Day #446361 v. Michigan, State of et al
Filing
14
OPINION; Order to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT DAY #446361,
Plaintiff,
Case No. 1:11-cv-543
v.
Honorable Janet T. Neff
STATE OF MICHIGAN et al.,
Defendants.
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OPINION
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983.
The Court has granted Plaintiff leave to proceed in forma pauperis, and Plaintiff will pay the initial
partial filing fee when funds are available to him. Under the Prison Litigation Reform Act, PUB. L.
NO. 104-134, 110 STAT. 1321 (1996), the Court is required to dismiss any prisoner action brought
under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can
be granted, or seeks monetary relief from a defendant immune from such relief. 28 U.S.C.
§§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiff’s pro se complaint
indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff’s allegations as
true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33
(1992). Applying these standards, the Court will dismiss Plaintiff’s complaint for failure to state
a claim against Defendants State of Michigan, Michigan Department of Corrections, Snyder,
Krichbaum, and Smith. The Court will serve the complaint against Defendants Prison Health
Services, Dr. Unknown Ayala, and C. Gawne.
In addition to his complaint, Plaintiff has filed a motion titled “order for injunctive
relief” (docket #9) that the Court construes as a motion for preliminary injunctive relief.1 For the
reasons discussed in this Opinion, see section II, infra, Plaintiff’s motion will be denied.
Factual Allegations
Plaintiff Robert Day presently is incarcerated at Ionia Maximum Correctional
Facility. His complaint names as defendants: the State of Michigan, the Michigan Department of
Corrections (MDOC), Michigan Governor Rick Snyder, MDOC Director “Daniel H. Krichbaum,”2
Warden Willy O. Smith, MDOC Account Manager Stephine Lewis, Prison Health Services, and
employees of Prison Health Services, Dr. “Unknown” Ayala and C. Gawne.
In February 2010 Plaintiff was returned to state prison for a parole violation
following detention by the Shiawassee County Sheriff’s Department. Plaintiff asserts that he
suffered “mental and physical abuse and trauma” while in the custody of the sheriff’s department.
(Compl. ¶ 10.) At the time of his return to state prison, Plaintiff was experiencing pain in his feet
and ankles as a result of frostbite.3 Plaintiff requested medical care from MDOC prison authorities
and from Prison Health Services. Those requests were ignored.
On May 24, 2010, MDOC staff provided Plaintiff with “anti-fungal” cream, but this
did not address the pain in his feet for which he had requested medical care. On September 9, 2010,
Plaintiff sent additional requests to prison officials to address the pain in his feet. He was told to
1
Plaintiff’s complaint also requests a preliminary injunction. (docket #1, Compl. ¶ 26.)
2
As of June 1, 2011, the Director of the MDOC is Daniel Heyns. The previous directors were Richard McKeon
and Patricia Caruso.
3
Plaintiff does not allege that he suffered frostbite while incarcerated.
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self-medicate with aspirin. He was not able to access the prison store to purchase aspirin for nine
weeks, however. (Compl. ¶ 13.)
From May 2010 to February 10, 2011, Plaintiff sent requests to MDOC and Prison
Health Services employees for mental health counseling. Plaintiff alleges that “no action or
response by any of these parties has been commit[t]ed in a respons[i]ble man[ner].” (Compl. ¶ 14.)
Plaintiff made specific requests for mental health counseling to Defendants Ayala and Gawne, who
are employees of Prison Health Services. No action was taken to provide treatment for Plaintiff.
From December 2010 to February 2011, Plaintiff wrote to Warden Smith and
Assistant Deputy Warden Norwood regarding the lack of health care from Prison Health Services.
No response was received.
On September 16, 2010, Plaintiff wrote a grievance that was thrown away.4 Later,
on October 15, 2010, Plaintiff filed a grievance that was denied at Step I by Grievance Coordinator
M. Breedlove, denied at Step II by Warden Smith, and denied at Step III by a grievance specialist
at the department of corrections in Lansing.5 No action was taken in response to the grievance to
provide health care to Plaintiff.
On January 12, 2010, Plaintiff sent a request for mental health services to Mr.
Dozeman and to the Director of MDOC. Plaintiff’s request elicited no response.
4
Plaintiff does not indicate who threw the grievance away.
