Gebrenegusse v. Heyns et al

Filing 52

OPINION AND ORDER DENYING Plaintiff's 45 Motion to Amend/Correct--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MIKIAS GEBRENEGUESSE,
Plaintiff,
v.

Case No. 2:16-cv-12804
District Judge Robert H. Cleland
Magistrate Judge Anthony P. Patti

DANIEL HEYNS, et al.,
Defendants.
___________________________________/
OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR LEAVE
TO FILE A SECOND AMENDED COMPLAINT (DE 45)
This matter is before the Court for consideration of Plaintiff Mikias
Gebreneguesse’s motion for leave to file a second amended complaint. (DE 45.)
For the reasons that follow, Plaintiff’s Motion is DENIED.
I.

BACKGROUND
A.

Factual Background

For the purposes of this motion, I will accept the allegations in Plaintiff’s
first amended complaint as true.
Plaintiff, who is proceeding without the assistance of counsel, filed his initial
complaint on July 29, 2016 and an amended complaint on October 25, 2016. (DE
1 and 4.) In his first amended complaint, Plaintiff asserts that Defendants Daniel
Heyns (Director of the State of Michigan Department of Corrections), Sonia

Warchock (former parole board member), Thomas Combs (chief of parole board),
Community Programs, Inc. (“CPI”), Christin McClain (clinical supervisor of CPI),
and Robert McCombs (CPI counselor) violated his constitutional rights by forcing
him to undergo Residential Substance Abuse Treatment (“RSAT”) during his
parole. (DE 4.) On November 15, 2016, Plaintiff filed a motion to supplement his
complaint to add Michael Eagan (former parole board member) as a Defendant,
which the Court granted on December 8, 2016. (DE 24.)
Plaintiff pleads his case pursuant to 42 U.S.C. § 1983. He was a state
prisoner from December 12, 2012 to July 30, 2013 and a parolee from July 30,
2013 to October 31, 2014. At the beginning of his incarceration, he underwent
medical and psychological testing, resulting in a security assessment of Level 1,
the lowest of the five possible levels. (DE 4 at ¶¶ 8 and 18.) He also received a
recommendation to undergo substance abuse education, but not treatment. (Id. at ¶
19.)
Plaintiff’s imprisonment in a Level 1 facility was generally acceptable to
him. He was allowed off-grounds for work details, could participate in recreation
fourteen hours per day, had access to the general and law libraries seven days per
week, and had “uncontrolled movement” throughout the facility. (DE 4 at ¶¶ 2021.) In January of 2013, Defendants Eagan and Warchock signed Plaintiff’s parole
decision. Some of the conditions of his parole required him to “complete
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theprogram.drc—Sober Living” and to “reside in/at upon your release to
parole.drc—Sober Living.” (Id. at ¶ 25.)
Plaintiff was processed for release on July 30, 2013 and expected to return to
his community. In his processing documents, however, there was a notation that
he would have to attend the Residential Substance Abuse Treatment (“RSAT”),
and was “required to sign a parole order” agreeing to the same. (DE 4 at ¶¶ 31-32.)
After signing, he was transported by the MDOC to the Detroit Reentry Center and,
according to him, treated as a high security prisoner. (Id. at ¶ 36.) Plaintiff was
told that he could either sign a consent form for CPI or receive a parole violation.
(Id. at ¶ 49.) Accordingly, he signed the form, with a notation that he was doing so
“under protest[.]” (DE 4 at 25.)
Plaintiff describes the RSAT program as 36 hours of weekly therapy and
unpaid job duties. (DE 4 at ¶ 52.) Every day began with a morning meeting,
which was a “scripted[,] church like ceremony,” requiring participants to clap and
“scream synchronized statements.” (Id. at 54.) He was required to be out of bed
every morning by 7:00 A.M. and to follow rules about cleaning, dress, and talking.
(Id. at ¶ 57.) Participants were punished in a “time-out chair” and by being
assigned to unpaid janitorial positions.
Plaintiff asserts that his remand into the RSAT, instead of being released on
parole, violated his constitutional rights. Specifically, he argues that Defendants’
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actions violated his Eighth Amendment right to be free from cruel and unusual
punishment, that he was deprived of his liberty without due process of law, and
that he was unlawfully detained in violation of the Fourth Amendment. He seeks a
declaration that Defendants’ acts violated the Constitution plus monetary damages.
B.

