Haney v. Fifth Eastern District Police Department et al

Filing 4

OPINION and ORDER of Partial Summary Dismissal and Requiring Plaintiff to Provide Defendants' Names (within 45 days). J Foster, Errol Franklin, Greenleaf (Lieutenant), Jeffrey Jones, Demereal Mercer, Diana Pessina, C Rogers, Johnell White, Fifth Eastern District Police Department and J Fisher terminated. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DAVID M. HANEY,
CASE NO. 12-cv-14684
Plaintiff,
HONORABLE GEORGE CARAM STEEH
v.
5TH EASTERN DISTRICT
POLICE DEPARTMENT, et al.,
Defendants.
/
OPINION AND ORDER OF PARTIAL SUMMARY DISMISSAL
AND REQUIRING PLAINTIFF TO PROVIDE DEFENDANTS' NAMES
This is a prisoner civil rights action. Plaintiff David M. Haney is a Michigan state prisoner,
currently incarcerated in the Oaks Correctional Facility, Manistee, Michigan. He was convicted of
armed robbery and carjacking, and was sentenced in April, 2010 as a fourth habitual offender to
concurrent terms of 246 to 492 months imprisonment for each offense.1 He complains that his
federal civil rights were violated when he was not given medically prescribed insulin for five days
in November, 2009. For the reasons stated below, the complaint will be dismissed as to some
defendants. The plaintiff will also be required to identify the John Doe defendants and provide
service copies in order that the complaint may be served upon them.

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The Court takes judicial notice of the facts related to plaintiff’s convictions and sentences
available on the Michigan Department of Corrections Offender Tracking Information System
(OTIS): http://mdocweb.state.mi.us/otis2/otis2profile.aspx?mdocNumber=209628. The Court also
takes notice of the facts contained in the Michigan Court of Appeals decision in plaintiff’s criminal
case, People v. Haney, No. 297750, 2011 WL 4424415 (Mich. App. Sept. 22, 2011).
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FACTS
The complaint arises from events that took place in November 2009, and appear to arise from
his arrest on the convictions for which plaintiff is presently incarcerated. Plaintiff names as
defendants the 5th Eastern District Police Department; John Doe (1), a captain at the 5th Eastern
District Police Department; Lieutenant Greenleaf; Sergeant Diana Pessina; Sergeant J. Foster;
Sergeant Johnell White; Sergeant C. Rogers; Investigator Jeffrey Jones; Investigator J. Fisher;
Officer Errol Franklin; Officer Demereal Mercer; John Doe (2), a booking officer at the 5th Eastern
District Police Department; and John Doe (3), also a booking officer at the 5th Eastern District
Police Department. He sues all the individual defendants in both their personal and professional
capacities.
Plaintiff alleges that, on November 23, 2009, he was seized on the sidewalk off Glenwood
& Reno street in Detroit, Michigan, by defendants Franklin and Mercer and transported to the 5th
Eastern District Police Department. At 9:30 p.m, he was processed by Lieutenant Greenleaf,
Sergeant Diana Pessina and Sergeant J. Foster. Franklin and Mercer told Greenleaf, Pessina and
Foster that plaintiff required medical attention because he was experiencing chest pains related to
a shoulder injury and was diabetic. Greenleaf, Pessina and Foster authorized Franklin and Mercer
to take plaintiff to the Detroit Receiving Hospital.
Plaintiff arrived at the Detroit Receiving Hospital and was examined by Dr. Alvan Cruz in
the presence of Franklin and Mercer. Cruz told Franklin and Mercer that plaintiff was a diabetic and
required insulin injections. Plaintiff’s Vasotec prescription was refilled. Plaintiff was fed and given
a dose of 30 units of Novolin N. Dr. Cruz told the officers that plaintiff needed to be returned to the
hospital in 12 to 18 hours for “repeat blood sugar,” and that plaintiff required 40 units of Novolin

