, and discriminated against him.

         On May 17, 2016, Defendant Tanner conducted an administrative hearing on the NOI. Tanner concluded that the keyboard was not allowable property, both because it could not be packed into a standard-issue duffel bag and because it had a microphone input jack and a voice-recording capability, making it a prohibited item under PD 04.07.112, Attachment C, #38. (Ex. 8 to Compl., Admin. Hr'g Report, ECF No. 1-1, PageID.79-80.) Tanner determined that the keyboard would be mailed out to an address of Petitioner's choosing at Petitioner's expense. Plaintiff asserts that the determination violated prison policy for a variety of reasons: the keyboard was capable of recording only internally produced musical notes, not voices; Petitioner was entitled to keep the keyboard, as it was purchased from an MDOC-approved vendor and was subsequently authorized by the MDOC; and under PD 04.07.112 ¶ W, instruments such as a keyboard can be packed separately and do not need to fit into a duffel bag. Plaintiff alleges that Tanner violated prison policy, deprived him of his property without due process, violated his right to equal protection, deprived him of his right to freely exercise his religion, and wantonly inflicted pain and suffering him.

         Plaintiff attaches an email dated June 8, 2016, from an employee at the company that sold the electronic keyboard. The employee advised that the keyboard could only record internal sounds and could not record voice or any other external sound. (Ex. 9 to Compl., Email from Music Manor, ECF No. 1-1, PageID.82.)

         In addition, Plaintiff attaches a letter from Whitney Tompkins of the Legislative Ombudsman's Office dated January 4, 2018. The letter recited the result of the investigation of Plaintiff's complaint about his keyboard. Tompkins reported that ARF had confiscated his keyboard because it was too large to fit into a state-issued duffel bag. Although ARF staff had advised Plaintiff that the keyboard would be mailed out, it had been kept in the ARF property room. Plaintiff had since been transferred to the Bellamy Creek Correctional Facility (IBC). Tompkins advised that PD 04.07.112 permitted the warden of an institution to choose what musical instruments were allowable, saying, “In facilities where musical instruments cannot be purchased by prisoners, a storage location will be identified where the musical instrument and case will be stored for the prisoner until they transfer to another facility, parole, or discharge.” (Ex. 11 to Compl., ECF No. 1-1, PageID.88.) Tompkins advised Plaintiff that, because IBC did not allow keyboards to be kept inside inmate cells, his musical instrument would be kept in IBC storage, to be transferred with Plaintiff when he is moved to a facility that allows instruments. Plaintiff was advised that, in the interim, he could use the keyboard provided by IBC's music room. He also was told that, when he was transferred to a prison that allowed prisoners to possess musical instruments, he would get his instrument back.

         Plaintiff transferred to LRF on January 26, 2018. Plaintiff alleges that LRF is a facility that allows prisoners to possess a keyboard. During the initial unpacking of Plaintiff's personal property, Defendant Maschino confiscated the keyboard. Objecting to the confiscation, Plaintiff gave Defendant Maschino copies of his communication with Tompkins and referenced PD 04.07.112 ¶ W and Attachment C #38. Defendant Maschino read the contents of Plaintiff's ARF grievance about the keyboard. Based on the result contained in the grievance response, Maschino told Plaintiff that he had to seize the keyboard. Plaintiff argued with Defendant Maschino that the administrative responses were inaccurate and had been effectively nullified by Tompkins' letter. Defendant Maschino allegedly became belligerent and irate with Plaintiff, saying:

I don't give a f*ck that the Ombudsman confirmed or agreed that the responses and findings to your grievance did not prove that your keyboard was excessive property or illegal contraband and that she ordered it to be stored in LRF's property room because I believe that you should have lost that grievance and that's why I'm confiscating your f*cking property, and you will never get it back and I will destroy it.

(Compl., ECF No. 1-1, PageID.15.)

         On February 9, 2018, Defendant Maschino sent Plaintiff a memo ...


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