August v. Caruso et al

Filing 6

OPINION AND ORDER OF PARTIAL SUMMARY DISMISSAL, DIRECTING SERVICE UPON REMAINING DEFENDANTS AND granting 5 Motion to Amend/Correct. Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TRACY J. AUGUST,
Plaintiff,
v.

Civil Action No. 2:12-cv-13775
Honorable Patrick J. Duggan

PATRICIA CARUSO, DANIEL HEYNS,
MILLICENT WARREN, MS. VALLIE,
MS. L. WILLIAMS, MS. PERRY, MS.
TAYLOR, SERGEANT KAMIN, SERGEANT
MARGOLIC, SERGEANT GODFREY,
OFFICER RATLIFF, DR. TIMOTHY KANGAS,
DANIEL LA FRAMBOISE, MS. WRIGHT,
MS. FREISS, TAMIKA WOODS, DR. LACY,
DR. SZYMANSKI, DR. QIN, DR. ONUIGBO,
LANA MCCARTHY, RN HAMMOND, and
RN TUCKER,
Defendants.
_____________________________________________/
OPINION AND ORDER OF PARTIAL SUMMARY
DISMISSAL, DIRECTING SERVICE UPON REMAINING
DEFENDANTS, AND GRANTING MOTION TO AMEND COMPLAINT
This is a pro se civil rights action filed by a state prisoner under 42 U.S.C. § 1983.
Plaintiff Tracy J. August is a state inmate currently incarcerated by the Michigan
Department of Corrections (“MDOC”) at the Huron Valley Women’s Complex in
Ypsilanti, Michigan, where she is serving a sentence of nine to twenty-two years for an
unarmed robbery conviction. Plaintiff filed her civil rights Complaint on August 27,
2012, alleging that the above-named Defendants failed to provide her with proper medical
care for her left shoulder that was injured while she was assisting the staff, namely
Officer Ratliff, with another prisoner’s apparent seizure. Defendants are either medical
personnel or administrators employed by the MDOC and are working either in Lansing,

Michigan or the facility where Plaintiff is housed in Ypsilanti, Michigan. Plaintiff is
suing Defendants in their personal and official capacities and is seeking declaratory and
injunctive relief as well as monetary damages. The Court has granted Plaintiff leave to
proceed without prepayment of the fees and costs for this action. See 28 U.S.C.
§ 1915(a)(1). On September 13, 2012, Plaintiff also filed a motion seeking to amend her
Complaint.
Factual Background
In her Complaint, Plaintiff alleges that she sustained a severe left-shoulder injury,
on August 25, 2009, while housed at the Women’s Huron Valley Complex. She states
that, as she was being released from her cell for recreation time, she noticed that another
inmate, Jenks, was having a seizure. Plaintiff claims Officer Ratliff yelled to her to come
and assist her. Jenks was “swinging her arms violently, snapping her teeth, rolling her
eyes into the back of her head, and spinning around incoherently.” (Pl.’s Compl. ¶ 29.)
Plaintiff states that Officer Ratliff told her to sit Jenks down. (Id. ¶ 30-32.) Plaintiff
complied and, as she was attempting to help, Jenks threw her body backward, pinning
Plaintiff between the stair railing and Jenks’ body. (Id. ¶ 33.) Plaintiff states that she was
unable to move her left shoulder afterward. (Id. ¶ 36.) Plaintiff contends that Officer
Ratliff knew that it was “improper” and “unreasonable” to ask her for assistance because
she knew that Jenks had violent seizures. (Id.) She also states that Officer Ratliff refused
to get her medical attention after she was injured. (Id.) Because of the incident, Plaintiff
filed a grievance against Officer Ratliff, claiming that Officer Ratliff behaved in a

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threatening manner, was unprofessional, harbored hostility toward her, and had great
disregard for her and the other inmates. (Id. ¶ 37.) Plaintiff contends that her grievance
was not dealt with in a timely fashion.
Three days after the incident, health care called out Plaintiff for an evaluation of
her shoulder. Plaintiff saw the nurse, Lana McCarthy, who examined her left shoulder.
Nurse McCarthy told Plaintiff that she might have a torn rotator cuff and referred her to
the doctor. (Id. ¶ 54.) Nurse McCarthy put Plaintiff’s left arm in a sling, gave her
medication for the pain, told her to use an ice pack, not to lift, push, or pull with her left
arm, and put her on light duty for about two weeks. (Id.)
Subsequently, on September 5, 2009, Plaintiff was seen by a physician’s assistant,
Savithri Kakani, who told her to continue with the medication. (Id. ¶ 58.) Plaintiff
requested an x-ray and MRI, but neither was ordered at that time. (Id.) Plaintiff then
filed a grievance against the Healthcare Unit, alleging the failure to give her proper
medical attention. (Id. ¶ 59.)
Plaintiff also alleges that Officer Ratliff continued to threaten and harass her after
the incident. (Pl.’s Compl. ¶ 61.) She states that she has a long history of mental
disorders stemming from her childhood, which include physical and sexual abuse, and
that Officer Ratliff’s behavior exacerbated her mental conditions, placed her in fear for
her safety, and caused her to suffer nightmares, loss of appetite, loss of sleep, and
increased anxiety. (Id. ¶¶ 64-65.) Plaintiff states that she has filed several grievances
against Officer Ratliff, without success. She also claims that Officer Ratliff retaliated

