United States District Court, W.D. Michigan, Northern Division
T. Neff 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
(1992). Applying these standards, the Court will dismiss
Plaintiff's complaint for failure to state a claim
against Defendants Olson, Yon, Zorich, Vitale, and Wainio.
The Court will also dismiss, for failure to state a claim,
the following claims: Plaintiff's due process and Fourth
Amendment claims against remaining Defendants Axley and Dabb;
Plaintiff's equal protection claim against Defendant
Axley; and Plaintiff's due process claim against
Defendants Wilbanks, Monville, and Paynter. Plaintiff's
Eighth Amendment claims against the remaining Defendants and
his retaliation claims against Defendants Axley, Dabb, and
Wilbanks remain in the case.
presently is incarcerated with the Michigan Department of
Corrections (MDOC) at the Cooper Street Correctional Facility
(JCS) in Jackson, Jackson County, Michigan. The events about
which he complains, however, occurred at the Ojibway
Correctional Facility (OCF) in Marenisco, Gogebic County,
Michigan. Plaintiff sues the following OCF officials: Warden
Kathleen Olson; Deputy Warden Michael Yon; Prisoner
Counselors (unknown) Zorich and Cory Wainio; Correctional
Officers (unknown) Vitale, (unknown) Axley, and (unknown)
Dabb; Health Unit Manager (HUM) Janet Wilbanks; and
Registered Nurses Jamie Monville and Carol Paynter.
alleges that, on March 16, 2018, he was assigned to a
third-shift porter job in the C-Unit of his facility, which
is located directly across from the health care unit. On that
date, Plaintiff informed his supervisors that his diabetes
and medications caused him to become extremely tired, making
it difficult or impossible to continue working late at night.
Plaintiff asked to be moved to first or second shift.
Plaintiff alleges that his supervisors took no action.
April 17, 2018, Plaintiff allegedly experienced a mild
seizure,  which caused him to miss reporting for
work. Plaintiff complains that Defendant Vitale failed to
check on Plaintiff, despite knowing that Plaintiff was a
diabetic. Instead, Defendant Vitale wrote a misconduct ticket
against Plaintiff for being out of place. Plaintiff alleges
that the misconduct charge led to a chain of events,
including collusion among Defendants to target and harass
Plaintiff, resulting in his being placed in the G-Unit, which
is the farthest unit from health care. Plaintiff contends
that his transfer to G-Unit was initiated by Defendant
Zorich, in retaliation for unspecified actions.
remained in G-Unit from May 3, 2018, to June 25, 2018.
Plaintiff alleges that, during this period, he was subjected
to harassment and discrimination by all Defendants. He
complains that, on May 7, 2018, Defendant Dabb wrongfully
confiscated his snack bag. Plaintiff also alleges that Dabb
and Axley wrongfully confiscated his snack bag and his
purchased food items on other unspecified occasions. He
asserts that he suffered seizures because he did not have
food available to combat his episodes of low blood sugar.
to Plaintiff, he suffered bad seizures on May 10, 12, 15, and
16, 2018. He alleges that, on these days, both medical staff
and G-Unit officers working third shift left him on his bunk
for over two hours. Medical staff allegedly did not perform
life-saving measures. They provided a pint of milk and a
half-cup of orange juice, but they placed the items on a
table that Plaintiff could not reach. Plaintiff acknowledges
that another prisoner assisted him to get the items.
next complains that health care began taking $5.00 out of his
prison account every time he sought medical care for his
seizures, which Plaintiff believed were emergency situations
that did not qualify for a co-pay under prison policy. He
asserts that Defendants unlawfully took a total of $15.00
from his account.
sent a kite to Defendant Warden Olson, alleging that he was
being targeted for discrimination and harassment. Defendant
Olson instructed Defendant Yon to call Plaintiff to his
office to discuss the allegations. Plaintiff alleges that
Defendant Yon called him to the office and spoke with him but
took no action to end the harassment.
went to Defendant Wainio's office in G-Unit, explaining
that Defendants Axley and Dabb were harassing him by
ransacking his living area every day and taking his snack bag
and purchased food. Defendant Wainio told Plaintiff that
“none of the counselors want you in their units because
you're a problem.” (Compl., ECF No. 1, PageID.4.)
