DeWeese #258370 v. Michigan Department of Corrections et al
Filing
8
OPINION ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, mil)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JAMES M. DEWEESE,
Plaintiff,
Case No. 1:14-cv-386
v.
Honorable Robert J. Jonker
MICHIGAN DEPARTMENT OF
CORRECTIONS et al.,
Defendants.
____________________________________/
OPINION
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983 and
state law. 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 against
Defendants Michigan Department of Corrections, McKee and Trierweiler. The Court will serve the
complaint on Defendants Heyns, Wright, Bonn and Battle.
Discussion
I.
Factual allegations
Plaintiff James M. DeWeese is a state prisoner incarcerated with the Michigan
Department of Corrections (MDOC) at the Bellamy Creek Correctional Facility (IBC). He sues the
MDOC and its director, Daniel Heyns, as well as the following current/former employees of IBC:
Warden Kenneth McKee, Deputy Warden Tony Trierweiler, Resident Unit Manager (RUM) Rufus
Wright, Assistant Resident Unit Supervisor (ARUS) Chad Battle, and former ARUS (unknown)
Bonn. Defendant Heyns is sued in both his official and his personal capacity. The other individual
Defendants are sued in their personal capacities only. (See Am. Compl., docket #6, Page ID#77.)
According to the complaint, on February 9, 2013, Plaintiff was terminated from his
work assignment and placed in disciplinary segregation as a result of a misconduct conviction. On
March 27, 2013, after he was released from segregation, his request for an indigent loan was denied
per MDOC Policy Directive 04.02.120 because he was convicted of a misconduct within the
previous 12 months.
On April 4, he asked ARUS Bonn for state-issued soap, toothpaste, and a toothbrush,
because he did not qualify for an indigent loan and he had no other way of obtaining these items.
She denied his request, citing Policy Directive 04.02.120. Plaintiff asked what he could do to obtain
hygiene items, and she told him, “Don’t go to segregation.” (Am. Compl., docket #6, Page ID#81.)
Plaintiff filed a grievance about Bonn’s conduct, and RUM Wright responded to the
grievance at Step I of the grievance review process. Wright allegedly acknowledged that Bonn
denied Plaintiff’s request based on Policy Directive 04.02.120, but determined that no policy
-2-
violation had occurred. Deputy Warden Trierweiler reviewed and approved Defendant Bonn’s
response. Warden McKee denied the grievance at Step II, finding no violation of the policy.
On May 22 and 31, 2013, Plaintiff sent kites to healthcare staff complaining about
painful sores that he had developed on his upper inner thighs. A few days later, he was examined
and it was determined that he was infected with a skin fungus or ringworm. On June 5, he filed
another grievance and requested that he be provided with state-issued hygiene items. On June 18,
he informed healthcare staff that the infection had spread and that he still did not have access to soap.
On June 25, RUM Wright interviewed Plaintiff regarding the June 5 grievance and
informed Plaintiff that he would provide the necessary hygiene products later that day. That evening,
Plaintiff received a message from healthcare staff indicating that the nurse had arranged for custody
staff to provide him a bar of soap. Plaintiff never received the soap or any other hygiene items,
however. On June 26, Deputy Warden Trierweiler approved RUM Wright’s response to the
grievance. Plaintiff also sent kites to Wright and Trierweiler on June 25, 26 and 27 “regarding the
promised hygiene.” (Id. at Page ID#85.) He never received a response.
On June 28, a nurse inquired whether Plaintiff had received any soap. She then called
the control center and requested that Plaintiff be provided with soap. That evening, an inmate
informed Plaintiff that he was with ARUS Bonn when she received the message from the control
center to provide soap to Plaintiff. Bonn did not respond to the message.
On July 8, Warden McKee rejected Plaintiff’s Step II appeal from the June 5
grievance on the basis that Plaintiff provided no evidence to support his assertion that RUM Wright
failed to provide the agreed-upon hygiene supplies.
-3-
On August 5, Plaintiff sent a kite to ARUS Battle (ARUS Bonn’s replacement) asking
for soap, toothpaste and a toothbrush. ARUS Battle denied Plaintiff’s request, citing Policy
Directive 04.02.120.
On August 15, Plaintiff started taking an oral medication to treat his skin infection,
because the ointment he had been given by healthcare staff was ineffective without soap.
