Massey v. Gerling, Case No. 1:13-cv-1151
| Decision Date | 03 December 2013 |
| Docket Number | Case No. 1:13-cv-1151 |
| Parties | SHARIEFF MASSEY, Plaintiff, v. KRISTINE GERLING et al., Defendants. |
| Court | U.S. District Court — Western District of Michigan |
Honorable Robert J. Jonker
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983. The Court has granted Plaintiff leave to proceed in forma pauperis. Under the Prison Litigation Reform Act, PUB. L. NO. 104-134, 110 STAT. 1321 (1996), 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. 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, Plaintiff's action will be dismissed for failure to state a claim.
Plaintiff Sharieff Massey presently is incarcerated with the Michigan Department of Corrections (MDOC) at the West Shoreline Correctional Facility (MTF), though the conduct underlying his complaint occurred while he was housed at the Pugsley Correctional Facility (MPF). He sues the following officials within the MDOC and the MPF: MPF Qualified Mental Health Practitioners (QMHPs) Kristine Gerling, D. Herkelsteen and Carol Kenison; MPF Hearings Investigator and Grievance Coordinator Gary Monroe; MPF Assistant Deputy Warden Kevin Smiley; MDOC Northern Region Mental Health Services Manager Thomas Osier; fomer MPF Chief Psychologist Brian Majerczyk; and MPF Chief Psychologist David Arkesteyn.
Plaintiff alleges that he was interviewed by the Michigan Parole Board on April 6, 2012.1 The parole board deferred its decision pending completion of a psychiatric examination. On May 22, 2012, Defendant Majerczyk sent the parole board a psychological evaluation report recommending that Plaintiff be referred to the Sexual Offender Program (SOP). Plaintiff alleges that, before completing the psychological evaluation, Majerczyk interviewed Plaintiff for about one hour. During the interview, Plaintiff discussed the fact that he had never been convicted of a sexual assault and that his prior referrals to SOP were based on a series of sexual assault misconduct convictions in 2007 and before. Near the end of the interview, Majerczyk told Plaintiff that his background did not merit placement in the SOP. However, Majerczyk subsequently completed twoassessment instruments, the Vermont Assessment of Sex Offender Risk (VASOR) and the Static 99-R, which indicated, respectively, that Plaintiff was at moderate or high risk of reoffending. Majerczyk thereafter recommended to the parole board that Plaintiff complete the SOP. The parole board denied parole on June 4, 2012.
After his parole was denied, Plaintiff asked Majerczyk why he had recommended SOP after telling Plaintiff that he was not going to recommend SOP. Majerczyk explained about the VASOR and Static 99 test results, and he advised Plaintiff that he did not find mitigating factors that would withstand the risk scores. Plaintiff complained that his five-year record of positive institutional behavior since the misconducts should be considered mitigation. He also complained that he had attempted to complete SOP in 2009, but he had been involuntarily terminated from the program because of something he wrote in a response to a homework assignment. In addition, Plaintiff complained that, for at least some period in 2011, he was removed from the SOP waiting list because he no longer qualified for services. Majerczyk refused to print a copy of his report for Plaintiff at that time, advising him that he would have to pay for a copy. He told Plaintiff to request another appointment once Plaintiff had received his copy of the psychological evaluation.
Several weeks later, Plaintiff did just that. Plaintiff complained that Majerczyk had betrayed him by portraying him in an unflattering way. Majerczyk advised Plaintiff to get into therapy and complete the program, so that he could go home.
In November 2012, Plaintiff asked Warden Shirlee Harry to arrange to transfer him to a facility that offered SOP. Harry told Plaintiff that she would look into the matter. Two weeks later, Defendants Gerling and Herkelsteen summoned Plaintiff and informed him that an SOP group was beginning in January, 2013, and that Plaintiff could participate in the program. Plaintiff beganthe program in January. The January group-therapy report issued by Gerling indicated that Plaintiff was observed having an erection and touching himself during therapy, and he was warned that he should not engage in that behavior. (Ex. G to Compl., Page ID#57.) In the February monthly report, Gerling noted that Plaintiff had been counseled on his lack of boundaries and poor judgment. (Id., Page ID#58.) The March report, issued by Gerling on April 1, 2013, indicated some improvement. (Id., Page ID#59.)
