Baker v. Michigan Department of Corrections et al

Filing 12

CORRECTED OPINION signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, kw)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ROBERT ALLEN BAKER,
Plaintiff,

Case No. 1:13-cv-284

v.

Honorable Paul L. Maloney

MICHIGAN DEPARTMENT
OF CORRECTIONS et al.,
Defendants.
____________________________________/
CORRECTED OPINION
This is a civil rights action brought by a former state prisoner pursuant to 42 U.S.C.
§ 1983. The Court has granted Plaintiff leave to proceed in forma pauperis. 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). 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 on grounds of immunity and for failure
to state a claim against Defendants Szappen, Mohrman, Bell, McCauley, Finan, Howard, Unknown
Party #1, Burtch, Bishop, Malik, Filsinger, Vittitow, Marble, Masley, Tantchow, Robinson, Jados,
Teed, McMillen, Petty, Ludwick, McIntyre, Tribley, Naples, Pomeroy, Hamel, Sorenson, Collins,

Unknown Party #3, Unknown Party #4, Unknown Party #7, Nardi, Niemisto, Gilbert, Cavin, Haynie,
Jelik, Belzner, Unknown Part(y)(ies) #8, Clark, Hunt, Chapman and Kearney, pursuant to 28 U.S.C.
§§ 1915(e)(2). The Court will serve the complaint against the remaining named Defendants.
Discussion
I.

Factual allegations

Plaintiff Robert Allen Baker presently is on parole with the Michigan Department of
Corrections (MDOC). He complains of prison conditions that occurred while he was housed at five
different MDOC facilities between November 28, 2008 and November 27, 2012: the Saginaw
Correctional Facility (SRF); the Mid-Michigan Correctional Facility (STF); the Pine River
Correctional Facility (SPR); the Ojibway Correctional Facility (OCF); and the Marquette Branch
Prison (MBP). Plaintiff sues the MDOC, together with Correctional Medical Services, Inc. (CMS)
and Prison Health Services, Inc. (PHS) and their successor corporation, Corizon Health, Inc. (CHI).
Plaintiff sues 61 other named individuals and a variety of parties named as “John Doe” or “Jane
Doe,” listed in this action as Unknown Parties #1 through #9. He sues CHI employee Lawrence H.
Pomeroy, the Vice-President of the Michigan Office of PHS, together with the following MDOC
employees: the unknown Regional Medical Officer known as Unknown Party #1; and the unknown
MDOC Pain Management Committee members known as Unknown Party #2. He also names the
following SRF employees: Law Librarian Erwin Bell; Hearings Officer M. Szappen; Health Unit
Manager (HUM) Susan B. McCauley; Doctors Walter F. Finan, (unknown) Burtch, (unknown)
Malik, (unknown) Filsinger; Nurses Carla Bishop and Gerald Masley; Physician’s Assistant (PA)
Howard; and Grievance Coordinator R. Vittitow. Plaintiff sues the following STF employees:

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Medical Practitioner Diane Marble; Nurses Gerald Masley,1 Joyce A. Jados, Rosalie K. Petty and
Heather M. Bailey; HUM Samuel J. Teed; Dr. Michelle Tantchow; Grievance Coordinator Marshaun
Robinson; Inspector (unknown) McMillen; Assistant Resident Unit Supervisor (ARUS) (unknown)
Morris; and Warden (unknown) Ludwick. Plaintiff names the following SPR employees: HUM
Edward A. Hunt2 ; Nurse (unknown) Chapman; PA Kearney; and the unknown Grievance
Coordinator listed as Unknown Party #3. At OCF, Plaintiff sues the following individuals:
Lieutenant (unknown) McIntyre; ARUSs Deborah Loop, (unknown) Kerrtu and Phil Johns; Food
Steward (unknown) Harrison; Sergeant (unknown) Buda; HUM Janet K. Wilbanks; Food Service
Director Michael D. DeShambo; Warden Linda Tribley; Grievance Coordinator Thomas Hamel;
Administrative Assistant Micki Sorensen; Doctor (unknown) Ralles, Dr. J. Utiselo; Dentist
(unknown) Kallal; Dental Assistant Christine Collins; Corrections Officers (unknown) Rihtarshick,
(unknown) Carli, (unknown) Axley, (unknown) Dabb, (unknown) Jelik, (unknown) Flouhog;
Warden’s Assistant Nancy (last name unknown) (docketed as Unknown Party #4); Assistant Food
Service Director (unknown) Witburn; and PA Michael P. Millette. Finally, Plaintiff names the
following MBP employees: two unknown nurses listed as Unknown Parties #5 and #9; Sergeant
(unknown) Beltzner; an unknown dentist listed as Unknown Party #6; Dental Assistant (unknown)
Clark; an unknown grievance coordinator listed as Unknown Party #7; Gregory Nardi; Kenneth
Niemisto; Robert Gilbert; Hearing’s Officer Thomas O. Mohrman; Warden (unknown) Naples; eight
property room corrections officers, collectively listed as Unknown Part(y)(ies) #8; Dr. Richard A.

1

Defendant Masley also provided or approved some medical care at STF.

2

Defendant Hunt also provided or approved some medical care at STF.

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Bohjanen; Dietician L. Wellman; Food Steward Robert Holmes; Corrections Officer T. Ninnis; Mark
Cavin; and Bradley Haynie.
The general thrust of Plaintiff’s complaint is that numerous officers and medical
personnel at five facilities deprived him of adequate medical care and medical accommodations over
a period of four years. He alleges that Defendants conspired to violate the Eighth Amendment and
the Americans with Disabilities Act, U.S.C. § 12131 et seq. He also alleges that Defendants
conspired to retaliate against him for filing numerous grievances, letters of complaint, and a lawsuit.
See Baker v. Misaukee Cnty., No. 1:09-cv-1059 (W.D. Mich.).
Plaintiff’s 189-page complaint contains 508 paragraphs of factual allegations. The
Court will not enumerate those allegations in detail in this portion of the complaint. However,
Plaintiff’s allegations involving the SRF Defendants involve incidents that occurred between
November 7, 2008 and September 18, 2009, when Plaintiff was transferred to the STF. Plaintiff was
housed at STF until December 21, 2009, when Plaintiff was transferred to SPR. Plaintiff remained
at SPR until February 19, 2010. He then was transferred to OCF, where he remained until
September 27, 2010. From that date until he was paroled on November 27, 2012, Plaintiff was
housed at MBP.
In general, Plaintiff alleges that he has severe back problems and tooth problems that
have been inadequately treated by multiple medical and dental providers. He claims that he has been
denied adequate pain treatment, specialized orthopedic and neurological treatment, dental care, and
dentures. He also alleges that he has been denied accommodations for his medical disabilities, such
as mechanically ground food, housing in an easily accessible location and double mattresses.