Unfortunately, the medicine interacted poorly with the anxiety medication he was taking at the time.
Three days later, he became so ill that he experienced a seizure. Since that time, he has lost some
of his sense of smell and taste, and he frequently experiences a painful sensation like needles poking
into his hand, arm and neck.
On September 9, Plaintiff was transferred to another unit. The next day, RUM Wright
provided Plaintiff with toothpaste, toothbrushes and shampoo. On September 11, Deputy Warden
Trierweiler agreed to provide Plaintiff with soap and other hygiene items until he could purchase
them for himself. Plaintiff asserts that he was deprived of these items for a total of 161 days.
Based on the foregoing, Plaintiff claims that Defendants: (1) were deliberately
indifferent to his health needs, in violation of the Eight Amendment; (2) intentionally inflicted
emotional distress on him; and (3) conspired to violate his civil rights. As relief, Plaintiff seeks
damages as well as a preliminary and permanent injunction barring the MDOC and its staff from
using MDOC Policy Directive 04.02.120 to “punish” him. (Id. at Page ID#94.)
II.
Immunity
Plaintiff may not maintain a § 1983 action against the Michigan Department of
Corrections. 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
-4-
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. 001182, 2000 WL1679478, at *2 (6th Cir. Nov. 1, 2000). In addition, the State of Michigan (acting
through the Michigan Department of Corrections) 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 will dismiss the § 1983 claim against the
Michigan Department of Corrections.
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
-5-
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.
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. Eighth Amendment
Plaintiff claims that Defendants violated his rights under the Eighth Amendment by
depriving him of basic hygiene supplies, including soap and toothpaste, for 161 days. The Eighth
Amendment imposes a constitutional limitation on the power of the states to punish those convicted
of crimes. Punishment may not be “barbarous” nor may it contravene society’s “evolving standards
of decency.” Rhodes v. Chapman, 452 U.S. 337, 345-46 (1981). The Amendment, therefore,
-6-
prohibits conduct by prison officials that involves the “unnecessary and wanton infliction of pain.”
Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987) (per curiam) (quoting Rhodes, 452 U.S. at 346).
The deprivation alleged must result in the denial of the “minimal civilized measure of life’s
necessities.” Rhodes, 452 U.S. at 347; see also Wilson v. Yaklich, 148 F.3d 596, 600-01 (6th Cir.
1998). “Not every unpleasant experience a prisoner might endure while incarcerated constitutes
cruel and unusual punishment within the meaning of the Eighth Amendment.” Ivey, 832 F.2d at 954.
The Eighth Amendment is concerned with “deprivations of essential food, medical care, or
sanitation” and “other conditions intolerable for prison confinement.” Rhodes, 452 U.S. at 348
(citation omitted). Basic elements of hygiene are among the essentials that prison officials must
provide to prisoners. See Parrish v. Johnson, 800 F.2d 600, 609 (6th Cir. 1986).
To prevail on an Eighth Amendment claim, Plaintiff must show that he faced a
sufficiently serious risk to his health or safety and that the defendant official acted with “‘deliberate
indifference’ to [his] health or safety.” Mingus v. Butler, 591 F.3d 474, 479-80 (6th Cir. 2010)
(citing Farmer v. Brennan, 511 U.S. 825, 834 (1994) (applying deliberate indifference standard to
medical claims); see also Helling v. McKinney, 509 U.S. 25, 35 (1993) (applying deliberate
indifference standard to conditions of confinement claims)). While a temporary deprivation of items
necessary for maintaining basic hygiene might not violate the Eighth Amendment, the deprivation
of such items for an extended period of time has been held to be sufficiently serious to state a claim.
See, e.g., Flanory v. Bonn, 604 F.3d 249, 255 (6th Cir. 2010) (deprivation of toothpaste for 337 days
resulting in periodontal disease is sufficient to state an Eighth Amendment claim).
-7-
1. MDOC Director Heyns
Plaintiff claims that Defendant Heyns authorized MDOC Policy Directive 04.02.120
¶ B(4), which was used by other prison officials to deny Plaintiff hygiene items, and that Heyns
failed to properly train his subordinates to provide proper care for prisoners. Defendant Heyns is not
liable for his subordinates’ application of the policy, or for failing to properly train his subordinates.
