Nichols v. Deangelo et al

Filing 10

OPINION and ORDER (1) Dismissing Defendant Deangelo, (2) Dismissing Sixth Amendment Claim, (3) Directing Plaintiff to Show Cause Why Case Should not be Dismissed, and (4) Denying Motion to Appoint Counsel 5 . Signed by District Judge Denise Page Hood. (LSau)

Case 2:23-cv-10570-DPH-EAS ECF No. 10, PageID.86 Filed 05/18/23 Page 1 of 6

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Danny Albert Nichols,
Plaintiff,

Case Number: 23-10570
Honorable Denise Page Hood

v.
Jodi Deangelo, et al.,
Defendants.
/
OPINION AND ORDER
(1) DISMISSING DEFENDANT DEANGELO,
(2) DISMISSING SIXTH AMENDMENT CLAIM,
(3) DIRECTING PLAINTIFF TO SHOW CAUSE
WHY CASE SHOULD NOT BE DISMISSED, AND
(4) DENYING MOTION TO APPOINT COUNSEL
Plaintiff Danny Albert Nichols, Jr., has filed a pro se complaint for money
damages under 42 U.S.C. § 1983. (ECF No. 1.) Nichols is a state prisoner in the
custody of the Michigan Department of Corrections (MDOC), presently confined
in the Woodland Center Correctional Facility in Whitmore Lake, Michigan. He
alleges that defendants, who are all employed by the MDOC, have violated his
rights under the Sixth and Eighth Amendments.
Nichols fails to state a claim under the Sixth Amendment. He also fails to
state a claim against Defendant Jodie Deangelo. The Court will dismiss the Sixth
Amendment claim and defendant Deangelo under 28 U.S.C. § 1915(e)(2)(B).
Additionally Nichols names the defendants only in their official capacity, but state

Case 2:23-cv-10570-DPH-EAS ECF No. 10, PageID.87 Filed 05/18/23 Page 2 of 6

officials cannot be sued for money damages in their official capacity. The Court
will order Nichols to show cause why the complaint should not be dismissed on
that basis.
I. Legal Standard
Nichols has been granted leave to proceed without prepayment of the filing
fee for this action. Under the Prison Litigation Reform Act of 1996 (“PLRA”), the
Court is required to sua sponte dismiss an in forma pauperis complaint before
service if it determines 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).
A complaint is frivolous if it lacks an arguable basis in law or in fact. Denton v.
Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Federal Rule of Civil Procedure 8(a) requires that a complaint set forth “a
short and plain statement of the claim showing that the pleader is entitled to relief,”
as well as “a demand for the relief sought.” Fed. R. Civ. P. 8(a)(2), (3). The
purpose of this rule is to “give the defendant fair notice of what the ... claim is and
the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957) and Fed. R. Civ. P.
8(a)(2)). While such notice pleading does not require detailed factual allegations, it
does require more than the bare assertion of legal conclusions. Twombly, 550 U.S.
2

Case 2:23-cv-10570-DPH-EAS ECF No. 10, PageID.88 Filed 05/18/23 Page 3 of 6

at 555. Rule 8 “demands more than an unadorned, the defendant-unlawfullyharmed me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
To state a federal civil rights claim, 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. 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).
II. Motion for Appointment of Counsel
Nichols seeks the appointment of counsel to assist him in litigating this case.
The Court has discretion to determine whether counsel should be appointed in a
civil case. Garrison v. Michigan Department of Corrections, 333 F. App’x 914,
917 (6th Cir. 2009). The Court finds that the interests of justice do not require the
appointment of counsel at this time. See 18 U.S.C. § 3006A(a)(2)(B).

3

Case 2:23-cv-10570-DPH-EAS ECF No. 10, PageID.89 Filed 05/18/23 Page 4 of 6

II. Discussion
Nichols alleges that Defendants violated his rights under the Sixth and
Eighth Amendments.

He states that, on the evening of December 20, 2022,

defendant Masassabie, a corrections officer, assaulted him by kneeing him in his
side and punching him in the head. (ECF No. 1, PageID.6.) Defendant Tippa
ordered Masassabie to place Nichols into a “shower cage” where Nichols remained
for 13-1/2 hours without food or access to a bathroom. (Id.) Nichols further states
that defendants Haistings and Colon were present and allowed Masassabie to
assault him. (Id. at PageID.5.)
Nichols fails to state a claim against defendant Deangelo, warden of the
Woodland Correctional Facility. His only allegation against Deangelo is that she
allowed Masassabie to assault him. (See ECF No. 1, PageID.5.) Liability under
§ 1983 may not be based on a theory of respondeat superior or vicarious liability.
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691-92 (1978). A supervisor’s failure
to supervise, train or control an employee is not actionable under § 1983, unless
the plaintiff shows “the official at least implicitly authorized, approved, or
knowingly acquiesced in the unconstitutional conduct . . .” Hays v. Jefferson
County, Ky., 668 F.2d 869, 874 (6th Cir. 1982). Nichols does not claim that
Deangelo was present during the alleged assault, that she authorized the assault, or

4

Case 2:23-cv-10570-DPH-EAS ECF No. 10, PageID.90 Filed 05/18/23 Page 5 of 6

that she otherwise had any active involvement in the alleged unconstitutional
behavior. He, therefore, fails to state a claim against Deangelo.
Nichols also fails to state a claim under the Sixth Amendment. The Sixth
Amendment guarantees trial rights to criminal defendants: the rights to a speedy
and public trial, to a lawyer, to an impartial jury, to be informed of the nature and
cause of the accusations against them, to confront witnesses against them, to call
witnesses on their behalf, and to self-representation. See U.S. CONST. amend. VI.
Nichols asserts only that his Sixth Amendment rights were violated. He fails to
state in what way defendants violated these rights or to present any factual
allegations to support this claim. This is likely because the Sixth Amendment is
inapplicable in this context. The guarantees of the Sixth Amendment apply only to
“criminal prosecutions.” Kirby v. Illinois, 406 U.S. 682, 690 (1972). The Sixth
Amendment claim will be dismissed.
Finally, Nichols names the defendants only in their official, rather than
personal, capacities.

The Eleventh Amendment bars civil rights actions for

monetary damages in federal court brought against states and state employees in
their official capacities unless the State has “waived its immunity” or its immunity
has been abrogated by Congress. Will v. Mich. Dep’t of State Police, 491 U.S. 58,
71 (1989). Michigan has not waived its immunity to civil suits in federal courts

5

Case 2:23-cv-10570-DPH-EAS ECF No. 10, PageID.91 Filed 05/18/23 Page 6 of 6

nor has Congress abrogated its immunity. See Abick v. Michigan, 803 F.2d 874,
877 (6th Cir. 1986).
Because Plaintiff names the defendants in their official capacities only, the
Court will require him to show cause within thirty days why the case should not be
dismissed based on Eleventh Amendment immunity.
III. Order
Accordingly, Defendant Warden Jodi Deangelo is DISMISSED and
Plaintiff’s claims alleging a Sixth Amendment violation are DISMISSED.
Plaintiff’s motion for appointment of counsel (ECF No. 5) is DENIED.
Plaintiff must SHOW CAUSE in writing within thirty days why the case
should not be dismissed based on Eleventh Amendment immunity.
IT IS SO ORDERED.

s/Denise Page Hood
United States District Judge
Dated: May 18, 2023

6