5
Plaintiff’s complaint refers to grievance no. “ICF 10 10 2604 28C” (Compl. ¶ 17), but it does not indicate what
issues were raised in the grievance. Attached to the complaint is a “Grievance Rejection Letter” from M. Breedlove
indicating that the grievance was denied for raising more than one issue in the grievance, as well as a Step II response
from Warden Smith indicating that the grievance was denied on appeal because the appeal merely reiterated the claims
in the original grievance. (Page ID##19,20.) A letter from Plaintiff appealing the Step II denial indicates that Plaintiff
requested a mental health care interview in August 2010 and that he kited Dr. Ayala on October 10, 2010, but he received
no response. (Page ID#21.)
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On September 16, 2010, Plaintiff requested medical care regarding large amounts of
blood in his stool occurring on a regular basis, a symptom of hemorrhoids diagnosed in 2005.
(Compl. ¶ 19.) Dr. Zot, an employee of Prison Health Services, examined Plaintiff and stated that
“he would sever[e]ly recommend treatment, but short of death nothing can be done here.” (Id.)
On February 14, 2011, Plaintiff placed in the mail an appeal brief to the “United
States District Court of Appeals.” (Compl. ¶ 20.) It was returned on the 16th, marked “NSF.”6
(Id.) Plaintiff “discussed” the issue with staff and attempted to mail it again. Again, it was returned
by Defendant Lewis for lack of funds. Plaintiff filed a grievance with the MDOC Grievance
Department in Lansing, but received no response.
Plaintiff claims that Defendants violated Plaintiff’s Eighth Amendment right to
receive adequate medical care for his mental health, his foot/ankle pain and his hemorrhoids, and
violated his Fourteenth Amendment rights because he was unable to mail certain legal documents.
Plaintiff requests compensatory damages, declaratory relief that his rights have been violated, as
well as preliminary and permanent injunctive relief to require Defendants to address Plaintiff’s
medical needs and to “address unwritten policies regarding legal mail from inmates to the courts.”
(Compl. ¶¶ 25-27.)
Discussion
I.
Failure to state a claim
A complaint may be dismissed for failure to state a claim if “‘it fails to give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
6
In context, it appears that “NSF” means “not sufficient funds.”
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While a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include
more than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”). The court must determine whether the complaint contains
“enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct.
at 1949. Although the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it
asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 129 S. Ct. at
1949 (quoting Twombly, 550 U.S. at 556). “[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
‘show[n]’ – that the pleader is entitled to relief.” Iqbal, 129 S. Ct. at 1950 (quoting FED. R. CIV. P.
8(a)(2)); see also Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the
Twombly/Iqbal plausibility standard applies to dismissals of prisoner cases on initial review under
28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(i)).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a
right secured by the federal Constitution or laws and must show that the deprivation was committed
by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Dominguez v.
Corr. Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009). Because § 1983 is a method for vindicating
federal rights, not a source of substantive rights itself, the first step in an action under § 1983 is to
identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271
(1994).
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See Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1734 (1992).
A.
Defendants State of Michigan and MDOC
Plaintiff may not maintain a § 1983 action against the Michigan Department of
Corrections or the State of Michigan. Regardless of the form of relief requested, the states and their
departments are immune under the Eleventh Amendment from suit in the federal courts, unless the
state has waived immunity or Congress has expressly abrogated Eleventh Amendment immunity by
statute. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-101 (1984); Alabama v.
Pugh, 438 U.S. 781, 782 (1978); O’Hara v. Wigginton, 24 F.3d 823, 826 (6th Cir. 1993). Congress
has not expressly abrogated Eleventh Amendment immunity by statute, Quern v. Jordan, 440 U.S.
332, 341 (1979), and the State of Michigan has not consented to civil rights suits in federal court.
Abick v. Michigan, 803 F.2d 874, 877 (6th Cir. 1986). In numerous unpublished opinions, the Sixth
Circuit has specifically held that the MDOC is immune from suit under the Eleventh Amendment.
See, e.g., McCoy v. Michigan, 369 F. App’x 646, 653-54 (6th Cir. Mar. 12, 2010). Therefore, the
MDOC and the State of Michigan will be dismissed because they are immune from suit under the
Eleventh Amendment.
B.
Defendants Snyder, Krichbaum and Smith
With respect to Defendants Krichbaum and Snyder, Plaintiff does not allege, and the
facts fail to indicate, that these defendants were personally involved in or authorized, approved or
knowingly acquiesced in any allegedly unconstitutional conduct. Government officials may not be
held liable for the unconstitutional conduct of their subordinates under a theory of respondeat
superior or vicarious liability. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009); Monell v. New York
City Dep’t of Soc. Servs., 436 U.S. 658, 691(1978); Everson v. Leis, 556 F.3d 484, 495 (6th Cir.