A supervisor is not liable for the unconstitutional conduct of his 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 liability be based upon the mere failure to act or failure
to train. Grinter, 532 F.3d at 575; Greene, 310 F.3d at 899; Summers v. Leis, 368 F.3d 881, 888 (6th
Cir. 2004); see Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (“[A] supervisory official’s
failure to supervise, control or train the offending individual is not actionable unless the supervisor
‘either encouraged the specific incident of misconduct or in some other way directly participated in
it.’” (quoting Hays v. Jefferson Cnty., 668 F.2d 869, 874 (6th Cir. 1982)). “[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’s assertion that Heyns failed to act or failed to
properly train or supervise his subordinates is not adequate to state a claim.
To the extent that Plaintiff sues Heyns for approving the policy, Plaintiff states a
claim only if the policy is facially invalid. In order to demonstrate that a law or policy is facially
invalid, a “challenger must establish that no set of circumstances exists under which the [policy]
-8-
would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). MDOC Policy Directive
04.02.120 ¶ B(4) precludes a prisoner from obtaining indigent status for twelve months if he has
been terminated from a work assignment as the result of misconduct. Id. The denial of indigent
status does not, on its face, authorize or result in the denial of essential needs under the Eighth
Amendment. Although a prisoner denied indigent status is not entitled to a loan to purchase hygiene
items from the prison store, nothing about the denial of indigent status authorizes prison officials to
withhold state-issued items, or to ignore their duty to protect a prisoner’s health and safety. Indeed,
another policy expressly requires prison officials to either provide personal hygiene items to
prisoners or permit them to purchase such items from the prison store. See MDOC Policy Directive
03.03.130 ¶ C (effective Feb. 23, 2009) (“Prisoners shall be provided or permitted to purchase
personal hygiene items, including soap, toothbrushes, toothpaste/toothbrushes/shaving necessities,
shampoo, toilet paper, suitable comb/pick/hairbrush, deodorant, and . . . sanitary napkins.”)
(emphasis added). Thus, if a prisoner like Plaintiff lacks hygiene supplies and is not “permitted to
purchase” them from the prison store (due to lack of funds and ineligibility for an indigent loan), the
policy ostensibly requires prison officials to provide them to the prisoner. See id. The same policy
also expressly prohibits the deprivation of “hygienic necessities,” except in situations not applicable
to Plaintiff (i.e., when the prisoner is in segregation or in a suicide observation cell). See id. ¶ K(2).
When the foregoing policies are considered together, it is clear that the denial of indigent status does
not authorize prison officials to deprive a prisoner of access to appropriate hygiene supplies. In other
words, the policy challenged by Plaintiff is not facially invalid. Consequently, Plaintiff does not
state an Eighth Amendment claim against Defendant Heyns in his personal capacity.
-9-
On the other hand, Plaintiff states a possible claim against Defendant Heyns in his
official capacity. Though Defendant Heyns is not personally liable for any damages, as the Director
of the MDOC, he in a position to ensure compliance with any order for prospective injunctive relief
should Plaintiff prevail on his Eighth Amendment claim. Thus, the Court will allow Plaintiff’s
official-capacity claim against Defendant Heyns to proceed.
2. Warden McKee
Defendant McKee allegedly rejected several of Plaintiff’s Step II grievance appeals.
As indicated with respect to Defendant Heyns, Defendant McKee is not liable for the actions of his
subordinates.
Moreover, liability may not be imposed simply because McKee denied an
administrative grievance or failed to act based upon information contained in a grievance. See
Shehee, 199 F.3d at 300. Thus, Plaintiff does not state an Eighth Amendment claim against
Defendant McKee.
3. Deputy Warden Trierweiler
Defendant Trierweiler allegedly approved Defendant Wright’s response to Plaintiff’s
April 4 grievance regarding the denial of hygiene items by Defendant Bonn. Trierweiler also
approved Defendant Wright’s response to Plaintiff’s June 5 grievance, in which Wright allegedly
promised to provide the hygiene items to Plaintiff. Defendant Trierweiler is not liable for the
conduct of his subordinates or for approving the response to a grievance. See Shehee, 199 F.3d at
300; see also Mitchell v. Hininger, 553 F. App’x 602, 608 (6th Cir. 2014) (“The denial of a
prisoner’s grievance does not by itself support a § 1983 deliberate-indifference claim.”).
