Howell v. Mayhew, Case No. 1:21-cv-69

Decision Date07 July 2021
Docket NumberCase No. 1:21-cv-69
PartiesKEVIN HOWELL, Plaintiff, v. UNKNOWN MAYHEW et al., Defendants.
CourtU.S. District Court — Western District of Michigan

Honorable Janet T. Neff

OPINION

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 Defendant Shiemburger. The Court will also dismiss, for failure to state a claim, the following claims against the remaining Defendants: Plaintiff's due process claims concerning his grievances and his property; his due process claims based on prison policy; his First Amendment claim under the Petition Clause; his Eighth Amendment claim against Defendant Bostwick based on the denial of one or more meals; his Eighth Amendment claims against Defendants Balm and Globe based on verbal harassment; and his retaliation claims against Defendants Mayhew, Wart, Globe, Mackiey, Bostwick, and Balm.

Discussion
I. Factual Allegations

Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Oaks Correctional Facility (ECF) in Manistee, Manistee County, Michigan. The events about which he complains occurred at that facility. Plaintiff sues the following ECF officials: Correctional Officers Unknown Mayhew, Unknown Wart; Unknown Shiemburger, Unknown Bostwick, and Unknown Balm; Sergeant Unknown Mackiey; and Nurse K. Globe.

The allegations of Plaintiff's complaint are rambling, going back and forth in time over the course of the complaint. In addition, many of the allegations lack specificity. The complaint also contains many misspelled words, while other essential words are missing from sentences. As a result, the complaint is somewhat difficult to decipher, and the Court will summarize the allegations to the best of its ability.

It appears that Plaintiff arrived at ECF in August 2018. Sometime after he arrived, he met Defendant Globe, who had known him 16 years earlier and knew his ex-girlfriend. Globe approached Plaintiff during med line and told him that, unless he did what she wanted, she would "f*ck my life over . . . ." (Compl., ECF No. 1, PageID.5.) Defendant Globe then looked Plaintiff up on the MDOC's Offender Tracking Information System (OTIS). In February 2019, Globe started rumors, falsely telling "everyone" that Plaintiff was a rapist and alleging that Plaintiff had raped her. (Id. at 5-7.) Plaintiff denies being a rapist.1 Plaintiff filed a grievance against Defendant Globe.

Plaintiff alleges that he placed a grievance in the mailbox on October 29, 2020. (Id., PageID.10). Defendants Wart and Mayhew "started abusive actions over my filings as threat[en]ing me." (Id., PageID.7.) Plaintiff states that he began to experience harassment as a result of "these rumors" and that the rumors have resulted in "fighting and [Wart and Mayhew] talk[ing] smack" against him for more than one year. (Id., PageID.6, 8.) Plaintiff alleges that ECF officials

run like a gang. When inmate[]s file grievances, they call us snitch[e]s. They start get other staff who get up start same attack[]s upon us. They even pay inmate[]s to jump us inmate[]s.

. . .

Correctional Officer Bostwick and Correctional Officer Mayhew are top leading of the gang. As Sgt. Ward place[]s attack in orders in order[]s of harm inmate[]s to.

(Id., PageID.6-7.) Plaintiff also contends that Defendant Mayhew became angry about the grievance and took his property that same date, and Defendant Balm refused to return it to Plaintiff. Plaintiff's property was not returned to him until January 10, 2021, when Correctional Officer Tayler (not a defendant) delivered it. Officer Taylor told Plaintiff that the property had been in the back room for months, having been placed there by Defendants Wart and Mayhew. (Id., PageID.13, 17.)

In October 2020, likely on October 31, inmate "Mark" told Plaintiff that Plaintiff had to get off the unit and that Mark had to handle undescribed "business" for Defendant Mayhew. Suddenly, Mark pulled a "Shawen"2 out of his waistband. (Id., PageID.8.) In fear, Plaintiff punched Mark and beat him up. (Id.) Plaintiff was removed by guards and placed in a cage in the interview room for the weekend of October 31 through November 2, 2020. Defendants Wart andMayhew came into the interview room. Plaintiff told them to leave him alone. They responded that Plaintiff would die in the unit and suggested that he kill himself. They also stated that he had "hurt a good woman," referring to Defendant Globe. (Id., PageID.9.) Defendants Wart and Mayhew also allegedly began harassing Plaintiff because he refused to bring drugs into the facility and refused to write a note to his ex-girlfriend, as Globe demanded. (Id., PageID.9) After being in the cage for three days, Plaintiff was placed in a segregation cell with no working lights. (Id., PageID.14.)

