Kennedy v. Stewart

          OPINION AND ORDER OF PARTIAL DISMISSAL

          SEAN F. COX, U.S. DISTRICT JUDGE

         I. Introduction

         David J. Kennedy, confined at the G. Robert Cotton Correctional Facility in Jackson, Michigan, has filed a pro se civil rights complaint. For the reasons stated below, the Court will dismiss Plaintiff's claims against Defendants Stewart, Lindsey, and Doe. The case may proceed against Defendant Curtis on Plaintiff's First Amendment retaliation claim.

         II. Standard of Review

         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).

         III. Complaint

         Plaintiff asserts that he was elected as a Housing Unit Representative/Warden Forum Member at his facility, and he served on the Food Service Committee. As part of his participation on that committee, Plaintiff asserts that he regularly complained to the facility's administration regarding the quality of food services.

         Plaintiff asserts that on August 29, 2017, Defendant Curtis informed him that he had “pissed him off” with his complaints, and that “[i]f you keep making trouble then I'm going to show you're touchable and make trouble for you.” Dkt. 1, ¶ 18.

         On August 30, Plaintiff again complained about the food service at a Warden Forum's meeting, and the following day Plaintiff was placed in cuffs and told by a corrections officer, “you must have really pissed Lt. Curtis off. He has it out for you about your activities on the Forum.” ¶ 21. Plaintiff was then placed in administrative segregation. Plaintiff claims that on September 1, he learned that Curtis had filed a false misconduct ticket, charging him with threatening another prisoner. Plaintiff claims he was told by another officer that it was the result of “pissing off” Lt. Curtis.

         Plaintiff states that on September 2, he complained to Defendant Stewart and Lindsey, the Warden and Deputy Warden of the facility, about the false misconduct charge, but they did not respond to his kites.

         Plaintiff further claims that his administrative segregation cell's window would not open, and that the “chuckhole” was kept closed which caused poor ventilation. He also states that the staff would not allow him to go outside for exercise or fresh air. Plaintiff asserts that Defendants Mask and Doe were responsible for the conditions of his cell. He claims the poor air in his cell impaired his lung function, as he suffers from sarcoidosis. Plaintiff filed a grievance regarding the condition of his cell.

         A major misconduct hearing was held on the report filed by Defendant Curtis on September 13. Because staff were unable or unwilling to produce the prisoner who was said to have overheard Plaintiff's threat to another prisoner, the hearing officer dismissed the misconduct charge. Plaintiff was released from administrative segregation on that date.

         Plaintiff claims that Defendant Curtis violated his First Amendment rights by retaliating against him by filing a false misconduct charge as a result of his complaints during the Warden's Forum. He asserts that Defendants Stewart and Lindsey violated his constitutional rights by failing to respond to his kites about the conditions of his cell. Finally, he asserts that Defendants Mask and Doe violated his Eighth Amendment rights due to the poor ventilation in his administrative segregation cell.

         IV. ...