VanDiver #141306 v. Prison Health Services, Inc et al

Filing 18

OPINION ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc)

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

JERRY VANDIVER,
Plaintiff,

Case No. 1:14-cv-350

v.

Honorable Robert J. Jonker

PRISON HEALTH SERVICES, INC. et al.,
Defendants.
____________________________________/
OPINION
This is a civil rights action brought by a state prisoner under 42 U.S.C. §§ 1983 and
1985. 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), 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 Steele, Abdellatif, Pandya, Masselink, Stepp, Remensnyder,
Minnerick, Berghuis, Duane Waters Health Center Optometry Eye Clinic, TLC Optometry Eye
Clinic, Spitters, and Brewer. The Court will serve the complaint against Defendants Prison Health
Services, Inc., Corizon, State of Michigan, Michigan Department of Corrections, Ingraham, Swartz,
Curtis, Gamez, Worel, Gracik, and Brewer.

Discussion
I.

Factual allegations

Plaintiff Jerry VanDiver presently is incarcerated with the Michigan Department of
Corrections (MDOC) at the Earnest C. Brooks Correctional Facility (LRF), though the actions about
which he complains also occurred while he was housed at the Lakeland Correctional Facility (LCF)
and the Duane Waters Health Center (DWHC) Optometry Eye Clinic. Plaintiff sues Prison Health
Services, Inc (PHS), Corizon, the State of Michigan, the MDOC, the DWHC, and TLC Optometry
Eye Clinic (TLC), as well as numerous individuals employed by the MDOC, LRF, LCF, and DWHC:
MDOC Senior Regional Medical Director John Steele; MDOC Regional Medical Officer at LRF Dr.
Haresh Pandya; LRF Dr. Badawi Abdellatif; retired PHS Dr. John Masselink; Physician’s Assistant
(PA) Daniel F. Spitters; LCF Nurse Practitioner (NP) Raymond Ingraham; LCF Registered Nurse
(RN) Diana Swartz; LCF Medical Records Supervisor Sharon Curtis; LCF Grievance Coordinator
and Misconduct Hearing Investigator T. Stepp; DWHC RN Gary Remensnyder; LRF Health Unit
Manager (HUM) Judy Gracik; LRF Doctors Wilfredo Gamez and Richard Worel; LRF Nurse
Supervisor Sherri Castenholz; LRF Deputy Warden Sean Brewer; LRF Correctional Officer and
acting Greivance Coordinator Jeffery Minnerrick; and LRF Warden Mary Berghuis.
Plaintiff is a diabetic who also suffers from Hepatitis C, hypertension, peripheral
vascualr disease, and partial blindness caused by glaucoma, possibly resulting from his diabetes. In
his 55-page complaint, Plaintiff complains about his medical treatment between 2010 and the
present.1 Plaintiff alleges few specific facts about the conduct of individual Defendants. Instead,

1

This is the eighteenth case Plaintiff has filed in this district. He also has filed numerous cases in the Eastern
District of Michigan. Many of those cases have involved claims that he has received inadequate medical care during his
imprisonment. Because at least three of his cases have been dismissed as frivolous malicious or for failure to state a

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most of his extensive complaint consists of repetitive, conclusory paragraphs claiming violations of
his rights under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131, the First, Eighth
and Fourteenth Amendments, and conspiracy to commit such violations by 23 Defendants at three
different MDOC facilities over a period of more than four years. He generally claims that poor
treatment of his diabetes led to the partial amputation of his right foot on March 14, 2011, and to
another partial amputation of that foot on May 15, 2012. He also alleges that his vision impairments
have not been properly treated or accommodated. He alleges that all Defendants either knew about
his medical needs or should have known about them and nevertheless failed to ensure that he
received the treatment he needed or desired. Further, he claims that Defendants’ acts and failures
to act were taken in retaliation for Plaintiff’s filing of grievances.
In one of the first sets of general factual allegations, Plaintiff alleges that, on May 10,
2010, Defendants Steele, Abdellatif, Pandya, Masselink and Spitters acted jointly and in conspiracy
with one another to unjustifiably discontinue some unspecified treatment or accommodation for his
disability. (Compl. ¶ 35, Page ID#15.) He asserts that prior to May 28, 2010, he repeatedly asked
these Defendants to refer him to provide the accommodations and refer him to a specialist to address
the pain he was experiencing in his feet, including a right foot ulcer. Plaintiff alleges that the
individual Defendants declined to refer him to a specialist because of the existence of PHS policies
that are based on its own profit motive. According to the complaint, between May 31, 2010 and
January 11, 2011, he submitted three separate grievances about his illnesses and his denials of care.

claim, Plaintiff must sufficiently allege that he is in imminent danger of serious physical injury in order to proceed in
forma pauperis. See 28 U.S.C. § 1915(g). Plaintiff has been permitted to proceed in forma pauperis in this action.