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Further, Plaintiff contends that he has been harassed, issued false misconducts, and deprived of
medical care in retaliation for having filed multiple grievances.
For relief, Plaintiff seeks $100,000.00 in compensatory and punitive damages from
each Defendant.
I.

Immunity
A.

Sovereign Immunity

Plaintiff may not maintain a § 1983 action against the MDOC. 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 absolutely immune from suit under the Eleventh Amendment. See, e.g., McCoy v.
Michigan, 369 F. App’x 646, 653-54 (6th Cir. 2010); Turnboe v. Stegall, No. 00-1182, 2000
WL1679478, at *2 (6th Cir. Nov. 1, 2000). In addition, the State of Michigan (acting through the
MDOC) is not a “person” who may be sued under § 1983 for money damages. See Lapides v. Bd.
of Regents, 535 U.S. 613 (2002) (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58 (1989)).
Therefore, the Court dismisses Plaintiff’s § 1983 claim against Defendant MDOC.

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Title II of the ADA provides, in pertinent part, that no qualified individual with a
disability shall, because of that disability, “be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination by any such entity.” Mingus v. Butler,
591 F.3d 474, 481-82 (6th Cir. 2010) (citing 42 U.S.C. § 12132). The Supreme Court has held that
Title II of the ADA applies to state prisons and inmates. Penn. Dep’t of Corr. v. Yeskey, 524 U.S.
206, 210-12 (1998) (noting that the phrase “services, programs, or activities” in § 12132 includes
recreational, medical, educational, and vocational prison programs). The proper defendant under a
Title II claim is the public entity or an official acting in his official capacity. Carten v. Kent State
Univ., 282 F.3d 391, 396–97 (6th Cir. 2002). Plaintiff has named the MDOC.
The State of Michigan (acting through the MDOC) is not necessarily immune from
Plaintiff’s claims under the ADA. The ADA “validly abrogates state sovereign immunity” for
“conduct that actually violates the Fourteenth Amendment[.]” United States v. Georgia, 546 U.S.
157, 159 (2006). If conduct violates the ADA but not the Fourteenth Amendment, then the Court
must determine whether the ADA validly abrogates state sovereign immunity. Id. At this stage of
the proceedings, the Court will presume that the ADA validly abrogates state sovereign immunity
for Plaintiff’s ADA claims. Upon review, therefore, the Court concludes that Plaintiff’s allegations
are sufficient to warrant service of Plaintiff’s ADA claims on Defendant MDOC.3

3

Plaintiff sues numerous officials in both their individual and official capacities. Title II of the ADA does not
provide for suit against a public official acting in his or her individual capacity. Everson v. Leis, 556 F.3d 484, 501 n.7
(6th Cir. 2009). Moreover, because Plaintiff names the MDOC itself, his official-capacity claims against the remaining
Defendants are merely cumulative. Therefore, the Court will dismiss Plaintiff’s ADA claims against all Defendants other
than the MDOC.

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B.

Judicial Immunity

Plaintiff alleges that, after holding hearings on certain misconduct charges,
Defendants Szappen and Mohrman improperly found him guilty. Generally, a judge is absolutely
immune from a suit for monetary damages. Mireles v. Waco, 502 U.S. 9, 9-10 (1991) (“[I]t is a
general principle of the highest importance to the proper administration of justice that a judicial
officer, in exercising the authority vested in him, shall be free to act upon his own convictions,
without apprehension of personal consequences to himself.”) (internal quotations omitted).
Defendants M. Szappan and Thomas O. Mohrman are hearing officers whose duties are set forth at
MICH. COMP. LAWS § 791.251 through § 791.255. Hearing officers are required to be attorneys and
are under the direction and supervision of a special hearing division in the Michigan Department of
Corrections. See MICH. COMP. LAWS § 791.251(e)(6). Their adjudicatory functions are set out in
the statute, and their decisions must be in writing and must include findings of facts and, where
appropriate, the sanction imposed. See MICH. COMP. LAWS § 791.252(k). There are provisions for
rehearings, see MICH. COMP. LAWS § 791.254, as well as for judicial review in the Michigan courts.
See MICH. COMP. LAWS § 791.255(2). Accordingly, the Sixth Circuit has held that Michigan hearing
officers are professionals in the nature of administrative law judges. See Shelly v. Johnson, 849 F.2d
228, 230 (6th Cir. 1988). As such, they are entitled to absolute judicial immunity from inmates’ §
1983 suits for actions taken in their capacities as hearing officers. Id.; and see Barber v. Overton,
496 F.3d 449, 452 (6th Cir. 2007); Dixon v. Clem, 492 F.3d 665, 674 (6th Cir. 2007); cf. Pierson v.
Ray, 386 U.S. 547, 554-55 (1967) (judicial immunity applies to actions under § 1983 to recover for
alleged deprivation of civil rights). Because Defendants Szappen and Mohrman are entitled to
judicial immunity, Plaintiff’s claims against them will be dismissed.
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II.

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)).
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, 556 U.S. 662, 678
(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, 556 U.S. at 679.
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, 556 U.S. at 678 (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, 556 U.S. at 679 (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); Street v. Corr.
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Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). 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).
A.

