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Green v. M. Smith

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

August 22, 2019

VIRGIL GREEN, Plaintiff,
M. SMITH et al., Defendants.



         This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983 and state law. 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 Peller and Thompson.


         I. Factual Allegations

         Plaintiff Virgil Green is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Chippewa Correctional Facility (URF) in Kincheloe, Chippewa County, Michigan. Plaintiff sues the following MDOC employees at URF: Custody Officer M. Smith, Classification Director Q. Peller, and Resident Unit Manager (RUM) S. Thompson.

         A. Custody Officer Smith

         Plaintiff alleges that he is an Orthodox Sunni Muslim. In July 2015, he transferred to URF when another prison facility closed. Around that time, a garment factory run by Michigan State Industries (MSI) relocated to URF. Defendant Smith was the custody officer for the MSI garment factory.

         On January 15, 2017, Plaintiff passed a test to work in the MSI garment factory. The following day, he temporarily transferred to a different prison facility so that he could attend a trial in a lawsuit that he brought against a MDOC corrections officer from another facility. See Green v. Miller, No. 2:13-cv-14247 (E.D. Mich.). Plaintiff settled that case the same day.

         On January 19, 2017, Plaintiff began work in the MSI garment factory as a Machine Sewer Operator. (Compl., ECF No. 1, PageID.5.) When Plaintiff arrived for his first day of work in the garment factory, Officer Smith informed Plaintiff that he was aware of Plaintiff's temporary transfer to another prison facility for the lawsuit. He asked Plaintiff, “So you are one of those jail house lawyers huh?” (Id.) Plaintiff responded, “I litigate to protect my rights.” Smith gave Plaintiff a “look of hatred and dislike.” (Id.)

         When Plaintiff interviewed to work for MSI, he indicated that he attended religious services on Fridays. Under a settlement that the MDOC reached in another case, the MDOC allows prisoners to leave their work assignments to attend their “primary religious services.” (Id.) After Plaintiff began working for MSI, and other prisoners saw him leave for his religious services, some prisoners asked for permission to do the same. Smith noticed this and stated, “[S]o you guys have to always leave work to attend your service? ʼcause I don't get to leave work to go to my church services.” (Id., PageID.6.) Plaintiff replied, “Don't policy directive allow prisoners to leave work or school details to attend religious services?” (Id.) Smith gave Plaintiff another look conveying “hatred and dislike.” (Id.)

         Plaintiff's prayer schedule changed in February/March 2017; he began praying during his lunch break. Defendant Smith saw him and asked, “[W]hat was that you were doing during break?” (Id.) Plaintiff told him he was praying and Smith allegedly gave Plaintiff another look of “hatred and dislike.” (Id.)

         In late March 2017, after Plaintiff had finished his prayers at lunch break, Smith told him, “[Y]ou are not allowed to do that while at work.” (Id.) Plaintiff replied, “[T]his is my lunch break time and I'm not being disruptive or causing any disturbance.” (Id., PageID.6-7.) But Smith stated, “[Y]ou can't do it.” (Id., PageID.7.) Plaintiff told Smith that he intended to file a grievance against Smith for “harassment of his religious beliefs.” (Id.) Smith responded, “[O]h yeah, get in line and make sure you spell my name right.” (Id.)

         Plaintiff complained to an MSI supervisor about Smith's comments. The supervisor asked Plaintiff, “[W]hy can't you wait until you get back to your unit to do that stuff?” (Id.)

         On March 21, Smith sounded the buzzer for count time, but Plaintiff did not show up because he did not hear the buzzer. Smith told Plaintiff that Plaintiff would be receiving a misconduct ticket for failing to show up. Plaintiff tried to explain that he did not hear the buzzer, but Smith issued a misconduct ticket anyway. Smith charged Plaintiff with a class II misconduct for being out of place and told Plaintiff that he was being “laid in” pending a misconduct hearing. (Id.) Smith also filled out a job termination form for Plaintiff, indicating that he would “not take back” Plaintiff in the future. (Id., PageID.8.)

         Plaintiff complained that Smith had “never given anyone else [a misconduct ticket] for being late or missing count, ” and Smith replied, “[T]hat's what happens when you try to challenge my authority.” (Id.) Plaintiff believed that Smith was referring to Plaintiff's complaint to Smith's supervisor.

         Plaintiff alleges that Smith did not charge other prisoners with a misconduct when they were late for count or missed it. In addition, Smith typically used the P.A. system to tell prisoners to report to count, to ensure that they do not miss the count. He did not use the P.A. system on March 21, 2017, however. ...

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