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2009). A claimed constitutional violation must be based upon active unconstitutional behavior.
Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008); Greene v. Barber, 310 F.3d 889, 899 (6th Cir.
2002). The acts of one’s subordinates are not enough, nor can supervisory liability be based upon
the mere failure to act. Grinter, 532 F.3d at 575; Greene, 310 F.3d at 899; Summers v. Leis, 368
F.3d 881, 888 (6th Cir. 2004). “[A] plaintiff must plead that each Government-official defendant,
through the official’s own individual actions, has violated the Constitution.” Iqbal, 129 S. Ct. at
1948. Because Plaintiff fails to make specific factual allegations against Defendants Snyder and
Krichbaum, the claims against them will be dismissed.
Similarly, Plaintiff fails to state a claim against Warden Willie Smith. Plaintiff
alleges that he sent letters complaining about his health concerns to Warden Smith, and that Smith
reviewed and denied a grievance regarding these concerns. (Compl. ¶ 17.) Section 1983 liability
may not be imposed on these grounds. A supervisor does not incur § 1983 liability by denying an
administrative grievance or by failing to act based upon information contained in a grievance. See
Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). Because Plaintiff fails to allege that Smith
engaged in any active unconstitutional behavior, he fails to state a claim against him.
C.
Defendant Lewis
Plaintiff claims that Lewis prevented Plaintiff from sending an item of legal mail
because Plaintiff did not have sufficient funds in his trust account. Plaintiff asserts that, under the
First and Fourteenth Amendments, he has a right to a loan of funds for legal work. The Court reads
Plaintiff’s complaint to assert that Lewis violated Plaintiff’s constitutional right of access to the
courts. See Bounds v. Smith, 430 U.S. 817 (1977) (noting that “prisoners have a constitutional right
of access to the courts”). In order to state a viable claim for interference with access to the courts,
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a plaintiff must show “actual injury,” i.e., that “a nonfrivolous legal claim had been frustrated or was
being impeded.” Lewis v. Casey, 518 U.S. 343, 349, 353 (1996); see also Burnett v. Luttrell, No.
08–6432, 2011 WL 831528, at *2 (6th Cir. Mar. 10, 2011) (“To state [an access-to-courts claim],
a prisoner must allege that a prison official’s conduct caused him an actual injury, such as frustration
of a particular legal claim.”) (citing Hadix v. Johnson, 182 F.3d 400, 405-06 (6th Cir. 1999)).
Plaintiff merely alleges that he was prevented from filing a legal document with a court. He does
not provide any details regarding this legal document or its relation to any “nonfrivolous” legal
claim, much less that he suffered any prejudice to a legal claim as a result of Lewis’s actions. See
Lanier v. Bryant, 332 F.3d 999, 1007 (6th Cir. 2003) (“Conclusory, unsupported allegations of the
deprivation of rights protected by the United States Constitution or federal laws are insufficient to
state a claim.”); McCurtis v. Wood, 76 F. App’x 632, 634 (6th Cir. 2003) (affirming dismissal of
prisoner’s access to the court’s claim as conclusory where prisoner failed “to allege any specific
facts showing that he suffered prejudice to any pending or contemplated direct appeals, habeas
corpus applications, or non-frivolous civil rights claims”). As the Supreme Court has made clear,
“the underlying cause of action . . . is an element that must be described in the complaint, just as
much as allegations must describe the official acts frustrating the litigation.” Christopher v.
Harbury, 536 U.S. 403, 415 (2002). Accordingly, Defendant Lewis will be dismissed because
Plaintiff fails to state an access-to-courts claim against him.
D.
Defendants Prison Health Services, Ayala and Gawne
Upon review, the Court concludes that Plaintiff’s allegations against Prison Health
Services, Ayala, and Gawne are sufficient to warrant service of the complaint.
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II.
Preliminary Injunction
Plaintiff moves for a preliminary injunction requiring Defendant Prison Health
Services to provide the medical care that he needs. The issuance of preliminary injunctive relief is
committed to the discretion of the district court. See Ne. Ohio Coalition for the Homeless v.
Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006); Nader v. Blackwell, 230 F.3d 833, 834 (6th Cir.