Statute of Limitations

State statutes of limitations and tolling principles apply to determine the timeliness
of claims asserted under 42 U.S.C. § 1983. Wilson v. Garcia, 471 U.S. 261, 268-69 (1985). For
civil rights suits filed in Michigan under § 1983, the statute of limitations is three years. See MICH.
COMP. LAWS § 600.5805(10); Carroll v. Wilkerson, 782 F.2d 44, 44 (6th Cir. 1986) (per curiam);
Stafford v. Vaughn, No. 97-2239, 1999 WL 96990, at *1 (6th Cir. Feb. 2, 1999). Accrual of the
claim for relief, however, is a question of federal law. Collyer v. Darling, 98 F.3d 211, 220 (6th Cir.
1996); Sevier v. Turner, 742 F.2d 262, 272 (6th Cir. 1984). The statute of limitations begins to run
when the aggrieved party knows or has reason to know of the injury that is the basis of his action.
Collyer, 98 F.3d at 220.4
Plaintiff’s allegations about conduct by Defendants at SRF and STF are time-barred.
He alleges conduct by Defendants at those facilities that occurred between November 7, 2008 and
December 21, 2009. Plaintiff had reason to know of the “harms” done to him at the time they
occurred. Hence, his claims accrued in 2008 and 2009. However, he did not file his complaint until
January 17, 2013, beyond Michigan’s three-year limit. Moreover, Michigan law no longer tolls the
running of the statute of limitations when a plaintiff is incarcerated. See MICH. COMP. LAWS
4

28 U.S.C. § 1658 created a “catch-all” limitations period of four years for civil actions arising under federal
statutes enacted after December 1, 1990. The Supreme Court’s decision in Jones v. R.R. Donnelley & Sons Co., 541 U.S.
369 (2004), which applied this federal four-year limitations period to a suit alleging racial discrimination under § 1981,
does not apply to prisoner claims under 28 U.S.C. § 1983 because, while § 1983 was amended in 1996, prisoner civil
rights actions under § 1983 were not “made possible” by the amended statute. Id. at 382.

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§ 600.5851(9). Further, it is well established that ignorance of the law does not warrant equitable
tolling of a statute of limitations. See Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991); Jones v.
Gen. Motors Corp., 939 F.2d 380, 385 (6th Cir. 1991); Mason v. Dep’t of Justice, No. 01-5701, 2002
WL 1334756, at *2 (6th Cir. June 17, 2002).
Plaintiff argues, however, that his actions against Defendants at SRF and STF should
be tolled under the continuing violation doctrine, because he continued to be given bad health care
at other facilities, where he had been sent by official from SRF and STF. The continuing violation
doctrine preserves claims that would otherwise be time-barred if the plaintiff can show a continuous
and ongoing violation of his rights. Phillips v. Cohen, 3 F. App’x 212, 218 (6th Cir. 2001). The
Sixth Circuit recognizes two types of continuing violations: “those alleging serial violations and
those identified with a longstanding and demonstrable policy of discrimination.” Sharpe v. Cureton,
319 F.3d 259, 288 (6th Cir. 2003). The continuing violation doctrine is a narrow exception to the
statute of limitations rule, and federal courts are hesitant to apply it outside the context of a Title VII
employment discrimination case. Id. at 267. The doctrine is inherently designed to address
systemic, policy-based discrimination or injury, and discrimination claims are particularly suited to
the exception. See Phat’s Bar & Grill, Inc. v. Louisville–Jefferson Cnty., No. 3: 10–CV–00491–H,
2013 WL 124063, at *3 (W.D. Ky. Jan. 9, 2013) (“A discriminatory policy often has a constant and
ongoing discriminatory effect on those who suffer under the policy, whereas other constitutional
violations are often complete and claims therefor fully accrue at the time the alleged unlawful act
occurs and the injury is endured, even though the violations may be connected to other violations.”).
To determine if the plaintiff has alleged a “continuing violation,” the Court must
conduct a three-part inquiry:
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First, the defendant’s wrongful conduct must continue after the precipitating event
that began the pattern.... Second, injury to the plaintiff must continue to accrue after
that event. Finally, further injury to the plaintiffs must have been avoidable if the
defendants had at any time ceased in the wrongful conduct.
Tolbert v. Ohio Dep’t of Transp., 172 F.3d 934, 940 (6th Cir. 1999); Kuhnle Brothers, Inc. v. Cnty.
of Geauga, 103 F.3d 516, 522 (6th Cir. 1997). The acts constituting a continuing violation cannot
be discrete acts or merely “continual ill effects from an original violation.” Tenn. Dep’t of
Children’s Servs., 510 F.3d 631, 635 (6th Cir. 2007). The continuing violations doctrine was not
designed to extend the statute of limitations in cases involving “discrete acts with a corresponding
series of discrete injuries.” Phat’s Bar & Grill, Inc., 2013 WL 124063, at *4.
Here, while Plaintiff makes a sweeping claim of conspiracy to retaliate across all five
prisons between 2008 and 2012, he alleges no conduct by the SRF or STF Defendants beyond 2009.
Instead, he lists a series of discrete decisions by 74 different Defendants under differing
circumstances at different times. His claim therefore fails at the first inquiry because the Defendants
at SRF and STF committed no wrongful conduct within the limitations period. The continuing
violation doctrine is particularly ill-suited to these circumstances.
Accordingly, Plaintiff’s claims about his treatment at SRF and STF are time-barred,
and the following Defendants will be dismissed from the action: Bell, Szappen,5 McCauley, Finan,
Howard, Unknown Party #1, Burtch, Bishop, Malik, Filsinger, Vittitow, Marble, Masley, Robinson,
Jados, Tantchow, Teed, McMillen, Petty, and Ludwick.

5

As the Court previously discussed, Defendant Szappen also is entitled to judicial immunity for his alleged

conduct.

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B.

