May v. Heyns et al

Filing 70

ORDER Overruling 63 Objections filed by Travis May to Order Denying Motion to Stay; Adopting in Part 27 Report and Recommendation; Adopting 64 Report and Recommendation; Denying as Moot 21 MOTION to Dismiss; Dismissing Defendants Eagen, Combs and Heyns; Dismissing Defendant Hernandez Without Prejudice. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TRAVIS MAY,
Case No. 15-10785
Plaintiff,
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

v.
DANIEL HEYNS, ET AL.,

U.S. MAGISTRATE JUDGE
ELIZABETH A. STAFFORD

Defendants.
/

ORDER OVERRULING PLAINTIFF’S OBJECTIONS TO ORDER DENYING MOTION TO
STAY [63]; ADOPTING IN PART REPORT & RECOMMENDATION [27]; ADOPTING
REPORT & RECOMMENDATION [64]; DENYING DEFENDANTS’ MOTION TO
DISMISS [21] AS MOOT; DISMISSING DEFENDANTS EAGEN, COMBS, AND HEYNS;
AND DISMISSING DEFENDANT HERNANDEZ WITHOUT PREJUDICE
Plaintiff filed this lawsuit on March 3, 2015. Defendants filed a Motion to
Dismiss [Dkt. #21] on September 14, 2015. On October 20, 2015, Plaintiff filed an
Amended Complaint [25], which the Court accepted by Order [26] issued by the
Magistrate Judge on November 30, 2015. On November 30, 2015, the Magistrate
Judge issued a Report and Recommendation (R&R) [27]. The R&R recommended
that the Court deny Defendant’s Motion to Dismiss as moot because it was directed
at the original complaint. The R&R further recommended that the Court dismiss
Plaintiff’s Americans with Disabilities Act (ADA) claim and his claims against
Defendants Heyns, Combs, and Eagen sua sponte. The R&R did not recommend
dismissal of Plaintiff’s First Amendment retaliation claim against Defendants
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Hitchingham, Pond, Hernandez, and Riley. Plaintiff filed Objections to the R&R
[35] on December 21, 2015.
Plaintiff filed a Motion to Stay [36] on December 30, 2015. On January 7,
2016, after ordering and receiving a response to Plaintiff’s motion to stay, the
Magistrate Judge issued an Order [42] granting the motion and staying the case
until April 21, 2016. Plaintiff filed a Motion to Extend the Stay [56] on April 19,
2016. On April 21, 2016, the Magistrate Judge issued an Order [57] denying the
motion. On May 9, 2016, Plaintiff filed Objections [63] to the order denying an
extension of the stay.
On June 7, 2016, the Magistrate Judge issued a second R&R [64],
recommending that the Court dismiss Defendant Hernandez from the case without
prejudice due to Plaintiff’s failure to provide an address for service of process.
Plaintiff filed no objections to this R&R.1
For the reasons stated below, Plaintiff’s Objections to Order Denying
Motion to Stay [63] are OVERRULED. The first R&R [27] is ADOPTED IN
PART: as recommended by the R&R, Defendants’ Motion to Dismiss [21] is
DENIED as moot and Plaintiff’s claims against Defendants Eagen, Combs, and

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The second R&R was originally mailed to Plaintiff on June 7, 2016, and returned
to the Court as undeliverable on June 13, 2016. On June 22, 2016, the Court
received a Notice of Change of Address [66] from Plaintiff. The Court mailed the
R&R to Plaintiff’s new address on June 27, 2016.
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Heyns are DISMISSED sua sponte. The Court declines to adopt the R&R’s
recommendation concerning sua sponte dismissal of Plaintiff’s ADA claim. The
second R&R [64] is ADOPTED in full: Defendant Hernandez is DISMISSED
without prejudice.
FACTUAL BACKGROUND
The first R&R [27] accurately describes the factual background of this case,
in part, as follows:
May alleges that “[t]he Michigan Parole Board issued an order of
parole on July 5, 2012 with a projected release date of February 14,
2013[]” upon the condition that he “enter and complete the
Residential Substance Abuse Treatment (RSAT) program.” [R. 25,
PgID 123]. After entering the RSAT program, May filed numerous
grievances claiming that the conditions of the program violated
MDOC’s “Policy Directives.” [Id., PgID 123-24]. May claims that
Pond, Hernandez, Hitchingham, and Riley had him terminated from
the program, “in part” as retaliation for the grievances, and that
Defendant Combs revoked his order of parole and gave him a 24month continuance based on the termination report. [Id.]. He says
Heyns, as the former Director of MDOC, allowed the RSAT program
to be exempted from MDOC Policy Directives, which exposed him to
the “unconstitutional act[]” of being terminated from the program for
filing grievances. [Id., PgID 122, 124]. May also appears to allege a
claim under the Americans with Disabilities Act (the “ADA”) against
Hitchingham, Pond, Hernandez, and Riley. [Id., PgID 124].
ANALYSIS
I.