Procedural Background

On November 17, 2016, CPI, McClain, and McCombs (“CPI Defendants”)
filed a motion to dismiss, to which Plaintiff timely responded. (DE 41 and 42.)
Defendant Heyns filed a motion for summary judgment on December 9, 2016 and
the remaining Defendants, Combs, Eagen, and Warchock, filed a motion for
summary judgment on January 5, 2017. (DE 25 and 37.) Plaintiff has filed
responses in opposition to both motions for summary judgment and they are
presently awaiting the Court’s review.
Plaintiff filed the instant motion on February 24, 2017. (DE 45.) He asks
the Court for permission to amend his complaint a second time pursuant to Federal
Rule of Civil Procedure 15 in order to clarify the RSAT operation and the role each
Defendant played. He proposes to add claims under the First Amendment, as well
as due process and equal protection claims under the Fourteenth Amendment.
Defendants oppose his motion. The CPI Defendants assert that any
amendment would be futile because Plaintiff has failed to allege state action on
their part. (DE 47.) The MDOC Defendants assert that Plaintiff’s claims must fail
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because there is no constitutional or liberty interest in parole. (R. at 46.) All
Defendants ask the Court to deny Plaintiff’s motion to amend and grant the
pending dispositive motions to dismiss the case.
II.

STANDARD
Under Federal Rule of Civil Procedure 15(a), a party may amend its

pleadings at this stage of the proceedings only after obtaining leave of court. The
Rule provides that the Court should freely give leave for a party to amend its
pleading “when justice so requires.” Fed. R. Civ. P. 15(a)(2). “Nevertheless, leave
to amend ‘should be denied if the amendment is brought in bad faith, for dilatory
purposes, results in undue delay or prejudice to the opposing party, or would be
futile.”’ Carson v. U.S. Office of Special Counsel, 663 F.3d 487, 495 (6th Cir.
2011) (quoting Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995)).
III.

ANALYSIS

A.

CPI

The CPI Defendants assert that Plaintiff’s entire proposed amended
complaint is futile as to them because he has failed to allege state action sufficient
to create a cause of action pursuant to § 1983. To establish a viable claim under §
1983, a plaintiff must establish that he or she was deprived of a right ‘“secured by
the Constitution and the laws of the United States’ by one acting under color of
law.” Ahlers v. Schebil, 188 F.3d 365, 370 (6th Cir. 1999) (quoting Flagg Bros.,
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Inc. v. Brooks, 436 U.S. 149, 155-56 (1978)). “[E]ach defendant’s liability must
be assessed individually based on his [or her] own actions.” Binay v. Bettendorf,
601 F.3d 640, 650 (6th Cir. 2010).
In his proposed amended complaint, Plaintiff describes CPI as “the company
that was subcontracted to provide mental health service RSAT during the time
period Plaintiff was in DRC.” (DE 45 at ¶ 9.) The proposed amended complaint
contains no facts to indicate that CPI is a state actor. In his reply, he asserts that
MDOC delegated a public function to CPI, thereby making its actions those of the
state. (DE 50 at 3.) It is true that a private party can be viewed as a state actor for
§ 1983 purposes where it is performing functions “traditionally the exclusive
prerogative of the State.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 353
(1974). However, this District has consistently held that CPI’s function of
performing substance abuse counseling “cannot plausibly be deemed an exclusive
state function.” Roberts v. Paige, No. 10-cv-13743, 2013 WL 5435201, at *7
(E.D. Mich. Sept. 27, 2013); see also Reguli v. Guffee, 371 F. App’x 590, 600 (6th
Cir. 2010) (holding that providing counseling services is not a power reserved
exclusively to the state); Bagwell v. Cmty. Programs, Inc., No. 11-10796, 2011
WL 1447543, at *1 (E.D. Mich. Apr. 13, 2011) (finding that CPI did not engage in
state action sufficient to state a claim under § 1983); Blair v. Michigan Dep’t of
Corr., No. 12-cv-13661, 2012 WL 5511763, at *2 (Nov. 14, 2012) (same).
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Accordingly, Plaintiff’s motion to amend his complaint as to the CPI Defendants
would be futile.
B.