Absence of Allegations of Active Conduct

Plaintiff makes no factual allegations against Defendant McIntyre. It is a basic
pleading essential that a plaintiff attribute factual allegations to particular defendants. See Twombly,
550 U.S. at 544 (holding that, in order to state a claim, Plaintiff must make sufficient allegations to
give a defendant fair notice of the claim). Where a person is named as a defendant without an
allegation of specific conduct, the complaint is subject to dismissal, even under the liberal
construction afforded to pro se complaints. See Frazier v. Michigan, 41 F. App’x 762, 764 (6th Cir.
2002) (dismissing Plaintiff’s claims where the complaint did not allege with any degree of specificity
which of the named defendants were personally involved in or responsible for each alleged violation
of rights); Griffin v. Montgomery, No. 00-3402, 2000 WL 1800569, at *2 (6th Cir. Nov. 30, 2000)
(requiring allegations of personal involvement against each defendant)); Rodriguez v. Jabe, No. 901010, 1990 WL 82722, at *1 (6th Cir. June 19, 1990) (“Plaintiff’s claims against those individuals
are without a basis in law as the complaint is totally devoid of allegations as to them which would
suggest their involvement in the events leading to his injuries.”); see also Eckford-El v. Toombs, 760
F. Supp. 1267, 1272-73 (W.D. Mich. 1991). Plaintiff fails even to mention Defendant McIntyre in
the body of his complaint. His allegations therefore fall far short of the minimal pleading standards
under FED. R. CIV. P. 8 (requiring “a short and plain statement of the claim showing that the pleader
is entitled to relief”). As a consequence, the Court will dismiss Defendant McIntyre from the action.
Plaintiff’s only allegations against Defendant Wardens Tribley and Naples and
Defendant Pomeroy, the President of PHS, are that they failed to respond adequately to his
grievances and letters of complaint and did not adequately supervise their subordinates. Plaintiff
also alleges that Defendant Administrative Assistant Sorenson and Defendant Grievance
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Coordinators Hamel, and Unknown Party #3 and Unknown Party #7 rejected or denied his
grievances or failed otherwise to process them. Government officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of respondeat superior or vicarious
liability. Iqbal, 556 U.S. at 676; 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. 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). Moreover, § 1983
liability may not be imposed simply because a supervisor denied an administrative grievance or
failed to act based upon information contained in a grievance. See Shehee v. Luttrell, 199 F.3d 295,
300 (6th Cir. 1999). “[A] plaintiff must plead that each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. Plaintiff
has failed to allege that Defendants Tribley, Naples, Pomeroy, Hamel, and Unknown Parties ##3 and
7 engaged in any active unconstitutional behavior by failing to respond to or rejecting his grievances
and failing to supervise their subordinates.
Further, Plaintiff has no due process right to file a prison grievance. The Sixth Circuit
and other circuit courts have held that there is no constitutionally protected due process right to an
effective prison grievance procedure. Walker v. Mich. Dep’t of Corr., 128 F. App’x 441, 445 (6th
Cir. 2005); Argue v. Hofmeyer, 80 F. App’x 427, 430 (6th Cir. 2003); Young v. Gundy, 30 F. App’x
568, 569-70 (6th Cir. 2002); Carpenter v. Wilkinson, No. 99-3562, 2000 WL 190054, at *2 (6th Cir.
Feb. 7, 2000); see also Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Adams v. Rice, 40
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F.3d 72, 75 (4th Cir. 1994). Michigan law does not create a liberty interest in the grievance
procedure. See Olim v. Wakinekona, 461 U.S. 238, 249 (1983); Wynn v. Wolf, No. 93-2411, 1994
WL 105907, at *1 (6th Cir. Mar. 28, 1994). Because Plaintiff has no liberty interest in the grievance
process, Defendants Grievance Coordinators Hamel and Unknown Parties ##3 and 7 did not deprive
him of due process by failing to process or destroying any of his grievances.
Finally, Plaintiff’s sole allegation against the OCF Warden’s Secretary, Unknown
Party #4, is that she advised Plaintiff’s family in a telephone call that Plaintiff had been a disciplinary
problem in E-Unit and had been moved to G-unit for a fresh start. Merely reporting the actions of
others does not constitute active, unconstitutional conduct that is actionable under § 1983. Similarly,
Plaintiff’s only allegations against Defendant Dental Assistant Collins are that she re-issued the
“Soft-Diet with Ground Meat” that Plaintiff claims he needed but was not being provided, and that
she “seemed upset” when Plaintiff would not accept his partial dentures from Dr. Kallal.
(Compl.¶¶ 292, 416, docket #1-1, Page ID##117, 154.) The fact that Collins re-issued an order
granting Plaintiff the diet he requested and that she was upset about an interaction between Plaintiff
and Dr. Kallal does not demonstrate active unconstitutional conduct. Plaintiff therefore fails to
allege any active conduct by Defendants Unknown Party #4 and Collins.
In sum, Plaintiff’s claims against Defendants McIntyre, Tribley, Naples, Pomeroy,
Hamel, Sorenson, Collins, Unknown Party #3, Unknown Party #4 and Unknown Party #7 will be
dismissed for failure to state a claim.

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C.

Change in Security Classification

In his 508-paragraph complaint, Plaintiff mentions Defendants Nardi, Niemisto and
Gilbert in only one paragraph. Plaintiff asserts that Nardi, Niemisto and Gilbert deprived him of due
process when they reclassified him from Level I confinement to a Level V confinement, after he was
convicted of a misconduct by Defendant Belzner. Plaintiff alleges that, under MDOC policy
directives, the misconduct conviction should not have resulted in such a change in classification.
In the same paragraph, Plaintiff sweepingly asserts that Defendants made the change in classification
as part of a conspiracy to retaliate against Plaintiff for filing of one or more grievances. (Id. ¶ 461.)
In another paragraph of the complaint, Plaintiff alleges that Defendants Cavin and
Haynie reduced his classification level from Level V to Level II. Plaintiff complains that his true
classification level should have been Level I. He asserts that the actions of Cavin and Haynie
violated MDOC policy and that they therefore they must have been part of a conspiracy to retaliate
(Id. ¶ 503.)
Finally, Plaintiff alleges that Defendant Belzner improperly changed his classification
from Level I to Level V, following Plaintiff’s conviction on a misconduct charge. (Id. ¶ 451.)
The Supreme Court has held that a prisoner does not have a protected liberty interest
in the procedures affecting his classification and security because the resulting restraint does not
impose an “atypical and significant hardship on the inmate in relation to the ordinary incidents of
prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). In Rimmer-Bey v. Brown, 62 F.3d 789,
790-91(6th Cir. 1995), the Sixth Circuit applied the Sandin test to the claim of a Michigan inmate
that the mandatory language of the MDOC’s regulations created a liberty interest that he receive
notice and hearing before being placed in administrative segregation. The court held that regardless
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of the mandatory language of the prison regulations, the inmate did not have a liberty interest
because his placement in administrative segregation did not constitute an atypical and significant
hardship within the context of his prison life. Id.; see also Mackey v. Dyke, 111 F.3d 460, 463 (6th
Cir. 1997). Without a protected liberty interest, plaintiff cannot successfully claim that his due
process rights were violated because, “[p]rocess is not an end in itself.” Olim v. Wakinekona, 461
U.S. 238, 250 (1983).
Moreover, the Supreme Court repeatedly has held that a prisoner has no constitutional
right to be incarcerated in a particular facility or to be held in a specific security classification. See
Olim, 461 U.S. at 245; Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976); Meachum v. Fano, 427 U.S.
215, 228-29 (1976). The Sixth Circuit has followed the Supreme Court’s rulings in a variety of
security classification challenges. See, e.g., Cash v. Reno, No. 97-5220, 1997 WL 809982, at *1-2
(6th Cir. Dec. 23, 1997) (prisoner’s allegation that he was placed in a security level higher than
warranted based on the information contained in his prison file failed to state a due process claim
because he had no constitutional right to be held in a particular prison or security classification);
O’Quinn v. Brown, No. 92-2183, 1993 WL 80292, at *1 (6th Cir. Mar. 22, 1993) (prisoner failed to
state a due process or equal protection claim regarding his label as a “homosexual predator” because
Plaintiff did not have a constitutional right to a particular security level or place of confinement).
Because Plaintiff does not have a constitutional right to a particular security level or classification,
he fails to state a due process claim against Defendants Nardi, Niemisto, Gilbert, Cavin, Haynie and
Belzner.
Plaintiff’s claim that Defendants acted with a retaliatory motive will be addressed in
a separate section of this Opinion, infra.
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D.

