Kensu v. Rapelje et al

Filing 84

AMENDED ORDER GRANTING IN PART AND DENYING IN PART 57 MOTION to Dismiss. Signed by District Judge Victoria A. Roberts. (LVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TEMUJIN KENSU,
Plaintiff,
v.

Case No. 12-11877
Hon. Victoria A. Roberts

LLOYD RAPELJE WARDEN et al,
Defendants.
/

AMENDED ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION TO DISMISS (DOC. 57)
I. INTRODUCTION
Before the Court is a motion to dismiss, filed by certain Defendants: Prison
Health Services, Inc., Corizon, Inc., Joseph Burtch, Jeffrey Bomber, Joshua Buskirk,
Ramesh Kilaru, and Gina Couturier (collectively, “Corizon Defendants”).
This is a prisoner civil rights action. Temujin Kensu’s claims are grounded on
Defendants’ alleged failure to provide him with adequate medical treatment based on
his gluten and diary intolerance. The Corizon Defendants move the Court for dismissal
under Federal Rule of Civil Procedure 12(b)(6) based on: failure to exhaust
administrative remedies, the statute of limitations, and failure to state a claim.
The Court GRANTS IN PART and DENIES IN PART, holding: (A) Mr. Kensu has
not exhausted his administrative remedies against Burtch; (B) at this stage, it is not
apparent from Mr. Kensu’s complaint that his claims are time-barred; (C) the corporate

1

defendants cannot be vicariously liable for their employees’ acts; and (4) it is not evident
that dismissal of his injunctive relief claim is appropriate under a motion to dismiss.
II. BACKGROUND
Mr. Kensu is an inmate in the custody of the Michigan Department of Corrections
(“MDOC”). He is housed at Thumb Correctional Facility in Lapeer, Michigan. On April
26, 2012, Mr. Kensu filed this action against numerous defendants, essentially based on
their alleged failure to accommodate his gluten and dairy intolerance, give appropriate
medical treatment for his condition, and provide an adequate, special diet. He claims
Eighth and First Amendment violations, intentional infliction of emotional distress,
violation of the Americans with Disabilities Act, and discrimination based on handicap.
With the Court’s permission, Mr. Kensu filed a second amended complaint on
November 27, 2012. The complaint is extensive, and at times difficult to discern as to
which defendant any one of the 330 allegations relates. Mr. Kensu’s lawsuit is
bifurcated against groups of defendants. Relevant to this motion, the Corizon
Defendants are:
(A) Prison Health Services, Inc. (“PHS”) and Corizon, Inc. (“Corizon”)
(collectively, “Corizon Corporations”). PHS was a private corporation which was
under contract with the MDOC to provide inmate healthcare. PHS merged into
Corizon, which is a private corporation currently under contract with the MDOC to
provide medical services to inmates;
(B) Joseph Burtch, a medical professional who was employed by PHS;
(C) Joshua Buskirk and Ramesh Kilaru, medical professionals employed by the
Corizon Corporations; and
2

(D) Jeffrey Bomber and Gina Couturier, medical professionals who were
employed by the MDOC.
Relevant to this motion and specific to the Corizon Defendants, Mr. Kensu claims:
(1) Count I - Eighth Amendment violations against, inter alia, all Corizon
Defendants. Mr. Kensu alleges that the Corizon Defendants’ decision to withhold
adequate alternative food sources of protein, Vitamin D, calcium, and other vital
nutrients constituted deliberate indifference to his rights, in violation of the Eighth
Amendment’s right to be free from cruel and unusual punishment.
(2) Count II - Retaliation and First Amendment violation against, inter alia,
Buskirk, Bomber, Couturier, and Kilaru. Mr. Kensu alleges that these Defendants
retaliated against him because he filed grievances against them. He says his
grievances were First Amendment protected conduct.
(3) Count III - Intentional Infliction of Emotional Distress against all Corizon
Defendants. Mr. Kensu alleges the Corizon Defendants’ conduct was intentional
and amounts to extreme, outrageous conduct not to tolerated by civil society. He
says this conduct resulted in severe and serious emotional distress because he
was subjected to unjustified, abusive mistreatment and humiliation, and was
deprived of medical care and a meaningful administrative grievance process.
The Corizon Defendants filed this motion to dismiss under Rule 12(b)(6).
III. STANDARD OF REVIEW
A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the
complaint. RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir.
1996). “To survive a motion to dismiss, a complaint must contain sufficient factual
3

