Davis v. Thomas et al

Filing 7

OPINION and ORDER Dismissing Plaintiff's 1 Complaint in Part and Denying Plaintiff's 3 MOTION to Appoint an Attorney. Signed by District Judge Judith E. Levy. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Jeanette Davis, #847988,
Plaintiff,
v.

Case No. 18-cv-10075
Judith E. Levy
United States District Judge

Renee Thomas, et al.,
Defendants.

Mag. Judge Stephanie Dawkins
Davis

________________________________/
OPINION AND ORDER DISMISSING PLAINTIFF’S
COMPLAINT IN PART AND DENYING PLAINTIFF’S MOTION
TO APPOINT AN ATTORNEY
I.

Introduction
This is a pro se civil rights case brought pursuant to 42 U.S.C.

§ 1983. Michigan prisoner Jeannette Dominique Davis, confined at the
Huron Valley Women’s Correctional Facility in Ypsilanti, Michigan,
alleges that she was improperly sprayed with pepper spray following an
altercation with another inmate, that she was denied proper medical
care following the incident, that a corrections officer falsified documents
during the disciplinary process, that prison officials failed to properly
respond to her grievances, and that she was placed in administrative

segregation in retaliation for filing a grievance. She names Corrections
Officer Renee Thomas, (former) Warden Millicent Warren, Residential
Unit Manager Alan Greason, Lieutenant V. Gauci, Sergeant C. White,
Nurse Hammon, (former) Michigan Department of Corrections Director
Daniel Heyns, and Grievance Coordinators Bragg and Boa as the
defendants in this action. She sues defendants in their individual and
official capacities and seeks declaratory relief, monetary damages, and
any other appropriate relief. The Court has granted plaintiff leave to
proceed without prepayment of the fees and costs for this action. (Dkt.
5).
II.