On April 5, 2013, one of the other SOP participants was scolded for allowing another prisoner to draft an assignment for him. The prisoner cried and admitted the conduct, and he was told that he would be notified if he would be allowed to continue in the program.2 Defendants Gerling and Herkelsteen next interrogated Plaintiff about the assignment Plaintiff had turned in on April 2, 2013. The theme of the assignment was to identify triggers associated with Plaintiff masturbating in the segregation unit of the county jail, which happened in full view of female staff. Plaintiff completed the assignment, but used the opportunity to describe his penis and the actions he engaged in, discussing in detail the stroking of his erection at various times to draw attention to his body. Plaintiff read his response to the group, and he was strongly confronted by other participants about its inappropriate content. Plaintiff defended his response to the assignment, arguing that he had the right to free speech and had not done anything wrong, because he had not used profanity, was not racially threatening and did not suggest the use of violence. Plaintiff was told to leave the room, and he was advised that he would be informed if he was being terminated from the program.
On April 7, 2013, Plaintiff met with Defendant Gerling and was notified that he was being terminated from the program. Plaintiff complained that he was being subjected to discrimination because, as a black male, his sexual expressions were different from the others in the SOP, who were all white prisoners. On April 16, 2013, Defendant Gerling issued a therapy termination report, in which she concluded that Plaintiff had acted out repeatedly during therapy, stroking his erection through his clothing. Gerling also highlighted Plaintiff's inappropriate response to his written assignment. She concluded that Plaintiff showed little insight into the inappropriateness of his behavior, that he did not see what he did as wrong, relying only on external consequences to control his behavior, which would not be effective outside of prison. She concluded that he needed continued treatment to address his thinking errors and predatory behavior and that he was not psychologically ready for release, as he presented a very high risk of reoffending. (4/16/13 Therapy Termination Report, Ex. G to Compl., docket #1-3, Page ID##62-64.)3
Plaintiff filed a grievance about Gerling's decision to terminate him from the SOP. Defendant Kenison interviewed Plaintiff on the Step I grievance. Despite Plaintiff's request for an extension of time and his objections, Kenison denied the grievance. Plaintiff asked to be transferred to another facility, where he could continue his SOP participation. Kenison told Plaintiff that he would have to wait at least six months before he could try SOP again. The Step I grievance denial was approved by Defendant Arkestyn. Plaintiff filed a Step II grievance, which was denied by Defendant Osier on July 22, 2013. Plaintiff appealed to Step III. Nurse S. Laughhunn and RichardD. Russel denied the Step III appeal. Plaintiff wrote letters to Defendants Smiley and Monroe on August 28, 2013, neither of whom responded.
Plaintiff alleges that Defendant Gerling violated his First Amendment right to free speech when she effectively punished him, by terminating him from the SOP, on the basis of his written homework assignment. Plaintiff also alleges that Gerling violated the Eighth Amendment when she terminated him from the SOP, despite knowing the physical stresses he was experiencing from his exposure to other SOP participants and because of his upcoming parole interview. Plaintiff contends that Defendant Herkelsteen negligently violated the First and Eighth Amendments as an adjunct facilitator of the SOP. In addition, Plaintiff contends that Defendant Kenison violated the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment when she denied his Step I grievance. Further, Plaintiff asserts that Defendant Monroe failed to exercise due diligence in responding to his urgent request for documentation to support his grievance. Moreover, Plaintiff complains that Defendant Smiley violated his rights under the Due Process Clause when he failed to ensure that Defendant Monroe provided Plaintiff documents Plaintiff had requested. Plaintiff next alleges that Defendant Osier violated his rights under the Eighth Amendment when he denied the Step II grievance. He also alleges that Defendant Majerczyk was medically negligent in using the VASOR and Static 99 assessment instruments, resulting in Plaintiff being kept in prison for a longer period. Finally, Plaintiff alleges that Defendant Arkesteyn violated his rights under the Due Process Clause and the Eighth Amendment when he...
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