Gonzalez 967783 v. Maki

• Court: District Court, W.D. Michigan
• Decided: March 18, 2022
• Docket: 2:22-cv-00004
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION ______

AARON GONZALEZ,

Plaintiff, Case No. 2:22-cv-4

v. Honorable Paul L. Maloney

UNKNOWN MAKI,

Defendant. ____________________________/ OPINION This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. Plaintiff previously sought and was granted leave to proceed in forma pauperis. (ECF No. 3.) 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, for failure to state a claim, the following claims: (1) Plaintiff’s First Amendment claims regarding retaliation and placement on grievance restriction; and (2) Plaintiff’s claims regarding violation of policy. Plaintiff’s Eighth Amendment excessive force claim against Defendant Maki remains in the case. Discussion I. Factual Allegations Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Baraga Correctional Facility (AMF) in Baraga, Baraga County, Michigan. The events about which he complains occurred at that facility. Plaintiff sues Corrections Officer Unknown Maki. Plaintiff alleges that on June 17, 2021, he took control of his food slot right after the corrections officers finished passing out commissary items.1 (ECF No. 1, PageID.3.) He contends

that pursuant to MDOC procedure, officers are supposed to contact the control center any time an inmate takes control of his food slot. (Id.) Plaintiff avers that the officers did not do that and instead “tried to take matters into their own hands.” (Id.) Defendant Maki began making rounds. (Id.) When Defendant Maki got to Plaintiff’s cell, he “beeped [the] door.” (Id.) Then, while Plaintiff’s elbow was in the food slot, Defendant Maki “tried to forcefully close the slot while [Plaintiff’s] elbow was sticking out.” (Id.) Plaintiff claims that Defendant Maki “did this in a malicious and sadistic manner with no regards to if [he] would have gotten hurt.” (Id.) Plaintiff asked Defendant Maki why he assaulted him, and Defendant Maki “just laughed and walked off.” (Id.) Plaintiff contends that because he reported the incident, “they” issued him a Class II misconduct stating

that he “lied about the situation.” (Id.) Plaintiff was found guilty of the misconduct “without it properly being investigated.” (Id.) He was placed on grievance restriction. (Id.) Plaintiff also claims that he has been harassed “about this grievance and incident.” (Id.)

1 This practice is commonly known as taking one’s food slot hostage. An inmate takes his food slot “hostage” by preventing it from being closed, typically by placing his hand or arm in the slot. See, e.g., Earby v. Ray, 47 F. App’x 744, 745 (6th Cir. 2002). It is against prison rules and a common form of prisoner misbehavior. See Annabel v. Armstrong, No. 1:09-cv-796, 2011 WL 3878379, at *4 n.5 (W.D. Mich. Mar. 30, 2011), report and recommendation adopted, 2011 WL 3878385 (W.D. Mich. Aug. 31, 2011). Plaintiff contends that Defendant Maki violated his Eighth Amendment rights, as well as several MDOC policies. (Id.) A liberal construction of Plaintiff’s complaint also leads the Court to conclude that he is raising First Amendment claims regarding retaliation and placement on grievance restriction. Plaintiff seeks compensatory, punitive, and nominal damages. (Id., PageID.4.)

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.” Id. 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.” Id. 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. First Amendment Claims 1. Placement on Grievance Restriction Plaintiff vaguely suggests that he has been placed on grievance restriction because of the incident with Defendant Maki. As an initial matter, Plaintiff’s complaint is devoid of any allegations suggesting that Defendant Maki is the individual who personally placed Plaintiff on grievance restriction. In any event, Plaintiff’s placement on grievance restriction did not violate his rights under the First Amendment. “A prisoner’s constitutional right to assert grievances typically is not violated when prison officials prohibit only ‘one of several ways in which inmates may voice their