Discussion
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,
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it does require more than the bare assertion of legal conclusions.
Twombly, 550 U.S. at 555. Rule 8 “demands more than an unadorned,
the defendant-unlawfully-harmed me accusation.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). “A pleading that offers ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a cause of
action will not do.’” Id. (quoting Twombly, 550 U.S. at 555). “Nor does
a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further
factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
Under the Prison Litigation Reform Act of 1996 (“PLRA”), the
Court is required to sua sponte dismiss an in forma pauperis complaint
before service on a defendant if it determines that 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); see also 28
U.S.C. § 1915A (applying this standard to government entities, officers,
and employees as defendants). A complaint is frivolous “where it lacks
an arguable basis either in law or in fact.” Denton v. Hernandez, 504
U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 325
(1989)).
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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege
that (1) she 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); Harris v. Circleville,
583 F.3d 356, 364 (6th Cir. 2009). A pro se civil rights complaint is to
be construed liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
Despite this liberal pleading standard, the Court finds that portions of
plaintiff’s complaint are subject to summary dismissal.
The claims against defendants Warren, Greason, Gauci, White,
Heyns, Bragg, and Boa must be dismissed. Plaintiff fails to allege facts
demonstrating the personal involvement of those defendants in the
claimed instances of unconstitutional conduct giving rise to the
complaint. It is well-settled that a civil rights plaintiff must allege the
personal involvement of a defendant to state a claim under 42 U.S.C. §
1983. See Monell v. Department of Social Svs., 436 U.S. 658, 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
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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 has not done so with respect to defendants Warren, Greason,
Gauci, White, Heyns, Bragg, and Boa. Conclusory allegations are
insufficient to state a civil rights claim under § 1983. Iqbal, 556 U.S. at
678 (pleadings require “more than a sheer possibility defendant has
acted unlawfully”).
In addition, bare assertions that those defendants failed to
supervise an employee, should be vicariously liable for an employee’s
conduct, erred in denying grievances or complaints, and/or did not
sufficiently respond to the situation are insufficient to state a claim
under § 1983. See, e.g., Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir.
1999) (noting “that § 1983 liability must be based on more than
respondeat superior, or the right to control employees” and absolving
prison officials of liability where the plaintiff failed to show, beyond his
pleadings, that the defendant officials did more than “the den[y]
administrative grievances or [] fail[] to act”); Martin v. Harvey, 14 F.
App’x 307, 309 (6th Cir. 2001) (dismissing a defendant because his “only
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involvement was the denial of the appeal of the grievance,” and, “[t]o
the extent that defendant McGinnis is sued because of his past position
of authority, the doctrine of respondeat superior does not apply in §
1983 lawsuits to impute liability onto supervisory personnel”). To state
a claim for failure to supervise under § 1983, plaintiff must allege that
“(1) the training or supervision was inadequate for the tasks performed;
(2) the inadequacy was the result of the municipality's deliberate
indifference; and (3) the inadequacy was closely related to or actually
caused the injury.” Ellis ex rel. Pendergrass v. Cleveland Mun. Sch.
Dist., 455 F.3d 690, 700 (6th Cir. 2006). Plaintiff makes no such
allegation here.
Moreover, to the extent plaintiff asserts that one or more of the
defendants violated her constitutional rights by denying her grievances,
she fails to state a claim for relief. The First Amendment guarantees
“the right of the people . . . to petition the Government for a redress of
grievances.” U.S. Const. amend. I. While a prisoner has a First
Amendment right to file grievances against prison officials, Herron v.
Harrison, 203 F.3d 410, 415 (6th Cir. 2000), the First Amendment does
not impose an affirmative obligation on the government to consider,
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respond to, or grant any relief on a petition for redress of grievances.
Smith v. Arkansas State Hwy. Employees, Local 1315, 441 U.S. 463, 465
(1979) (“[T]he First Amendment does not impose any affirmative
obligation on the government to listen [or] to respond . . .”); Apple v.
Glenn, 183 F.3d 477, 479 (6th Cir. 1999) (“A citizen’s right to petition
the government does not guarantee a response to the petition or the
right to compel government officials to act on or adopt a citizen’s
views.”). Moreover, an inmate does not have a constitutionally
protected interest in a jail or prison grievance procedure or the right to
an effective procedure. Walker v. Michigan Dep’t of Corrections, 128 F.
App’x 441, 445 (6th Cir. 2005). To the extent that plaintiff is
dissatisfied with the investigation of her concerns and responses to her
grievance, she fails to state a claim upon which relief may be granted.
See Carlton v. Jondreau, 76 F. App’x 642, 644 (6th Cir. 2003) (“Although
a prisoner has a First Amendment right to file grievances against
prison officials, a state has no federal due process obligation to follow all
of its grievance procedures.”) (internal citations removed).
Additionally, plaintiff also fails to state a claim upon which relief
may be granted against defendant Thomas regarding the alleged
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falsification of documents during the disciplinary process. “False
accusations of misconduct filed against an inmate do not constitute a