Plaintiff alleges that he spoke with his mental health worker on October 30, 2020. On November 2, he asked to speak with the provider again. Defendant Bostwick allegedly told Plaintiff that he was "being taken out back as a dead nig*er that week." (Id.) Bostwick also told Plaintiff that he did not deserve to breathe the same air as Bostwick. (Id., PageID.9.) Bostwick also refused Plaintiff food on one occasion, indicating that he had not yet had a bowel movement, and feces were all Plaintiff was getting to eat that week. (Id., PageID.9, 14.) In addition, Defendant Bostwick suggested loudly that the officers should take Plaintiff's photograph and use it as a target at the shooting range. (Id., PageID.14.) That same date, while Plaintiff was seeing the doctor, Defendant Mayhew trashed his cell during a room search. Plaintiff asked Defendant Mayhew to stop harassing him, and Mayhew responded, "[Y]ou['re] victim[]s don't forget." (Id., PageID.15.)

Plaintiff also alleges that, while Defendant Wart is on rounds, he says "little threaten[ing] things" and calls Plaintiff names. (Id., PageID.9, 14.) Plaintiff and witnesses wrote to Ms. Holden (not a defendant), who indicated that she would speak with Defendant Bostwick. (Id., PageID.9.)

On November 2, 2020, Defendants Mayhew, Mackiey, and Balm allegedly beat Plaintiff. (Id., PageID.11.) Elsewhere, Plaintiff alleges that Defendants Mayhew and Balm andnon-defendant Farley entered his cell and beat him with closed fists. In addition, Defendant Mackiey kicked Plaintiff and Defendant Balm pepper-sprayed him. (Id., PageID.17.) Plaintiff also alleges that his head was beaten against the wall while he was in the segregation shower. Defendant Balm and an unidentified correctional officer purportedly bragged about the beating, stating that the "only way o[u]t of this prison is dead." (Id., PageID.11.)

Plaintiff asserts that Defendant Mayhew has a close relationship with Defendant Globe.3 And Correctional Officer Mitchell (not a defendant) told Plaintiff that Defendants did not like him and that he should watch his back. (Id.) Defendants Mackiey and Mayhew told Plaintiff that he was going to be killed. Plaintiff alleges that they beat him up because Defendant Globe put out a hit on him and because they wanted to steal his property. (Id.)

After returning to his unit ten or fifteen days after his fight with prisoner Mark, Plaintiff was placed on toplock, or room restriction. (Id., PageID.9, 11.) Defendants Bostwick and Mayhew allegedly began again to "mess" with Plaintiff. (Id., PageID.8.) Plaintiff alleges that Defendants' actions, including daily room searches for some period, have been committed in "retaliation." (Id.) He also alleges that Defendant Bostwick routinely kicked Plaintiff's door during second shift, that unspecified officers threatened him, and that the problems have caused him to see his mental health provider often. Plaintiff complained to Assistant Resident Unit Supervisor (ARUS) Johnson (not a defendant), who told Plaintiff not to complain to her about Defendant Globe, as Globe was a dear friend of hers. (Id.) Defendant Shiemburger allegedly spit in Plaintiff's face once and refused to give Plaintiff his food trays on unspecified occasions. (Id., PageID.13.)

At some point, Plaintiff covered his cell-door window, a practice that Plaintiff alleges is common when inmates are using the toilet. Defendants Mackiey and Mayhew came into Plaintiff's cell. Plaintiff was crying because of the harassment. Mackiey told Plaintiff not to cover his window. When Plaintiff asked for his property, Mayhew refused it, and Mackiey advised Plaintiff not to cover his window. Plaintiff asked to see the shift commander, but that, too, was denied. Defendant Mackiey told Plaintiff, "[L]isten I'll beat your ass, you better shut your mouth, [and] follow his orders." (Id., PageID.16.). After the officers left, Defendant Mayhew came back and told Plaintiff to be ready, because officers planned to "beat[] your f*cking head in after count[;] be ready." (Id.) Plaintiff told Defendants that what they were doing was wrong and that property must be returned in 24 hours under prison policy. On January 10, 2021, Officer Taylor (not a defendant) returned Plaintiff's property to him, he had found it in a closet in the back room, where it had been for months after being placed there by Defendants Wart and Mayhew. (Id., PageID.13, 17.)

Plaintiff alleges that Defenda...

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