2000). In exercising that discretion, a court must consider whether plaintiff has established the
following elements: (1) a strong or substantial likelihood of success on the merits; (2) the likelihood
of irreparable injury if the preliminary injunction does not issue; (3) the absence of harm to other
parties; and (4) the protection of the public interest by issuance of the injunction. Id. These factors
are not prerequisites to the grant or denial of injunctive relief, but factors that must be “carefully
balanced” by the district court in exercising its equitable powers. Frisch’s Restaurant, Inc. v.
Shoney’s, Inc., 759 F.2d 1261, 1263 (6th Cir. 1985); see also Ne. Ohio Coalition for the Homeless,
467 F.3d at 1009. Moreover, where a prison inmate seeks an order enjoining state prison officials,
the court is required to proceed with the utmost care and must recognize the unique nature of the
prison setting. See Glover v. Johnson, 855 F.2d 277, 284 (6th Cir. 1988); Kendrick v. Bland, 740
F.2d 432 at 438, n.3 (6th Cir. 1984). The party seeking injunctive relief bears a heavy burden of
establishing that the extraordinary and drastic remedy sought is appropriate under the circumstances.
See Overstreet v. Lexington-Fayette Urban County Gov’t, 305 F.3d 566, 573 (6th Cir. 2002);
Stenberg v. Cheker Oil Co., 573 F.2d 921, 925 (6th Cir. 1978); see also O’Lone v. Estate of Shabazz,
482 U.S. 342 (1986).
Under controlling Sixth Circuit authority, a plaintiff’s “initial burden” in
demonstrating entitlement to preliminary injunctive relief is a showing of a strong or substantial
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likelihood of success on the merits of his section 1983 action. NAACP v. Mansfield, 866 F.2d 162,
167 (6th Cir. 1989). Plaintiff has not made this showing. While the Court has concluded that
Plaintiff’s Eighth Amendment claims against Prison Health Services, Ayala, and Gawne warrant
service, it is not at all clear from Plaintiff’s pro se complaint that Plaintiff has a substantial
likelihood of success on these claims. An Eighth Amendment claim for the deprivation of adequate
medical care has an objective and a subjective component. Farmer v. Brennan, 511 U.S. 825, 834
(1994). To satisfy the objective component, the plaintiff must allege that the medical need at issue
is sufficiently serious. Id. In other words, the inmate must show that he is incarcerated under
conditions posing a substantial risk of serious harm. Id. At this preliminary stage, it is not clear that
Plaintiff’s ailments are sufficiently serious to invoke his Eighth Amendment rights, much less that
a preliminary injunction requiring immediate treatment of those ailments is warranted. Plaintiff
complains of foot and ankle pain with no indication of its severity. He also complains of recurring
hemorrhoids, a condition first documented in 2005, but he offers no indication that delay in
treatment of this chronic condition poses a risk of harm. Finally, while Plaintiff alleges that he was
mentally traumatized by officials at the Shiawassee County Sheriff’s Department in the past, he does
not clearly indicate why he needs mental health treatment at the present time. In short, Plaintiff has
not made a substantial showing of a violation of his rights.
Moreover, the presence of irreparable harm is not evident. A plaintiff’s harm from
the denial of a preliminary injunction is irreparable only if it is not fully compensable by monetary
damages. See Overstreet, 305 F.3d at 578. Plaintiff has not set forth specific facts showing an
immediate, concrete and irreparable harm in the absence of an injunction pending the resolution of
this case.
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Finally, the interests of identifiable third parties and the public at large weigh against
an injunction. Decisions concerning prison management are vested in prison officials, in the
absence of a constitutional violation. Any interference by the federal courts in the administration
of state prisons is necessarily disruptive. The public welfare therefore militates against the issuance
of extraordinary relief in the prison context, absent a sufficient showing of a violation of
constitutional rights. See Glover v. Johnson, 855 F.2d at 286-87. That showing has not been made
here. Accordingly, Plaintiff’s motion for preliminary relief will be denied.
Conclusion
Having conducted the review now required by the Prison Litigation Reform Act, the
Court determines that Defendants State of Michigan, MDOC, Snyder, Krichbaum, Lewis, and Smith
will be dismissed for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and
42 U.S.C. § 1997e(c). The Court will allow service of the complaint against Defendants Prison
Health Services, Ayala, and Gawne. Finally, Plaintiff’s motion for a preliminary injunction will be
denied.
An Order consistent with this Opinion will be entered.
Dated: July 12, 2011
/s/ Janet T. Neff
Janet T. Neff
United States District Judge
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