Objections to Order Denying Stay
A district court may set aside a magistrate judge’s order on a nondispositive

pretrial matter if it is clearly erroneous or contrary to law. See 28 U.S.C.
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§ 636(b)(1)(A); United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001). The
Magistrate Judge’s Order [57] denying Plaintiff’s Motion to Extend Stay [56]
reads, in relevant part, as follows:
On December 30, 2015, plaintiff Travis May, a state prisoner
proceeding pro se, moved to stay these proceedings for 120 days because
he was recovering from anti-viral meningitis and was in the process of
being paroled. [R. 36]. The Court granted May’s motion and stayed the
proceedings until April 21, 2016. [R. 42]. May now requests that the stay
be extended because his parole date was postponed and so that he has
time to see his doctor. [R. 56].
May fails to demonstrate that he would be prejudiced absent an
extension of the stay, and he does not provide any other compelling
reason to extend the stay. May’s desire to see his doctor and the fact that
his parole was postponed do not affect his ability to prosecute this case,
which he voluntarily filed.
In his Objections [63] to this order, Plaintiff does not explain why a stay is
necessary. He therefore fails to convince the Court that the order is clearly
erroneous or contrary to law. His objections are overruled.
II.

Objections to First R&R
The Court conducts de novo review of objections to a Magistrate Judge’s

Report and Recommendation on a dispositive motion. 28 U.S.C. § 636(b)(1)(c).
A.

Dismissal of Defendant Eagen

The R&R recommended sua sponte dismissal of Defendant Eagen,
reasoning, in relevant part, as follows:
The Court should … dismiss Eagen because he “is a Defendant in this
action only to allow this Court to enter an order compelling him to
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unconditionally release Mr. May from his sentence.” [R. 25, PgID
124]. As such, May fails to state any cause of action against Eagen.
See Frazier v. Michigan, 41 Fed. Appx. 762, 764 (6th Cir. 2002) (“a
complaint must allege that the defendants were personally involved in
the alleged deprivation of federal rights”). To the extent May seeks
injunctive relief in the form of termination of his sentence and release
from prison, the amended complaint is frivolous. State prisoners may
challenge their confinement by filing a habeas petition under 28
U.S.C. § 2254, not by filing a § 1983 civil rights complaint. See
Skinner v. Switzer, 562 U.S. 521, 525 (2011) (“Habeas is the exclusive
remedy … for the prisoner who seeks immediate or speedier release
from confinement.”) (citation and internal quotation marks omitted).
Plaintiff objects to dismissal of Defendan Eagen on the grounds that he is seeking
injunctive relief against Defendant Eagen. However, the only injunctive relief
requested in Plaintiff’s Amended Complaint is “injunctive relief compelling the
termination of his sentence.” As the R&R explained, this relief is not available
through Plaintiff’s § 1983 claim. Plaintiff’s objection to dismissal of Defendant
Eagen is overruled.
B.

