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Duskin v. Olson

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

October 3, 2019

DOUGLAS DUSKIN, Plaintiff,
v.
KATHLEEN OLSON 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 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.

         Discussion

         I. Factual Allegations

         Plaintiff 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.

         Plaintiff 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.

         On April 17, 2018, Plaintiff allegedly experienced a mild seizure, [1] 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.

         Plaintiff 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.

         According 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         According 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.

         Plaintiff 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.

         Plaintiff 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 medical needs.

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

         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-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)).

         To 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).

         A. Defendants Olson, Yon, and Wainio

         Plaintiff 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.

         Plaintiff 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, ยง 1983 liability may not be imposed simply because a supervisor denied an administrative grievance or failed to act based upon information contained in a ...


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