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against her by firing her from her porter job. (Id. ¶¶ 70-71.) She also filed grievances
with respect to the alleged retaliation.
Since the initial incident, and over the last three years, Plaintiff has been seen by
several nurses and doctors regarding her left-shoulder pain. An x-ray showed that she has
some arthritic changes in her left shoulder. She states that she continues to have pain and
discomfort. The medical staff continues to prescribe medication. She continues to file
grievances. Plaintiff has not attached any copies of her grievances or medical records to
her Complaint. Rather, she has attached her affidavit and affidavits and statements from
five prisoners with respect to the initial incident.
Applicable Law
Federal Rule of Civil Procedure 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 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, 127 S.Ct. 1955, 1964 (2007)
(citation omitted). While this notice pleading standard does not require “detailed” factual
allegations, it does require more than the bare assertion of legal conclusions. Twombly,
550 U.S. at 555, 127 S.Ct. at 1964-65 (citations omitted). Rule 8 “demands more than an
unadorned, the defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S.
662, 678, 129 S.Ct. 1937, 1949 (2009) (citations omitted). “A pleading that offers ‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not

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do.’” Id. (quoting Twombly, 550 U.S. at 555, 127 S.Ct. at 1955). “Nor does a complaint
suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal,
556 U.S. at 678, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 557, 127 S.Ct. at 1955).
Under the Prison Litigation Reform Act of 1996 (“PLRA”), the court is required
to sua sponte dismiss an in forma pauperis complaint before service on a defendant if it
determines that the action 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. §§ 1915(e)(2)(B); 42 U.S.C. § 1997e(c). The court must read the plaintiff’s pro se
complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595
(1972), and accept the plaintiff’s allegations as true, unless they are clearly irrational or
wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 1733 (1992).
“To state a claim under § 1983, a plaintiff must set forth facts that, when construed
favorably, establish: 1) the deprivation of a right secured by the Constitution or laws of
the United States; 2) caused by a person acting under the color of state law.” Harris v.
Circleville, 583 F.3d 356, 364 (6th Cir. 2009) (citing Dominguez v. Corr. Med. Serv., 555
F.3d 543, 549 (6th Cir. 2009)). Because § 1983 is a method for vindicating federal rights,
not a source of substantive rights itself, the first step in an action under the statute is to
identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S.
266, 271, 114 S.Ct. 807, 811 (1994).
In this case, despite the liberal pleading standard, the Court finds that a portion of
Plaintiff’s complaint is subject to summary dismissal.

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Analysis
Plaintiff’s claims against Defendants Caruso, Heyns, Warren, Vallie, Williams,
Perry, Taylor, Kamin, Margolic, Godrey, Kangas, Framboise, Wright, and Freiss must be
dismissed. First, Plaintiff has failed to allege facts demonstrating the personal
involvement of these Defendants in the alleged denial of medical care. 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. Dep’t of Soc. Serv., 436 U.S. 658,
691-92, 98 S.Ct. 2018, (1978) (holding that § 1983 liability cannot be based upon a
theory of respondeat superior); Taylor v. Michigan Dep’t of Corr., 69 F.3d 716, 727-28
(6th Cir. 1995) (explaining that a plaintiff must allege facts showing that the defendant
participated, condoned, encouraged, or knowingly acquiesced in alleged misconduct to
establish liability). Plaintiff has not done so with respect to these Defendants. Any
assertion that these Defendants failed to supervise another employee, should be
vicariously liable for another employee’s conduct, erred in denying Plaintiff’s complaints
or grievances, and did not properly respond to alleged misconduct by another official 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) (same).
Plaintiff also has not alleged facts showing that any injury she suffered is the result of any
policy or regulation, or that any improper conduct arose from the deliberate failure to
adequately investigate, train, or supervise employees. See Ellis v. Cleveland Mun. Sch.
Dist., 455 F.3d 690, 700 (6th Cir. 2006) (setting forth three-part test for such claims).

