Burns v. Brewer et al
Filing
55
ORDER DENYING 51 Motion to Amend Judgment, and 52 Motion to Appoint Counsel. Signed by District Judge Terrence G. Berg. (AChu)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
2:18-cv-10937
WILLIAM BURNS,
HON. TERRENCE G. BERG
Plaintiff,
v.
ORDER DENYING MOTION
TO AMEND JUDGMENT AND
TO APPOINT COUNSEL
SHAWN BREWER, et al.,
Defendants.
William Burns, a pro se plaintiff presently in the custody of the
Michigan Department of Corrections (“MDOC”), filed this lawsuit
alleging that employees of the MDOC prohibited him from receiving
proofs of books he has authored, in violation of his civil rights. On
September 11, 2019, this Court adopted the Report and Recommendation
issued by Magistrate Judge Elizabeth Stafford granting in part and
denying in part the motion for summary judgment filed by Defendants
Michelle Floyd, Jennifer Norder, James King, Christine McCumberHemry, Kimberly Napier, Shawn Brewer, and Greg Wilton. ECF Nos. 26,
45, 50. On Magistrate Judge Stafford’s recommendation, the Court also
sua sponte dismissed Plaintiff’s claims against Defendants Fredeane
Artis and Brent Rohrig, finding that Plaintiff had failed to state any
plausible claims against them. See ECF Nos. 45, 50. Petitioner now
contends that his claims against Artis and Rohrig were prematurely
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dismissed because the Court had not yet received his response to Artis
and Rohrig’s motion for summary judgment. As relief, Petitioner requests
that this Court’s previous Order and Magistrate Judge Stafford’s Report
and Recommendation be modified to revive his claims against Artis and
Rohrig, and that the motion for summary judgment filed by those
Defendants be stricken. See ECF Nos. 48, 51. The Court will deny that
motion because it has dismissed his claims against those Defendants sua
sponte, i.e. of the Court’s own accord, not on the basis of their motion for
summary judgment. Petitioner has also filed a second motion for
appointment of counsel (ECF No. 52), as well as additional miscellaneous
motions that are now moot (ECF Nos. 47, 48). For reasons explained
below, the Court will deny those pending motions and also deny as moot
the motion for summary judgment filed by Defendants Artis and Rohrig
as the claims against those individuals have been dismissed. Petitioner’s
First-Amendment claims against Defendants Napier and King have
survived summary judgment and remain pending.
DISCUSSION
Defendants Fredeane Artis and Brent Rohrig were employed at G.
Robert Cotton Correctional Facility during the events that gave rise to
the allegations in Plaintiff’s complaint. Artis was an Assistant Deputy
Warden and Rohrig a Resident Unit Manager. See ECF No. 1, PageID.2–
3 (Compl.). In his Complaint, Plaintiff alleges violations of his due
process rights related to the correctional facility’s decision to deny him
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possession of four books his wife had mailed to him. See generally ECF
No. 1. The facts and claims at issue in this litigation are set forth in more
detail in the Court’s previous orders.
“[A] district court may, at any time, sua sponte, dismiss a complaint
for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the
Federal Rules of Civil Procedure when the allegations of a complaint are
totally implausible, attenuated, unsubstantial, frivolous, devoid of merit,
or no longer open to discussion.” Apple v. Glenn, 183 F.3d 477, 479 (6th
Cir. 1999) (citing Hagans v. Lavine, 415 U.S. 528, 536–37 (1974)); see 28
U.S.C. § 1915(e)(2)(B)(ii) (providing that under the Prison Litigation
Reform Act district courts may sua sponte dismiss an indigent plaintiff’s
civil rights action if it fails to state a claim upon which relief can be
granted). A plaintiff fails to state a claim “if it appears beyond a doubt
that the plaintiff can prove no set of facts in support of his claim that
would entitle him to relief.” Brown v. Bargery, 207 F.3d 863, 867 (6th Cir.
2000). To sufficiently allege liability on the part of a defendant in a § 1983
civil rights suit, a plaintiff must show that the named defendant was
personally involved in the allegations underlying the complaint. Smith v.
Doyle, No. 15-10090, 2017 WL 3780047, *2 (E.D. Mich. Jul. 5, 2017)
(citing Rizzo v. Goode, 423 U.S. 362, 372 (1976) and Bellamy v. Bradley,
729 F.2d 416 (6th Cir. 1984)). The Sixth Circuit has held that simply
reviewing or denying a prisoner’s grievance cannot establish personal
involvement of the defendant sufficient to support § 1983 liability.