False Misconduct Charges

Plaintiff alleges that Defendant Jelik wrote two false misconduct charges against him,
on one of which he was subsequently found guilty. (Compl. ¶¶ 379-82.) He alleges that Defendant
Kerrtu issued a false misconduct charge for insolence, of which Plaintiff was found guilty. (Compl.
¶¶ 367, 369.) In addition, Plaintiff claims that Defendant Belzner reviewed Plaintiff on an allegedly
false misconduct charge for disobeying a direct order that was written by Defendant Johns. Belzner
apparently did not credit Plaintiff’s story and evidence, and Plaintiff evidently was convicted of the
misconduct charge. (Id. ¶¶ 450-51.)
Plaintiff claims that the major misconduct charges against him were “false.” A
prisoner’s ability to challenge a prison misconduct conviction depends on whether the convictions
implicated any liberty interest. In the seminal case in this area, Wolff v. McDonnell, 418 U.S. 539
(1974), the Court prescribed certain minimal procedural safeguards that prison officials must follow
before depriving a prisoner of good-time credits on account of alleged misbehavior. The Wolff Court
did not create a free-floating right to process that attaches to all prison disciplinary proceedings;
rather the right to process arises only when the prisoner faces a loss of liberty, in the form of a longer
prison sentence caused by forfeiture of good-time credits:
It is true that the Constitution itself does not guarantee good-time credit for
satisfactory behavior while in prison. But here the State itself has not only provided
a statutory right to good time but also specifies that it is to be forfeited only for
serious misbehavior. Nebraska may have the authority to create, or not, a right to a
shortened prison sentence through the accumulation of credits for good behavior, and
it is true that the Due Process Clause does not require a hearing “in every conceivable
case of government impairment of private interest.” But the State having created the
right to good time and itself recognizing that its deprivation is a sanction authorized
for major misconduct, the prisoner’s interest has real substance and is sufficiently
embraced within Fourteenth Amendment “liberty” to entitle him to those minimum

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procedures appropriate under the circumstances and required by the Due Process
Clause to insure that the state-created right is not arbitrarily abrogated.
Wolff, 418 U.S. at 557 (citations omitted).
Plaintiff does not allege that his major misconduct convictions resulted in any loss
of good-time credits, nor could he. The Sixth Circuit has examined Michigan statutory law, as it
relates to the creation and forfeiture of disciplinary credits6 for prisoners convicted for crimes
occurring after April 1, 1987. In Thomas v. Eby, 481 F.3d 434 (6th Cir. 2007), the court determined
that loss of disciplinary credits does not necessarily affect the duration of a prisoner’s sentence.
Rather, it merely affects parole eligibility, which remains discretionary with the parole board. 481
F.3d at 440. Building on this ruling, in Nali v. Ekman, 355 F. App’x 909 (6th Cir. 2009), the court
held that a misconduct citation in the Michigan prison system does not affect a prisoner’s
constitutionally protected liberty interests, because it does not necessarily affect the length of
confinement. 355 F. App’x at 912; accord, Wilson v. Rapelje, No. 09-13030, 2010 WL 5491196,
at * 4 (E.D. Mich. Nov. 24, 2010) (Report & Recommendation) (holding that “plaintiff’s disciplinary
hearing and major misconduct sanction does not implicate the Fourteenth Amendment Due Process
Clause”), adopted as judgment of court, 2011 WL 5491196 (Jan. 4, 2011). In the absence of a
demonstrated liberty interest, Plaintiff has no due-process claim based on the loss of disciplinary
credits. See Bell v. Anderson, 301 F. App’x 459, 461-62 (6th Cir. 2008).
Even in the absence of a protectible liberty interest in disciplinary credits, a prisoner
may be able to raise a due-process challenge to prison misconduct convictions that result in a
significant, atypical deprivation. See Sandin, 515 U.S. 472. Plaintiff has not identified any

6
For crimes committed after April 1, 1987, Michigan prisoners earn “disciplinary credits” under a statute that
abolished the former good-time system. MICH. COMP. LAWS § 800.33(5).

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significant deprivation arising from his convictions. Unless a prison misconduct conviction results
in an extension of the duration of a prisoner’s sentence or some other atypical hardship, a dueprocess claim fails. Ingram v. Jewell, 94 F. App’x 271, 273 (6th Cir. 2004). As a consequence, the
actions of Defendants Jelik, Kerrtu and Belzner in charging or upholding misconduct charges do not
rise to the level of a due process violation.
E.