complaints to, and seek relief, from prison officials’ while leaving a formal grievance procedure intact.” Griffin v. Berghuis, 563 F. App’x 411, 415–16 (6th Cir. 2014) (citing N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 130 n.6 (1977)). Plaintiff had other means of exercising his right to petition government for redress of grievances. Indeed, Plaintiff’s ability to seek redress is underscored by his pro se invocation of the judicial process. See Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982). Further, Plaintiff was not wholly denied access to the grievance process. Placement on modified access does not prohibit an inmate from utilizing the grievance process. See Walker v. Mich. Dep’t of Corr., 128 F. App’x 441, 445–47 (6th Cir. 2005); Corsetti v. McGinnis, 24 F. App’x 238, 241 (6th Cir. 2001). The inmate may still request a grievance form and, if the form is provided, submit grievances to the grievance coordinator, who reviews the grievance to determine whether it complies with institutional rules regarding the filing of grievances. See MDOC Policy Directive 03.02.130 ¶ MM (eff. Mar. 18, 2019). Moreover, if a prisoner submits a grievance obtained from

a source other than the Step-I grievance coordinator, the grievance coordinator may reject the grievance, in accordance with ¶ J of the policy. Id. ¶¶ MM, J(3). As with any grievance rejection under ¶ J, the prisoner may appeal the rejection to the next step of the grievance process. Id. ¶ I. There is nothing constitutionally improper about this review process for a prisoner who has demonstrated an inability to properly utilize the grievance process in the past. Plaintiff’s First Amendment claim regarding placement on grievance restriction will, therefore, be dismissed. 2. Retaliation Plaintiff also vaguely suggests that his First Amendment rights were violated when he was issued a Class II misconduct in retaliation for reporting the incident with Defendant Maki. (ECF No. 1, PageID.3.) He also appears to suggest that he was retaliated against by being placed

on grievance restriction. (Id.) Retaliation based upon a prisoner’s exercise of his or her constitutional rights violates the Constitution. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). In order to set forth a First Amendment retaliation claim, a plaintiff must establish three elements: (1) he was engaged in protected conduct; (2) an adverse action was taken against him that would deter a person of ordinary firmness from engaging in that conduct; and (3) the adverse action was motivated, at least in part, by the protected conduct. Id. Moreover, a plaintiff must be able to show that the exercise of the protected right was a substantial or motivating factor in the defendant’s alleged retaliatory conduct. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001) (citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). An inmate has a right to file “non-frivolous” grievances against prison officials on his own behalf, whether written or oral. Maben v. Thelen, 887 F.3d 252, 265 (6th Cir. 2018); Mack v. Warden Loretto FCI, 839 F.3d 286, 298–99 (3d Cir. 2016) (“[The prisoner’s] oral grievance to

[the prison officer] regarding the anti-Muslim harassment he endured at work constitutes protected activity under the First Amendment.”); Pearson v. Welborn, 471 F.3d 732, 741 (7th Cir. 2006) (“[W]e decline to hold that legitimate complaints lose their protected status simply because they are spoken.”); see also Pasley v. Conerly, 345 F. App’x 981, 984–85 (6th Cir. 2009) (finding that a prisoner engaged in protected conduct by threatening to file a grievance). “Nothing in the First Amendment itself suggests that the right to petition for redress of grievances only attaches when the petitioning takes a specific form.” Holzemer v. City of Memphis, 621 F.3d 512, 521 (6th Cir. 2010) (finding that a conversation constituted protected petitioning activity) (quoting Pearson, 471 F.3d at 741). Plaintiff, therefore, has alleged sufficient facts to meet the first element

