Luesing v. Webber

Filing 8

OPINION & ORDER summarily dismissing the complaint. The Court certifies that an appeal from this decision would be frivolous and could not be taken in good faith. Signed by District Judge Nancy G. Edmunds. (CBet)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KEITH I. LUESING,
Plaintiff,
CASE NO. 2:15-cv-11777
HONORABLE NANCY G. EDMUNDS

v.
CAPT. B. WEBBER,
_______________________/

OPINION AND ORDER SUMMARILY DISMISSING THE COMPLAINT
I. Introduction
Plaintiff Keith I. Luesing commenced this action on May 18, 2015, by filing a pro
se civil rights complaint under 42 U.S.C. § 1983. Plaintiff is a pretrial detainee at the
Otsego County Jail in Gaylord, Michigan where defendant B. Webber is the jail
administrator.
Plaintiff alleges in his pending complaint that he sent numerous kites1 to
defendant Webber about various matters, including Plaintiff’s physical and mental
health and other issues pertaining to the conditions of life in jail. Plaintiff contends that
Defendant does not act in compliance with jail standards. Plaintiff further alleges that
there is no nurse at the jail and that it is almost impossible to ensure that his doctor’s
orders are followed, that his follow-up appointments are kept, and that he does not run
out of medication. Additionally, Plaintiff alleges that there is no law library in the jail, and
he appears to think that someone has tampered with his mail.

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A “kite” is a form used by inmates to communicate with corrections staff. Hall v.
Warren, 443 F. App’x 99, 101 n.1 (6th Cir. 2011).

For relief, Plaintiff seeks treatment for his psychiatric and physical problems and
a federal protective order. He claims that a protective order is necessary because his
life is in danger, as he has been charged with murder, assault on police officers,
resisting arrest, and obstruction of justice. Additionally, Plaintiff claims that he has been
beaten four times since being arrested and that he was threatened by a state
policeman. In an addendum to the complaint filed on June 4, 2015, Plaintiff seeks the
following additional relief: appointment of an attorney, access to a law library, and help
with litigation; an investigation of the housing, feeding, and treatment of inmates in
Otsego County Jail; and a mental health care program for mentally ill offenders.
II. Analysis
A. Legal Framework
A Federal District Court is required to screen a prisoner’s complaint and to
dismiss the complaint if it is frivolous, malicious, fails to state a claim for which relief can
be granted, or seeks monetary relief from a defendant who is immune from such relief.
28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Flanory v. Bonn, 604 F.3d 249, 252 (6th Cir.
2010); Smith v. Campbell, 250 F.3d 1032, 1036 (6th Cir. 2001). A complaint is frivolous
if it lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325
(1989).
“In determining whether a prisoner has failed to state a claim, [courts] construe
his complaint in the light most favorable to him, accept his factual allegations as true,
and determine whether he can prove any set of facts that would entitle him to relief.”
Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005). While a complaint “does not

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need detailed factual allegations,” the “[f]actual allegations must be enough to raise a
right to relief above the speculative level on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007) (footnote and citations omitted). In other words, “a complaint must
contain sufficient factual 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 has facial plausibility 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).
B. The Due Process Claim
The Court construes Plaintiff’s complaint to allege that the conditions of
confinement at the Otsego County Jail are unconstitutional.
1. Clearly Established Federal Law
The Supreme Court has stated that “[t]he Constitution ‘does not mandate
comfortable prisons,’ but neither does it permit inhumane ones, and it is now settled that
‘the treatment a prisoner receives in prison and the conditions under which he is
confined are subject to scrutiny under the Eighth Amendment.’ ” Farmer v. Brennan,
511 U.S. 825, 832 (1994) (internal and end citations omitted).

The Amendment

imposes duties on correctional officials to “provide humane conditions of confinement”
and to “ensure that inmates receive adequate food, clothing, shelter, and medical care.”
Id. They must also “ ‘take reasonable measures to guarantee the safety of the inmates.’
” Id. (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)).