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By October 14, 2010, Plaintiff’s feet allegedly were too swollen to fit into shoes.
Defendant Abdellatif referred him to an orthopedic foot specialist, and sent numerous emails to
Defendants Pandya and PHS, seeking approval for that treatment. On November 10, 2010,
Defendant Abdellatif wrote a medical order for Plaintiff to receive rubber boots to protect his feet
from the winter weather. When the boots arrived, they were not wide enough to accommodate
Plaintiff’s surgical shoes, purportedly leaving Plaintiff’s foot ulcer unprotected from winter
conditions. In early 2011, Defendants Abdellatif, Pandya and PHS approved Plaintiff’s visit to a foot
specialist surgeon. Plaintiff saw the surgeon at the end of February, at which time the specialist
recommended a transmetatarsil partial amputation of the foot. The partial amputation was conducted
on March 14, 2011. The specialist also advised Plaintiff that there was a substantial likelihood that
his left foot would require corrective surgery in the future.
Plaintiff contends that Defendants PHS and Corizon were deliberately indifferent to
his serious medical needs. He alleges that they had policies and customs of prioritizing profits over
adequate medical treatment. According to Plaintiff, PHS and Corizon conspired with the MDOC
and the State of Michigan, as well as the individual state Defendants to systematically withhold
necessary medical accommodations and treatment. (Id. ¶ 50.) Plaintiff asserts that, after enduring
another winter without protective shoes, he was forced to undergo another partial amputation of his
right foot on May 15, 2012.
On March 10, 2011, Plaintiff allegedly sent a letter to Defendants PHS, Steele,
Haresh, Pandya and LRF Health Services, seeking to be transferred to a different facility where he
would receive the care he needed in a medical unit. He expressed concern about a breakdown in his

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relationship with Defendants Abdellatif, Spitters and other medical personnel. Defendants allegedly
ignored the letter.
Shortly thereafter, however, Plaintiff was transferred to LCF. At the time of his
transfer, LCF employees allegedly knew that Plaintiff suffered a serious right foot infection and other
medical conditions and knew or should have known that the failure to treat those conditions could
result in serious bodily harm or death. Plaintiff alleges, however, that Defendants PHS and Corizon
employees, the State of Michigan, the MDOC, and the LCF medical personnel, including Defendants
Ingraham, Swartz and Curtis, conspired to deprive Plaintiff of necessary medical care. (Id. ¶ 70.)
Prior to December 29, 2011, Defendants Ingraham, Swartz, Curtis, and Stepp held monthly
grievance meetings in the A-Unit medical ward to address ongoing medical issues, including
Plaintiff’s medical needs and disability accommodations. Plaintiff participated, as a member of the
unit. On December 6, 2011, Defendants Ingraham, Swartz, and Curtis allegedly cancelled Plaintiff’s
stay in the A-Unit medical ward. Plaintiff filed a healthcare kite on December 22, 2011, to which
Defendant Curtis responded that Plaintiff would be moved back to the A-Unit ward as soon as a bed
opened. (Id. ¶ 73.) Plaintiff alleges that, as a result of the transfer to a non-medical unit, he was
subjected to freezing conditions that left his ulcerated foot unprotected from the cold, exacerbating
the infection and ultimately leading to his second partial amputations. Sometime between December
22 and December 28, 2011, Defendants Ingraham and Curtis were hostile when they met with
Plaintiff. Defendant Ingraham eventually told Plaintiff, “We are all done. . . . Get out. . . . I’m tired
of you writing all these grievances threatening me. . . . I hope your leg on the rest of your right foot
has to be amputated. . . . Put these statements in a grievance or one of your lawsuits against medical
employees.” (Id. ¶ 75.)
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Plaintiff alleges that, between December 2011 and September 2012, he filed more
than 15 grievances, asking for medication renewals and fulfillment of unspecified physician’s orders.
Plaintiff alleges that Defendant Stepp refused to act on or process one administrative grievance filed
in December 2001. On December 27, 2011, shortly after he filed a grievance against Ingraham,
Ingraham allegedly fabricated a major misconduct for threatening behavior, which resulted in
Plaintiff’s placement in segregation. Defendant Stepp acted as the hearing investigator, and,
according to the complaint, allegedly failed to ensure that Plaintiff received a due-process hearing
under MDOC policy. Defendant Stepp purportedly ignored numerous letters from Plaintiff about
scheduling a misconduct hearing. (Id. ¶¶ 76-79.) Plaintiff was transferred from LCF two days later,
on December 29, 2011. (Id. ¶ 68.)
On September 12, 2014, Plaintiff was transferred back to LRF,2 despite the fact that,
on March 10, 2011, Plaintiff had sent letters stating his concerns about confinement at LRF, due to
the alleged breakdown in his relationships with medical providers PHS, Stelle, Pandya, Abdellatif,
Masselink and Spitters. (Id. ¶ 94.) Plaintiff complains that, after the transfer to LRF, Defendants
conspired to deprive him of his rights to adequate medical care and accommodations for his diabetes
and Hepatitis C. He alleges that Defendant Gracik admitted that she spoke with Defendant
Remesnyder about Plaintiff’s lawsuits and grievances about medical care, allegedly coming to an
agreement to have Plaintiff transferred to LRF. (Id. ¶ 99.) He also alleges that, shortly after he
returned to LRF, Defendants Gamez, Spitters, Gracik, Castenholz and Brewer had a meeting during

