Morgan et al v. Cohen et al

Filing 29

ORDER of partial summary dismissal and directing service upon remaining defendants. Signed by District Judge Avern Cohn. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LOUIS MORGAN, et al.,
Plaintiffs,
CASE NO. 2:11-CV-11780
HONORABLE AVERN COHN

v.
ZIVIT COHEN, et al.,
Defendants.
/

ORDER OF PARTIAL SUMMARY DISMISSAL
AND DIRECTING SERVICE UPON REMAINING DEFENDANTS
I. Introduction
This is a prisoner civil rights case under 42 U.S.C. § 1983. The plaintiffs are five
Michigan prisoners currently confined at the Cotton Correctional Facility in Jackson,
Michigan, and nine Michigan prisoners currently confined at the Lakeland Correctional
Facility in Coldwater, Michigan. Plaintiffs allege that they have been denied proper
medical care and subject to retaliation while incarcerated. The named defendants are
25 Michigan Department of Corrections (“MDOC”) employees at the Cotton and
Lakeland facilities, a Prison Health Services employee, and Prison Health Services
(“PHS”). The Court has reviewed the complaint.1 For the reasons that follow, all of the
Plaintiffs except Herbert Helton will be dismissed and all of the defendants except those

1

The Court refers to the complaint as a whole but notes that the Plaintiffs have
basically prepared individual complaints, stapled them together, and filed them as one
action.

named in Helton’s complaint will be dismissed based upon misjoinder.2 In a separate
order, Helton’s application to proceed without prepayment of fees and costs will be
granted so that he may proceed without prepayment of the $350.00 filing fee for this
action. See 28 U.S.C. § 1915(a)(1). Helton’s complaint will proceed as explained
below.
II. Factual Allegations
Plaintiffs Herbert Helton, Jesse Swansbrough, Channing Thompson, Thomas
Owens, and David Beaudoin, are confined at the Cotton Correctional Facility. Plaintiff
Helton complains of spinal, hand, hip, leg, and foot pain and names MDOC employees
Zivit Cohen, E. Cody, and Larry McMillan, PHS employee Jeffery Stevie, and PHS as
defendants. Plaintiff Swansbrough is a diabetic who complains of leg and foot pain and
a broken toe and names the same defendants. Plaintiff Thompson has a colostomy,
intestinal obstructions, and pain and names the same defendants. Plaintiff Owens has
a heart condition, high blood pressure, and arthritis pain and names the same
defendants. Plaintiff Beaudoin is a diabetic who complains of foot pain and names
Cohn, Cody, Stevie, and PHS as defendants.
Plaintiffs Louis Morgan, Phillip Wayne Berryman, Jerry Talison, Al Lewis, Michael
Sones, Robert Richardson, Nawarrion Taylor, Edwin Huff, and James Varnado are
confined at the Lakeland Correctional Facility. Plaintiff Morgan complains of a left leg
infection and related right leg and back pain and names MDOC employees Cohen,
2

The dismissal is without prejudice to the filing of individual complaints. At this
time, the Court makes no determination as to the procedural or substantive merits of the
dismissed Plaintiffs’ claims or their applications to proceed without prepayment of the
filing fee.
2

Raymond Ingraham, Syed Sohial, and Connie Ives and PHS employee Stevie and PHS
as defendants. Phillip Wayne Berryman complains of spinal paralysis, cancer, heart
and esophageal problems, degenerative joint disease (“DJD”), and muscle deterioration
and names MDOC employees Cohn, Richard Cady, Vicki Carlson, K. Hamlin, Debra
Scutt, Diane Schwarz, Quincy Cooper, Corrections Officer King, Corrections Officer
Wilton, D. Cathcart, Ingraham, M. Lumbert, J. Prater, Assistant Deputy Warden Vest, J.
Morris, R. Mask, McMillan, Chris Langley, Ives, Adriane Neff, Michele Slick, Joe Barrett,
Sohial, and James VanSummeren and PHS as defendants. Plaintiff Talison complains
of Hepatitis C and left-side paralysis and names Sohial, Ingraham, Schwarz, and PHS
as defendants. Plaintiff Lewis complains of high blood pressure, nose bleeds,
peripheral arterial disease (“PAD”), and leg and foot pain and names the same
defendants. Plaintiff Sones complains of Hepatitis C, leg swelling and pain and names
the same defendants. Plaintiff Richardson complains of hips problems and leg and foot
pain and names the same defendants. Plaintiff Taylor is a diabetic and complains of
high blood pressure, vision problems, leg amputation and infection, and PAD and
names the same defendants. Plaintiff Huff is a diabetic who complains of eye and ear
infections and names Sohial, Ingraham, M. Marvin, Schwarz, and PHS as defendants.
Plaintiff Varnado complains about a spinal condition, pain, and his access to proper
equipment such as a wheelchair, back brace, and cane. He names Sohial, Ingraham,
Schwarz, Stevie, and PHS as defendants.
Each plaintiff alleges that his named defendants denied him proper medical care
and retaliated against him in violation of his constitutional rights. Each plaintiff sues his
named defendants in their individual and official capacities, and seeks declaratory and
3

