Peters v. Simpson
| Decision Date | 23 September 2015 |
| Docket Number | Case No. 1:15-cv-751 |
| Parties | GARY PETERS, Plaintiff, v. BRENDA SIMPSON et al., Defendants. |
| Court | U.S. District Court — Western District of Michigan |
Honorable Janet T. Neff
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; 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, Plaintiff's action will be dismissed for failure to state a claim.
Plaintiff Gary Lee Peters presently is incarcerated with the Michigan Department of Corrections (MDOC) at the Kinross Correctional Facility, though the actions about which he complains occurred while he was housed at the Bellamy Creek Correctional Facility (IBC). He sues MDOC Director Daniel H. Heyns1 and the following IBC officials: Mailroom Supervisor Brenda Simpson; Warden Kenneth McKee; Deputy Warden Matthew Macauley; Resident Unit Manager Rufus Wright; Assistant Resident Unit Supervisors Wendy Lane and Larry Avery; and Grievance Coordinators M. Robinson and Mitch Vroman.
Plaintiff alleges that he regularly has held the prison job assignment of Electrician or Maintenance Worker since 1986. While he was housed at the Michigan Reformatory (RMI) between 2009 and 2013, he was assigned to work in maintenance positions, frequently as an electrician, in positions that required special security clearances. In March 2014, he looked for more information about building and electrical codes and the master electrician's examination. Plaintiff located two books, Code for Homeowners and The Complete Guide to Wiring. He consulted the MDOC-IBC Publication Restriction List and found that neither was listed as a prohibited publication. On March 19, 2014, Plaintiff submitted a Disbursement Authorization/Catalog Order Form, in accordance with MICH. DEP'T OF CORR., Policy Directive 05.03.118 and IBC-OP 04.02.105 and 04.02.130B. Plaintiff's order was approved by Defendants Avery and Macauley. The two books arrived in April 2014, and they were delivered to Plaintiff, though the DVD that came with one book was rejected.
Thereafter, Plaintiff found a third book to advance his electrical knowledge, entitled Electrician's Calculation Manual. Plaintiff checked the restricted-publication list, and then, on July 20, 2014, submitted another disbursement form. The order was approved by Defendant Avery, and the funds were disbursed from Plaintiff's account. On August 5, 2014, Defendant Simpson issued a Notice of Package/Mail Rejection, claiming that the book was similar to other books on the Publication Restriction List. Plaintiff, however, did not receive a copy of the form. Defendant Lane reviewed the rejection with Plaintiff. When he asked for a copy of the form, Lane told Plaintiff that he would receive a copy at the hearing. On August 7, 2014, Defendant Avery conducted a hearing, but Plaintiff allegedly was not allowed to be present or to make a statement. Plaintiff contends that the hearing was not conducted in accordance with MICH. DEP'T OF CORR., Policy Directive 05.03.118, because the rejection simply quoted section MM of the policy, which prohibits "mail that may pose a threat to the security, good order, or discipline of the facility, may facilitate or encourage criminal activity, or may interfere with the rehabilitation of the prisoner." Id. The rejection, however, did not articulate a meaningful legitimate penological explanation of why the book posed a threat. Plaintiff filed Grievance No. IBC 14-08-2259-07Z (Grievance 1) on August 7, 2014, alleging that Defendant Avery denied him pre-deprivation process. Defendant Wright denied the grievance at Step I on September 9, 2014. Defendant McKee denied the Step II grievance on September 23, 2014.
On August 28, 2014, Defendant Simpson ordered a search of Plaintiff's cell and the confiscation of the earlier two books.2 Plaintiff alleges that Simpson's confiscation of the books was retaliatory. Defendant Simpson issued a Notice of Intent to Conduct an Administrative Hearing onAugust 29, 2014, in which she indicated that the books in question were similar in content to other books on the restricted list and that they "could be used by a prisoner to disable the electrical systems in the facility to aid in an escape attem[p]t or to upset the operations of the facility." (Ex. to Compl., docket #1-1, Page ID#31.) Again, Plaintiff alleges that he did not receive a copy of the notice and that Defendant Lane told him that he would receive a copy at the hearing. Defendant Avery conducted a hearing on September 4, 2014, which Plaintiff alleges he was not permitted to attend. Avery provided a copy of the notice of intent and the hearing report. The report again merely recited the rule applied, without specifying the reason why the books posed a threat.
