Clarke v. Brewer

Filing 6

OPINION AND ORDER Summarily Dismissing Plaintiff's 1 Civil Rights Complaint and Denying Motions to Appoint Counsel and a Guardian ad Litem filed by Tina M. Clarke. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
___________________________________________________________________
TINA MARIE CLARKE,
Plaintiff,
v.

Case No. 18-11880

SHAWN S. BREWER,
Defendant.
_____________________________/
OPINION AND ORDER SUMMARILY DISMISSING PLAINTIFF’S CIVIL RIGHTS
COMPLAINT AND DENYING MOTIONS TO APPOINT COUNSEL AND
A GUARDIAN AD LITEM
Plaintiff Tina Marie Clarke—incarcerated at the Huron Valley Women’s
Correctional Facility in Ypsilanti, Michigan—has filed a document entitled “Motion for
Appointment of Counsel and Guardian Ad Litem.” (Dkt. #1.) The court construes the
filing as a civil rights complaint under 42 U.S.C. § 1983 and will dismiss for failure to
state a claim upon which relief can be granted. The motion for the appointment of
counsel or a guardian ad litem is denied.
I. BACKGROUND
Plaintiff alleges that she suffers from a Traumatic Brain Injury (“TBI”) as a result
of an automobile accident years ago. She says that this injury has rendered her
mentally incompetent. The Michigan state courts ordered appointment of a guardian ad
litem to assist Plaintiff with her affairs.
Plaintiff says that in February 2014, she asked the law librarian at the Huron
Valley Women’s Correctional Facility if she could have extra time in the library. The

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United States Court of Appeals for the Sixth Circuit had affirmed the district court’s
denial of her petition for writ of habeas corpus, and Plaintiff needed additional time to
research the deadline for filing a motion for rehearing en banc. Plaintiff also requested
assistance from a legal writer: a fellow prisoner who could provide legal assistance. She
requested assistance with filing a petition for writ of certiorari with the United States
Supreme Court.
Plaintiff claims that Delores Kapulsinski, a fellow prisoner, was appointed to be
her legal writer. Plaintiff alleges that Ms. Kapulsinski miscalculated the deadline for filing
a petition for writ of certiorari with the Supreme Court. Plaintiff alleges that as a result of
Ms. Kapulsinski’s negligence, the Supreme Court refused to entertain her petition for
writ of certiorari because it was untimely. Plaintiff further alleges that Ms. Kapulsinki
gave her inaccurate information about when she learned that the Supreme Court had
rejected the petition for writ of certiorari.
Plaintiff further alleges that she asked the law librarian if she could obtain a legal
writer to help her draft a § 1983 lawsuit against the firm that supervised the Legal
Writers Program—Peterson, Paletta, and Balese PLC—for Ms. Kapulsinki’s alleged
negligence. Plaintiff claims that Ms. Kapulsinski was actually assigned to assist Plaintiff
with preparing her civil rights complaint. Ms. Kapulsinski was ultimately removed from
the case because Peterson, Paletta, and Balese PLC asserted that there was a conflict
of interest for Ms. Kapulsinski to continue to assist Plaintiff with her legal matters.
Plaintiff was assigned another legal writer, Sharon Radke, who was also later
removed. A third prisoner, Carol Poole, was assigned to assist Plaintiff. Eventually, Ms.
Poole informed Plaintiff that she could no longer avail herself of the Legal Writers

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Program because it would be a conflict of interest while she was attempting to sue
Peterson, Paletta, and Balese.
Plaintiff claims that Peterson, Paletta, and Balese and her assigned legal writers
deliberately allowed the three year statute of limitations to expire on her civil rights
complaint. Plaintiff also claims that all three legal writers extracted information from her
under false pretenses because they all knew they were laboring under a conflict of
interest. Plaintiff has filed a complaint against Peterson, Paletta, and Balese with the
Michigan Attorney Grievance Commission.
In the present suit, Plaintiff has only named one defendant: Shawn S. Brewer,
the warden at the Huron Valley Women’s Correctional Facility.
II. STANDARD
Plaintiff has been allowed to proceed in forma pauperis (“IFP”)—without
prepayment of fees. See 28 § U.S.C. 1915(a); McGore v. Wrigglesworth, 114 F.3d 601,
604 (6th Cir. 1997). The court must dismiss an IFP complaint if the action is “frivolous or
malicious” or “fails to state a claim on which relief may be granted.” § 1915(e)(2)(B)(i)–
(ii). “A complaint . . . is frivolous where it lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989).
The court considers whether the complaint “fails to state a claim on which relief
may be granted” under the familiar guidelines of Rule 8. Under Federal Rule of Civil
Procedure 8(a)(2), a complaint must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” The complaint must demonstrate more
than just a possibility of wrongdoing; rather, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft

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v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “[W]here the well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged—but it has not shown—
that the pleader is entitled to relief.” Id. at 679. The court views the complaint in the light
most favorable to the plaintiff, and it accepts all well-pleaded factual allegations as true.
Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009). The court
need not, however, “accept as true legal conclusions or unwarranted factual
inferences.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007).
Although Plaintiff does not specifically cite 42 U.S.C. § 1983 in her pleadings, the
court properly construes her complaint as a civil rights action under § 1983 because she
alleges a denial of her right to access the courts. See, e.g., Brown v. Mills, 639 F.3d
733, 734 (6th Cir. 2011). To establish her claims under 42 U.S.C. § 1983, Plaintiff must
prove “(1) the deprivation of a right secured by the Constitution or laws of the United
States (2) caused by a person acting under the color of state law.” Sigley v. City of
Parma Heights, 437 F.3d 527, 533 (6th Cir. 2006) (citing West v. Atkins, 487 U.S. 42,
48 (1988)). “If a plaintiff fails to make a showing on any essential element of a § 1983
claim, it must fail.” Redding v. St. Eward, 241 F.3d 530, 532 (6th Cir. 2001).
III. DISCUSSION
The complaint must be dismissed because it fails to set forth any facts
establishing Defendant’s involvement in the alleged violation of Plaintiff’s constitutional
rights.
To state a civil rights claim under 42 U.S.C. § 1983, a plaintiff must allege the
personal involvement of a defendant. See Monell v. Dep’t of Soc. Srvs., 436 U.S. 658,

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691–92 (1978) (section 1983 liability cannot be based upon a theory of respondeat
superior or vicarious liability); Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009)
(same); see also Taylor v. Michigan Dep’t of Corrections, 69 F.3d 716, 727–28 (6th Cir.
1995) (plaintiff must allege facts showing that the defendant participated, condoned,
encouraged, or knowingly acquiesced in alleged misconduct to establish liability).
Plaintiff does not allege Warden Brewer’s involvement or even mention the warden by
name in the complaint. The fact that Defendant Brewer is the warden of the Huron
Women’s Correctional Facility does not make the defendant liable for the alleged
violations here.
A supervisory official like Defendant cannot be held liable under § 1983 for the
misconduct of officials that the person supervises unless the plaintiff can demonstrate
that “the supervisor encouraged the specific instance of misconduct or in some other
way directly participated in it.” Combs v. Wilkinson, 315 F.3d 548, 558 (6th Cir. 2002)
(quoting Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984)). A plaintiff must show, at
a minimum, that the supervisory official “at least implicitly authorized, approved, or
knowingly acquiesced in the unconstitutional conduct of the offending officers.” Id.
“Supervisory liability under § 1983 cannot be based on a mere failure to act but must be
based upon active unconstitutional behavior.” Id. (citing Bass v. Robinson, 167 F.3d
1041, 1048 (6th Cir. 1999)).
Plaintiff has not alleged anything to suggest that Defendant committed any of the
acts of which she complains, or otherwise acquiesced in the other parties’ conduct. See
Grinter v. Knight, 532 F.3d 567, 575–76 (6th Cir. 2008); see also Smith-El v. Steward,
33 F. App’x 714, 716–17 (6th Cir. 2002) (warden and assistant warden could not be

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held individually liable under § 1983 for subordinate’s alleged violation of prisoner’s First
Amendment right of access to courts based on respondeat superior theory). The court is
mindful of its obligation to liberally construe complaints by pro se litigants. See Jourdan
v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991). But it is not required furnish additional
factual allegations where none presently exist—to do so would improperly transform the
court into an advocate for the plaintiff. Thompson v. A.J. Rose Mfg. Co., No. 99-3728,
2000 WL 302998, at *1 (6th Cir. 2000). The court summarily denies the complaint
because Plaintiff fails to state a claim upon which relief can be granted.
The court will also deny Plaintiff’s motion for the appointment of counsel.
Although there is a fundamental constitutional right to counsel in criminal cases, there is
no constitutional right to appointed counsel in a civil case. Abdur-Rahman v. Michigan
Dep’t of Corrections, 65 F.3d 489, 492 (6th Cir. 1995). Plaintiff also does not have a
statutory right to the appointment of counsel in a federal civil rights case. See Glover v.
Johnson, 75 F.3d 264, 268 (6th Cir. 1996). Appointment of counsel is not appropriate in
a civil case where a pro se litigant’s claims are frivolous or without merit. See Lavado v.
Keohane, 992 F.2d 601, 605–06 (6th Cir. 1993). Because this court has already
determined that Plaintiff’s claim is without merit, it will not appoint counsel.
The court also denies Plaintiff’s motion for the appointment of a guardian ad
litem. Fed. R. Civ. P. 17(c)(2) provides that “[t]he court must appoint a guardian ad
litem—or issue another appropriate order—to protect a minor or incompetent person
who is unrepresented in an action.” The court will deny the motion. The court maintains
discretion to deny appointment of a guardian ad litem where—as here—a plaintiff’s
claims are dismissed without prejudice. See Berry v. Daly, No. 16-14495, 2017 WL

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410339, at *2 (E.D. Mich. Jan. 30, 2017) (Leitman, J.). Because Plaintiff’s claims are
dismissed without prejudice for lack of merit, appointment of a guardian ad litem would
add unnecessary expense and needlessly delay these proceedings.
IV. CONCLUSION
Even construed liberally, Plaintiff’s complaint fails to state a claim. Her motions
for appointment of counsel and appointment for a guardian ad litem are properly denied.
Accordingly,
IT IS ORDERED that Plaintiff’s complaint (Dkt. #1) is DISMISSED. The contained
motions for appointment of counsel and appointment of a guardian ad litem are
DENIED.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: June 29, 2018
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, June 29, 2018, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]
Z:\Cleland\KNP\Civil\18-11880.CLARKE.Dismiss.Complaint.Deny.Counsel.Guardian.DHB.KNP.docx

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