injunctive relief, compensatory and punitive damages, and other appropriate relief.
III. Discussion
A. Misjoinder
The 14 plaintiffs in this action bring medical care and retaliation claims against 25
defendants. This implicates the issue of misjoinder. Fed. R. Civ. P. 21 provides this
Court with the authority to sua sponte dismiss or sever parties and claims in a civil
action due to misjoinder. Rule 21 provides:
Misjoinder of parties is not a ground for dismissing an action. On motion or
on its own, the court may at any time, on just terms, add or drop a party.
The court may also sever any claim against a party.
Fed. R. Civ. P. 21. See also Michaels Bldg. Co. v. Ameritrust Co., N.A., 848 F.2d 674,
682 (6th Cir. 1988) (“Parties may be dropped ... by order of the court ... of its own
initiative at any stage of the action and on such terms as are just.”); Coalition to Defend
Affirmative Action v. Regents of Univ. of Mich., 539 F. Supp. 2d 924, 940 (E.D. Mich.
2008).
The joinder of claims, parties, and remedies is “strongly encouraged” when
appropriate to further judicial economy and fairness. See United Mine Workers of
America v. Gibbs, 383 U.S. 715, 724 (1966). This does not mean, however, that parties
should be given free reign to join multiple plaintiffs and multiple defendants into a single
lawsuit when the claims are unrelated. See, e.g., Pruden v. SCI Camp Hill, 252 F.
App’x 436, 437 (3d Cir. 2007) (per curiam); George v. Smith, 507 F.3d 605, 607 (7th
Cir. 2007); Coughlin v. Rogers, 130 F.3d 1248, 1350 (9th Cir. 1997); Proctor v.
Applegate, 661 F. Supp. 2d 743, 778 (E.D. Mich. 2009) (adopting magistrate judge’s
report). This is particularly true when prisoners seek to join multiple plaintiffs in a single
4

lawsuit because the circumstances of confinement are not compatible with such
litigation. See Boretsky v. Corzine, No. 08-2265, 2008 WL 2512916, *5 (D.N.J. June
23, 2008) (collecting cases and noting difficulties such as the “need for each plaintiff to
sign every pleading, and the consequent possibilities that documents may be changed
as they are circulated, or that prisoners may seek to compel prison authorities to permit
them to gather to discuss the joint litigation”). Additionally, prisoners seeking to bring
civil rights actions challenging the conditions of their confinement have individual and
specific hurdles to overcome, such as venue, stating a valid claim for relief,
demonstrating exhaustion of administrative remedies, and complying with the applicable
statute of limitations, which makes multi-party litigation difficult. See Proctor, 661 F.
Supp. 2d at 756; Fisher v. Taylor, No. 10-3991 (RBK), 2010 WL 3259821, *3 (D.N.J.
Aug. 17, 2010) (stating that joinder may not be appropriate where a separate
determination is required to determine whether plaintiffs have complied with the
exhaustion requirement and citing cases). Prisoners should also not be allowed to
proceed with multiple plaintiff (or multiple defendant) litigation on unrelated claims in
order to circumvent the filing fee requirements for federal civil actions or the PLRA’s
three strikes provision. See, e.g., George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007);
Patton v. Jefferson Corr. Ctr., 136 F.3d 458, 464 (5th Cir. 1998).
Fed. R. Civ. P. 18 governs the joinder of claims and Fed. R. Civ. P. 20 governs
the permissive joinder of parties.3 Rule 18(a) provides: “A party asserting a claim ...
may join, as independent or alternative claims, as many claims as it has against an

