Ward v. Samuel

Filing 10

ORDER Denying 8 MOTION for Temporary Restraining Order filed by Donald Ward, Granting 9 MOTION to Amend/Correct filed by Donald Ward; and ORDER DISMISSING CASE. Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DONALD R. WARD,
Plaintiff,
Case No. 5:12-cv-14298
Honorable John Corbett O’Meara

v.
CHARLES SAMUEL, JR., et al.,
Defendants.
___________________________/

ORDER GRANTING PLAINTIFF’S MOTION TO AMEND,
DENYING PLAINTIFF’S FOR INJUNCTIVE RELIEF,
AND DISMISSING THE COMPLAINT WITH PREJUDICE
I. Introduction
Pending before the Court are Donald R. Ward’s pro se civil rights complaint,
motion for a temporary restraining order or injunction, and motion to amend or
supplement his pleading. Plaintiff is a federal prisoner who was confined at the Federal
Correctional Institution in Milan, Michigan (FCI-Milan) when he filed his complaint.
Records maintained by the Federal Bureau of Prisons on its official website indicate that
Plaintiff currently is incarcerated at the Terre Haute United States Prison in Terre Haute,
Indiana. See www.bop.gov.
Defendant Charles Samuel, Jr., is the Director of the Federal Bureau of Prisons
in Washington, D.C. The complaint also refers to a prison counselor by the name of T.
Hall and an unidentified defendant described as John Doe.
Plaintiff alleges that he has several life threatening medical conditions and that
the defendants have deprived him of his constitutional right to adequate medical

treatment. Plaintiff claims to be suffering from irreversible injury to vital organs as a
result of the defendants’ “willful negligence.” Plaintiff further alleges that he has not
received the same work privileges as other inmates and that the third-shift staff at FCIMilan harasses him by kicking on his door and waking him at night.
In his motion for a temporary restraining order or injunction, Plaintiff alleges that
he has an urgent need for a treatment plan. In his motion to amend or supplement the
complaint, Plaintiff seeks to substitute Baldhead Fortune for defendant John Doe. The
motion also expands on Plaintiff’s constitutional claim, and it seeks to amend the
request for relief to include a court order directing the defendants to devise a treatment
plan, to provide prescription pain medication and a back brace, and to place Plaintiff in
an accredited facility for follow-up care with professional doctors.
II. Standard of Review
Due to Plaintiff’s indigence, the Court has granted him permission to proceed
without prepayment of the fees and costs for this action. The Court must dismiss an
indigent prisoner’s civil rights complaint against a governmental entity, officer, or
employee if the complaint (1) is frivolous or malicious, (2) fails to state a claim for which
relief may be granted, or (3) seeks monetary relief from a defendant who is immune
from such relief. 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); 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). While a complaint need not contain “detailed
factual allegations,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007),
conclusory statements will not suffice, and only a complaint that states a plausible claim
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for relief will survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citing Twombly, 550 U.S. at 555-56). “So, to survive scrutiny under §§ 1915A(b)(1) and
1915(e)(2)(B)(ii), ‘a complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.’” Hill v. Lappin, 630 F.3d. 468, 471
(6th Cir. 2010) (quoting Iqbal, 556 U.S. at 678).
Because Plaintiff has sued federal officials, the Court construes his complaint as
one brought under Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388, 389 (1971) (holding that a plaintiff may bring an action for
money damages against a federal official for allegedly unconstitutional conduct). “In
order to state a cause of action under Bivens, the plaintiff must allege facts which show
that the individual defendant acted ‘under color of federal authority’ and was personally
involved in the deprivation of the plaintiff’s constitutional rights.” Mueller v. Gallina, 137
F. App’x 847, 850 (6th Cir. 2005) (citing Browning v. Clinton, 292 F.3d 235, 250 (D.C.
Cir. 2002), and Gossmeyer v. McDonald, 128 F.3d 481, 495 (7th Cir. 1997)).
III. Discussion
The Court begins its discussion by granting Plaintiff’s motion to amend his
complaint to substitute Baldhead Fortune for defendant John Doe. The Court construes
the complaint liberally to name T. Hall as a defendant as well. All three defendants
(Hall, Fortune, and Samuel) presumably act under color of federal authority when
performing their official duties. The issue, therefore, is whether Plaintiff has
demonstrated that the defendants were personally involved in depriving him of his
constitutional rights.
Prisoners are entitled to adequate medical care, and the conditions under which
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they are confined are subject to scrutiny under the Eighth Amendment to the United
States Constitution, which prohibits cruel and unusual punishment. Farmer v. Brennan,
511 U.S. 825, 832 (1994).
[A] prison official violates the Eighth Amendment 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” . . . .
The second requirement follows from the principle that “only the
unnecessary and wanton infliction of pain implicates the Eighth
Amendment.” To violate the Cruel and Unusual Punishments Clause, 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 . . . .
. . . . [D]eliberate indifference describes a state of mind more
blameworthy than negligence. . . .
....
[A] prison official cannot be found liable under the Eighth Amendment for
denying an inmate humane conditions of confinement unless the official
knows of and disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must also
draw the inference.
Id. at 834-35, 837 (citations omitted).
The contention that defendant Samuel is responsible for the facilities under his
control and has the duty and responsibility to ensure that Plaintiff is treated competently
suggests that Plaintiff is suing Samuel under a respondeat superior or vicarious liability
theory. “Government officials may not be held liable for the unconstitutional conduct of
their subordinates under a theory of respondeat superior.” Iqbal, 556 U.S. at 676. In
other words, “a Bivens plaintiff, unlike a state tort law plaintiff, normally [may] not apply
principles of respondeat superior and thereby obtain recovery from a defendant’s
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potentially deep-pocketed employer.” Minneci v. Pollard, __ U.S. __, __, 132 S. Ct.
617, 625 (2012) (citing Iqbal, 556 U.S. at 676). A supervisor is not liable in a civil rights
action
unless the supervisor “either encouraged the specific incident of
misconduct or in some other way directly participated in it.” Shehee v.
Luttrell, 199 F.3d 295, 300 (6th Cir.1999) (quoting Hays v. Jefferson
County, 668 F.2d 869, 874 (6th Cir. 1982)). “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.” Id. (quoting Hays, 668 F.2d at 874).
Campbell v. Springboro, Ohio, 700 F.3d 779, 790 (6th Cir. 2012).
Plaintiff has not alleged any facts demonstrating that Samuel approved of,
authorized, or knowingly acquiesced in unconstitutional conduct by his subordinates. In
fact, there is no indication that Samuel even knew about Plaintiff’s health issues and
conditions of confinement. Thus, Plaintiff has failed to state a claim for relief against
defendant Samuel.
To prevail on his claims about the remaining defendants, Plaintiff must allege
“with particularity, facts that demonstrate what each defendant did to violate the
asserted constitutional right.” Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008)
(citing Terrance v. Northville Reg’l Psychiatric Hosp., 286 F.3d 834, 842 (6th Cir. 2002))
(emphasis in original). Plaintiff alleges in one of his motions that Hall and Fortune’s
diagnostic protocols display deliberate indifference to Plaintiff’s medical condition.
Plaintiff has not provided sufficient details about the diagnostic protocols or the
defendants’ state of mind to show that Hall and Fortune knew of, and disregarded, an
excessive risk to his health. The Court therefore concludes that Plaintiff’s conclusory