Retaliation

Plaintiff alleges that every action taken by every officer with which he disagreed was
taken in retaliation for Plaintiff’s many grievances. Retaliation based upon a prisoner’s exercise of
his or her constitutional rights violates the Constitution. See Thaddeus-X v. Blatter, 175 F.3d 378,
394 (6th Cir. 1999) (en banc). In order to set forth a First Amendment retaliation claim, a plaintiff
must establish that: (1) he was engaged in protected conduct; (2) an adverse action was taken against
him that would deter a person of ordinary firmness from engaging in that conduct; and (3) the
adverse action was motivated, at least in part, by the protected conduct. Thaddeus-X, 175 F.3d at
394. Moreover, a plaintiff must be able to prove that the exercise of the protected right was a
substantial or motivating factor in the defendant’s alleged retaliatory conduct. See Smith v.
Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001) (citing Mount Healthy City Sch. Dist. Bd. of Educ.
v. Doyle, 429 U.S. 274, 287 (1977)).
While the allegations against a number of Defendants are sufficient to support a
retaliation claim, some of Plaintiff’s allegations are wholly conclusory and dependent upon an
assumption that all Defendants at five facilities were acting in concert with one another and shared
an intent to retaliate for every grievance filed by Plaintiff against any officer at any time. Such an
assumption is wholly conclusory. It is well recognized that “retaliation” is easy to allege and that
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it can seldom be demonstrated by direct evidence. See Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6th
Cir. 2005); Murphy v. Lane, 833 F.2d 106, 108 (7th Cir. 1987). “[A]lleging merely the ultimate fact
of retaliation is insufficient.” Murphy, 833 F.2d at 108. “[C]onclusory allegations of retaliatory
motive ‘unsupported by material facts will not be sufficient to state . . . a claim under § 1983.’”
Harbin-Bey, 420 F.3d at 580 (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1538-39 (6th Cir. 1987));
see also Murray v. Unknown Evert, 84 F. App’x 553, 556 (6th Cir. 2003) (in complaints screened
pursuant to 28 U.S.C. § 1915A, “[c]onclusory allegations of retaliatory motive with no concrete and
relevant particulars fail to raise a genuine issue of fact for trial”) (internal quotations omitted); Lewis
v. Jarvie, 20 F. App’x 457, 459 (6th Cir. 2001) (“bare allegations of malice on the defendants’ parts
are not enough to establish retaliation claims” that will survive § 1915A screening).
Plaintiff merely alleges the ultimate fact of retaliation against a number of
Defendants. Specifically, Plaintiff alleges that Defendants Nardi, Niemisto and Gilbert retaliated
against him when they increased his security level after he had been convicted by another officer on
a misconduct charge. Plaintiff makes the same conclusory claim that Defendants Cavin and Haynie
retaliated when they reduced Plaintiff’s classification level, but not as far as Plaintiff would have
liked.
While the filing of a prison grievance is constitutionally protected conduct for which
a prisoner cannot be subjected to retaliation, see Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir.
2001), Plaintiff fails to allege what grievance motivated Defendants Nardi, Niemisto, Gilbert, Cavin
and Haynie to retaliate. In addition, Plaintiff makes no factual allegation that would demonstrate a
connection between any person who was grieved and these Defendants. As a result, Plaintiff’s

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conclusory allegations fail to state a claim against Defendants Nardi, Niemisto, Gilbert, Cavin and
Haynie.
Plaintiff also fails to state a retaliation claim against Defendants Jelik, Kerrtu and
Belzner for allegedly filing or authorizing false misconduct charges on which Plaintiff ultimately was
convicted. As the Sixth Circuit recently has recognized, a prisoner’s claim that he was falsely
accused of a major misconduct is barred where there has been a finding of guilt. See Peterson v.
Johnson, ___ F.3d ___, No. 11-1845, 2013 WL 1490082, at **4-11 (6th Cir. Apr. 12, 2013) (holding
that a factual finding in a major misconduct proceeding has preclusive effect and is not subject to
challenge in a § 1983 action). Because Plaintiff’s retaliation claim depends on his claim that he
allegation of the misconduct charges were false, his claims are precluded by the prior findings of
guilt.
In addition, Plaintiff’s allegation that Defendant Jelik issued one misconduct charge
that was not upheld fails to state a retaliation claim for other reasons. Plaintiff alleges that, at the
time of Jelik’s misconduct charge for being out of place, Plaintiff was serving his top-lock sanction
following a guilty finding on Defendant Kerrtu’s misconduct charge. Plaintiff claims that, because
he usually did not receive misconduct tickets and was unaware of the “special rules” at OCF for
prisoners on top-lock, he did not show Jelik his top-lock pass when he appeared for breakfast, as
required at OCF. Jelik issued a misconduct ticket for being out of place. The fact that Plaintiff
ultimately was found to be not guilty, apparently because of his ignorance, does not suggest that Jelik
had a retaliatory motive for writing the ticket. Plaintiff alleges no fact to support his retaliation
claim, other than the bare conclusion that Jelik’s misconduct charges “were the product of [the]
ongoing conspiracy to retaliate, and retaliation for the exercise of protected conduct.” (Compl.
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¶ 379.) Such an allegation is wholly conclusory and fails to state a retaliation claim. See HarbinBey, 420 F.3d at 580 (holding that conclusory allegations of retaliatory motive unsupported by
material facts are not sufficient to state a claim under § 1983); Iqbal, 556 U.S. at 678 (“Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.”).
Plaintiff’s allegations of retaliation against Defendants Nardi, Niemisto, Gilbert,
Cavin, Haynie, Jelik, Kerrtu and Belzner therefore will be dismissed for failure to state a claim.
Because Plaintiff makes no other actionable allegations against Defendants Nardi, Niemisto, Gilbert,
Cavin, Haynie, Jelik and Belzner, those Defendants shall be dismissed from the action. The Court
will order service of the remaining claims against Defendant Kerrtu.
D.