of a retaliation claim because Plaintiff’s reporting of the incident with Defendant Maki is protected conduct. To establish the second element of a retaliation claim, a prisoner-plaintiff must show adverse action by a prison official sufficient to deter a person of ordinary firmness from exercising his constitutional rights. Thaddeus-X, 175 F.3d at 396. The adverseness inquiry is an objective one and does not depend on how a particular plaintiff reacted. The relevant question is whether the defendants’ conduct is “capable of deterring a person of ordinary firmness”; the plaintiff need not show actual deterrence. Bell v. Johnson, 308 F.3d 594, 606 (6th Cir. 2002) (emphasis in original). Receipt of a misconduct ticket is adverse action sufficient to support a retaliation claim. See Thomas v. Eby, 481 F.3d 434, 441 (6th Cir. 2007) (discussing that the issuance of a misconduct ticket can “constitute[] an adverse action”). Although an “Interference with the Administration of Rules” misconduct would constitute adverse action, there is nothing in Plaintiff’s complaint suggesting that Defendant Maki issued the misconduct report. Plaintiff notes that he “exhausted all [his] administrative remedies within the

department . . . [and] they gave [him] a Class II misconduct which stated that [he] lied about the situation . . . .” (Compl., ECF No. 1, PageID.3) (emphasis added). Based on Plaintiff’s allegations, therefore, it appears that “they” refers to the department officials who considered Plaintiff’s grievance against Defendant Maki, not Defendant Maki himself. Indeed, such a misconduct report cannot be issued without the warden’s approval. MDOC Policy Directive 03.02.130, ¶ M (eff. Mar. 18, 2019). Similarly, Plaintiff does not allege that Defendant Maki restricted Plaintiff’s access to the grievance process. Only the warden, the FOA Region Manager, or the manager of the grievance section may place a prisoner on modified access to the grievance process. Moreover, the Sixth

Circuit repeatedly has held that placement on modified access does not constitute an adverse action for purposes of a retaliation claim. See, e.g., Alexander v. Vittitow, No. 17-1075, 2017 WL 7050641, at *5 (6th Cir. Nov. 9, 2017); Jackson v. Madery, 158 F. App’x 656, 660 (6th Cir. 2005) (per curiam), abrogated on other grounds by Maben v. Thelen, 887 F.3d 252 (6th Cir. 2018); Walker v. Mich. Dep’t of Corr., 128 F. App’x 441, 446 (6th Cir. 2005); Kennedy v. Tallio, 20 F. App’x 469, 471 (6th Cir. Sept. 26, 2001). Because Plaintiff has failed to allege that Defendant Maki took any adverse actions against him, he has failed to state a retaliation claim against Maki. Plaintiff’s First Amendment retaliation claim will, therefore, be dismissed. B. Eighth Amendment Excessive Force Claim The Eighth Amendment embodies a constitutional limitation on the power of the states to punish those convicted of a crime. Punishment may not be “barbarous” nor may it contravene society’s “evolving standards of decency.” See Rhodes v. Chapman, 452 U.S. 337, 345–46 (1981) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)). The Eighth Amendment also prohibits

conditions of confinement which, although not physically barbarous, “involve the unnecessary and wanton infliction of pain.” Id. at 346 (quoting Gregg v. Georgia, 428 U.S. 153, 183 (1976)). Among unnecessary and wanton inflictions of pain are those that are “totally without penological justification.” Id. But not every shove or restraint gives rise to a constitutional violation. Parrish v. Johnson, 800 F.2d 600, 604 (6th Cir. 1986); see also Hudson v. McMillian, 503 U.S. 1, 9 (1992) (holding that “[n]ot every push or shove . . . violates a prisoner’s constitutional rights” (internal quotations omitted)). “On occasion, ‘[t]he maintenance of prison security and discipline may require that inmates be subjected to physical contact actionable as assault under common law.’” Cordell v. McKinney, 759 F.3d 573, 580 (6th Cir. 2014) (quoting Combs v. Wilkinson, 315 F.3d 548, 556

