White v. Perron, 2:20-cv-247
| Decision Date | 30 August 2021 |
| Docket Number | 2:20-cv-247 |
| Parties | Valiant Leon White, Jr., Plaintiff, v. Unknown Perron 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. Rule 21 of the Federal Rules of Civil Procedure provides that, on motion by a party or on its own motion, the Court may at any time drop or add parties or sever a claim on grounds of misjoinder. Id. Applying that standard, the Court will drop Defendants Magahey, Gugin Manitowabi, Newcomb, Burke, Miller, and McLean from the action on grounds of misjoinder.
Further 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. § 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 for failure to state a claim all of Plaintiff's federal and state claims against Defendants Hemming and Bernhardt. The Court will also dismiss, for failure to state a claim, the following claims against the remaining Defendants: Plaintiff's due process, equal protection, and Eighth Amendment claims; Plaintiff's retaliation claim against Defendant Perron, based on the issuance of the out-of-place misconduct; and all of Plaintiff's state-law claims.
Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Chippewa Correctional Facility (URF) in Kincheloe, Chippewa County, Michigan. The events about which he complains occurred at that facility. Plaintiff sues the following URF officials: Correctional Officers Unknown Perron, Unknown Hemming, Unknown Behm, Unknown Bernhardt, Unknown Magahey, Unknown Gugin, Unknown Manitowabi, Sheri Newcomb, Unknown Burke, J. Miller, and M. McLean; and Hearings Investigator Unknown Durant.
Plaintiff makes several unrelated sets of allegations against various Defendants that occurred over the space of three years. The Court will discuss each in turn:
A. Defendants Perron, Bernhardt, Hemming, Behm & Durant
In his first set of allegations, Plaintiff states that, within the MDOC, formal count is conducted at 4:00 p.m., and mass movement is supposed to begin at 4:30 for food service, big yard, and the weight pit. Plaintiff complains, however, that URF, unlike other MDOC facilities, does not clear the count until 4:45 p.m., and mass movement cannot begin until after count has cleared.
On January 10, 2019, URF conducted an emergency mobilization that officially lasted from 2:25 p.m. to 2:52 p.m. However, Defendant Perron kept A-Unit locked down from 2:25 p.m. to 4:45 p.m., purportedly in order to punish prisoners. During this two-hour period, prisoners were not allowed to go to the bathroom. Plaintiff alleges that other units were allowed normal operations from 2:52 p.m. until 4:00 p.m., so they were allowed to use the bathrooms.
At approximately 4:40 p.m., Plaintiff told Defendant Perron that he had an emergency and needed to use the bathroom. Perron denied Plaintiff's request to use the bathroom. Plaintiff then threatened to write a grievance against Defendant Perron, alleging inhumane treatment. Defendant Perron allegedly responded, (Compl., ECF No. 1, PageID.6.) Perron wrote an out-of-place ticket against Plaintiff on January 11, 2019. Plaintiff claims the ticket violated prison policy permitting inmates to use the bathroom if it takes more than half an hour to clear count. Plaintiff acknowledges that he went to the bathroom after Defendant Perron denied him permission to do so. On January 15, 2019, Plaintiff was found guilty of the misconduct charge and was sanctioned to three days of toplock.
Plaintiff contends that the ticket amounted to adverse action for his protected conduct in threatening to file a grievance. Plaintiff alleges that Defendants Bernhardt and Hemming acted in collusion with Defendant Perron. He contends that, on January 11, he refused to attend Defendant Bernhardt's review of the ticket, which he alleges he was permitted to do under policy. When Defendant Perron saw that Plaintiff was refusing to attend, Perron identified Plaintiff to Defendant Hemming, a rookie officer, inducing Hemming to instruct Plaintiff to attend that hearing. Hemming spoke with Plaintiff, strongly encouraging him to attend, but Plaintiff refused, citing his right to do so under MDOC Policy Directive (PD) 03.03.105(H) and claiming that requiring him to do so was retaliatory in violation of MDOC PD 03.02.130(L). At that point, Defendant Perron stepped out of the prison counselor's office and told Defendant Hemming, “Go give Mr. White a Direct Order to Report to Annex to Sgt. Bernhardt for ticket review so that we can put him in the hole.” (Id., PageID.7.) Defendant Hemming went to Plaintiff's cubicle and stated, “C/O Perron and Sgt. Bernhardt told me to give you a DIRECT ORDER to report to the Annex for Ticket Review, or you're going to the hole.” (Id.) Plaintiff alleges that Defendant conspired with Defendants Perron and Hemming to order Plaintiff to the annex.
