Hemphill v. Lebo
| Decision Date | 14 November 2022 |
| Docket Number | 1:22-cv-578 |
| Parties | BRANDON MAURICE HEMPHILL, Plaintiff, v. THOMAS LEBO et al., Defendants. |
| Court | U.S. District Court — Western District of Michigan |
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. Plaintiff previously sought (ECF No. 2) and was granted leave to proceed in forma pauperis (ECF No. 4). Pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure, Plaintiff consented to proceed in all matters in this action under the jurisdiction of a United States magistrate judge. (ECF No 5.)
This case is presently before the Court for preliminary review under the Prison Litigation Reform Act, Pub. L. No. 104-134 110 Stat. 1321 (1996) (PLRA), pursuant to 28 U.S.C. § 1915A(b) and 42 U.S.C. § 1997e(c). The Court is required to conduct this initial review prior to the service of the complaint. See In re Prison Litigation Reform Act 105 F.3d 1131, 1131, 1134 (6th Cir. 1997); McGore v Wrigglesworth, 114 F.3d 601, 604-05 (6th Cir. 1997). Service of the complaint on the named defendant(s) is of particular significance in defining a putative defendant's relationship to the proceedings.
“An individual or entity named as a defendant is not obliged to engage in litigation unless notified of the action, and brought under a court's authority, by formal process.” Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347 (1999). “Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.” Id. at 350. “[O]ne becomes a party officially, and is required to take action in that capacity, only upon service of a summons or other authority-asserting measure stating the time within which the party served must appear and defend.” Id. (citations omitted). That is, “[u]nless a named defendant agrees to waive service, the summons continues to function as the sine qua non directing an individual or entity to participate in a civil action or forgo procedural or substantive rights.” Id. at 351. Therefore, the PLRA, by requiring courts to review and even resolve a plaintiff's claims before service, creates a circumstance where there may only be one party to the proceeding-the plaintiff-at the district court level and on appeal. See, e.g., Conway v. Fayette Cnty. Gov't, 212 Fed.Appx. 418 (6th Cir. 2007) ().
Here, Plaintiff has consented to a United States magistrate judge conducting all proceedings in this case under 28 U.S.C. § 636(c). That statute provides that “[u]pon the consent of the parties, a full-time United States magistrate judge . . . may conduct any or all proceedings . . . and order the entry of judgment in the case ....” 28 U.S.C. § 636(c). Because the named Defendants have not yet been served, the undersigned concludes that they are not presently parties whose consent is required to permit the undersigned to conduct a preliminary review under the PLRA, in the same way that they are not parties who will be served with or given notice of this opinion. See Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995) ().[1]
Under the 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 amended complaint[2] for failure to state a claim against Defendants Clark and Dine. The Court will also dismiss, for failure to state a claim, the following claims against remaining Defendants Lebo, Ward, and Howard: Plaintiff's official capacity claims, Eighth Amendment claims, and RLUIPA claims. Further, the Court will dismiss Plaintiff's First Amendment retaliation claim against Defendant Ward premised on Defendant Ward's “constant threats.” Plaintiff's First Amendment free exercise claims against Defendants Lebo, Ward, and Howard will remain in the case. Additionally, Plaintiff's First Amendment retaliation claims against Defendant Ward premised on (i) the issuance of a misconduct report for cooking chicken and (ii) the loss of his prison work assignment will remain in the case.
Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Muskegon Correctional Facility (MCF) in Muskegon, Muskegon County, Michigan. The events about which he complains, however, occurred at the Carson City Correctional Facility (DRF) in Carson City, Montcalm County, Michigan. Plaintiff sues the following DRF food service employees: Food Service Director Thomas Lebo, Assistant Food Service Director Cindy Clark, Food Service #9 Workers Christopher Warden and Tracy Howard; and Food Service Business Manager Donald Dine. (Am. Compl., ECF No. 6, PageID.67-68.) Plaintiff indicates that he is suing Defendants Lebo, Ward, and Howard in their individual and official capacities. (Id.) Plaintiff does not indicate in which capacity, or capacities, that he is suing Defendants Clark and Dine. (See id.)