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
A claim is plausible on its face “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). This standard does not
“impose a probability requirement at the pleading stage; it simply calls for enough fact to
raise a reasonable expectation that discovery will reveal evidence of illegal [conduct].”
Twombly, 550 U.S. at 556. To determine whether the plaintiff has set forth a “plausible”
claim, the Court "must construe the complaint liberally in the plaintiff's favor and accept
as true all factual allegations and permissible inferences therein." Gazette v. City of
Pontiac, 41 F.3d 1061, 1064 (6th Cir. 1994).
A determination of whether a complaint sets forth a claim plausible on its face is
“a context-specific task that requires the reviewing court to draw on its experience and
common sense.” Id. at 663-664. The Court may consider the pleadings, the exhibits
attached to the complaint, and documents referred to in the complaint that are central to
the plaintiff’s claim. See Greenberg v. Life Ins. Co. of Va., 177 F.3d 507, 514 (6th Cir.
1999); Richmond Transp., Inc. v. Departmental Office of Civil Rights of U.S. Dept. of
Transp., 11-13771, 2012 WL 1229947 (E.D. Mich. Apr. 12, 2012).
IV. ANALYSIS
The Corizon Defendants say: (A) Mr. Kensu failed to exhaust his administrative
remedies; (B) the applicable statutes of limitations preclude Mr. Kensu’s claims for times
prior to three years before the filing of this action; (C) the Corizon Corporations are not
liable under respondeat superior for Mr. Kensu’s Eighth Amendment claim; and, (D)
4

they are entitled to dismissal of Mr. Kensu’s claim for injunctive relief.
A. Exhaustion of Administrative Remedies
The Corizon Defendants argue that under the Prison Litigation Reform Act, 42
U.S.C. § 1997e(a) (“PLRA”), a prisoner may not bring a § 1983 claim unless he has
exhausted all available administrative remedies. They say Mr. Kensu has not done so in
relation to Burtch, Kilaru, and Couturier, and, therefore, the claims against them should
be dismissed. They submit Mr. Kensu’s grievances in support.
Mr. Kensu argues that he exhausted his administrative remedies because his
grievances did not need to name an individual later sued. He says that for the purpose
of exhaustion a prisoner’s grievance which gave prison officials notice of the alleged
mistreatment is sufficient.
Section 1997e(a) requires exhaustion of administrative remedies prior to filing a
federal action related to prison conditions. 42 U.S.C. § 1997e(a). Proper exhaustion
requires “compliance with an agency's deadlines and other critical procedural rules.”
Woodford v. Ngo, 548 U.S. 81, 90 (2006). Failure to exhaust is an affirmative defense
that must be raised by a defendant, and on which such defendant bears the burden of
proof. Jones v. Block, 549 U.S. 199, 216 (2007). “[W[here the [defendant] has the
burden . . . on an affirmative defense his showing must be sufficient for the court to hold
that no reasonable trier of fact could find other than for [him].” Calderone v. United
States, 799 F.2d 254, 259 (6th Cir.1986). The relevant rules to determine whether a
plaintiff has properly exhausted his claim “are defined not by the PLRA, but by the
prison grievance process itself.” Id. at 200. In Michigan, prisoner grievances are
governed by MDOC Policy Directive 03.02.130:
5