2

Plaintiff’s complaint lacks specifics concerning his prison placement between December 29, 2011, when he
was transferred out of LCF, and September 12, 2012, when he was transferred back to LRF. Given that Plaintiff had a
surgery on May 15, 2012, and given that he sues Defendant Remensnyder, who works at DWHC, it appears that he was
housed at DWHC for some portion of that time. Plaintiff, however, provides no details about which Defendants were
responsible for his denials of treatment during those nine months.

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which they allegedly agreed to conspire to deprive Plaintiff of constitutional rights and to withhold
critical medical care. Gracik purportedly ignored Plaintiff’s requests for specialty shoes, medical
care and accommodations, telling Plaintiff that the only reason physicians give him anything is
because they are afraid of him and that “the only reason you were not able to pass the diabetes
education class, you were just playing games, and just pretending you could not self select your
meals, just so you could have a special diabetic diet.” (Id. ¶ 101.)
In January 2013, Plaintiff was examined at Defendant DWHC Optometry Eye Clinic,
to determine the status of his diabetes-related vision impairment. The physician concluded that
Plaintiff’s diagnosis qualified him as eligible for use of a white cane, as had been found on February
24, 2012. In addition, Plaintiff is a participant with the Michigan Commission for the Blind and
Handicapped, from which Plaintiff receives books and tapes. Plaintiff also has an accommodation
for assignment of visual-aide communication assistance for reading and writing. However, Plaintiff
complains that Defendants Gracik, Gamez, and Brewer took away the white cane, advising him that
he did not need it. Plaintiff alleges that Defendants Gamez, Spitters, Gracik, Castenholz, and Brewer
conspired to remove the white-cane accommodation from Plaintiff’s medical records. (Id. ¶¶ 10204.)
Between September 2012 and March 2013, Plaintiff allegedly asked Gracik,
Castenholz, Brewer, and DWHC Optometric Eye Clinic to provide him with accommodations and
with a referral to a specialist to address the pain and discomfort in his feet and eyes. Defendants
allegedly refused for financial reasons. Between October 2012 and August 2013, Plaintiff filed
numerous grievances, which were ignored. In April 2013, Defendant Minnerick allegedly conspired

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with Defendants Berghuis and Brewer to begin rejecting Plaintiff’s first and second-step grievances,
rendering the grievance process unavailable to him. (Id. ¶¶ 105-09.)
On April 8, 2013, Plaintiff sent a letter to Defendants Brewer, Minnerick, and
Berghuis and MDOC Director Heyns, objecting to Defendants’ “evil motives” in failing to fulfill his
physician’s orders. (Id. ¶ 113.) He reiterates his claims that Defendants at LRF and other MDOC,
PHS and Corizon employees were aware of his medical needs and conspired to retaliate against him,
to deny him equal protection, and to violate his Eighth Amendment rights. (Id. ¶¶ 114-19.)
In sum, Plaintiff contends that all Defendants conspired to violate and violated his
First, Eighth and Fourteenth Amendments his rights under the ADA. For relief, he seeks from each
Defendant in his or her individual capacity $.5 million in compensatory damages and $100 million
in punitive damages, together with injunctive relief.
II.