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allegation falls short of stating an Eighth Amendment claim for deliberate indifference to
serious medical needs. And because Plaintiff is no longer confined at FCI-Milan where
defendants Hall and Fortune are employed, his requests for declaratory and injunctive
relief are now moot. Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996).
Plaintiff insinuates that Hall violated his constitutional right to due process by
disclosing Plaintiff’s medical records to inmates and staff. Plaintiff claims to have a right
to privacy in his medical records, but prisoners have no constitutional right to
nondisclosure of private information. See Doe v. Wigginton, 21 F.3d 733, 740 (6th Cir.
1994). Thus, Plaintiff is not entitled to relief on his due process claim.
The allegation that staff kicked on Plaintiff’s cell door while he slept also does not
establish a constitutional violation. Harassment, such as Plaintiff describes, simply
does not constitute the type of infliction of pain that the Eighth Amendment prohibits.
See Johnson v. Unknown Dellatifa, 357 F.3d 539, 545-46 (6th Cir. 2004) (rejecting a
prisoner’s claim that a correctional officer’s harassment, which included banging and
kicking the prisoner’s cell door, throwing food trays through the prisoner’s cell door,
making aggravating and insulting remarks to him, growling and snarling through his
window, smearing his window to prevent him from seeing out of it, behaving in a racially
prejudicial manner, and pulling him unnecessarily hard when escorting him from his cell,
violated the Eighth Amendment).
IV. Summary and Conclusion
For the reasons given above, Plaintiff has failed to allege sufficient facts to state
a claim for relief that is plausible on its face. Accordingly, the complaint [Doc. #1, filed

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Sept. 27, 2012] is summarily DISMISSED as frivolous and for failure to state a claim for
which relief may be granted. 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b).
The motion to amend or supplement the complaint [Doc. #9, filed Dec. 13, 2012]
is GRANTED, but the motion for a temporary restraining order or injunction [Doc. #8,
filed Dec. 13, 2012] is DENIED as moot. Finally, 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, 443-45 (1962); McGore v. Wrigglesworth, 114 F.3d 601,
610-11 (6th Cir. 1997).

s/John Corbett O'Meara
United States District Judge

Date: January 23, 2013

I hereby certify that a copy of the foregoing document was served upon the
parties of record on this date, January 23, 2013, using the ECF system and/or ordinary
mail.

s/William Barkholz
Case Manager

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