[B]efore filing a written grievance, the prisoner must, within two days of
becoming aware of a grievable issue, attempt to resolve the issue with the
staff member involved. If not resolved, the prisoner may, within five days,
file a written Step One grievance. If dissatisfied with the Step One
response, the inmate may, within 10 days of receiving it, file a Step Two
appeal. If dissatisfied with the Step Two response, the inmate may file a
Step Three appeal, which completes the administrative process
sufficiently that he may proceed with a federal lawsuit regarding
exhausted issues. In addition to the timeliness requirement, Paragraph R
of the Policy Directive requires a grievant to specifically name the
individuals involved in the issue at Step One.”
Morris v. Newberry Corr. Facility, 11-10938, 2013 WL 865540 (E.D. Mich. Feb. 11,
2013) report and recommendation adopted, 11-CV-10938, 2013 WL 847520 (E.D. Mich.
Mar. 7, 2013).
Analysis of a request to dismiss based on a failure to exhaust administrative
remedies is not limited to a determination of whether Mr. Kensu has stated a claim on
the face of the complaint, or matters solely in the complaint, and dismissal is without
prejudice and will not count as a “strike” under 28 U.S.C. § 1915(g). See Morris v.
Newberry Corr. Facility, 11-10938, 2013 WL 865540 (E.D. Mich. Feb. 11, 2013) report
and recommendation adopted, 11-CV-10938, 2013 WL 847520 (E.D. Mich. Mar. 7,
2013).
In his complaint, Mr. Kensu identifies grievances he submitted from June, 2009,
to June, 2012. Mr. Kensu says three grievances prove exhaustion:
(1) SRF 2011/07/0999/12E1 exhaustion as to Burtch, Couturier, and Kilaru; and
(2) TCF-12-04-01065-012-H and RCF-12-07-01187-028-A exhaustion as to
Couturier and Kilaru. These grievances were filed subsequent to his original
complaint but prior to his second amendment complaint.
1. SRF 2011/07/0999/12E1
6

The Corizon Defendants say that SRF 2011/07/099/12E1 exhausted Mr. Kensu’s
claims only against Bomber and Buskirk because they were the only Corizon
Defendants specifically named in the grievance. Mr. Kensu says that he was not
required to name Burtch, Couturier, and Kilaru because his reference to “MDOC/PHS
Medical Staff” in the grievance put them on notice of the basis for his claim.
Although a failure to name a specific individual in a grievance may not always
render exhaustion inadequate, Jones v. Bock, 549 U.S. 199, 219 (2007), especially
where the grievance is addressed on the merits and not rejected as unduly vague,
Abbruzzino v. Hutchinson, 08-CV-11534, 2009 WL 799245 (E.D. Mich. Mar. 24, 2009),
a plaintiff fails to exhaust administrative remedies as to a particular defendant not
identified in the grievance if the plaintiff specifically identifies other defendants by name
and nothing in the grievance would put the unnamed defendants on notice. Walls v.
O'Connor, 12-11874, 2013 WL 572449 (E.D. Mich. Jan. 22, 2013) report and
recommendation adopted, 12-CV-11874, 2013 WL 571752 (E.D. Mich. Feb. 13, 2013).
SRF 2011/07/099/12E1 did not exhaust as to Burtch, Couturier, or Kilaru
because Mr. Kensu specifically names Bomber and Buskirk--among other non-corizon
Defendants--after a reference to “Named MDOC/PHS Staff.” This grievance is
insufficient to put Burtch, Couturier, and Kilaru on notice of Mr. Kensu’s claims.
2. TCF-12-04-01065-012-H and RCF-12-07-01187-028-A
The Corizon Defendants say that these grievances were submitted and allegedly
exhausted after Mr. Kensu filed his original complaint and, thus, cannot satisfy the
PLRA’s exhaustion requirement. Hence, they do not specifically address TCF-12-0401065-012-H and RCF-12-07-01187-028-A.
7

Although completing the grievance process after filing suit does not satisfy the
PLRA’s exhaustion requirement, Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999),
asserting newly exhausted claims in an amended pleading does not contravene the
PLRA’s exhaustion requirement. See Rhodes v. Robinson, 621 F.3d 1002, 1006-07 (9th
Cir. 2010); Smith v. Olsen, 455 F. App’x 513, 515-16 (5th Cir. 2011); Cannon v.
Washington, 418 F.3d 714, 719 (7th Cir. 2005); Robbins v. Payne, 11-15140, 2012 WL
4812495 (E.D. Mich. Oct. 10, 2012). The Court cannot dismiss the claims pertaining to
these grievances because the Corizon Defendants fail to address them and do not meet
their burden to prove failure to exhaust.
The Court declines to dismiss for failure to exhaust against Couturier and Kilaru
on TCF-12-04-01065-012-H and RCF-12-07-01187-028-A, but will dismiss the claim
against Burtch for failure to exhaust on SRF 2011/07/099/12E1.
B. Statute of Limitations
The Corizon Defendants say the statute of limitations for each of the claims
against them is three years and that they are entitled to partial dismissal of Mr. Kensu’s
claims for occurrences prior to April 26, 2009--three years prior to the filing of Mr.
Kensu’s original complaint.
Mr. Kensu says that the statute of limitations in a prisoner initiated § 1983 action
is tolled while a plaintiff exhausts available state remedies.
Generally, a motion to dismiss under Rule 12(b)(6) is not an appropriate vehicle
to raise an affirmative defense such as the statute of limitations because a plaintiff is not
required to "anticipate and attempt to plead around all potential defenses” and
“[c]omplaints need not contain any information about defenses and may not be
8