Sovereign Immunity

Plaintiff may not maintain a § 1983 or § 1985 action against the State of Michigan,
the MDOC, or the DWHC Optometry Eye Clinic. 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, 98101 (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). The MDOC is
a department of the State of Michigan, and the DWHC is a facility within the MDOC. In numerous
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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 Michigan Department of Corrections or its
facilities) 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 and 1985 claims against State of Michigan, State
of Michigan, the MDOC, and the DWHC Optometry Eye Clinic.
Plaintiff also alleges that the actions of the State of Michigan and the MDOC, as well
as all individual Defendants, violated the ADA. 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). In order
to state a claim under Title II of the ADA, Plaintiff must show: (1) that he is a qualified individual
with a disability; (2) that defendants are subject to the ADA; and (3) that he was denied the
opportunity to participate in or benefit from defendants’ services, programs, or activities, or was
otherwise discriminated against by defendants, by reason of plaintiff’s disability. See Tucker v.
Tennessee, 539 F.3d 526, 532-33 (6th Cir. 2008); see also Jones v. City of Monroe, 341 F.3d 474,
477 (6th Cir. 2003). The term “qualified individual with a disability” includes “an individual with
a disability who, with or without . . . the provision of auxiliary aids and services, meets the essential
eligibility requirements for the receipt of services or participation in programs or activities provided
by a public entity.” 42 U.S.C. § 12131(2).
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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 State of Michigan and the MDOC, as well as all other Defendants
in their official and individual capacities.
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.
151, 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 Defendants State of Michigan and the
MDOC.
As for the other Defendants, 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). As a consequence, the Court will dismiss Plaintiff’s individual ADA claims against all
individual Defendants.

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III.

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, 47 (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.

Conspiracy

Throughout his complaint, Plaintiff makes sweeping allegations that, over a period
of four years, all Defendants conspired under §§ 1983 and 1985 to deprive him of adequate medical
treatment and accommodations and to retaliate against him for filing grievances and lawsuits. A
civil conspiracy under § 1983 is “‘an agreement between two or more persons to injure another by
unlawful action.’” See Hensley v. Gassman, 693 F.3d 681, 695 (6th Cir. 2012) (quoting Hooks v.
Hooks, 771 F.2d 935, 943-44 (6th Cir. 1985)). The plaintiff must show the existence of a single
plan, that the alleged coconspirator shared in the general conspiratorial objective to deprive the
plaintiff of a federal right, and that an overt action committed in furtherance of the conspiracy caused
an injury to the plaintiff. Id.; Bazzi v. City of Dearborn, 658 F.3d 598, 602 (6th Cir. 2011).
Similarly, to state a claim for conspiracy under § 1985, a plaintiff must allege facts showing that
(1) two or more persons conspired (2) for the purpose of depriving the plaintiff of the equal
protection of the laws and (3) that the conspirators committed an overt act (4) that injured the
plaintiff. See Radvansky v. City of Olmsted Falls, 395 F.3d 291, 314 (6th Cir. 2005); Smith v.
Thornburg, 136 F.3d 1070, 1078 (6th Cir. 1998) (citing Johnson v. Hills & Dales Gen. Hosp., 40
F.3d 837, 839 (6th Cir. 1994)). The § 1985 plaintiff also must demonstrate that the conspiracy was
motivated by a class based animus, such as race. Radvansky, 395 F.3d at 314; Johnson, 40 F.3d at
839; Collyer v. Darling, 98 F.3d 211, 233 (6th Cir. 1996). Under both § 1983 and § 1985, a plaintiff
must plead with particularity, as vague and conclusory allegations unsupported by material facts are
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insufficient to state a claim. Twombly, 550 U.S. at 565 (recognizing that allegations of conspiracy
must be supported by allegations of fact that support a “plausible suggestion of conspiracy,” not
merely a “possible” one); Fieger v. Cox, 524 F.3d 770, 776 (6th Cir. 2008); Spadafore v. Gardner,
330 F.3d 849, 854 (6th Cir. 2003); Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987).
Plaintiff’s allegations of conspiracy are conclusory and speculative. First, his claim
under § 1985 fails because he makes no allegation that his alleged mistreatment resulted from racebased animus. See Radvansky, 395 F.3d at 314. Moreover, most of his allegations concerning
conspiracy under § 1983, even viewed in the light most favorable to Plaintiff, are wholly conclusory.
While Plaintiff broadly alleges the existence of meetings of health-care providers at LRF at which
the LRF providers ostensibly agreed to conspire, Plaintiff’s allegation is conclusory. Further, his
reference to statements made by prisoner witnesses Stewart, Gaines, and Lieneman provide no
factual support for his allegations of conspiracy; they merely affirm factual allegations against
Defendant Gracik. In addition, no factual allegations link the conduct of officials to the conduct of
other Defendants, particularly those working at different facilities. Instead, Plaintiff merely alleges
a few discrete facts that occurred over a period of time involving various individual officials, and
he attempts to link those facts by repetitive and sweeping claims of conspiracy. Plaintiff has
provided no allegations establishing a link between any alleged conspirators or any agreement
between them.
As the Supreme Court has held, such allegations, while hinting at a “possibility” of
conspiracy, do not contain “enough factual matter (taken as true) to suggest that an agreement was
made.” Twombly, 550 U.S. at 556. Plaintiff alleges nothing more than that Defendants must have
agreed to violate the law because Plaintiff did not get what he wanted from any of the Defendants.
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As the Supreme Court has recognized, although parallel conduct may be consistent with an unlawful
agreement, it is insufficient to state a claim where that conduct “was not only compatible with, but
indeed was more likely explained by, lawful, unchoreographed . . . behavior.” Iqbal, 556 U.S. at
680. In light of the far more likely possibility that the various incidents occurring over the long
history of Plaintiff’s incarceration were unrelated, Plaintiff’s conclusory allegations fail to state a
plausible claim of conspiracy against any Defendants.
B.