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Second, to the extent that Plaintiff alleges a due process violation with respect to
her grievances, her claim fails. It is well-settled that a Michigan prisoner does not have a
due process right to an inmate grievance procedure or the right to an effective procedure.
See Walker v. Michigan Dep’t of Corr., 128 F. App’x 441, 445 (6th Cir. 2005); Argue v.
Hofmeyer, 80 F. App’x 427, 430 (6th Cir. 2003) (citing cases). Michigan law does not
create a liberty interest in the grievance process. See Olim v. Wakinekona, 461 U.S. 238,
249, 103 S.Ct. 1741, 1747 (1983); Wynn v. Wolf, No. 93-2411, 1994 WL 105907, at *1
(6th Cir. Mar. 28, 1994). Thus, to the extent that Plaintiff is dissatisfied with Defendants’
responses to her complaints or grievances, she fails to state a claim upon which relief may
be granted. See Carlton v. Jondreau, 76 F. App’x 642, 644 (6th Cir. 2003) (holding that
the prisoner failed to state a claim based upon the defendant’s failure to investigate a
grievance).
As such, Plaintiff’s claims against Defendants Caruso, Heyns, Warren, Vallie,
Williams, Perry, Taylor, Kamin, Margolic, Godrey, Kangas, Framboise, Wright, and
Freiss must be dismissed.
Plaintiff’s claims against Defendants Ratliff, Woods, McCarthy, Hammond, Lacy,
Szymanski, Qin, Onuigbo, and Tucker for the denial of medical are not subject to
summary dismissal. See Hudson v. McMillan, 503 U.S. 1, 5, 112 S.Ct. 995, 998 (1992)
(confirming that the “unnecessary and wanton infliction of pain . . . constitutes cruel and
unusual punishment forbidden by the Eighth Amendment.”) (citations omitted); Estelle v.
Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 291 (1976) (ruling that “deliberate

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indifference to serious medical needs of prisoners constitutes the unnecessary and wanton
infliction of pain proscribed by the Eighth Amendment”) (citation omitted). While
Plaintiff may or may not ultimately prevail on her claims, she nevertheless has pled
sufficient facts to state such claims. Service of the medical care claims upon Defendants
Woods, McCarthy, Hammond, Lacy, Szymanski, Qin, Onuigbo, and Tucker therefore is
appropriate.
Additionally, Plaintiff’s assertion that Defendant Ratliff retaliated against her for
her complaints and grievances filed with regard to her medical care is not subject to
summary dismissal. Plaintiff specifically states that Officer Ratliff retaliated against her
for filing a grievance by firing her from her porter job. (Pl.’s Compl. ¶¶ 70-71.)
Retaliation based upon a prisoner’s exercise of his or her constitutional rights violates the
Constitution. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999). The filing of
a prison grievance is constitutionally protected conduct for which a prisoner cannot be
subjected to retaliation. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001).
The Court finds that Plaintiff has alleged sufficient facts demonstrating that the alleged
adverse action taken by Officer Ratliff (i.e., taking Plaintiff off of her porter job) may
have been in retaliation to her filing grievances against him. Service upon Defendant
Ratliff, in this regard, is appropriate.
Finally, the Court is granting Plaintiff’s motion to amend her Complaint.
Generally, the Court does not permit a plaintiff to amend a complaint in order to defeat
summary dismissal. See Baxter v. Rose, 305 F.3d 486, 488-89 (6th Cir. 2002) (citation

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omitted). In this case, however, Plaintiff is requesting to add 42 U.S.C. § 1997e(e) to her
law cites, to add information regarding her most recent grievance, and to amend the
injunctive relief requested. Because Plaintiff’s amendments apply to those Defendants
that are not being dismissed and because a responsive pleading has not yet been ordered,
the Court finds that she should be permitted to amend her Complaint. Under the Federal
Rules of Civil Procedure, a party may amend his or her pleadings once as a matter of
course at any time before a responsive pleading is served. See Fed. R. Civ. P. 15(a).
Accordingly, the Court grants Plaintiff’s motion to amend her Complaint. The
information Plaintiff submitted with her motion shall be considered as part of her
Complaint.
For the above reasons,
IT IS ORDERED, that Plaintiff’s claims against Defendants Caruso, Heyns,
Warren, Vallie, Williams, Perry, Taylor, Kamin, Margolic, Godrey, Kangas, Framboise,
Wright, and Freiss are DISMISSED WITH PREJUDICE pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915A(b) because she fails to state a claim upon which relief may be
granted against those Defendants. Defendants Caruso, Heyns, Warren, Vallie, Williams,
Perry, Taylor, Kamin, Margolic, Godfrey, Kangas, Framboise, Wright, and Freiss are
DISMISSED AS DEFENDANTS;
IT IS FURTHER ORDERED, that Plaintiff’s medical care claims against
Defendants Ratliff, Woods, McCarthy, Hammond, Lacy, Szymanski, Qin, Onuigbo, and
Tucker and her retaliation claim against Defendant Ratliff are not subject to summary

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dismissal. The Clerk of the Court shall direct the United States Marshal to serve a copy
of Plaintiff’s Complaint and a copy of this Order without prepayment of costs upon those
Defendants;
IT IS FURTHER ORDERED, that Plaintiff’s motion to amend [ECF No. 5] is
GRANTED;
IT IS FURTHER ORDERED, that the Court concludes that an appeal from this
order would be frivolous and cannot be taken in good faith. See 28 U.S.C. § 1915(a)(3);
McGore v. Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir. 1997).
Dated:January 8, 2013

s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE

Copy to:
Tracy J. August, #714643
Huron Valley Women’s Correctional Facility
3201 Bemis Road
Ypsilanti, MI 48197

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