In Plaintiff's amended complaint, he alleges that in February of 2018, he was “approved and recognized to eat from the [MDOC's] . . . Vegan/Religious meal line.”[3] (Id., PageID.68.) Plaintiff contends that the “MDOC vegan/religious meals requires that all vegan/religious meals be prepared in accordance with the practice and procedures to ensure no cross-contamination and to ensure vegan/religious meal tenets are upheld.” (Id.) On April 8, 2020, Defendant Lebo instructed Plaintiff “to cook and prepare vegan/religious meals outside established and designated area[s].” (Id., PageID.69.) Plaintiff advised Defendant Howard of the risk of cross-contamination, and Defendant Howard “acknowledged the risk” and told Plaintiff she would raise the concerns to Defendant Lebo. (Id.) Subsequently, Defendant Lebo told Plaintiff “It's only 8 days, deal with it!” (Id.) Defendant Howard stated, “It has never been done like this and shouldn't be, why now!” (Id.) Defendant Lebo replied, “Because I'm the boss that's why!” (Id.) Plaintiff states that because the religious meals were prepared outside of the designated area, Plaintiff had “to either eat meals that were in violation of [his] religious tenets, or go without eating.” (Id.)
On May 4, 2020, “chicken was found cooked in the vegan/religious kitchen and no decontamination was done to cure the incident.” (Id.) Thereafter, “Plaintiff returned as [a] vegan cook after being exonerated of alleged misconduct of cooking chicken in [the] vegan/religious kitchen” by Defendant Ward. (Id.) Plaintiff states that he filed a grievance after there were multiple occasions of “cross-contamination of the vegan/religious meals.” (Id., PageID.70.)
On May 27, 2020, Plaintiff “signed off as [a] food service vegan/religious cook after constant threats” by Defendant Ward “to sign off grievances of cross-contamination.” (Id.) Subsequently, on October 20, 2020, Plaintiff returned to the MDOC food service. (Id.) Upon Plaintiff's return, Defendant Ward stated, “Why don't you stay gone, you're making my life a living hell you f[******] snitch!” (Id.) On December 4, 2020, Defendant Ward “filed a false csj-126 form and removed [Plaintiff] from food service work detail.” (Id.)
Thereafter, “after the MDOC began prisoner separated jobs according to units due to COVID-19,” Defendant Ward removed Plaintiff “from [a] high paying job position” on February 25, 2021. (Id.) Plaintiff contends that on February 26, 2021, Defendant Howard told Plaintiff that Defendant Ward “could not remove Plaintiff from work detail for no reason.” (Id.)
On March 26, 2021, through April 5, 2021, “vegan/religious meals were prepared outside the well-established designated area for a consecutive year.” (Id.) Plaintiff claims that Defendant Howard “ordered that religious materials be cleaned with materials that ha[d] been strictly established to be prohibited under any circumstances.” (Id., PageID.71) On April 6, 2021, Plaintiff filed a grievance “due to [the] reoccurrence of vegan/religious meals being prepared in [an] area outside [the] well-established strict vegan/religious kitchen.” (Id.)
On April 13, 2021, Plaintiff's religious “Ramadan began, [and] due to contamination of religious equipment, the meals were not religiously adequate and Plaintiff was forced to not eat, or eat meals in violation of religious beliefs.” (Id.) On April 16, 2021, Plaintiff brought the “Ramadan religious shortages” to the attention of Defendants Lebo, Clark, and Ward. (Id.) Plaintiff was told “we will get it right next year.” (Id.)
On April 23, 2021, Plaintiff was interviewed by Defendant Lebo regarding Plaintiff's grievance about cross-contamination. (Id.) Defendant Lebo stated “In the future, separate wash bins will be purchased to clean, rinse, and sanitize tools for the vegan/religious kitchen and hot water will also be turned on in the area...
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