Similarly, Plaintiff does not state a claim against Defendant Trierweiler for failing
to respond to Plaintiff’s kites on June 25, 26, and 27, in which Plaintiff claimed that Defendant
- 10 -
Wright had not fulfilled his promise to provide soap and other hygiene items. Trierweiler is not
liable for failing to ensure that his subordinate, Defendant Wright, would fulfill a promise to make
hygiene items available to Plaintiff. In short, Plaintiff has not alleged that Defendant Trierweiler
actively engaged or participated in any unconstitutional conduct with regard to the deprivation of
hygiene items. Consequently, Plaintiff does not state an Eighth Amendment claim against him.
4. Defendants Wright, Bonn & Battle
The Court concludes, at this stage of the proceedings, that Plaintiff’s allegations are
adequate to state an Eighth Amendment claim against Defendants Wright, Bonn and Battle, based
on their involvement in the denial of hygiene supplies to Plaintiff.
B. Conspiracy
Plaintiff claims that all Defendants engaged in a conspiracy to violate his rights. 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 coconspirators 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. Hensley, 693 F.3d at 695; Bazzi v. City of Dearborn, 658 F.3d 598, 602
(6th Cir. 2011). Moreover, vague and conclusory allegations of conspiracy, unsupported by material
facts, are 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
- 11 -
(6th Cir. 1987).
Plaintiff’s allegations of conspiracy are conclusory and speculative. He merely
describes a number of discrete acts occurring over a period of time and involving separate officers,
some of whom merely reviewed and/or denied administrative grievances. He has provided no
allegations establishing an agreement between Defendants, let alone an agreement to violate his
constitutional rights. In other words, Plaintiff’s allegations do not contain “enough factual matter
(taken as true) to suggest that an agreement was made.” Twombly, 550 U.S. at 556. Thus, Plaintiff
fails to state a plausible conspiracy claim.
IV.
Supplemental Jurisdiction - Defendants MDOC, McKee & Trierweiler
The Court has determined that Plaintiff’s § 1983 claim against Defendants MDOC,
McKee and Trierweiler is subject to dismissal. To the extent that Plaintiff asserts claims against
these Defendants under state law, the Court declines to exercise jurisdiction over such claims.
Where a district court has exercised jurisdiction over a state law claim solely by virtue of
supplemental jurisdiction and the federal claims are dismissed prior to trial, the state law claims
should be dismissed without reaching their merits. See Landefeld v. Marion Gen. Hosp., 994 F.2d
1178, 1182 (6th Cir. 1993); Faughender v. City of N. Olmsted, 927 F.2d 909, 917 (6th Cir. 1991);
Coleman v. Huff, No. 97-1916, 1998 WL 476226, at *1 (6th Cir. Aug. 3, 1998). Accordingly,
Plaintiff’s state law claims against Defendants MDOC, McKee and Trierweiler will be dismissed
without prejudice.
V.
Preliminary Injunctive Relief
In his complaint, Plaintiff requests a preliminary injunction requiring Defendants not
to use Policy Directive 04.02.120 to “punish” him, which the Court construes as a request to enjoin
- 12 -
Defendants from applying the policy to prevent Plaintiff from obtaining state-issued hygiene items.
The issuance of preliminary injunctive relief is committed to the discretion of the
district court. See Ne. Ohio Coal. v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006); Nader v.
Blackwell, 230 F.3d 833, 834 (6th Cir. 2000). In exercising that discretion, a court must consider
whether plaintiff has established the following elements: (1) a strong or substantial likelihood of
success on the merits; (2) the likelihood of irreparable injury if the preliminary injunction does not
issue; (3) the absence of harm to other parties; and (4) the protection of the public interest by
issuance of the injunction. Id. These factors are not prerequisites to the grant or denial of injunctive
relief, but factors that must be “carefully balanced” by the district court in exercising its equitable
powers. Frisch’s Rest., Inc. v. Shoney’s, Inc., 759 F.2d 1261, 1263 (6th Cir. 1985); see also Ne.
Ohio Coal, 467 F.3d at 1009. Moreover, where a prison inmate seeks an order enjoining state prison
officials, the court is required to proceed with the utmost care and must recognize the unique nature
of the prison setting. See Glover v. Johnson, 855 F.2d 277, 284 (6th Cir. 1988); Kendrick v. Bland,
740 F.2d 432 at 438 n.3, (6th Cir. 1984). The party seeking injunctive relief bears a heavy burden
of establishing that the extraordinary and drastic remedy sought is appropriate under the
circumstances. See Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 573 (6th Cir.