dismissed for that omission." Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899,
901 (7th Cir. 2004). Nonetheless, the Sixth Circuit has held that a plaintiff may have an
obligation to plead tolling or facts in avoidance of the statute of limitations defense when
it is apparent from the face of the complaint that the time limit for bringing the claim has
expired. See Bishop v. Lucent Techs., Inc., 520 F.3d 516, 518 (6th Cir. 2008). A motion
to dismiss on statute of limitations grounds should be granted “when the statement of
the claim affirmatively shows that the plaintiff can prove no set of facts that would entitle
him to relief." New Eng. Health Care Employees Pension Fund v. Ernst & Young, LLP,
336 F.3d 495, 501 (6th Cir. 2003) (emphasis in original) (internal quotation marks
omitted).
Mr. Kensu alleges that since March 1, 2001, he submitted requests for medical
attention for his bowel problems; this is the only date which the Court is able to identify
as relevant to a statute of limitations defense. Nonetheless, construing the allegations
liberally in Mr. Kensu’s favor, it is not apparent from the face of the complaint the
precise dates when the injuries upon which his claims are based occurred, or when he
became aware of those injuries.
In addition, even if the date when the statute of limitations for Mr. Kensu’s § 1983
claims began to run was clear, the statute of limitations for claims subject to the PLRA is
tolled while a plaintiff exhausts administrative remedies. Surles v. Andison, 678 F.3d
452, 458 (6th Cir. 2012). Mr. Kensu alleges that he invoked the MDOC grievance
process numerous times.
The Court is not convinced that, from the face of the complaint, Mr. Kensu’s
claims are affirmatively time-barred.
9

C. Eighth Amendment claims against the Corizon Corporations
The Corizon Defendants argue that the Corizon Corporations are entitled to
dismissal of Mr. Kensu’s Eighth Amendment claim in Count One because they are not
liable under the theory of respondeat superior, and Mr. Kensu has not pled a specific
violation pursuant to policy, custom, and usage against them.
Mr. Kensu argues that because the Corizon Corporations are not public
municipalities, he is not required to allege a specific violation pursuant to policy, custom,
or usage. Nonetheless, he also says that even under that standard his allegations are
sufficient because he alleges informal decisions made on behalf of the Corizon
Corporations.
For a valid § 1983 claim, a plaintiff must allege that he was deprived of a right
secured by the Constitution or laws of the United States and that such deprivation was
done by a person acting under color of law. See Searcy v. City of Dayton, 38 F.3d 282,
286 (6th Cir.1994). A governmental entity may be held liable under § 1983 if the
governmental entity itself caused the constitutional deprivation. See id. (citing Monell v.
Department of Social Servs., 436 U.S. 658, 690 (1978). Liability in a § 1983 action
cannot be based on a theory of respondeat superior. Id. “It is only when the ‘execution
of the government's policy or custom ... inflicts the injury’ that the municipality may be
held liable under § 1983.” Id. (quoting City of Canton v. Harris, 489 U.S. 378, 385 (1989)
(internal quotation marks omitted). A custom is a practice “that has not been formally
approved by an appropriate decisionmaker,” but is “so widespread as to have the force
of law.” Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404 (1997).
Moreover, the policy or custom “must be the moving force of the constitutional violation
10