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N before eating in the morning and 20 units of Novolin N at night. Franklin and Mercer repeated
Dr. Cruz’s instructions to Greenleaf, Pessina, and Foster when they returned plaintiff to the police
station.
Plaintiff then came into contact with Sergeant Jonell White, Investigator J. Fisher,
Investigator Jeffrey Jones, and Sergeant C. Rogers. Plaintiff was required to participate in a lineup
on November 24, 2009 at 12:25 a.m. The complainant did not identify plaintiff in the lineup, but
identified two other men. Nonetheless, plaintiff continued to be detained “for further investigative
purposes against [his] will.” Plaintiff advised White, Fisher, Jones and Rogers that he was diabetic
and needed to be taken to the Detroit Receiving Hospital twice a day for insulin injections.
John Doe (2) and John Doe (3) delivered meal trays to the plaintiff. Plaintiff told John Doe
(2) that he needed to be taken to the Detroit Receiving Hospital for his daily insulin injections before
eating; John Doe (2) told plaintiff that he would have to talk with Sergeant White and Investigator
Jones before he could get released to the hospital. From November 24 through November 28, 2009,
Plaintiff continued to tell John Doe (2) and John Doe (3) that he required medical insulin injections,
but throughout that time plaintiff was never taken to the Detroit Receiving Hospital and did not
receive insulin injections. As a direct result, plaintiff suffered cold and hot sweats, dizziness,
ketoacidosia, unconsciousness, and permanent nerve damage.
Plaintiff alleges that John Doe (1), Captain of the 5th Eastern District Police Department, had
the authority and responsibility to implement written procedures on how diabetic pretrial detainees
were to be treated, but took no action to ensure that pretrial detainees received required insulin
injections.

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Plaintiff asserts that John Doe (1) failed to ensure that employees were properly trained to
provide adequate medical care to diabetics. Plaintiff asserts that Franklin and Mercer were
deliberately indifferent to his medical needs by taking him to the police station when he was first
arrested, rather than immediately to the Detroit Receiving Hospital. Plaintiff asserts that Greenleaf,
Pessina, Foster, White, Fisher, Jones, Rogers, and John Doe (2) and (3) intentionally withheld his
insulin treatments and refused to take him to the Detroit Receiving Hospital for insulin shots
between November 24, 2009 and November 28, 2009, in deliberate indifference to his serious
medical needs. Plaintiff also asserts that Franklin and Mercer conspired with the other named
defendants to detain him in the 5th Eastern District Police Department in the knowledge that the
facility could not accommodate plaintiff’s medical needs.
Plaintiff seeks mental and emotional damages from all named defendants, along with
$5,000,000 in punitive damages. Plaintiff also seeks an injunction prohibiting defendants from
detaining anyone at the 5th Eastern District Police Department until defendants implement written
procedures on how pretrial detainees will receive medically prescribed insulin injections and how
pretrial detainees can resolve complaints about not receiving such injections.
ANALYSIS
Plaintiff has been granted in forma pauperis status. Under the Prison Litigation Reform Act
("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 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).

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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. Flagg Bros., Inc. v.
Brooks, 436 U.S. 149, 155-57 (1978). A pro se civil rights complaint is to be construed liberally.
Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Despite the liberal pleading standard accorded pro
se plaintiffs, the Court finds that plaintiff's complaint is subject to dismissal because it fails to state
a claim for relief as to certain defendants and certain claims.
Under the Eighth Amendment to the U.S. Constitution, prison officials must provide
adequate medical care to prisoners. Farmer v. Brennan, 511 U.S. 825, 832 (1994); Estelle v.
Gamble, 429 U.S. 97, 103 (1976). The Due Process Clause of the Fourteenth Amendment operates
to guarantee the same protections to pretrial detainees. Miller v. Calhoun County, 408 F.3d 803, 812
(6th Cir. 2005). The prohibition against unnecessary and wanton infliction of pain is violated when
there is deliberate indifference to the serious medical needs of an inmate. Estelle, 429 U.S. at 104.
The test to determine whether prison or jail officials have been deliberately indifferent to an inmate’s
serious medical needs, in violation of the Eighth Amendment prohibition against cruel and unusual
punishment, has an objective and subjective component. Miller, 408 F.3d at 812. The objective
component requires an inmate to show that the alleged deprivation is sufficiently serious, and poses
a substantial risk of serious harm. Id. The subjective component is satisfied if the inmate shows
that prison officials had a “sufficiently culpable state of mind in denying medical care.” Id. at 813
(quoting Farmer, 511 U.S. at 834) (additional citation omitted). “‘Knowledge of the asserted
serious needs or of circumstances clearly indicating the existence of such needs, is essential to a