3

Federal Rule of Civil Procedure 19 concerns the required joinder of parties and
is inapplicable to this case. See Fed. R. Civ. P. 19.
5

opposing party.” Rule 20(a)(1) addresses when multiple plaintiffs may bring a joint
action: “Persons may join in one action as plaintiffs if: (A) they assert any right to relief
jointly, severally, or in the alternative with respect to or arising out of the same
transaction, occurrence, or series of transactions or occurrences; and (B) any question
of law or fact common to all plaintiffs will arise in the action.” Rule 20(a)(2) addresses
when multiple defendants may be joined in one action. It similarly provides: “Persons
... may be joined in one action as defendants if: (A) any right to relief is asserted
against them jointly, severally, or in the alternative with respect to or arising out of the
same transaction, occurrence, or series of transactions or occurrences; and (B) any
question of law or fact common to all defendants will arise in the action.” When multiple
parties are named, the analysis under Rule 20 precedes that under Rule 18. See, e.g.,
Proctor v. Applegate, 661 F. Supp. 2d 743, 778 (E.D. Mich. 2009). Thus, when joining
either multiple plaintiffs or multiple defendants in a single action, the two-part test of
Rule 20(a)(1) or 20(a)(2) must be met.
Here, Plaintiffs have failed to meet the two-part test of Rule 20(a) for the joinder
of multiple plaintiffs. Their medical and retaliation claims do not arise out of the same
transaction, occurrence, or series of transactions or occurrences – such claims are
personal to them and involve distinct factual scenarios even though the applicable legal
standards may be the same. See Proctor, 661 F. Supp. 2d at 779 (finding claims
factually unrelated even though plaintiffs alleged that defendants subjected them to the
same or similar treatment); Catanzaro v. Michigan Dep’t of Corrections, No. 08-11173,
2009 WL 4250027, *13 (E.D. Mich. Nov. 19, 2009) (adopting magistrate judge’s report
finding that plaintiffs were mis-joined where they raised different claims and their
6

retaliation claims had different factual predicates); Harris v. Spellman, 150 F.R.D. 130,
132 (N.D. Ill. 1993) (similar procedural errors did not convert independent prison
disciplinary hearings into same transaction or occurrence). To be sure, consideration of
Plaintiffs’ individual medical care claims will entail review of their private medical
records, as well as their own prison documentation such as grievances. Additionally,
the complained of conduct occurred at different times (although distinct time frames
have not been set forth in the complaint) and at two different prisons – one located in
the Eastern District of Michigan and one located in the Western District of Michigan.
While some of Plaintiffs’ claims involve the same defendants, many of them involve
different defendants, and the grouping of defendants varies. Under these
circumstances, joinder of the multiple plaintiffs in this one civil rights action is
inappropriate.
The remaining question is whether severance or dismissal of the mis-joined
parties is warranted.4 As discussed supra, Rule 21 gives the Court discretion to invoke
either remedy “on just terms.” Several federal courts have interpreted “on just terms” to
mean “without gratuitous harm to the parties.” See Harris v. Gerth, No. 08-CV-12374,
2008 WL 5424134, *5 (E.D. Mich. Dec. 30, 2008) (citing cases). Given that no harm to
the parties is apparent from the record, that Plaintiffs may be concerned about being
responsible for the full filing fee rather than a portion thereof, and that venue for several
of the dismissed claims may lie in the Western District of Michigan, dismissal of the
multiple plaintiffs and their corresponding claims and defendants, rather than

4

Dismissal of the entire action for misjoinder is not permitted. See Fed. R. Civ. P.