Defendants Berguis, Minnerrick, Stepp & Brewer

Beyond his broad claims of conspiracy, Plaintiff’s makes no allegations against
Defendants Berguis, Minnerrick, Stepp, and Brewer other than that that these Defendants failed to
conduct an investigation in response to his letters and grievances, failed to process those grievances,
or failed to supervise their subordinates. 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
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has failed to allege that Defendants Berghuis, Brewer and Minnerick engaged in any active
unconstitutional behavior by failing to respond to his complaints or failing to supervise their
subordinates.
Moreover, to the extent that Plaintiff complains that Defendants Stepp, Minnerrick
or Berghuis refused to process his grievances or placed him on modified access to the grievance
process, he also fails to state a claim. 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 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); Keenan v. Marker,
23 F. App’x 405, 407 (6th Cir. 2001); 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’
conduct did not deprive him of due process.
Plaintiff also fails to state a retaliation claim against Defendant Stepp or any other
Defendant based on his placement on modified access.3 Retaliation based upon a prisoner’s exercise

3

Under Michigan Department of Corrections policy, a prisoner is placed on modified access for filing “an
excessive number of grievances which are frivolous, vague, duplicative, non-meritorious, raise non-grievable issues, or
contain prohibited language. . .or [are] unfounded . . . .” MICH. DEP’T OF CORR., Policy Directive 03.02.130, ¶ HH. (eff.
July 9, 2007). The modified access period is ninety days and may be extended an additional thirty days for each time
the prisoner continues to file a prohibited type of grievance. Id. While on modified access, the prisoner only can obtain
grievance forms through the Step I coordinator, who determines whether the issue is grievable and otherwise meets the
criteria under the grievance policy. Id., ¶ KK.

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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. Id. 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)). The
Sixth Circuit repeatedly has held that placement on modified access does not constitute an adverse
action for purposes of a retaliation claim. See, e.g., Jackson v. Madery, 158 F. App’x 656, 660 (6th
Cir. 2005) (per curiam); Walker v. Mich. Dep’t of Corr., 128 F. App’x 441, 446 (6th Cir. 2005).
For all these reasons, Plaintiff fails to state a claim against Defendants Berguis,
Minnerrick, Stepp, and Brewer.
C.