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Although “]t]he Eighth Amendment itself does not apply to pretrial detainees,”
Grabow v. County of Macomb, 580 F. App’x 300, 307

(6th Cir. 2014), “pretrial

detainees are similarly protected under the Due Process Clause of the Fourteenth
Amendment.” Carl v. Muskegon County, 763 F.3d 592, 595 (6th Cir. 2014). “In short,
both prisoners and pretrial detainees have a right not to have prison officials act with
deliberate indifference toward their serious medical needs, health, or safety.” Sours v.
Big Sandy Regional Jail Authority, 593 F. App’x 478, 483 (6th Cir. 2014).
The Supreme Court nevertheless has cautioned, that “not . . . every injury
suffered by one prisoner at the hands of another . . . translates into constitutional liability
for prison officials responsible for the victim’s safety.” Id. at 834. A correctional official
violates the Constitution “only when two requirements are met. First, the deprivation
alleged must be, objectively, ‘sufficiently serious;’ a prison official’s act or omission must
result in the denial of ‘the minimal civilized measure of life’s necessities.’ ” Id. (internal
and end citations omitted).
Second, “a prison official must have a ‘sufficiently culpable state of mind.’ In
prison-conditions cases that state of mind is one of ‘deliberate indifference’ to inmate
health or safety. . . .” Id. (internal and end citations omitted). A correctional official may
be held liable under the Constitution “for denying humane conditions of confinement
only if he knows that inmates face a substantial risk of serious harm and disregards that
risk by failing to take reasonable measures to abate it.” Id. at 847.
2. Application
Exhibits to the complaint indicate that, on April 28, 2015, Plaintiff used a kite to
ask Defendant about medical treatment. Defendant responded to the kite by notifying

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Plaintiff that he would be seen by a local physician and that jail officials would rely on
the physician’s opinion regarding Plaintiff’s health conditions.
In a subsequent kite to Defendant on May 4, 2015, Plaintiff instructed Defendant
to forget about having a local physician examine him for a cancerous tumor on his lung
because in his (Plaintiff’s) opinion, the physician was “not fit.” Defendant responded by
saying that all the physicians used to treat inmates were licensed and provided
adequate care to inmates.
Plaintiff has failed to show that Defendant was deliberately indifferent to his
medical problems. Defendant responded to Plaintiff’s kites and apparently arranged to
have a licensed physician treat Plaintiff. Plaintiff has not alleged that the physician did
not meet minimum standards of competence or was unable to provide adequate care.
Instead, his kites to Defendant indicate that he was concerned with who would be
treating him and whether he would be comfortable with the physician. He demanded an
opportunity to acquire a second opinion after consulting with the physician provided by
jail officials. His allegations establish nothing more than a preference for one physician
over another physician. Furthermore, as a nonmedical person, Defendant was “entitled
to presume the competence of medical staff in treating [Plaintiff], meaning that his
conduct cannot, without much more, amount to ‘deliberate indifference.’ ” Davis v.
Superintendent Somerset SCI, 597 F. App’x 42, 45 (3d Cir. 2015) (citing Spruill v. Gillis,
372 F.3d 218, 236 (3d Cir. 2004)).
Plaintiff contends that there is no nurse at the jail and that it is almost impossible
to ensure that his doctor’s orders are followed, that his follow-up appointments are kept,
and that he does not run out of medication. But absent a showing that Plaintiff was

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actually denied medication or treatment for a serious medical condition, he has failed to
prove that he was denied the minimal civilized measure of life’s necessities. As such,
he has not satisfied the objective component of a constitutional claim.
As for Plaintiff’s allegations that he was beaten four times and fears for his life,
he has not alleged or demonstrated that Defendant was aware of a serious threat to his
safety and ignored the threat. Thus, he has not shown that defendant had a sufficiently
culpable state of mind. The Court concludes that Plaintiff has failed to establish both
the objective and subjective components of a due process claim.
C. The First Amendment Claims
1. The Lack of a Law Library
Plaintiff alleges next that there is no law library in the jail. He seeks access to a
law library and help with litigation in state and federal courts.
It is well-established “that prisoners have a constitutional right of access to the
courts.” Bounds v. Smith, 430 U.S. 817, 821 (1977). Pretrial detainees also enjoy
rights under the First Amendment.

See Bell v. Wolfish, 441 U.S. 520, 545 (1979)

(noting that convicted prisoners enjoy certain rights under the First and Fourteenth
Amendments and that pretrial detainees “retain at least those constitutional rights that
[the Supreme Court has] held are enjoyed by convicted prisoners”).

Correctional

officials must “assist inmates in the preparation and filing of meaningful legal papers by
providing prisoners with adequate law libraries or adequate assistance from persons
trained in the law.” Bounds, 430 U.S. at 828.
Plaintiff states that his criminal trial is scheduled to begin on September 28,
2015. Addendum, ¶ 7. To the extent he is attempting to challenge the charges against

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him, his right of access to the courts is satisfied if he has the assistance of counsel for
his criminal trial. United States v. Manthey, 92 F. App’x 291, 297 (6th Cir. 2004) (citing
United States v. Smith, 907 F.2d 42, 44 (6th Cir. 1990)). Furthermore, the tools that
Bounds requires are those that inmates need to attack their sentences and to challenge
the conditions of their confinement.