Plaintiff filed Grievance No. IBC 14-09-2518-28J (Grievance 2) against Simpson on August 28, 2014, alleging retaliation and abuse of authority. Defendant Robinson rejected the grievance, stating that Plaintiff was merely dissatisfied with the response he received to another grievance. Defendant McKee denied the grievance at Step II on September 17, 2014.
On September 4, 2014, Plaintiff filed Grievance No. IBC 14-09-2563-07A (Grievance 3) against Defendant Avery, alleging a violation of his right to pre-deprivation process resulting from the improper procedures used by Avery. Defendant Robinson renumbered Grievance 3 as IBC 14-09-2563-28A, and he rejected the grievance as duplicative of Grievance 1. On September 30, 2014, Defendant McKee signed off on the Step II appeal authored by Defendant Vroman.
On September 6, 2014, Plaintiff sent a letter of inquiry to Defendants Macauley and McKee. Neither Defendant responded.
On October 10, 2014, Defendant Heyns added The Complete Guide to Wiring and Codes for Homeowners to the restricted publication list. Plaintiff alleges, however, that DefendantHeyns has never made a determination as to whether the Electrician's Calculation Manual should be placed on the restricted publication list. Plaintiff filed a grievance on October 30, 2014, objecting that Defendant Heyns' decision failed to demonstrate how the books were a threat to the good order of the facility. Defendant Robinson refused to accept the grievance on November 5, 2014, but he gave it an identifier of IBC 14-10-2131-19Z (Grievance 4). Robinson also provided Plaintiff with the forms needed to make a claim for reimbursement from the State of Michigan.
Defendant Simpson, on October 29, 2014, issued a new notice of mail rejection for the two books placed by Heyns on the restricted publication list. Defendant Lane conducted a review of the rejection. Plaintiff claims that he did not receive a copy of the notice. On November 14, 2014, Defendant Avery conducted a hearing at which Plaintiff was not present, again finding that the books violated the prison rule that was violated.
On November 5, 2014, Plaintiff asked Defendant Lane to notarize the claim for reimbursement from the state, as directed by the instructions on Form DTMB-1104. Lane refused to do so, because Plaintiff insisted on keeping the form in order to make a copy, as recommended in the instructions. Lane informed Plaintiff that she would only notarize documents being sent out of the facility. She suggested that Plaintiff go to the library to obtain service, but Unit Officer Milesi informed Lane that they could not do that. Plaintiff then filed a grievance against Lane for failing to follow MICH. DEP'T OF CORR., Policy Directives 03.020131 and 05.03.116, which purportedly required Lane to notarize documents on request. Defendant Wright assigned Grievance No. IBC 14-11-3143-17Z (Grievance 5) and denied the grievance at Step I on November 7, 2014.3 On December 4, 2014, Defendant Vroman denied the grievance at Step II, stating that Lane had senthim to the library for notarization and Plaintiff did not show that his 1104 form was not notarized or that he did not have a copy of the notarized form. (Ex. OO to Compl., docket #102, Page ID#72.) Plaintiff appealed to Step III on December 5, 2015.
Plaintiff sent a memo to Defendant Simpson on January 25, 2015, asking for an explanation of the policy regarding book orders. Simpson replied that she did not know who reviewed book orders prior to disbursement, but the orders had to be signed initially by a prisoner's ARUS. She also told Plaintiff that the order was audited to ensure that the proper amount of money was sent. Simpson also advised Plaintiff that "[a]ll books are subject to review and may be rejected." (Compl. ¶ QQ, docket #1, Page ID#14.)
On March 26, 2015, Plaintiff was transferred to the Kinross Correctional Facility (KCF), purportedly in violation of an MDOC memorandum signed by Dennis Dyke in 1993, providing that prisoners who had previously successfully completed a period of incarceration in the Upper Peninsula would not ordinarily be sent back, if they had no disciplinary problems. In 2002, Dyke reiterated the general policy. (Compl. ¶ SS, Page ID#14; Ex. 5 & 6 to Compl., docket #1-2, Page ID##102-03.) Plaintiff alleges that his transfer was the result of a conspiracy to retaliate against Plaintiff for filing grievances against Defendants Lane, Wright, McKee, and Trierweiler. When he arrived at KCF, he filed...
To continue reading
Request your trial