In addition, Plaintiff's brother, at Plaintiff's
request, called Defendants Olson, Yon, and Wainio about the
ongoing problem. The three officials took no action.
states that he believes that Defendant Wilbanks called up to
G-Unit to order Defendants Axley and Dabb to search
Plaintiff's cell to ensure that Plaintiff had no food
items available. Plaintiff also states his belief that
Defendant Wilbanks told Defendants Wainio, Axley, and Dabb
that Plaintiff was on a “no steps” restriction,
in order to ensure that Plaintiff remained in G-Unit, rather
than being transferred to another unit.
to Plaintiff, on an unspecified occasion, he had a seizure,
but health care took a long time to respond. During one
seizure, Defendants Monville and Paynter allegedly placed a
health care form on Plaintiff's chest and tried to coerce
Plaintiff into signing it.
contends that Defendant Axley has “extreme animosity,
bilious hatred, and contemptment [sic] towards black
prisoners.” (Id.) In support of his claim,
Plaintiff discusses an allegedly false misconduct charge
filed against another black prisoner. According to Plaintiff,
Defendant Axley was suspended following an investigation of
the misconduct charge.
asserts that Defendant Warden Olson was deliberately
indifferent to Plaintiff's medical needs and permitted a
campaign of harassment by other Defendants, violating
Plaintiff's rights under the First, Fourth, Eighth, and
Fourteenth Amendments. Plaintiff contends that Defendant Yon
colluded with other Defendants by failing to correct the
misconducts and by permitting further misconduct filings,
again in violation of the First, Fourth, Eighth, and
Fourteenth Amendments. Plaintiff alleges that Defendant
Zorich also colluded with other Defendants, by allowing
Plaintiff to be terminated from his job and transferred out
of C-Unit. Similarly, Plaintiff contends that Defendant
Vitale colluded with Defendant Zorich and retaliated against
Plaintiff by moving him out of C-Unit. He also alleges that
Defendant Wainio colluded with other officers and was
deliberately indifferent to the campaign of harassment by
Axley and Dabb. Plaintiff complains that both Defendant Axley
and Defendant Dabb illegally searched his property and seized
his food items and retaliated against him for the exercise of
his First Amendment rights. Plaintiff also alleges that the
actions of Axley and Dabb violated his rights under the
Fourth, Eighth, and Fourteenth Amendments. Plaintiff alleges
that Defendant Wilbanks retaliated against him and was
deliberately indifferent to his serious medical needs, in
violation of the First, Fourth, Eighth, and Fourteenth
Amendments when she instructed medical staff that
Plaintiff's seizures were not emergencies. Plaintiff also
contends that Defendants Monville and Paynter responded to
his medical needs slowly, both in retaliation for his
complaints and in deliberate indifference to his serious
seeks declaratory relief, together with compensatory and
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)).
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 § 1983 is a method for vindicating
federal rights, not a source of substantive rights itself,
the first step in an action under § 1983 is to identify
the specific constitutional right allegedly infringed.
Albright v. Oliver, 510 U.S. 266, 271 (1994).
Defendants Olson, Yon, and Wainio
alleges that he complained to Defendants Olson, Yon, and
Wainio about the actions of Defendants Axley and Dabb, who
were harassing Plaintiff by ransacking his living area every
day and routinely taking Plaintiff's snack bag and
commissary food. Plaintiff's brother also called
Defendants Olson, Yon, and Wainio about the ongoing problems.
Plaintiff indicates that Defendants Olson, Yon, and Wainio
failed to take action to correct the problem.
fails to allege actionable conduct by Defendants Olson, Yon,
and Wainio. Government officials may not be held liable for
the unconstitutional conduct of their subordinates under a
theory of respondeat superior or vicarious liability.
Iqbal, 556 U.S. at 676; Monell v. New York City
Dep't of Soc. Servs., 436 U.S. 658, 691(1978);
Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009).
A claimed constitutional violation must be based upon active
unconstitutional behavior. Grinter v. Knight, 532
F.3d 567, 575-76 (6th Cir. 2008); Greene v. Barber,
310 F.3d 889, 899 (6th Cir. 2002). The acts of one's
subordinates are not enough, nor can supervisory liability be
based upon the mere failure to act. Grinter, 532
F.3d at 576; Greene, 310 F.3d at 899; Summers v.
Leis, 368 F.3d 881, 888 (6th Cir. 2004). Moreover,
§ 1983 liability may not be imposed simply because a
supervisor denied an administrative grievance or failed to
act based upon information contained in a ...