Property Claims

Plaintiff alleges that, while he was in segregation on a misconduct charge, unknown
corrections officers (Unknown Part(y)(ies) #8) took custody of his property and did not return it to
him for four days, well in excess of the 24 hours required under MDOC policy. Plaintiff complains
that the delay violated his right to due process. In addition, Plaintiff claims that, when he received
his property, some legal documents were missing.
Defendants’ alleged failure to comply with an administrative rule or policy does not
itself rise to the level of a constitutional violation. Laney v. Farley, 501 F.3d 577, 581 n.2 (6th Cir.
2007); Smith v. Freland, 954 F.2d 343, 347-48 (6th Cir. 1992); Barber v. City of Salem, 953 F.2d
232, 240 (6th Cir. 1992); McVeigh v. Bartlett, No. 94-23347, 1995 WL 236687, at *1 (6th Cir. Apr.
21, 1995) (failure to follow policy directive does not rise to the level of a constitutional violation
because policy directive does not create a protectable liberty interest). Section 1983 is addressed to
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remedying violations of federal law, not state law. Lugar v. Edmondson Oil Co., 457 U.S. 922, 924
(1982); Laney, 501 F.3d at 580-81. As a consequence, Plaintiff’s allegations about Defendants’
three-day delay in returning his property does not state a claim.
Plaintiff’s due process claim that Defendants failed to return some part of Plaintiff’s
property is barred by the doctrine of Parratt v. Taylor, 451 U.S. 527 (1981), overruled in part by
Daniels v. Williams, 474 U.S. 327 (1986). Under Parratt, a person deprived of property by a
“random and unauthorized act” of a state employee has no federal due process claim unless the state
fails to afford an adequate post-deprivation remedy. If an adequate post-deprivation remedy exists,
the deprivation, although real, is not “without due process of law.” Parratt, 451 U.S. at 537. This
rule applies to both negligent and intentional deprivation of property, as long as the deprivation was
not done pursuant to an established state procedure. See Hudson v. Palmer, 468 U.S. 517, 530-36
(1984). Because Plaintiff’s claim is premised upon allegedly unauthorized negligent acts of a state
official, he must plead and prove the inadequacy of state post-deprivation remedies. See Copeland
v. Machulis, 57 F.3d 476, 479-80 (6th Cir. 1995); Gibbs v. Hopkins, 10 F.3d 373, 378 (6th Cir.
1993). Under settled Sixth Circuit authority, a prisoner’s failure to sustain this burden requires
dismissal of his § 1983 due-process action. See Brooks v. Dutton, 751 F.2d 197 (6th Cir. 1985).
Plaintiff has not sustained his burden in this case. Plaintiff has not alleged that state
post-deprivation remedies are inadequate. Moreover, numerous state post-deprivation remedies are
available to him. First, a prisoner who incurs a loss through no fault of his own may petition the
institution’s Prisoner Benefit Fund for compensation. MICH. DEP’T OF CORR., Policy Directive
04.07.112, ¶ B (effective Jul. 9, 2012). Aggrieved prisoners may also submit claims for property
loss of less than $1,000 to the State Administrative Board. MICH. COMP. LAWS § 600.6419; Policy
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Directive, 04.07.112, ¶ B. Alternatively, Michigan law authorizes actions in the Court of Claims
asserting tort or contract claims “against the state and any of its departments, commissions, boards,
institutions, arms, or agencies.” MICH. COMP. LAWS § 600.6419(1)(a). The Sixth Circuit
specifically has held that Michigan provides adequate post-deprivation remedies for deprivation of
property. See Copeland, 57 F.3d at 480. Plaintiff does not allege any reason why a state-court action
would not afford him complete relief for the deprivation, either negligent or intentional, of his
personal property. Accordingly, Plaintiff’s claim against Unknown Part(y)(ies) #8 will be dismissed.
E.

Eighth Amendment

Plaintiff raises numerous claims about the adequacy of his medical treatment by a
litany of Defendants. Given the extensive nature of the allegations, the Court will discuss only those
medical allegations that fail to state a claim against a Defendant.
The Eighth Amendment prohibits the infliction of cruel and unusual punishment
against those convicted of crimes. U.S. Const. amend. VIII. The Eighth Amendment obligates
prison authorities to provide medical care to incarcerated individuals, as a failure to provide such
care would be inconsistent with contemporary standards of decency. Estelle v. Gamble, 429 U.S.
102, 103-04 (1976). The Eighth Amendment is violated when a prison official is deliberately
indifferent to the serious medical needs of a prisoner. Id. at 104-05; Comstock v. McCrary, 273 F.3d
693, 702 (6th Cir. 2001).
A 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.
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Id. The objective component of the adequate medical care test is satisfied “[w]here the seriousness
of a prisoner’s need[ ] for medical care is obvious even to a lay person.” Blackmore v. Kalamazoo
Cnty., 390 F.3d 890, 899 (6th Cir. 2004). If, however the need involves “minor maladies or
non-obvious complaints of a serious need for medical care,” Blackmore, 390 F.3d at 898, the inmate
must “place verifying medical evidence in the record to establish the detrimental effect of the delay
in medical treatment.” Napier v. Madison Cnty., 238 F.3d 739, 742 (6th Cir. 2001).
The subjective component requires an inmate to show that prison officials have “a
sufficiently culpable state of mind in denying medical care.” Brown v. Bargery, 207 F.3d 863, 867
(6th Cir. 2000) (citing Farmer, 511 U.S. at 834). Deliberate indifference “entails something more
than mere negligence,” Farmer, 511 U.S. at 835, but can be “satisfied by something less than acts
or omissions for the very purpose of causing harm or with knowledge that harm will result.” Id.
Under Farmer, “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 837.
Not every claim by a prisoner that he has received inadequate medical treatment states
a violation of the Eighth Amendment. Estelle, 429 U.S. at 105. As the Supreme Court explained:
[A]n inadvertent failure to provide adequate medical care cannot be
said to constitute an unnecessary and wanton infliction of pain or to
be repugnant to the conscience of mankind. Thus, a complaint that
a physician has been negligent in diagnosing or treating a medical
condition does not state a valid claim of medical mistreatment under
the Eighth Amendment. Medical malpractice does not become a
constitutional violation merely because the victim is a prisoner. In
order to state a cognizable claim, a prisoner must allege acts or
omissions sufficiently harmful to evidence deliberate indifference to
serious medical needs.

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Id. at 105-06 (quotations omitted). Thus, differences in judgment between an inmate and prison
medical personnel regarding the appropriate medical diagnoses or treatment are not enough to state
a deliberate indifference claim. Sanderfer v. Nichols, 62 F.3d 151, 154-55 (6th Cir. 1995); Ward v.
Smith, No. 95-6666, 1996 WL 627724, at *1 (6th Cir. Oct. 29, 1996). This is so even if the
misdiagnosis results in an inadequate course of treatment and considerable suffering. Gabehart v.
Chapleau, No. 96-5050, 1997 WL 160322, at *2 (6th Cir. Apr. 4, 1997).
The Sixth Circuit distinguishes “between cases where the complaint alleges a
complete denial of medical care and those cases where the claim is that a prisoner received
inadequate medical treatment.” Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976). Where
“a prisoner has received some medical attention and the dispute is over the adequacy of the
treatment, federal courts are generally reluctant to second guess medical judgments and to
constitutionalize claims which sound in state tort law.” Id.; see also Kellerman v. Simpson, 258 F.
App’x 720, 727 (6th Cir. 2007); Perez v. Oakland County, 466 F.3d 416, 434 (6th Cir. 2006);
McFarland v. Austin, 196 F. App’x 410 (6th Cir. 2006).
Plaintiff alleges that, on September 28, 2010, the day he arrived at MBP, he sent a
health-care request form, stating that he need he needed to see a dentist or doctor immediately about
his “eating” problems. (Compl. ¶ 456.) He wrote that he was being forced to chew like a rabbit,
wearing down his bottom gums and causing great pain. The unidentified dental assistant, who
appears to be Defendant Clark, replied that Plaintiff would be called out when his partial dentures
were received from the laboratory. On September 30, 2010, Plaintiff wrote again, and the grievance
was answered by someone, presumably Defendant Clark, who responded, “Ditto.” (Id. ¶ 471.) On
October 4, 2010, Plaintiff wrote again. Clark responded that Plaintiff was already on the call-out list
-26-

