Uduko v. Cozzens

• Decision Date: 27 September 2013
• Docket Number: Case No. 11–13765.
• Citation: 975 F.Supp.2d 750
• Parties: Okechukwu UDUKO, Plaintiff, v. Stephen E. COZZENS, et al., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

975 F.Supp.2d 750

Okechukwu UDUKO, Plaintiff,

v.Stephen E. COZZENS, et al., Defendants.

Case No. 11–13765.

United States District Court,

E.D. Michigan,

Southern Division.

Sept. 27, 2013.

Okechukwu Uduko, Philipsburg, PA, pro se.

Lynn Marie Dodge, U.S. Attorney's Office, Detroit, MI, for Defendants.

OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND OVERRULING DEFENDANTS' AND PLAINTIFF'S OBJECTIONS

VICTORIA A. ROBERTS, District Judge.

I. INTRODUCTION

Okechukwu Uduko (“Uduko”) filed this pro se prisoner complaint alleging civil rights violations against Defendants. Uduko alleges fourteen separate causes of action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Religious Freedom Restoration Act of 1993 (“RFRA”), the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), as well as conspiracy under 42 U.S.C. §§ 1985(3) and 1986, based on a series of events from August 2008 through March 2010.

This case was referred to the Magistrate Judge for pretrial matters. Defendants Cozzens, Curtis, Aviles, Ellis, Brown, Cheatham, Toney, Duby, Dolber, Downing, Murdock, Bozeman, Gubbins, and Zych (“served Defendants”) filed a motion to dismiss. (Dkt. 52). Defendants Rick Smith, Michelle Doty, and Phillip Guittierrez filed their motions to dismiss joining, in the served Defendants' motion and adopting their arguments. (Dkt. 59 and 71, respectively).

The Magistrate Judge filed a Report and Recommendation (“R & R”) recommending that Defendants' motions to dismiss be granted in part and denied in part. The Court ADOPTS the R & R.

II. STATEMENT OF FACTS

The Magistrate Judge's R & R has a thorough and accurate account of the factual allegations in the Complaint. ( See Dkt. 96).

III. PROCEDURAL POSTURE

Uduko and Defendants each filed objections to the R & R. These objections are fully briefed.

IV. STANDARD OF REVIEWA. Motion to Dismiss

The Magistrate Judge's R & R is dispositive. The Court conducts a de novo review pursuant to 28 U.S.C. § 636(b)(1)(b). This Court may accept, reject, or modify, in whole or in part, the findings or recommendations to which objection is made. 28 U.S.C. § 636(b).

Federal Rule of Civil Procedure 12(b)(6) allows a defendant to file a motion to dismiss a plaintiff's complaint for failure to state a claim upon which relief may be granted. In order to survive a 12(b)(6) motion to dismiss, a plaintiff must satisfy the pleading requirements of Fed.R.Civ.P. 8(a)(2): requiring “ ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). While a complaint need not allege detailed factual allegations, a plaintiff is required to plead “more than labels and conclusions” and the facts must be sufficient enough to “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

Uduko filed his Complaint pro se. A pro se complaint is entitled to a liberal construction and “must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (citation omitted). The Court must assume the complaint's factual allegations to be true, but legal conclusions are to be disregarded. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The factual allegations must allow the Court to make a plausible inference that the Defendants are liable for their conduct. Id.

V. ANALYSISA. Uduko's Conspiracy Claims

1.) Count 1 ( Bivens conspiracy )

The Magistrate Judge recommends that the Bivens conspiracy claim in Count 1 be dismissed. Uduko alleges that Cozzens, Curtis, and Magulick conspired to retaliate and discriminate against Uduko because he protested the cancellation of the Protestant retreat and filed a complaint against Cozzens. The retaliation is described as recruiting inmate coconspirators to supply false allegations against Uduko which led to a false report and investigation. Uduko alleges he was sent to the Special Housing Unit (“SHU”) as a result.

In their motion to dismiss, Defendants argue that Uduko's conspiracy allegations are too vague and conclusory to state a claim. The Magistrate Judge rejected this argument, finding that Uduko satisfied the pleading requirements and Defendants failed to explain why or how Uduko's allegations are conclusory.

Defendants first object to the Magistrate Judge's finding that Uduko satisfied the pleading requirements for a Bivens conspiracy. They argue that it is just as plausible—if not more plausible—that inmates made false allegations against Uduko without any involvement of Cozzens, Curtis, or Magulick. Defendants contend that “where a complaint pleads facts that are ‘merely consistent’ with a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’ ” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.

