The opinion of the court was delivered by: Harold A. Baker United States District Judge
This cause is before the court for merit review of the plaintiff's complaint. The court is required by 28 U.S.C. §1915A to "screen" the plaintiff's complaint, and through such process to identify and dismiss any legally insufficient claim, or the entire action if warranted. A claim is legally insufficient if it "(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief."
The pro se plaintiff has filed his complaint pursuant to 42 U.S.C.§1983 against three correctional officers from the Pontiac Correctional Center: Michael Eaton, John Zook and Bruce Brand.
The plaintiff states that on January 29, 2008, he had just returned from Internal Affairs when Defendant Brand came to his cell and threatened him with "the game." (Comp, p. 3) The plaintiff says Brand then began to retaliate against him.
On February 26, 2008, the plaintiff says water flooded several cells. The plaintiff says when Defendant Brand took him from his cell he used excessive force against him. The plaintiff further claims that Officer Zook and Eaton watched the assault, but took no action. The plaintiff says Officer Brand then lied claiming the plaintiff had actually assaulted the officer. Defendant Brand then wrote a disciplinary report against the plaintiff. The plaintiff further alleges that all three defendants lied during the disciplinary hearing and during criminal proceedings based on the incident.
The court notes that the plaintiff has attached hundreds of pages of documents to his complaint including the initial incident reports and the investigative report and interviews. In addition, the plaintiff has attached the Adjustment Committee Report showing that the plaintiff was found guilty of disobeying a direct order and assaulting staff. The plaintiff lost one year of good time credits. Defendant Brand says he was attempting to handcuff the plaintiff so he could clean the plaintiff's cell. However, the plaintiff refused his repeated direct orders. Defendant Brand then says he called Sergeant Eaton who also ordered the plaintiff to cuff up and the plaintiff complied. When Decedent Brand started to escort the plaintiff out of the cell, the officers claim he turned and kicked Defendant Brand in the leg, causing both to fall to the floor.
The plaintiff was also charged with the criminal offense of Aggravated Battery. The plaintiff has attached the entire transcript of his jury trial demonstrating that he was found not guilty.
Based on these events, the plaintiff has divided his complaint into seven counts:
COUNT I: Eighth Amendment Cruel and Unusual Punishment: The plaintiff says the defendants "sadistically and maliciously lied" concerning the disciplinary report, the resulting investigation and criminal trial. (Comp, p. 5). The court notes that lying during a disciplinary procedure or criminal trial is not "cruel and unusual punishment" within the context of the Eighth Amendment. The court will assume the pro se plaintiff was attempting to claim the defendants violated his due process rights.
COUNT II: Malicious Prosecution: The plaintiff says the defendants initiated a criminal proceeding against him based on lies. The plaintiff says he was found not guilty during a jury trial. The court notes that malicious prosecution is a state law claim.
COUNT III: Retaliation. The plaintiff says Defendant Brand retaliated against him because he filed numerous grievances against him. The plaintiff says Brand harassed him, called him names, assaulted him, filed false disciplinary reports and lied during the criminal trial.
COUNT IV: Failure to Protect and Conspiracy. The plaintiff says Defendants Zook and Eaton failed to take any action when they saw Defendant Brand use excessive force against the plaintiff. The officers then lied about the event.
COUNT V; Excessive Force. The plaintiff says Defendant Brand used excessive force on February 26, 2008, when he ...