2002); Stenberg v. Cheker Oil Co., 573 F.2d 921, 925 (6th Cir. 1978); see also O’Lone v. Estate of
Shabazz, 482 U.S. 342 (1986).
Plaintiff’s “initial burden” in demonstrating entitlement to preliminary injunctive
relief is a showing of a strong or substantial likelihood of success on the merits of his section 1983
action. NAACP v. Mansfield, 866 F.2d 162, 167 (6th Cir. 1989). After review of the complaint and
- 13 -
supporting documents, the Court will assume without deciding that Plaintiff has shown a substantial
likelihood of success.
The second factor, however, weighs against a grant of preliminary relief, because the
presence of immediate, irreparable harm in the absence of an injunction is not evident. Plaintiff
acknowledges in the complaint that he has been given soap, toothpaste and the hygiene items that
he requested. He also alleges that he has been transferred to a new unit, which presumably means
that he is under the care of different custody staff. He does not allege any facts indicating that he
continues to be denied access to soap, toothpaste and other items necessary for maintaining adequate
hygiene. Nor does he allege that he is at further risk of harm. Thus, he has not set forth specific
facts showing an immediate, concrete and irreparable harm in the absence of an injunction.
In addition, the interests of identifiable third parties and the public at large weigh
against an injunction. Decisions concerning the treatment and care of prisoners are vested in prison
officials, in the absence of a constitutional violation. Any interference by the federal courts in the
administration of state prisons is necessarily disruptive. The public welfare therefore militates
against the issuance of extraordinary relief in the prison context. See Glover, 855 F.2d at 286-87.
Accordingly, Plaintiff’s request for preliminary relief will be denied.
VI.
Appointment of Counsel
Plaintiff has also requested appointment of counsel to represent him in this action.
Indigent parties in civil cases have no constitutional right to a court-appointed attorney. AbdurRahman v. Mich. Dep’t of Corr., 65 F.3d 489, 492 (6th Cir. 1995); Lavado v. Keohane, 992 F.2d
601, 604-05 (6th Cir. 1993). The Court may, however, request an attorney to serve as counsel, in
- 14 -
the Court’s discretion. Abdur-Rahman, 65 F.3d at 492; Lavado, 992 F.2d at 604-05; see Mallard
v. U.S. Dist. Court, 490 U.S. 296 (1989).
Appointment of counsel is a privilege that is justified only in exceptional
circumstances. In determining whether to exercise its discretion, the Court should consider the
complexity of the issues, the procedural posture of the case, and Plaintiff’s apparent ability to
prosecute the action without the help of counsel. See Lavado, 992 F.2d at 606. The Court has
carefully considered these factors and determines that, at this stage of the case, the assistance of
counsel does not appear necessary to the proper presentation of Plaintiff’s position. Thus, Plaintiff’s
request for counsel will be denied.
VII.
Assistance with Service
Plaintiff also requests assistance with service of the complaint on ARUS Bonn,
ostensibly because Defendant Bonn no longer works at IBC and Plaintiff does not know her present
location. (Compl., docket #1, Page ID#18.) Because Plaintiff is proceeding in forma pauperis in
this action, he is not responsible for serving the complaint. Instead, the Court will order the United
States Marshals Service to effectuate service on Defendants, including Defendant Bonn. The United
States Marshals Service will attempt to serve the complaint using the last known address available
from the MDOC. Plaintiff will be notified if service is unsuccessful. Thus, at this stage of the
proceedings, Plaintiff’s request for assistance will be denied.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that the § 1983 action against Defendants MDOC, McKee, Trierweiler and Heyns (in his
personal capacity) will be dismissed on grounds of immunity and/or for failure to state a claim
- 15 -
pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c). The Court declines
to exercise supplemental jurisdiction over Plaintiff’s state law claims against these Defendants. The
Court will order service of the complaint on Defendants Wright, Bonn, Battle and Heyns (in his
official capacity). Plaintiff’s requests for preliminary injunctive relief, for appointment of counsel
and for assistance with service will be denied for the reasons stated herein.
An Order consistent with this Opinion will be entered.
/s/Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE
Dated: August 22, 2014
- 16 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?