(6th Cir. 2002)). Prison officials nonetheless violate the Eighth Amendment when their “offending conduct reflects an unnecessary and wanton infliction of pain.” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting Pelfrey v. Chambers, 43 F.3d 1034, 1037 (6th Cir. 1995); Bailey v. Golladay, 421 F. App’x. 579, 582 (6th Cir. 2011). There is an objective component and a subjective component to an Eighth Amendment claim. Santiago v. Ringle, 734 F.3d 585, 590 (6th Cir. 2013) (citing Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001)). First, “[t]he subjective component focuses on the state of mind of the prison officials.” Williams, 631 F.3d at 383. Courts ask “whether force was applied in a good- faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 7. Second, “[t]he objective component requires the pain inflicted to be ‘sufficiently serious.’” Williams, 631 F.3d at 383 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). “The Eighth Amendment’s prohibition of ‘cruel and unusual’ punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind.” Hudson, 503 U.S. at 9 (internal

quotations omitted). The objective component requires a “contextual” investigation, one that is “responsive to ‘contemporary standards of decency.’” Id. at 8 (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)). While the extent of a prisoner’s injury may help determine the amount of force used by the prison official, it is not dispositive of whether an Eighth Amendment violation has occurred. Wilkins v. Gaddy, 559 U.S. 34, 37 (2010). “When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated . . . [w]hether or not significant injury is evident.” Hudson, 503 U.S. at 9. Here, Plaintiff contends that after he took control of his food slot, Defendant Maki came to his cell and tried to forcefully close the slot while Plaintiff’s elbow was still sticking out of the

slot. (ECF No. 1, PageID.3.) According to Plaintiff, he asked Defendant Maki why he assaulted him, and Defendant Maki just laughed and walked away. (Id.) Given these allegations, the Court concludes that Plaintiff has alleged a plausible Eighth Amendment excessive force claim against Defendant Maki. C. Violation of MDOC Policy Plaintiff suggests that Defendant Maki’s conduct violated several MDOC policies regarding use of force, inhumane treatment, living conditions, and employee ethics. (ECF No. 1, PageID.3.) However, claims under § 1983 can only be brought for “deprivations of rights secured by the Constitution and laws of the United States.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982). Claims under § 1983 do not provide redress for a violation of a state law or policy. Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir. 1995); Sweeton v. Brown, 27 F.3d 1162, 1166 (6th Cir. 1994); see also Laney v. Farley, 501 F.3d 577, 580–81 & n.2 (6th Cir. 2007). The only way a policy might enjoy constitutional protection would be through the Due Process Clause of the Fourteenth Amendment. To demonstrate such a due process violation, a plaintiff must prove the following elements:

(1) a life, liberty, or property interest requiring protection under the Due Process Clause; and (2) a deprivation of that interest (3) without adequate process. Women’s Med. Prof’l Corp. v. Baird, 438 F.3d 595, 611 (6th Cir. 2006). “Without a protected liberty or property interest, there can be no federal procedural due process claim.” Experimental Holdings, Inc. v. Farris, 503 F.3d 514, 519 (6th Cir. 2007) (citing Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 579 (1972)). Courts have routinely recognized that a prisoner does not enjoy any federal protected liberty or property interest in state procedure. See Olim v. Wakinekona, 461 U.S. 238, 250 (1983); Laney, 501 F.3d at 581 n.2; Brody v. City of Mason, 250 F.3d 432, 437 (6th Cir. 2001); Sweeton, 27 F.3d at 1164. Accordingly, Plaintiff’s allegations that Defendant Maki violated MDOC policy fail to raise a

cognizable federal constitutional claim. Conclusion Having conducted the review required by the Prison Litigation Reform Act, the Court will dismiss, for failure to state a claim under 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c), the following claims: (1) Plaintiff’s First Amendment claims regarding retaliation and placement on grievance restriction; and (2) Plaintiff’s claims regarding violation of policy. Plaintiff’s Eighth Amendment excessive force claim against Defendant Maki remains in the case. An order consistent with this opinion will be entered.

Dated: March 18, 2022 /s/ Paul L. Maloney Paul L. Maloney United States District Judge