MDOC Defendants

Plaintiff asserts a variety of constitutional violations in his proposed
amended complaint against the MDOC Defendants. He contends that they violated
his rights under the Eighth Amendment because he was unlawfully imprisoned and
forced to undergo “unwarranted mental intrusions that were cruel and unusual.”
(DE 45 at 21, ¶ 76.) He makes several due process claims, asserting that he was
forced into mental health treatment without a hearing or notice, and was forced to
“learn and adopt vain philosophies” without due process. (Id. at 22 and 27, ¶¶ 82
and 108.) He maintains that Defendants violated his rights under the First
Amendment in a variety of ways: 1) by forcing him to believe in and proclaim a
higher power; 2) by forcing him to believe he could not find happiness within
himself; and 3) when they forbade him from singing or rapping. He posits that his
Fourth Amendment rights were violated when he was intentionally restricted to the
residential treatment facility while on parole. Finally, he makes an equal
protection claim, asserting that he was deprived of equal protection when these
Defendants “prevented him from being civilly committed in accordance with
Michigan law and [was] thereby unable to receive a proper and accurate mental
diagnosis or the negation thereof.” (DE 45 at 27, ¶ 104.) The MDOC Defendants
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argue that any constitutional claims are futile because “the fact that Plaintiff did
not agree with the conditions of his parole does not constitute a deprivation of a
constitutional right for purposes of maintaining a claim under 42 U.S.C. § 1983.”
(DE 46 at 8.)
The Supreme Court has explained that “[t]here is no constitutional or
inherent right of a convicted person to be conditionally released before the
expiration of a valid sentence.” Greenholtz v. Inmates of Neb. Penal & Corr.
Complex, 442 U.S. 1, 7 (1979).

Turning from that general principle to the

Michigan parole system specifically, the Sixth Circuit has clearly held that “the
Michigan parole scheme does not create an expectation regarding parole that is
sufficient to trigger a constitutionally protected liberty interest.” Ward v. Stegall,
93 F. App’x 805, 806 (6th Cir. 2014); see also, e.g., Glover v. Parole Bd., 596
N.W. 2d 598 (Mich. 1999) (concluding that there is no liberty interest in parole for
prisoners under the Michigan parole system); Reno v. Koray, 515 U.S. 50, 64
(1995) (concluding that time spent at a community treatment center while released
on bail was not “official detention.”). As such, Plaintiff’s parole-based claims are
insufficient to create a liberty interest, which in turn, dooms his due process
claims.
Likewise, Plaintiff’s Equal Protection claim is also futile.