Dismissal of Defendant Combs

The R&R recommended sua sponte dismissal of Defendant Combs,
reasoning, in relevant part, as follows:
May alleges that Combs – while acting as the Parole Board Chairman
– retaliated against him for filing grievances by “revok[ing] [his]
order of parole and g[iving] him a twenty-four month continuance.”
[R. 25, PgID 123]. In revoking May’s order of parole, Combs was
exercising his decision-making powers as a parole officer; thus, his
actions were judicial in nature, and he is entitled to absolute immunity
for his conduct. Horton v. Martin, 137 Fed. Appx. 773, 775 (6th Cir.
2005) (“[P]arole board members are absolutely immune from liability
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for their conduct in individual parole decisions when they are
exercising their decision making powers.”) (citation omitted); see also
Draine v. Leavy, 504 Fed. Appx. 494, 495-96 (6th Cir. 2012). Because
May’s retaliation claim against Combs seeks monetary damages
against an immune defendant, his claim fails and Combs must be
dismissed under §§ 1915(e)(2)(B) and 1915A.
Plaintiff objects to dismissal of Defendant Combs on the grounds that he is seeking
injunctive relief against Defendant Combs. As mentioned above, however, the
only injunctive relief requested in Plaintiff’s Amended Complaint is “injunctive
relief compelling the termination of his sentence.” As the R&R explained, this
relief is not available through Plaintiff’s § 1983 claim. Plaintiff’s objection to
dismissal of Defendant Combs is overruled.
C.

Dismissal of Defendant Heyns

The R&R recommended sua sponte dismissal of Defendant Heyns,
reasoning, in relevant part, as follows:
May alleges that Heyns, as the former MDOC Director, allowed
the RSAT program to be exempt from MDOC Policy Directives,
which exposed him to being terminated from the program for filing
grievances. [R. 25, PgID 122, 124].
A suit against a state officer in his or her official capacity is
simply another way of pleading an action against the state. Will v.
Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989); VIBO Corp.
v. Conway, 669 F.3d 675, 691 (6th Cir. 2012). The Eleventh
Amendment bars suits in federal court against a state and its
departments or agencies unless the state has waived its sovereign
immunity or unequivocally consented to be sued. Pennhurst State Sch.
& Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Michigan has not
consented to civil rights suits in federal court. Johnson v. Dellatifa,
357 F.3d 539, 545 (6th Cir. 2004). As “an arm of the State of
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Michigan, the MDOC is entitled to sovereign immunity on the § 1983
claim.” McCoy v. Michigan, 369 Fed. Appx. 646, 653 (6th Cir. 2010)
(internal quotation marks and citation omitted). Because May’s §1983
claim against Heyns is against him in his official capacity, Heyns is
entitled to sovereign immunity. See id. at 653-54 (“the named
Defendants, in their official capacities, are similarly entitled to
immunity with respect to McCoy’s § 1983 claim because a suit
against a state official in his or her official capacity is not a suit
against the official but rather is a suit against the official’s office,
which is no different from a suit against the State”) (internal quotation
marks and citation omitted).
Plaintiff objects that he is seeking injunctive relief against Defendant Heyns “to
eliminate Resident Substance Abuse Treatment (RSAT) program from being
exempted from Michigan Department of Corrections’ policy directives.”
Plaintiff’s Amended Complaint does not request such relief, as Plaintiff
acknowledges by stating that he “forgot to add the [request for] injunctive relief
against Mr. Heyns” to his complaint. The Court has discretion under Federal Rule
of Civil Procedure 15(a) to permit Plaintiff to amend his complaint to include such
a request. LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013) (“[U]nder Rule
15(a) a district court can allow a plaintiff to amend his complaint even when the
complaint is subject to dismissal under the PLRA.”). The Court declines to
exercise this discretion. Under the Ex Parte Young doctrine, the Eleventh
Amendment does not bar claims against state officials for prospective injunctive
relief against violations of federal law. Russell v. Lundergan-Grimes, 784 F.3d
1037, 1046 (6th Cir. 2015) (citing Diaz v. Mich. Dep’t of Corr., 703 F.3d 956, 964
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(6th Cir. 2013)). However, Plaintiff has not articulated any way in which the
alleged exemption of the RSAT program from MDOC policy directives violates
federal law. Plaintiff alleges only (and without elaboration) that the exemption has
allowed him to be exposed to unconstitutional acts. Even if the exemption
somehow facilitates actions that violate federal law, that does not mean that the
exemption itself violates federal law. Because Plaintiff has not articulated a
plausible basis for his proposed request for injunctive relief, the Court will not
grant leave to amend his complaint to add that request.
The R&R’s conclusion that Defendant Heyns is entitled to Eleventh
Amendment immunity stands. Plaintiff’s objection to dismissal of Defendant
Heyns is overruled.
D.