for dental care. (Id. ¶ 473.) Plaintiff makes no further allegations about Clark. Plaintiff was seen
by the dentist on October 7, 2010. (Id. ¶ 480.)
Even assuming that all of the listed actions were, in fact, taken by Clark, Plaintiff’s
allegations fail to support a conclusion that Clark acted with deliberate indifference. By his own
admission, Clark was aware that Plaintiff had been seen by other dentists, that he required dentures
to fix his “eating” problems, and that those dentures were on order. Plaintiff makes no claim that
it would have been obvious to a layperson or to Clark that there existed urgent change in Plaintiff’s
dental need. In fact, by his own admission, Plaintiff made no claims about any new condition.
Further, Clark or someone else scheduled Plaintiff to be seen by a dentist, and he was seen on
October 7, 2010, nine days after he first submitted his first request for care to Clark. Plaintiff’s
factual allegations fail to support a conclusion that Clark had any reason to be or was aware that
Plaintiff had a serious health problem that required more immediate attention than had been
scheduled. He therefore fails to demonstrate that Clark was deliberately indifferent to his care.
Plaintiff also makes very few allegations against three SPR health-care personnel,
HUM Hunt, Nurse Chapman and PA Kearney. The Court will address each in turn.
Plaintiff alleges that, on December 29, 2009, he sent Defendant Hunt a request to
provide a second mattress to accommodate his back problems. (Id. ¶ 133.) On January 8, 2010,
Plaintiff received a medical request response from Hunt. Hunt advised Plaintiff that MDOC
guidelines were applicable to such requests, but that medical providers could make an off-guidelines
request if he or she believed an accommodation was necessary but did not meet guideline criteria.
Hunt told Plaintiff that he had submitted such a request on December 31, 2009, but it had been

-27-

denied by the Regional Medical Officer. Hunt told Plaintiff that he had scheduled an appointment
with the physician on January 19, 2010. (Id. ¶ 143.)
Plaintiff’s complaint is devoid of any allegation indicating the Hunt acted with the
requisite subjective intent to deny Plaintiff’s medical needs. Indeed, Hunt apparently considered
Plaintiff’s need to be sufficiently important to make a special request for accommodation. When the
accommodation was denied, Hunt made an appointment for Plaintiff to see the doctor. Because
Plaintiff fails to allege that Hunt acted with the requisite subjective intent to deprive Plaintiff of his
Eighth Amendment right to medical care, the Court will dismiss Plaintiff’s claim against Defendant
Hunt.
Plaintiff alleges that he submitted a health care request, claiming that he had an itchy
rash on his scrotum. He was promptly seen by Defendant Chapman on January 12, 2010. (Id.
¶ 155.) Chapman diagnosed “jock itch,” and told Plaintiff that he could buy a medicated cream in
the prison store. Chapman also told Plaintiff that he would attempt to get some cream for Plaintiff
directly from health care. (Id. ¶ 152.) On January 13, 2010, Plaintiff wrote a kite to health care,
indicating that he had seen Defendant Chapman a few days previously. Plaintiff advised health care
that he was unable to purchase the cream until the following month, and he asked that the cream be
issued by health care. Defendant Bailey answered the kite, stating that the kite was duplicative and
giving the same reply Bailey gave Plaintiff on January 11, 2010.

Plaintiff had additional

correspondence with other Defendants, but Chapman participated in no further actions.
Even assuming that Plaintiff can demonstrate the existence of an objectively serious
medical issue, he fails to allege facts showing that Chapman was subjectively indifferent to that
medical issue. Chapman examined Plaintiff and advised him how to treat the condition. Chapman
-28-

was never again involved in Plaintiff’s continuing complaints. Plaintiff therefore fails to allege that
Chapman was deliberately indifferent to his serious medical needs.
Plaintiff’s allegations against Defendant Kearney similarly fall short of stating an
Eighth Amendment claim. Plaintiff alleges that he submitted a health care kite to Defendant
Kearney on January 14, 2010, describing his visit with Chapman on January 12, and advising
Kearney that he would not be able to get the medicine before February 20, 2010, due to his lack of
funds. He therefore asked that Kearney provide the cream immediately. Kearney did not answer the
kite. Instead, it was answered by PA Myers, who is not named as a Defendant in this action. Myers
checked the indigency list, and it did not list Plaintiff as indigent. Myers therefore denied the request
for the medication, but provided Plaintiff some educational materials about the condition. (Id.
¶¶ 155-56.) Plaintiff does not mention Defendant Kearney again, except to indicate that he filed a
grievance against Kearney. (Id. ¶ 173.)
Plaintiff alleges nothing more than that he sent Defendant Kearney a request for
health-care treatment, to which another health provider responded. Nothing about Kearney’s
conduct suggests deliberate indifference to Plaintiff’s medical needs, serious or otherwise.
Because Plaintiff has failed to allege an Eighth Amendment claim against Defendants
Clark, Hunt, Chapman and Kearney, the Court will dismiss them from the action.
F.

Remaining Defendants

The Court concludes that Plaintiff’s allegations are sufficient to state at least one
claim against the remaining Defendants.

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Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Defendants Szappen, Mohrman, Bell, McCauley, Finan, Howard, Unknown Party
#1, Burtch, Bishop, Malik, Filsinger, Vittitow, Marble, Masley, Tantchow, Robinson, Jados, Teed,
McMillen, Petty, Ludwick, McIntyre, Tribley, Naples, Pomeroy, Hamel, Sorenson, Collins,
Unknown Party #3, Unknown Party #4, Unknown Party #7, Nardi, Niemisto, Gilbert, Cavin, Haynie,
Jelik, Belzner, Unknown Part(y)(ies) #8, Clark, Hunt, Chapman and Kearney will be dismissed
pursuant to 28 U.S.C. §§ 1915(e)(2), on grounds of immunity and failure to state a claim. The Court
will serve the complaint against the remaining named Defendants.7
An Order consistent with this Opinion will be entered.

Dated:

May 28, 2013

/s/ Paul L. Maloney
Paul L. Maloney
Chief United States District Judge

7

At this juncture, the Court lacks sufficient information to order service on Defendant Unknown Parties ##2,
5, 6, and 9.

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