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Shehee v. Lutrell, 199 F.3d 295, 300 (6th Cir. 1999); Skinner v. Govorchin,
463 F.3d 518, 525 (6th Cir. 2006).
Plaintiff’s Complaint contains only scant reference to Artis and
Rohrig and fails to state any plausible allegations against these
Defendants that could support § 1983 liability. Artis’s actions are
specifically described only in the following portion of the Complaint: “On
5/18/16 Administrative Assistant Napier sent a memorandum to Deputy
Floyd and Deputy Artis to assist in the hearing of Step I grievance.” ECF
No. 1, PageID.7. To the extent Plaintiff is suggesting Artis is liable for
the alleged due process violations because he reviewed a grievance
Plaintiff filed in connection with the MDOC’s decision denying him
permission to possess the books mailed to him, that grievance review as
a matter of law cannot support Plaintiff’s § 1983 claim against Artis. See
Shehee, 199 F.3d at 300. In his claim for relief section, Plaintiff also
asserts that Artis and other Defendants “fail[ed] to enforce policy” but he
fails to make any specific factual allegations that would permit the Court
to draw a reasonable inference that Artis is liable for any misconduct.
ECF No. 1, PageID.10–11; see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff has not
alleged facts that, even if proven to be true, would establish Artis was
personally involved in the alleged due process violations, or any other
conduct that could establish liability. Sua sponte dismissal of Plaintiffs’
claim against Artis was therefore appropriate.
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Concerning Rohig, the Complaint alleges that “On 4/14/16 Plaintiff
Burns received three (3) notice of package/mail rejections Exhibit B). The
signature was not legible. P.C. King and ROM Roh[i]g reported the
signature was J. Norder’s.” ECF No. 1, PageID.5. Again, even if true, this
factual allegation is insufficient to establish that Rohig was personally
involved in any violation of Plaintiff’s due process rights, or any other
rights guaranteed by the United States Constitution. As with Artis,
Plaintiff also asserts that Rohig “fail[ed] to enforce policy” but does not
allege any facts explaining how or why Plaintiff failed to enforce MDOC
policy, or what that failure would support a claim for civil rights
violations under § 1983. ECF No. 1, PageID.10–11. Because Plaintiff has
failed to allege facts that could plausibly establish a basis for Rohig’s
liability, the Court declines to alter its decision to sua sponte dismiss
Plaintiff’s claims against him.
The Court now turns to Plaintiff’s motion for appointment of
counsel. Unlike in criminal cases, there is no constitutional or statutory
right to appointment of counsel in civil cases. See Lavado v. Keohane, 992
F.2d 601, 605–06 (6th Cir. 1993); Wright v. West, 505 U.S. 277, 293
(1992). A collateral attack on an underlying criminal conviction is civil in
character. Pennsylvania v. Finley, 481 U.S. 551, 556–57 (1987). But when
“the interests of justice so require,” district courts may, in their
discretion, appoint counsel for an indigent prisoner “seeking relief under
section 2241, 2254, or 2255 of title 28” through a habeas petition. 18
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U.S.C. § 3006A(a)(2); see Henry v. City of Detroit Manpower Dep’t, 763
F.2d 757, 760 (6th Cir.) (en banc). In determining whether appointment
of counsel is warranted, district courts should consider, among other
factors, “the viability or frivolity of the [petitioner’s] claims, the nature
and complexity of the case, and the indigent’s ability to present the case.”
Sellers v. United States, 316 F. Supp. 2d 516, 522 (E.D. Mich. 2004)
(citations omitted). The Court does not consider this case the type of
extraordinary circumstance that might warrant appointment of counsel.
Plaintiff has on several occasions demonstrated his ability to cogently
advance his legal claims. Additionally, the civil rights violations Plaintiff
is alleging do not appear particularly complex or of a nature that
implicates Plaintiff’s safety or physical wellbeing. The Court will
accordingly deny the motion for appointment of counsel.
CONCLUSION
For these reasons, Plaintiff Williams Burns’s motions to amend the
Court’s September 11, 2019 Order (ECF No. 51) and to appoint counsel
(ECF No. 52) are DENIED. Further, Plaintiff’s motion for enlargement
of time (ECF No. 47) and motion to strike Defendants Artis and Rohrig’s
motion for summary judgment and portions of the Magistrate Judge’s
August 15, 2019 Report and Recommendation (ECF No. 48) are DENIED
as moot. Additionally, the motion for summary judgment filed by
Defendants Artis and Rohrig (ECF No. 44) is DENIED as moot because
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those Defendants have been sua sponte dismissed by the Court.
Dated: October 31, 2019
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
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