The Equal

Protection Clause of the Fourteenth Amendment “protects against invidious
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discrimination among similarly-situated individuals or implicating fundamental
rights.” Scarborough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir.
2006). “The Equal Protection Clause prevents states from making distinctions that
(1) burden a fundamental right; (2) target a suspect class; or (3) intentionally treat
one individual differently from others similarly situated without any rational
basis.” Johnson v. Bredesen, 624 F.3d 742, 746 (6th Cir. 2010). Plaintiff does not
indicate what fundamental rights were implicated. Nor does he allege that he is a
member of a suspect class who was treated differently from other similarly situated
individuals. Accordingly, Plaintiff’s request to amend his complaint to add these
claims is denied. Specifically, claims 2, 7, 8, and 9 are futile as pleaded and
Plaintiff’s motion to amend complaint is denied as to those claims.
Further, Plaintiff’s claims against Defendants Combs, Warchock, and Eagen
are futile. Plaintiff identifies these Defendants as the Chairperson of the Michigan
Parole Board and members of the parole board, respectively. (DE 45 at 6-8.)
“Parole board members are absolutely immune from liability for their conduct in
individual parole decisions when they are exercising their decision making
powers.” Horton v. Martin, 137 F. App’x 773, 775 (6th Cir. 2005) (internal
quotation omitted).

“Likewise, those who make recommendations concerning

parole also enjoy absolute immunity.”

Id.

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Plaintiff’s claims against Combs,

Warchock, and Eagan are all related to their conduct with respect to his parole.
Accordingly, those individuals are entitled to absolute immunity.
Plaintiff’s second amended complaint proposes to add claims under the First,
Fourth, and Eighth Amendments that are not necessarily futile as pleaded.
However, the only remaining Defendant against whom those claims can be
asserted is Defendant Heyns. The MDOC Defendants assert that Plaintiff has
failed to allege that Defendant Heyns was personally involved in any of the
allegedly offending conduct.
Plaintiff pleads that Defendant Heyns “was the Director of the state of
Michigan Department of Corrections,” who was “legally responsible for the overall
operation of the Department and each institution under its jurisdiction, including
the Detroit Reentry Center.” (De 45 at ¶ 5.) The only action Plaintiff alleges that
Defendant Heyns took was to issue a memorandum instructing his staff to
“continue to run Detroit Reentry Center as the previous prison . . . and to treat
released parolees as high security prisoners[.]” (Id. at ¶ 26.) This can hardly be
construed as “personal involvement” vis-à-vis Plaintiff himself or the alleged
offending conduct.
As best as the Court can discern, Plaintiff attempts to allege a claim of
supervisory liability against Defendant Heyns, by citing the directives in the
memorandum that prison staff were required to follow.
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“[E]ach defendant’s

liability must be assessed individually based on his [or her] own actions.” Binay v.
Bettendorf, 601 F.3d 640, 650 (6th Cir. 2010). “Respondeat superior or vicarious
liability will not attach under § 1983.” City of Canton, Ohio v. Harris, 489 U.S.
378, 385 (1989). Instead, liability under § 1983 ‘“must be based on more than . . .
the right to control employees.”’ Comstock v. McCrary, 273 F.3d 693, 712-713
(6th Cir. 2002) (quoting Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)).
Specifically, the United States Court of Appeals for the Sixth Circuit has addressed
the requirements for supervisory liability to attach under § 1983 as follows:
[A] supervisory official’s failure to supervise, control or train the
offending individual is not actionable unless the supervisor “either
encouraged the specific incident of misconduct or in some other way
directly participated in it. At a minimum a plaintiff must show that
the official at least implicitly authorized, approved, or knowingly
acquiesced in the unconstitutional conduct of the offending officers.”
Shehee, 199 F.3d at 300 (quoting Hays v. Jefferson Cnty., Ky., 688 F.2d 869, 874
(6th Cir. 1982) (emphasis added)). Here, Plaintiff’s proposed amended complaint
does not contain any facts indicating that Defendant Heyns authorized, approved,
or knowingly acquiesced in any potentially unconstitutional conduct and alleges no
personal involvement whatsoever. As such, the proposed amended complaint is
futile as to Defendant Heyns.
III.

CONCLUSION

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In light of the foregoing, Plaintiff’s attempt to amend his complaint would
be futile. Accordingly, his motion for leave to file a second amended complaint is
DENIED. (DE 45.)
IT IS SO ORDERED.

Dated: April 17, 2017

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE

I hereby certify that a copy of the foregoing document was sent to parties of record
on April 17, 2017, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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