Defendants TLC and Remensnyder

Aside from his previous allegations of conspiracy, Plaintiff fails to allege any conduct
by Defendants TLC and Remensnyder. Indeed, Plaintiff makes no factual allegation against
Defendant TLC, and Plaintiff only alleges that Defendant Gracik spoke to Defendant Remensnyder
by telephone before Remensnyder released Plaintiff from hospitalization at DWHC on an
unspecified date.
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
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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. 90-1010, 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
Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994); Krych v. Hvass, 83 F. App’x 854, 855 (8th Cir.
2003); Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974); Williams v. Hopkins, No. 06-14064,
2007 WL 2572406, at *4 (E.D. Mich. Sept. 6, 2007); McCoy v. McBride, No. 3:96-cv-227RP, 1996
WL 697937, at *2 (N.D. Ind. Nov. 5, 1996); Eckford-El v. Toombs, 760 F. Supp. 1267, 1272-73
(W.D. Mich. 1991). Plaintiff fails to even mention Defendant TLC in the body of his complaint,
other than to conclusorily allege that TLC conspired with other Defendants to deprive Plaintiff of
his rights. As previously discussed, Plaintiff’s allegations of conspiracy are wholly unsupported.
Because he makes no other allegations against Defendant TLC, his allegations 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”).
Similarly, Plaintiff alleges that Defendant Remensnyder spoke with Defendant Gracik
and thereafter conspired to release him from the DWHC. Plaintiff, however, fails even to allege that
he was in need of hospitalization at the time he was discharged. As a result, Plaintiff makes no
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allegation of fact that Remensnyder deprived him of any right by discharging him. The absence of
allegations against Remensnyder therefore fall short of stating a federal claim.
D.

Statute of Limitations

All of the conduct preceding Plaintiff’s initial partial amputation occurred more than
three years before he filed his complaint on March 19, 2014.4 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 220.5
Plaintiff’s claims concerning his treatment prior to his first amputation on March 14,
2011 are untimely. Plaintiff had reason to know of the “harms” done to him at the time they

4

Under Sixth Circuit precedent, the complaint is deemed filed when handed to prison authorities for mailing
to the federal court. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). Petitioner dated his application on March 19,
2014, and it was received by the Court onApril 3, 2014. Thus, it must have been handed to prison officials for mailing
at some time between March 19 and April 3, 2014. For purposes of this opinion, the Court has given Petitioner the
benefit of the earliest possible filing date. See Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008) (holding that the date
the prisoner signs the document is deemed under Sixth Circuit law to be the date of handing to officials) (citing Goins
v. Saunders, 206 F. App’x 497, 498 n.1 (6th Cir. 2006)).
5

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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occurred. Hence, his claims accrued at the time they occurred in 2010-11. However, he did not file
his complaint until March 2014, 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 § 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. 015701, 2002 WL 1334756, at *2 (6th Cir. June 17, 2002).
Plaintiff argues that his late-filed claims should not be barred by the statute of
limitations because they are part of a continuing violation of his federal rights. He alleges that his
medical treatment between May 10, 2010 and the present involve a continuous and undifferentiated
pattern of health care denials and retaliation, which he should not be expected to parcel into separate
complaints.
The Sixth Circuit uses a three-part test to determine if a continuing violation exists:
(1) the defendants’ wrongful conduct must continue after the precipitating event; (2) injury to the
plaintiff must continue to accrue after the event, and (3) further injury to the plaintiff must have been
avoidable if the defendants had at any time ceased their wrongful conduct. Paschal v. Flagstar Bank,
295 F.3d 565, 572 (6th Cir. 2002) (citing Tolbert v. State of Ohio Dep’t of Transp., 172 F.3d 934,
940 (6th Cir. 1999)). In Bruce v. Corr. Med. Servs., Inc., 389 F. App’x 462, 466 (6th Cir. 2010),
the Sixth Circuit held that the continuing-violation doctrine did not apply to the plaintiff’s Eighth
Amendment claim. The plaintiff in Bruce was a prisoner in state custody. He alleged that prison
officials denied him medical treatment for injuries he suffered while working at his prison job. Id.
at 463. He claimed that they were deliberately indifferent to his medical needs for almost five years.
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Id. at 464. The Sixth Circuit held that “[a]ctual acts by [a defendant] of refusing medical care
represent discrete unlawful acts (beyond passive inaction) that trigger the statute of limitations.” Id.
at 467. The Court went only to hold that acts occurring before the statute of limitations were
time-barred. Id. This result corresponds with the Sixth Circuit’s general disapproval of applying
the continuing-violation doctrine in civil rights actions. Sharpe v. Cureton, 319 F.3d 259, 267 (6th
Cir. 2003) (stating that the Sixth Circuit “employs the continuing violations doctrine most commonly
in Title VII cases, and rarely extends it to § 1983 actions”).
In the instant case, although Plaintiff alleges that Defendants acted collectively and
conspiratorily to continuously deny him care, those allegations are conclusory. Plaintiff’s complaint
contains few specific alleged acts by each individual Defendant. Instead, Plaintiff seeks to hold all
Defendants liable for every medical decision made by any individual Defendant.