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finding of deliberate indifference.’” Id. (quoting Horn by Parks v. Madison County Fiscal Court,
22 F.3d 653, 660 (6th Cir. 1994)).
Under this standard, the complaint must be dismissed as to defendants Greenleaf, Pessina,
Foster, White, Rogers, Jones, Fisher, Franklin and Mercer because the facts in the complaint do not
give rise to any inference that these defendants were aware that plaintiff was not receiving his
prescribed insulin. Absent facts showing awareness on the part of these defendants, at most they
failed to check up on plaintiff and ensure that he was receiving his prescribed insulin. A complaint
that a public employee has been negligent in treating a medical condition of a prisoner or pretrial
detainee does not state a valid claim of deliberate indifference to serious medical needs. Estelle, 429
U.S. at 106; Sanderfer v. Nichols, 62 F.3d 151, 154 (6th Cir. 1995). “Medical malpractice does not
become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106.
Thus, a claim of deliberate indifference to serious medical needs must be supported by more than
mere negligence.
The complaint must also be dismissed as to the 5th Eastern District Police Department. The
police department is not an entity that is subject to suit. Matthews v. Jones, 35 F.3d 1046, 1049 (6th
Cir. 1994); Laise v. City of Utica, 970 F.Supp. 605, 607 (E.D. Mich. 1997) (dismissing claim against
Utica Police Department because it is not an entity capable of being sued).
Plaintiff's conspiracy claims against Franklin and Mercer must also be dismissed. The
complaint asserts without factual elaboration that Franklin and Mercer conspired with the other
named defendants to deprive plaintiff of his federal constitutional rights. “It is well-settled that
conspiracy claims must be pled with some degree of specificity and that vague and conclusory
allegations unsupported by material facts will not be sufficient to state a claim under §1983.”

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Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987). Plaintiff's conspiracy claims are
conclusory and therefore fail to state a claim under §1983.
Lastly, these defendants must be dismissed because they cannot be held liable for alleged
misconduct by other defendants. A civil rights plaintiff must allege the personal involvement of a
defendant to state a claim under § 1983. See 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); Taylor
v. Michigan Dep’t of Corrections, 69 F.3d 76, 81 (6th Cir. 1995) (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 regard to these defendants. Any
claim that these defendants failed to properly supervise another employee, should be vicariously
liable for another employee’s actions or inaction, and/or did not properly respond to the situation
is insufficient to state a claim under §1983.
The claims against defendants 5th Eastern District Police Department, Greenleaf, Pessina,
Foster, White, Rogers, Jones, Fisher, Franklin and Mercer lack an arguable basis in law, and the
Court has no discretion in permitting the plaintiff to amend his complaint to avoid a sua sponte
dismissal. McGore v. Wrigglesworth, 114 F.3d at 612. “If a complaint falls within the requirements
of § 1915(e) (2) when filed, the district court should sua sponte dismiss the complaint.” Id. These
claims will be dismissed.
Liberally construed, plaintiff’s allegations that defendants John Doe (1), John Doe (2), and
John Doe (3) were deliberately indifferent to his serious medical need for insulin would state a claim
upon which relief could be granted. The complaint alleges that he told John Doe (2) and John Doe
(3) that he needed to receive insulin twice a day and that he was not getting his insulin.

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Furthermore, plaintiff alleges that defendant John Doe (1) was responsible for ensuring that the
officers under his command supplied detainees with necessary insulin but failed to promulgate
written policies to ensure that diabetic detainees received prescribed insulin. These allegations are
sufficient to avoid summary dismissal. Cf. Taylor, 69 F.3d at 81 (allegations that supervisor
abandoned specific duties of his position resulting in injury to plaintiff states legally sufficient claim
for relief).
Plaintiff, however, has failed to adequately identify defendants John Doe (1), John Doe (2)
or John Doe (3). An inmate bringing a civil rights complaint must specifically identify each
defendant against whom relief is sought, and must give each defendant notice of the action by
serving upon him or her a summons and copy of the complaint. See Feliciano v. DuBois, 846
F.Supp. 1033, 1048 (D.Mass. 1994). When a plaintiff is proceeding in forma pauperis, as is the case
here, the district court must bear the responsibility for issuing the plaintiff’s process to a United
States Marshal, who must effectuate service upon the defendants once the plaintiff has properly
identified them in the complaint. See Williams v. McLemore, 10 F. App’x. 241, 243 (6th Cir. 2001);
Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996); Fed. R. Civ. P. 4(c) (2); 28 U.S.C. § 1915(d).
Although courts generally do not favor use of “John/Jane Doe” to identify defendants, where the
identity of a party is unknown prior to the filing of a complaint, courts generally allow a plaintiff
to identify the unknown defendant through discovery, unless it is clear that discovery would not
uncover the identities of the defendants. See Yates v. Young, 772 F.2d 909 (Table), 1985 WL 13614,
*2 (6th Cir. Aug. 28, 1985)(citing Schiff v. Kennedy, 691 F.2d 196 (4th Cir. 1982)). Accordingly,
the Court will order plaintiff to provide the name, address, and identity of “John Doe (1),” “John
Doe (2),” and “John Doe (3),” so that service can be effected upon them.