21.
7

severance, is the more appropriate course of action.
Accordingly, plaintiffs Swansbrough, Thompson, Owens, Beaudoin, Morgan,
Berryman, Talison, Lewis, Sones, Richardson, Taylor, Huff, and Varnado will be
dismissed from this action and their claims will be dismissed without prejudice against
their named defendants. This leaves only Helton as a plaintiff.5 Review of his complaint
against defendants Cohen, Cody, McMillan, Stevie, and PHS is discussed below.
B. Helton’s Complaint
1.
Helton has been granted leave to proceed without the filing fee for this action. As
such, the Court is required to sua sponte dismiss an in forma pauperis complaint before
service if it determines that the action is frivolous or malicious, fails to state a claim upon
which relief can be granted, or seeks monetary relief against a defendant who is
immune from such relief. See 42 U.S.C. § 1997e(c); 28 U.S.C. § 1915(e)(2)(B). The
Court is similarly required to dismiss a complaint seeking redress against government
entities, officers, and employees which it finds to be frivolous or malicious, fails to state
a claim upon which relief may be granted, or seeks monetary relief from a defendant
who is immune from such relief. See 28 U.S.C. § 1915A. A complaint is frivolous if it
lacks an arguable basis either in law or in fact. See Denton v. Hernandez, 504 U.S. 25,
31 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Fed. R. Civ. P. 8(a) requires that a complaint set forth "a short and plain
statement of the claim showing that the pleader is entitled to relief," as well as "a
5

The Court retains Helton because he is the first named plaintiff for whom venue
is clearly proper in the Eastern District of Michigan.
8

demand for the relief sought." Fed. R. Civ. P. 8(a)(2), (3). The purpose of this rule is 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 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957) and Fed. R. Civ. P. 8(a)(2)). While this notice pleading
standard does require not require "detailed" factual allegations, it does require more
than the bare assertion of legal conclusions. Twombly, 550 U.S. at 555. Rule 8
"demands more than an unadorned, the defendant-unlawfully-harmed me accusation."
Ashcroft v. Iqbal, _ U.S. _, 129 S. Ct. 1937, 1949 (2009). "A pleading that offers ‘labels
and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not
do.'" Id. (quoting Twombly, 550 U.S. at 555). "Nor does a complaint suffice if it tenders
‘naked assertion[s]' devoid of ‘further factual enhancement.'" Iqbal, 129 S. Ct. at 1949
(quoting Twombly, 550 U.S. at 557).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that (1) he was
deprived of a right, privilege, or immunity secured by the federal Constitution or laws of
the United States; and (2) the deprivation was caused by a person acting under color of
state law. See Flagg Bros. v. Brooks, 436 U.S. 149, 155-57 (1978); Brock v.
McWherter, 94 F.3d 242, 244 (6th Cir. 1996). A pro se civil rights complaint is to be
construed liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
2.
Despite this liberal pleading standard, Helton’s retaliation claims against his
named defendants must be dismissed. To state a retaliation claim, a plaintiff must
allege: (1) that he engaged in protected conduct, (2) that an adverse action was taken
against him that would "deter a person of ordinary firmness from continuing to engage in
9

that conduct," and (3) that the adverse action was motivated by the protected conduct.
See Thaddeus-X v. Blatter, 175 F.3d 378, 395 (6th Cir. 1999) (en banc). The plaintiff
bears the burden of proof on all three elements. See Mt. Healthy, 429 U.S. at 287;
Smith v. Campbell, 250 F.3d 1032, 1038 (6th Cir. 2001).
Helton has not met this standard. He has failed to allege any facts which show
that the defendants denied him medical care or took any other adverse action based
upon his engagement in constitutionally protected conduct such as the filing of a
grievance. Conclusory allegations are insufficient to state a civil rights claim. See
Lanier v. Bryant, 332 F.3d 999, 1007 (6th Cir. 2003); see also Iqbal, 129 S. Ct. at
1948-49; Twombly, 550 U.S. at 555-57; Crawford-El v. Britton, 523 U.S. 574, 588
(1998). Helton has failed to state a retaliation claim under § 1983 in his complaint and
the claim must therefore be dismissed.
Additionally, Helton’s claims against McMillan must be dismissed because he has
failed to allege any facts demonstrating his personal in the events giving rise to his
complaint. It is well-settled that a civil rights plaintiff must allege the personal
involvement of a defendant to state a claim under 42 U.S.C. § 1983. See, e.g., Monell
v. Department of Social Svs., 436 U.S. 658, 691-92 (1978) (Section 1983 liability cannot
be based upon a theory of respondeat superior); Turner v. City of Taylor, 412 F.3d 629,
643) (6th Cir. 2005) (plaintiff must allege facts showing that defendant participated,
condoned, encouraged, or knowingly acquiesced in alleged misconduct to establish
liability). Helton has not done so with respect to McMillan. Any claim that McMillan
failed to properly supervise another employee, should be vicariously liable for the
employee’s action or inaction, erred in denying a grievance, and/or did not properly
10