Lewis v. Casey, 518 U.S. 343, 355 (1996).

“Impairment of any other litigating capacity is simply one of the incidental (and perfectly
constitutional) consequences of conviction and incarceration.”

Id. (emphasis in

original).
Even assuming that Plaintiff has asserted a cognizable claim under Bounds, an
inmate alleging a violation of Bounds must show actual injury. Id. at 349. “Because
Bounds did not create an abstract, freestanding right to a law library or legal assistance,
an inmate cannot establish relevant actual injury simply by establishing that his prison’s
law library or legal assistance program is subpar in some theoretical sense.” Id. at 351.
An inmate must
demonstrate that the alleged shortcomings in the library or legal
assistance program hindered his efforts to pursue a legal claim. He might
show, for example, that a complaint he prepared was dismissed for failure
to satisfy some technical requirement which, because of deficiencies in
the prison’s legal assistance facilities, he could not have known. Or that
he had suffered arguably actionable harm that he wished to bring before
the courts, but was so stymied by inadequacies of the law library that he
was unable even to file a complaint.
Id.
Plaintiff has not demonstrated that the lack of a law library or legal assistance
hindered his efforts to pursue a legal claim or prevented him from filing a complaint.
The pending complaint shows that he is able to file a complaint without the benefit of a

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law library or legal assistance. Consequently, Plaintiff has failed to establish a violation
of his First Amendment right of access to the courts.
2. Interference with Mail
Plaintiff appears to allege that someone has tampered with his personal and
legal mail. Inmates have “a First Amendment right to send and receive mail,” Witherow
v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (citing Thornburgh v. Abbott, 490 U.S. 401, 407
(1989)), but “an isolated incident of mail tampering is usually insufficient to establish a
constitutional violation.” Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003). To establish
a First Amendment violation, an inmate must show that officials “regularly and
unjustifiably” interfered with his mail. Deleon v. Doe, 361 F.3d 93, 94 (2d Cir. 2004)
(quoting Davis, 320 F.3d at 351).
The facts, as alleged in the complaint, fail to establish that jail officials regularly
and unjustifiably interfered with Plaintiff’s mail. More importantly, Plaintiff has not shown
that defendant Webber personally tampered with his mail.
To the extent Plaintiff seeks to hold Defendant liable under a respondeat superior
theory of liability, his claim fails because vicarious liability is not applicable to lawsuits
filed under § 1983.

Iqbal, 556 U.S. at 676.

“[A] plaintiff must plead that each

Government-official defendant, through the official’s own individual actions, has violated
the Constitution.”

Id.

Failure to act or passive behavior is insufficient to establish

supervisory liability under § 1983, King v. Zamiara, 680 F.3d 686, 706 (6th Cir. 2012),
cert. denied, 133 S. Ct. 985 (2013), and “damage claims against governmental officials
alleged to arise from violations of constitutional rights cannot be founded upon
conclusory, vague or general allegations.”

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Terrance v. Northville Reg’l Psychiatric

Hosp., 286 F.3d 834, 842 (6th Cir. 2002).

A defendant “will be liable for the

unconstitutional acts of [his or] her subordinates only if [he or] she actively participated
in the unlawful conduct, such as if [he or] she implicitly authorized, approved or
knowingly acquiesced in the unconstitutional conduct of the offending subordinate.”
King, 680 F.3d at 706 (quotation marks and end citations omitted).
Plaintiff’s allegations of mail tampering are vague, and he has not shown that
defendant Webber actively participated in unlawful conduct by authorizing, approving, or
knowingly acquiescing in a subordinate’s unconstitutional conduct.

Consequently,

Plaintiff has no right to relief on the basis of his claim about mail.
III. Conclusion
Plaintiff’s allegations lack an arguable basis in law and fail to state a plausible
claim for which relief may be granted.

Consequently, the complaint is summarily

dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii) and 28 U.S.C. § 1915A(b)(1).
The Court certifies that an appeal from this decision would be frivolous and could not be
taken in good faith. 28 U.S.C. § 1915(a)(3); Coppedge v. United States, 369 U.S. 438,
445 (1962).

s/ Nancy G. Edmunds
NANCY G. EDMUNDS
UNITED STATES DISTRICT JUDGE
Dated: July 15, 2015

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