Plaintiff’s

allegations of a continuing violation depends entirely on his previously rejected view that each
Defendant’s act was part of a conspiracy to deprive him of his rights. Where, as here, factual
allegations against any Defendant are particularly thin, and where the actions occurred at multiple
facilities over multiple years, Plaintiff fails to demonstrate that any particular Defendant’s wrongful
conduct continued into the statutory period. Under these circumstances, the application of the
continuing-violation doctrine is particularly inapplicable. See Bruce, 389 F.3d at 466; Sharpe, 319
F.3d at 267.6

6

The Court notes that Plaintiff had ample opportunity to litigate his pre-March 2011 claims. Indeed, Plaintiff
filed a civil rights complaint against Defendants PHS, Steele, Abdellatif, Pandya, Masselink, Spitters and Corizon in June
2011. See VanDiver v. Prison Health Services, Inc. et al., No. 1:11-cv-574 (W.D. Mich.). The Court initially denied
Plaintiff leave to proceed in forma pauperis, because he previously had filed three actions that were dismissed as
frivolous, malicious or for failure to state a claim under 28 U.S.C. § 1915(g), and it subsequently dismissed the action
for lack of prosecution when Plaintiff failed to pay the filing fee. See id. (docket ##16, 17.) The Sixth Circuit ultimately
held that Plaintiff was entitled to proceed in forma pauperis, and this Court reopened the case on September 10, 2013.
Id. (docket #24). Over the course of the next four months, Plaintiff made multiple motions to supplement the complaint,

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As the Supreme Court has held, if the allegations “show that relief is barred by the
applicable statute of limitations, the complaint is subject to dismissal for failure to state a
claim . . . .” Jones v. Bock, 549 U.S. 199, 920-21 (2007). Because Plaintiff’s pre-March 2011 claims
are barred by the statute of limitations, those claims will be dismissed. Further, because Plaintiff
makes no allegations about the conduct of LRF medical Defendants Steele, Abdellatif, Pandya,
Masselink, and Spitters after March 2011, his claims against them must be dismissed.
E.

Remaining Defendants

Upon review, the Court concludes that Plaintiff has made sufficient allegations
against Defendants Prison Health Services, Inc., Corizon, State of Michigan and Michigan
Department of Corrections, Ingraham, Swartz, Curtis, Gamez, Worel, Gracik and Castenholz.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Defendants Steele, Abdellatif, Pandya, Masselink, Stepp, Remensnyder, Minnerick,
Berghuis, Duane Waters Health Center Optometry Eye Clinic, TLC Optometry Eye Clinic, Spitters,
and Brewer 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 serve the complaint against Defendants Prison

together with numerous motions on other matters. The Court issued multiple orders in an attempt to obtain an amended
complaint containing all of Plaintiff’s allegations and copies of that amended complaint for service. On January 22,
2014, the Court dismissed the action for lack of compliance with repeated orders of the Court. Id. (docket ##51-52).
The fact that the statute of limitations has now expired on Plaintiff’s pre-March 2011 allegations arises from Plaintiff’s
own disregard of the orders of this Court and his abusive litigation practices. An equitable doctrine such as the
continuing-violation doctrine is inapplicable in these circumstances. See Austion v. City of Clarksville, 244 F. App’x
639, 647 (5th Cir. 2007) (holding that the continuing-violations theory is a specific equitable doctrine) (citing Kovacevich
v. Kent State Univ., 224 F.3d 806, 829 (6th Cir.2000)).

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Health Services, Inc., Corizon, State of Michigan, Michigan Department of Corrections, Ingraham,
Swartz, Curtis, Gamez, Worel, Gracik, and Brewer.
An Order consistent with this Opinion will be entered.

Dated:

May 21, 2014

/s/ Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE

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