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Lewis v. Kienert

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

October 30, 2019

UNKNOWN KIENERT et al., Defendants.



         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 Hill, Neubecker, Ninnis, Viitala, and Unknown Party #1.


         I. Factual Allegations

         Plaintiff presently is incarcerated with the Michigan Department of Corrections (MDOC) at the Saginaw County Correctional Facility (SRF) in Freeland, Saginaw County, Michigan. The events about which he complains, however, occurred at the Marquette Branch Prison (MBP) in Marquette, Marquette County, Michigan. Plaintiff sues the following MBP officials: Correctional Officers (unknown) Kienert and (unknown) Hill; Sergeants (unknown) Neubecker and T. Ninnis; Resident Unit Manager (unknown) Viitala; and an unknown nurse (Unknown Party #1).

         Plaintiff alleges that, on September 8, 2018, as he was walking by the officers' unit station, he called out to another prisoner, using a raised voice. Defendant Kienert ordered Plaintiff to go to the officers' desk. Kienert loudly stated, “Stop your f*cking screaming down my f*cking hallways.” (Compl., ECF No. 1, PageID.4.) Kienert then stood up and yelled, “[D]o I make myself clear?” (Id.) Kienert grabbed Plaintiff by the shirt and shoved Plaintiff against the bars in the officers' station, repeating, “[D]o I make myself clear?” (Id.) Plaintiff's head hit the bars, and Defendant Kienert mockingly said, “[S]orry about that, ” while still holding Plaintiff's shirt and shoving him. (Id.) Kienert then ordered Plaintiff out of his office. Plaintiff alleges that Defendant Klienert used excessive force against him, in violation of Plaintiff's rights under the Eighth Amendment.

         Plaintiff states that he was dazed and temporarily lost consciousness when he hit his head. He developed a lump on his head and suffered neck pain, dizziness, seeing stars, and headaches. On the day of the alleged assault, Plaintiff submitted a health care request, seeking medical attention for neck pain caused by being pushed by Kleinert. Plaintiff was advised on September 14, 2018, that a visit had been scheduled, and he was seen by Defendant unknown nurse on September 17, 2018. The nurse prescribed pain medication. Three days later, on September 20, 2018, Plaintiff again sent a health care request, in which he complained that he was experiencing more frequent headaches, dizzy spells, and episodes of seeing stars. Plaintiff received no response to his second request.

         According to the affidavit attached to Plaintiff's complaint (Ex. E to Compl., ECF No. 1-1, PageID.20-23), Plaintiff told Defendant Sgt. Neubecker about the assault on September 13, 2019. (Id., PageID.21.) Defendant Neubecker advised Plaintiff that she wanted to investigate Plaintiff's allegations. On September 14, 2018, Plaintiff asked Defendant Neubecker if she had investigated the issue, and she stated that she had passed the complaint up the chain of command to a lieutenant. That same date, Plaintiff spoke to Defendant Viitala about the assault. Viitala told Plaintiff that he was investigating another matter, but he told Plaintiff to submit a kite, which Viitala expected to receive the following Monday. Plaintiff sent the kite, but he received no response.

         On September 19, 2018, Plaintiff spoke with Defendant Viitala in the prison yard. Plaintiff asked why Viitala had not called Plaintiff out to talk about the kite. Viitala informed Plaintiff that he had never received the kite. As a result, on September 22, 2018, Plaintiff sent another kite to Defendant Viitala. Plaintiff again received no response. In addition, Plaintiff alleges that his family members called the state police and the MBP warden about the assault.

         Plaintiff submitted a Step-I grievance dated September 20, 2018, but he contends that he never received a grievance receipt or identification number. Plaintiff also wrote a letter to the grievance coordinator, but he received no response. Plaintiff attaches copies of both the grievance and the letter to his complaint. (See Ex. C & D to Compl., ECF No. 1-1, PageID.16, 18.) Plaintiff asserts that the grievance procedure therefore was rendered unavailable to him. However, Plaintiff also attaches to his complaint a copy of a Step-I grievance receipt for a grievance filed on the same issue, which was submitted on September 17, 2018, and received on September 19, 2018. (Ex. H to Compl., ECF No. 1-1, PageID.33-34.) In addition, Plaintiff attaches a copy of the Step-I grievance response signed by Defendant Ninnis on October 4, 2018. (Ex. G to Compl., ECF No. 1-1, PageID.26-28.) Plaintiff complains that Defendant Ninnis made false statements in the grievance response. Specifically, Plaintiff argues that Defendant Ninnis falsely stated that Plaintiff had denied having evidence to support his allegations and that Defendants Viitala and Neubecker denied that Plaintiff had reported the assault to them. (Id., PageID.28.)

         Plaintiff contends that Defendants Neubecker, Ninnis, and Viitala conspired to cover up the assault, retaliated against Plaintiff for filing a grievance by covering up the assault, and violated Plaintiff's right to due process in the grievance proceedings.

         Finally, Plaintiff alleges that Defendant Hill violated his right to petition government by ripping up Plaintiff's Step-III grievance response, preventing Plaintiff from attaching the response to his complaint. Plaintiff contends that Defendant Hill's action also was taken in retaliation for Plaintiff having filed a grievance.

         Plaintiff seeks nominal, 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 Neubecker, ...

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