But, Uduko not only alleges the conspiratorial objective and the overt acts taken in furtherance of that objective; he also alleges circumstantial facts which support the inference of a plausible conspiracy. Uduko alleges that Magulick failed to give him an Administrative Detention Order which details why he was placed in administrative detention, and why he was cleared of all allegations against him after he was removed. Failure to provide an Administrative Detention Order (an alleged violation of Federal Bureau of Prisons (“FBOP”) policy), coupled with the other allegations in Count 1, shows plausibility of a conspiracy sufficient to survive a motion to dismiss.

Defendants also argue Count 1 should be dismissed on statute of limitations grounds. The statute of limitations is an affirmative defense. Defendants did not raise this argument before the Magistrate Judge, either in their initial motions to dismiss or reply briefs. The Sixth Circuit holds that issues raised for the first time in objections to an R & R are deemed waived. “[W]hile the Magistrate Judge Act, 28 U.S.C. § 631 et seq., permits de novo review by the district court if timely objections are filed, ... it does not allow parties to raise at the district court stage new arguments or issues that were not presented to the magistrate.” Murr v. United States, 200 F.3d 895, 902 n. 1 (6th Cir.2000). Hence, Defendants' failure to raise their statute of limitations argument before the Magistrate Judge constitutes waiver.

The Court ADOPTS the R & R concerning Count 1.

2.) Count 13 ( Bivens conspiracy )

Uduko alleges that 19 Defendants conspired to retaliate and discriminate against him to deprive him of his constitutional rights because he filed complaints and grievances. He alleges their actions included restricting his “active” participation in religious acts of significance; removing and destroying 117 books from his locker; refusing to give him priority on the Unicor (prison employment) hiring list; writing several false incident reports; sanctioning his commissary; threatening to transfer him to the inside housing unit; removing personal items from his locker; falsifying visiting records; and, confiscating his “doo-rag.” ¹

The Magistrate Judge found that Uduko failed to allege sufficient facts to allow the Court to infer the existence of a conspiracy, and recommends that Uduko's Count 13 conspiracy claim be dismissed.

In his first objection, Uduko argues that the Magistrate Judge incorrectly analyzed Count 13 and applied a heightened pleadingrequirement, improperly requiring him to prove his conspiracy at the pleading stage. The Court agrees with the Magistrate Judge's finding regarding this claim.

To state a claim for a Bivens conspiracy, Uduko must allege an agreement between two or more persons acting in concert to deprive a person of his constitutional rights, and an overt act done in furtherance of the conspiracy causing injury. Hooks v. Hooks, 771 F.2d 935, 943–44 (6th Cir.1985). Uduko need not show an express agreement among all the conspirators. Id. Facts should include “which defendants conspired, how they conspired, and how the conspiracy led to a deprivation of constitutional rights[.]” Harris v. Roderick, 126 F.3d 1189, 1196 (9th Cir.1997).

The Magistrate Judge found that Uduko failed to plead a conspiracy with sufficient specificity and that his vague and conclusory allegations unsupported by facts are insufficient to state a claim. See Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir.1987). He also found that Uduko only alleged a series of acts by different Defendants and asserted that these acts were part of a conspiracy. The Court agrees.

The Court ADOPTS the R & R concerning Uduko's Bivens conspiracy claim in Count 13.

3.) Count 14(§ 1985(3) conspiracy)

Uduko alleges that over a two-year period, 19 Defendants conspired to retaliate and discriminate against him because of his race, religion, and national origin. The Magistrate Judge found that Uduko failed to allege facts to support the existence of a “single plan,” or that Defendants acted in concert to injure Uduko. In his objection, Uduko argues that he is only required to plead conspiracy, not prove it.

To state a claim for a § 1985(3) conspiracy, a plaintiff must show “(1) a conspiracy involving two or more persons (2) for the purpose of depriving, directly or indirectly, a person or class of persons of the equal protection of the laws and (3) an overt act in furtherance of the conspiracy (4) which causes injury to a person or property, or a deprivation of any right or privilege of a citizen of the United States.” Johnson v. Hills & Dales Gen. Hosp., 40 F.3d 837, 839 (6th Cir.1994). The plaintiff must also show that the conspiracy...