in order to establish the liability of a government body under § 1983.” Searcy, 38 F.3d at
286 (internal quotation marks omitted).
A private entity which contracts with the state to perform a traditional state
function like providing healthcare to inmates--like the Corizon Corporations--can “be
sued under § 1983 as one acting ‘under color of state law.’” Hicks v. Frey, 992 F.2d
1450, 1458 (6th Cir. 1993) (quoting West v. Atkins, 487 U.S. 42, 54 (1988)). The
requirements for a valid § 1983 claim against a municipality apply equally to private
corporations that are deemed state actors for purposes of § 1983. See Starcher v. Corr.
Med. Sys., Inc., 7 F. App'x 459, 465 (6th Cir. 2001) (recognizing that the holding in
Monell has been extended to private corporations); Street v. Corrections Corp. of Am.,
102 F.3d 810, 817–18 (6th Cir. 1996) (same); Rojas v. Alexander's Dept. Store, Inc.,
924 F.2d 406, 409 (2d Cir. 1990) (same); Cox v. Jackson, 579 F. Supp. 2d 831, 851-52
(E.D. Mich. 2008) (same).
Mr. Kensu does not allege that the Corizon Corporations themselves violated his
Eighth Amendment rights; rather, his allegations revolve around the Corizon
Corporations’ employees. Although the Corizon Corporations may be sued for an Eighth
Amendment violation under § 1983, Mr. Kensu has not alleged an official policy or
custom, or that any policy or custom was the moving force behind the Corizon
Corporations employees’ violations of Mr. Kensu’s Eighth Amendment rights. The
Corizon Corporations cannot be vicariously liable for their employees’ acts.
The allegations in Count One are insufficient to state a claim against the Corizon
Corporations, and the Court dismisses that count against them.
D. Mr. Kensu’s claim for injunctive relief
11

The Corizon Defendants argue that Mr. Kensu’s claim for injunctive relief should
be dismissed because he has not demonstrated entitlement to such relief. Specifically,
they say an injunction would be against the public interest and that Mr. Kensu has not
alleged irreparable injury or demonstrated that there is no adequate remedy at law.
Mr. Kensu asks for injunctive relief in his complaint, but does not seek it through
a motion for a temporary restraining order or a preliminary injunction. Mr. Kensu’s
injunctive relief request is for a remedy to be determined once liability has been
established. The Corizon Defendants’ do not present authority that would allow the
Court to dismiss Mr. Kensu’s request for injunctive relief at this stage; their request is
premature. See Friends of Frederick Seig Grove # 94 v. Sonoma County Water Agency,
124 F. Supp. 2d 1161, 1172 (N.D. Cal. 2000) (“While the Court may ultimately agree
with the defendants that injunctive relief is inappropriate, it is by no means evident that
the Court can reach such a determination on a motion to dismiss.”); see also Zepeda v.
Tate, CV 1:07-0982-SMM, 2010 WL 4977596 (E.D. Cal. Dec. 2, 2010).
The Court denies the Corizon Defendants’ request to dismiss Mr. Kensu’s claim
for injunctive relief.
V. CONCLUSION
The Court:
(1) GRANTS dismissal of Mr. Kensu’s claims against Burtch;
(2) DENIES dismissal of Mr. Kensu’s claims against Kilaru and Couturier;
(3) DENIES dismissal of Mr. Kensu’s claims prior to April 26, 2009;
(4) GRANTS dismissal of Count One against PHS and Corizon; and

12

(5) DENIES dismissal of Mr. Kensu’s request for injunctive relief.
In recognition of the implications of dismissal for failure to exhaust and their
effect on judicial economy, as well as the strong likelihood of refiling here, the Court
exercises its discretion and STAYS this case until Mr Kensu:
(A) Files his grievances within 30 days of April 18, 2013--the day the Court
entered this order in its original version--and notifies the Court within 30 days of the
completion of the grievance process; or
(B) Represents to the Court that he will drop unexhausted claims.
See Landis v. North American. Co., 299 U.S. 248, 254 (1936).
IT IS ORDERED.
S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: April 25, 2013
The undersigned certifies that a copy of this
document was served on the attorneys of
record by electronic means or U.S. Mail on
April 25, 2013.
S/Linda Vertriest
Deputy Clerk

13