Dismissal of Plaintiff’s ADA claim

The R&R recommended sua sponte dismissal of Plaintiff’s ADA claim
against Defendants Pond, Hernandez, Hitchingham, and Riley, reasoning, in
relevant part, as follows:
May says he is protected by the ADA because he has a
substance abuse disorder. [R. 25, PgID 124]. In support of his ADA
claim, May alleges that when he “exhibited symptoms of his disease
and dissatisfaction by writing grievances about the RSAT program
conditions, Defendants . . . had [him] terminated from that program.”
[Id.]. May provides no other allegations regarding his ADA claim. He
fails to articulate which of his rights under the ADA Defendants
violated or how they violated them. While May’s allegations create
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speculation as to a cause of action under the ADA, they fail to show
an entitlement to relief.
The Court construes pleadings filed by pro se litigants more
liberally, but “[t]he leniency granted to pro se [litigants] ... is not
boundless[,]” and the Court will not “conjure allegations on a
litigant’s behalf.” Martin v. Overton, 391 F.3d 710, 714 (6th Cir.
2004) (citation and internal quotation marks omitted). Indeed, pro se
litigants still must plead a plausible claim for relief. See Davis v.
Prison Health Services, 679 F.3d 433, 437-38 (6th Cir. 2012).
Although May mentions the ADA and says that he is entitled to its
protections, he does not claim that any defendant actually violated the
ADA. Thus, even when accepting as true May’s non-conclusory and
conclusory statements, he fails to state a plausible claim under the
ADA.
Plaintiff objects that he has alleged sufficient facts to state an ADA claim—
specifically, he has “alleged that he has a recognized disability and that the
Defendants who terminated him from RSAT did so knowing that they were
denying him access to their program of rehabilitation.”
Under the ADA, “no qualified individual with a disability shall, by reason of
such disability, be excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be subjected to discrimination
by any such entity.” 42 U.S.C. § 12132. Plaintiff appears to allege that
Defendants terminated his participation in the RSAT program in part because he
“exhibited symptoms of his disease.” This could constitute exclusion from public
services “by reason of [his] disability.” Further, under the ADA’s retaliation
provision, “[n]o person shall discriminate against any individual because such
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individual has opposed any act or practice made unlawful by” the ADA. Id.
§ 12203. Plaintiff alleges that Defendants terminated his participation in part
because he filed grievances against the RSAT program’s alleged violations of
MDOC policy directives. If Plaintiff’s grievances contested any acts or practices
made unlawful by the ADA, then his alleged exclusion from the RSAT program
because of those grievances may have violated the ADA’s retaliation provision.
Thus, construing Plaintiff’s pro se pleading liberally, Plaintiff has stated a claim
for relief under the ADA that is sufficiently plausible to avoid sua sponte
dismissal. Plaintiff’s objection to dismissal of his ADA claim is sustained.
III.

Second R&R
The second R&R recommends that the Court dismiss Defendant Hernandez

from the case without prejudice due to Plaintiff’s failure to provide an address for
service of process. Plaintiff filed no objections to this R&R. The Court having
reviewed the record, the second R&R is adopted and entered as the conclusions
and findings of the Court.
CONCLUSION
For the reasons stated above,
IT IS ORDERED that Plaintiff’s Objections to Order Denying Motion to
Stay [63] are OVERRULED.

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IT IS FURTHER ORDERED that the first R&R [27] is ADOPTED IN
PART. As recommended by the R&R, Defendants’ Motion to Dismiss [21] is
DENIED as moot and Plaintiff’s claims against Defendants Eagen, Combs, and
Heyns are DISMISSED sua sponte. The Court declines to adopt the R&R’s
recommendation concerning sua sponte dismissal of Plaintiff’s ADA claim.
IT IS FURTHER ORDERED that the second R&R [64] is ADOPTED
and entered as the findings and conclusions of the Court. Defendant Hernandez is
DISMISSED without prejudice.
SO ORDERED.

Dated: August 25, 2016

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

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