deprivation of constitutional rights where the charges are subsequently
adjudicated in a fair hearing.” Cromer v. Dominguez, 103 F. App'x 570,
573 (6th Cir. 2004) (citing Cale v. Johnson, 861 F.2d 943, 953 (6th Cir.
1988) (Nelson, J., concurring)). Though plaintiff alleges that defendant
Thomas “falsified documents” during the “ticket writing process,” there
is no indication any defendant deprived her of due process in resolving
the ticket. (Dkt. 1 at 7.) Instead, she was able to avail herself of the
prison’s full grievance procedure, and does not point to any facts
demonstrating the grievance procedure was not a “fair hearing.” See
Cromer, 103 F. App’x at 573. Accordingly, plaintiff fails to state a claim
as to this issue. See id.
Finally, plaintiff’s claims for declaratory relief and monetary
damages against all defendants in their official capacities are subject to
dismissal on the basis of immunity. The Eleventh Amendment bars
civil rights actions against a state, its agencies, and its departments
unless the state has waived its immunity or Congress has abrogated it.
Will v. Michigan Dep't of State Police, 491 U.S. 58, 66 (1989). “The
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state of Michigan ... has not consented to being sued in civil rights
actions in the federal courts,” Johnson v. Unknown Dellatifa, 357 F.3d
539, 545 (6th Cir. 2004) (citing Abick v. Michigan, 803 F.2d 874, 877
(6th Cir. 1986)), and Congress did not abrogate state sovereign
immunity when it passed § 1983. Chaz Const., LLC v. Codell, 137 F.
App’x 735, 743 (6th Cir. 2005). Eleventh Amendment immunity “bars
all suits, whether for injunctive, declaratory, or monetary relief against
the state and its departments . . .” McCormick v. Miami Univ., 693
F.3d 654, 661 (6th Cir. 2012) (quoting Thiokol Corp. v. Dep’t of
Treasury, 987 F.2d 376, 381 (6th Cir. 1993)). Eleventh Amendment
immunity also prevents plaintiff from recovering money damages
against prison officials sued in their official capacities. Colvin v.
Caruso, 605 F.3d 282, 289 (6th Cir. 2010) (citing Cady v. Arenac Co.,
574 F.3d 334, 344 (6th Cir. 2009)). Accordingly, defendants are entitled
to Eleventh Amendment immunity. See Johnson, 357 F.3d at 545.
Plaintiff’s claims for declaratory relief and monetary damages against
defendants in their official capacities must be dismissed.
Having reviewed the complaint and applied the liberal pleading
standard for pro se actions, the Court finds that the claims against
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defendants Thomas, Hammon, and Gauzi in their individual capacities
concerning the alleged instances of cruel and unusual punishment may
proceed. See Farmer v. Brennan, 511 U.S. 825, 833-34 (1994) (the
Eighth Amendment protects prisoners from the use of excessive force
and unwarranted physical assaults by prison officials); Whitley v.
Albers, 475 U.S. 312, 319 (1986) (same); see also Hudson v. McMillian,
503 U.S. 1, 9-10 (1992). Plaintiff’s claims against those defendants for
lack of medical care and retaliation also survive. See Estelle v. Gamble,
429 U.S. 97, 104-05 (1976) (ruling that “deliberate indifference to
serious medical needs of prisoners constitutes the unnecessary and
wanton infliction of pain proscribed by the Eighth Amendment”); Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)
(establishing a claim for retaliation where a state official takes action
improperly based on constitutionally protected conduct); Thaddeus-X v.
Blatter, 175 F.3d 378, 388 (6th Cir. 1999) (en banc) (applying
constitutional retaliation claims to prisoners). On these issues, plaintiff
has pleaded sufficient facts to state a claim for which relief may be
granted. Service of those claims upon the remaining defendants is
therefore appropriate.
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III. Conclusion
For the reasons stated above, the Court concludes that plaintiff
fails to state a claim upon which relief may be granted against
defendants Warren, Greason, Gauci, White, Heyns, Bragg, and Boa.
Accordingly, the Court DISMISSES WITH PREJUDICE the claims
against those defendants. The Court also concludes that plaintiff fails
to state a claim upon which relief may be granted against defendant
Thomas regarding alleged falsified documents during the disciplinary
process. Accordingly, the Court DISMISSES WITH PREJUDICE
that claim against defendant Thomas.
The Court also concludes that all of the defendants are entitled to
Eleventh Amendment immunity on plaintiff’s claims for declaratory
relief and monetary damages against them in their official capacities.
Accordingly, the Court DISMISSES WITH PREJUDICE plaintiff’s
claims for declaratory relief and monetary damages against the
defendants in their official capacities.
The Court further concludes that the cruel and unusual
punishment, lack of medical care, and retaliation claims against
defendants Thomas, Hammon, and Gauzi are not subject to summary
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dismissal. Accordingly, the Court DIRECTS plaintiff to provide the
Court with 3 copies of the complaint within 30 days of the filing date
of this order so that service may be effectuated. The Court shall provide
plaintiff with one copy of the complaint, which should be returned to the
Court with the additional copies. Failure to comply with this order may
result in dismissal of this action.
In addition, plaintiff’s request for the appointment of a lawyer is
denied at this time. 28 U.S.C. § 1915(e) permits the Court in a civil
case proceeding without payment of fees to “request an attorney to
represent any person unable to afford counsel” but does not require that
an attorney be appointed. At this early stage of the case, plaintiff’s
request is denied. However, the Court will revisit this decision as the
case develops.
An appeal from this order cannot be taken in good faith. See 28
U.S.C. § 1915(a)(3); Coppedge v. United States, 369 U.S. 438, 445
(1962).
IT IS SO ORDERED.
Dated: January 31, 2018
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on January 31, 2018.
s/Shawna Burns
SHAWNA BURNS
Case Manager

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