respond to the situation is insufficient to state a claim under § 1983. See, e.g., Shehee
v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999); see also Martin v. Harvey, 14 F. App’x
307, 309 (6th Cir. 2001). Helton’s claims against McMillan must therefore be dismissed.
Finally, Helton’s claims against defendants Cohen, Stevie, Cody, and Prison
Health Services for the denial of medical care are not subject to summary dismissal.
See, e.g., Estelle v. Gamble, 429 U.S. 97, 104 (1976) (“deliberate indifference to
serious medical needs of prisoners constitutes the unnecessary and wanton infliction of
pain proscribed by the Eighth Amendment”); Terrance v. Northville Reg. Psychiatric
Hosp., 286 F.3d 834, 843 (6th Cir. 2002) (a plaintiff may establish deliberate
indifference by a showing of grossly inadequate medical care). Service upon those
defendants is therefore appropriate.
IV. Conclusion
For the reasons stated above, plaintiffs Swansbrough, Thompson, Beaudoin,
Owens, Morgan, Berryman, Talison, Lewis, Sones, Richardson, Huff, Varnado, and
Taylor (and their corresponding claims and defendants) have been mis-joined in this
action. Accordingly, plaintiffs Swansbrough, Thompson, Beaudoin, Owens, Morgan,
Berryman, Talison, Lewis, Sones, Richardson, Huff, Varnado, and Taylor are
DISMISSED from this action and their claims against their named defendants are
DISMISSED WITHOUT PREJUDICE.
As to Helton’s complaint, his retaliation claims and claims against McMillan are
DISMISSED under 28 U.S.C. §§ 1915(e)(2) and 1915A(b).
Helton's medical care claims against his remaining defendants, Cohen, Cody,
Stevie, and Prison Health Services, are not subject to summary dismissal. Accordingly,
11

the Court DIRECTS that a copy of the complaint and a copy of this order be served
upon defendants Cohen, Cody, Stevie, and Prison Health Services by the United States
Marshal without prepayment of costs.
SO ORDERED.

Dated: June 16, 2011

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was mailed to attached list on this
date, June 16, 2011, by electronic and/or ordinary mail.

S/Julie Owens
Case Manager, [phone]

12

11-11780 Morgan, et al v. Cohen, et al
Order of Partial Summary Dismissal
CERTIFICATE OF SERVICE
Louis Morgan, 141026
Lakeland Correctional Facility
141 First Street
Coldwater, MI 49036

Herbert Helton, 213835
G. Robert Cotton Correctional Facility
3500 N. Elm Road
Jackson, MI 49201

Philip Berryman, 107202
Lakeland Correctional Facility
141 First Street
Coldwater, MI 49036

Jesse Swansbrough, 489222
G. Robert Cotton Correctional Facility
3500 N. Elm Road
Jackson, MI 492010

Al Lewis, 150295
Lakeland Correctional Facility
141 First Street
Coldwater, MI 49036

James Varnado, 135330
Lakeland Correctional Facility
141 First Street
Coldwater, MI 49036

Channing Thompson, 275578
G. Robert Cotton Correctional Facility
3500 N. Elm Road
Jackson, MI 49201

David Beaudoin, 297868
G. Robert Cotton Correctional Facility
3500 N. Elm Road
Jackson, MI 49201

Jerry Talison, 119546
Lakeland Correctional Facility
141 First Street
Coldwater, MI 49036

Thomas Owens, 169150
G. Robert Cotton Correctional Facility
3500 N. Elm Road
Jackson, MI 49201

Robert Richardson, 123299
Lakeland Correctional Facility
141 First Street
Coldwater, MI 49036

Edwin Huff, 192724
Lakeland Correctional Facility
141 First Street
Coldwater, MI 49036

Michael Sones, 286044
Lakeland Correctional Facility
141 First Street
Coldwater, MI 49036

Nawarrion Taylor, 250160
Lakeland Correctional Facility
141 First Street
Coldwater, MI 49036

13