Plaintiff complied with the direct order and went to meet with Defendant Bernhardt. When he returned, Plaintiff asked Defendant Perron why he had told Defendant Hemming to issue a direct order in violation of policy. Perron responded that Plaintiff had written a grievance against him and that a direct order supersedes policy. Plaintiff alleges that officers at URF and Kinross Correctional Facility (KCF) routinely use threats of misconduct for failing to comply with direct orders and being out of place in order to retaliate against prisoners and punish them for filing grievances.
At the Warden's Forum meeting on February 13 and March 13, 2019, prisoner representative Jarvis attempted to raise the use of the improper practice by Defendants Perron, Hemming, and Bernhardt. Plaintiff complains that Administrative Assistant Robert Beaulieu (not a defendant) prevented the question being raised to the warden and thereafter to be on record in Lansing.
On February 14, Defendant Perron allegedly took adverse action against Plaintiff for his grievances against Defendants Perron, Bernhardt, Hemming, and Manitowabi and his threat to grieve Defendant Behm by instructing Defendant Behm to write a sexual misconduct charge against Plaintiff. Working with Perron, Defendant Behm allegedly prepared a false sexual misconduct charge against Plaintiff.
On February 22, Defendant Durant summoned Plaintiff's witnesses to the prisoner counselor's office. Durant removed two typewritten witness statements from the hearing package, forged his own handwritten statements, and forged the witnesses' signatures. Hearings Officer O'Brien found Plaintiff not guilty of the misconduct on March 1, 2019. (Misconduct Hr'g Rep., ECF No. 1-4, PageID.42.) Plaintiff requested a copy of his entire hearing packet, which Defendant Durant ignored. Plaintiff alleges that the failure to produce a copy of the hearing packet was retaliatory, violated Defendant Durant's duty, and denied Plaintiff access to the courts.
Plaintiff alleges that Defendants Perron, Bernhardt, Hemming, Behm, & Durant violated the First Amendment, the Equal Protection Clause, the Due Process Clause, prison policy, the employee handbook, and state laws concerning forgery, Mich. Comp. Laws § 750.248(1); conspiracy, Mich. Comp. Laws § 750.157a; ethnic intimidation, Mich. Comp. Laws § 750.147b; and discriminatory harassment, Mich. Comp. Laws § 4.363.
B. Defendants Magahey & Gugin
In his next set of allegations, Plaintiff complains that Defendant Magahey colluded with Defendant Gugin to retaliate against Plaintiff, commit forgery, and engage in ethnic intimidation and discriminatory harassment. Specifically, Plaintiff alleges that, on June 2, 2019, Defendant Gugin went in and out of the A-Unit bathrooms, looking over the stall partitions and allegedly harassing non-white prisoners. At approximately 1:20 p.m., Defendant Gugin opened the bathroom door and asked what Plaintiff was doing. Plaintiff stated that he was waiting for the bathroom, like prisoners always did, and asked why Defendant Gugin and other officers harassed African American prisoners by constantly entering the bathrooms. Plaintiff threatened to write a grievance. Twenty-five minutes later, Defendant Gugin stopped at Plaintiff's bunk, demanded Plaintiff's identification, and advised that, since Plaintiff wanted to complain, Gugin would give him something to complain about. Defendant Gugin apparently signed a false misconduct charge for covering the bathroom window. Plaintiff, however, alleges that Defendant Magahey both ordered Defendant Gugin to threaten Plaintiff and drafted the misconduct charge. Five hours later, 5 at about 7:00 p.m., Defendant Magahey called Plaintiff to the officer's desk to conduct a hearing on Defendant Gugin's false misconduct ticket. Plaintiff told Magahey that he was a biased reviewer, not permitted by policy to conduct the review, and that Plaintiff intended to file a grievance. Plaintiff informed Magahey that he intended to wait until Prisoner Counselor Himmel came in at 8:00 p.m in order to have his hearing. Because Magahey conducted the...
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