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Plaintiff has also not provided sufficient copies for service to be made upon the remaining
defendants. An inmate bringing a civil rights complaint must specifically identify each defendant
against whom relief is sought and must give each defendant notice of the action by serving upon him
or her a summons and copy of the complaint. See Feliciano, 846 F.Supp. at 1048. When a plaintiff
is proceeding in forma pauperis, as is the case here, the district court must bear the responsibility
for issuing the plaintiff's process to a United States Marshal, who must effectuate service upon the
defendants once the plaintiff has properly identified them in the complaint. See Williams, 10 F.
App'x at 24301); Fed. R. Civ. P. 4(c)(2); 28 U.S.C. §1915(d). The plaintiff, however, is responsible
for furnishing the necessary copies to the person who makes service. Fed. R. Civ. P. 4(c)(1).
The Court will also dismiss plaintiff's request for injunctive relief. A plaintiff's standing to
seek injunctive or declaratory relief depends on the likelihood of future harm. Gratz v. Bollinger,
539 U.S. 244, 284 (2003). In order to satisfy the threshold requirements of Article III of the United
States Constitution, plaintiff must demonstrate a threat of injury “both ‘real and immediate,’ not
‘conjectural’ or ‘hypothetical.’” Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (citations omitted).
“Past exposure to illegal conduct does not in itself show a present case or controversy regarding
injunctive relief ... if unaccompanied by any continuing, present adverse effects.” O'Shea v.
Littleton, 414 U.S. 488, 495-96 (1974). Plaintiff will be incarcerated for the next twenty years even
if he were to serve only his minimum sentence, and therefore he is unlikely to be injured in the near
future by the conduct of the Detroit police with regard to diabetics. Since plaintiff does not have
a live grievance himself with respect to injunctive relief, he cannot purport to represent others. See
Golden v. Zwickler, 394 U.S. 103, 109-10 (1969) (where plaintiff could not establish standing to

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seek declaratory relief on behalf of himself, he cannot seek relief on behalf of others that might be
affected).
Accordingly, it is ORDERED that the complaint is DISMISSED as to defendants 5th
Eastern District Police Department, Greenleaf, Pessina, Foster, White, Rogers, Jones, Fisher,
Franklin and Mercer pursuant to 28 U.S.C. § 1915(e)(2)(B).
IT IS FURTHER ORDERED that plaintiff's claim for injunctive relief is DISMISSED.
IT IS FURTHER ORDERED that plaintiff will provide the Court with the names of John
Doe (2) and John Doe (3) within forty-five (45) days of the date of this order and three (3) additional
copies of the complaint and attachments so that service may be effectuated. The Court shall provide
plaintiff with one copy of the complaint and attachments to assist him in this endeavor. This copy
should be returned to the Court with the additional copies. Plaintiff's failure to comply with this
order may result in dismissal of the complaint.
The Court further DIRECTS that the complaint, as it pertains to defendants “John Doe (1),”
“John Doe (2),” and “John Doe (3),” and a copy of this order, be served upon defendants “John Doe
(1),” “John Doe (2),” and “John Doe (3),” once they are properly identified by plaintiff, by the
United States Marshal without prepayment of costs.
SO ORDERED.
Dated: November 5, 2012
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

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CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record and
on David Haney #209628, Oaks Correctional Facility,
1500 Caberfae Highway, Manistee, MI 49660, on
November 5, 2012, by electronic and/or ordinary mail.
s/Barbara Radke
Deputy Clerk

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