Gresham #272603 et al v. Washington et al

Filing 8

OPINION; Judgment and Order to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

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

MICHAEL GRESHAM et al.,
Plaintiff,

Case No. 1:15-cv-1067

v.

Honorable Janet T. Neff

HEIDI E. WASHINGTON et al.,
Defendants.
____________________________________/
OPINION
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983.
The Court has granted Plaintiff leave to proceed in forma pauperis. 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 with prejudice Plaintiff’s
complaint against Defendants Washington, Daphne Johnson, Ott, Unknown Party #1, Yarbarra,
DeShais, Wendt, Stuten, Michael Smith, Cowling, Stine, Perkins, Cummings, Miller, Heyns, Young,
Farr, Pawdy, Norwood, Nevins, Jaramillo, Brown, Nelson, Krovis, Doolittle, Schad, Lebarre,

(unknown) Johnson, and Sikkema for failure to state a claim. The Court will dismiss Plaintiff’s
claims against the remaining Defendants without prejudice for improper joinder.
Discussion
I.

Factual allegations

Plaintiff Michael Gresham1 presently is incarcerated with the Michigan Department
of Corrections (MDOC) at the Ionia Correctional Facility (ICF). In his action, Plaintiff names 54
Defendants, two of whom are named twice in his complaint (Defendants Heidi E. Washington and
Willie O. Smith). He sues MDOC Director Heidi Washington, former MDOC Director Daniel
Heyns, MDOC Administrator Daphne M. Johnson and MDOC Mental Health Director David
Pawdy. He also sues the following ICF officials: Warden Willie O. Smith; Deputy Wardens John
Christiansen, James Schiebner, and Nanette Norwood; Captains Jason DeShais, Kevin Ott,
(unknown) Yarbarra, Todd Wendt, Jason Stuten, Michael Smith, Paul Stein, Dewey Watkins,
(unknown) Brown, P. McLeod, (unknown) Stambaugh, (unknown) Kotowicz, (unknown) Eaton,
Matthew Sherwood, (unknown) Maxim, (unknown) Coscarelli, (unknown) Mullins, J. Smith,
(unknown) Smith, and (unknown) Jameson; Emergency Response Team; Doctor (unknown)
Cowling; Correctional Officers Useff Perkins and Leslie Cummings; Lieutenants Gary Robert Miller
and (unknown) Zwicker; Litigation Specialist Robert Farr; Mat D. Young; Jamie Nelson; Litigation
Manager Unknown Party #1; Inspector K. Nevins; Sergeants J. Jaramillo, (unknown) Grandy,
(unknown) Leitheim, and (unknown) Conklin; R.C. (Resident Counselor) L. Thurlby; Resident Unit

1

Plaintiff Gresham originally filed his action in conjunction with two other plaintiffs. In an opinion and order
issued on November 9, 2015, the Court dismissed the two other Plaintiffs, as their claims were improperly joined.
Plaintiff Gresham was granted leave to proceed in forma pauperis under the imminent danger exception to 28 U.S.C.
§ 1915(g), notwithstanding the fact that he previously has filed at least eight prior actions that were dismissed on grounds
that they were frivolous or failed to state a claim. Plaintiff also has been denied leave to proceed in forma pauperis under
the three-strikes rule of § 1915(g) on 16 prior occasions.

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Manager (RUM) G. Miniard; Physician’s Assistant Joshua Schad; Registered Nurses Barbara Kronk,
Nicole Doolittle, Joann Bunting, Jody Lebarre, Kathy Sickler, (unknown) Johnson, Keith Sikkema,
and (Unknown) Catela.
Plaintiff’s allegations cover multiple incidents and events occurring over a six-month
period. In addition to the named Defendants, Plaintiff mentions multiple other officers over the
course of his 49-page complaint. His complaint is repetitive and somewhat difficult to decipher, as
it is dense, scrawled, moves back and forth in time, and occasionally embellishes earlier allegations
as if they were new.
In his first set of allegations, and apparently in order to get around the three-strikes
bar of 28 U.S.C. § 1915(g), Plaintiff states that he is in imminent danger because unnamed staff are
placing objects in his food, denying him medical treatment for his hernias and rectal bleeding, and
forcing him to take antipsychotics that are causing him chest pains and difficulty breathing.
(Compl., ECF No. 1, PageID.4.) His subsequent allegations are unrelated to his first claim of
imminent danger and to each other.
In his next set of allegations, Plaintiff alleges that, on July 24, 2015, Defendant
Thurlby sexually assaulted him in a blind spot in the B-unit day room. Later in his complaint,
Plaintiff alleges more specifically that Defendants Sherwood, Thurlby and Coscarelli took him from
his cell, telling him they were taking him to the yard. In the B-unit day room, Thurlby, Sherwood
and Coscarelli took turns inserting their gloved fingers into Plaintiff’s rectum. He alleges that, while
escorting him back to his cell, Sherwood grabbed Plaintiff’s buttocks while pretending to remove
the handcuffs. Plaintiff alleges that Defendants told Plaintiff that they were tired of his filing of
grievances. At his cell, Defendants Thurlby, Coscarelli and Sherwood destroyed Plaintiff’s

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grievances and witness affidavits. Plaintiff claims that he was injured and he has witnesses who
witnessed his injuries. Nurses Catela, Sickler and Bunting denied Plaintiff’s request to have a
sexual-assault kit completed. They also allegedly claimed that they would not help him because of
his many grievances.
Plaintiff next alleges that, on July 12, 2015, Defendant Maxim hit Plaintiff in the
chest with his fist and that Defendant Maxim and Officer Fineis2 then grabbed the legal documents
Plaintiff carried. Defendants allegedly told Plaintiff that they intended to interfere with Plaintiff’s
pending lawsuit. Defendants also allegedly confiscated “love letters” from two female guards at
Marquette Branch Prison. Maxim and Fineis commented on Plaintiff’s sexual relationship with the
two guards, which ostensibly involved an exchange for tobacco, cocaine and marijuana. Plaintiff
alleges that he was using the letters to file a new lawsuit charging sexual assault by the two female
guards. As they escorted Plaintiff back to his cell, Maxim and Fineis both grabbed Plaintiff’s
buttocks. Once Plaintiff was placed in his cell, Maxim and Fineis told Plaintiff that it was
“payback” time, and they began twisting his arm and hand in the food slot, causing lacerations and
partial dislocation of his arm. (Id. at 32.) Plaintiff claims to have witnesses that he was not
resisting. Officers Desroders and Conner3 and Defendant Nurses Sickler and Catela came to
Plaintiff’s cell, but refused him medical treatment, telling him that he had gotten what he deserved
for suing and trying to sue correctional officers.
Plaintiff next alleges that, while he was in 1-unit between May 14, 2015 and October
1, 2015, Defendant Sherwood, on unspecified occasions, took Plaintiff’s food trays, denied him

2

Officer Fineis is not named as a Defendant.

3

Officers Desroders and Conner are not named as Defendants in the action.

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showers, and took Plaintiff’s legal and personal property from his cell, including grievances against
Sherwood.
On July 30, 2015, Defendants Kotowicz, Sherwood, Maxim, McLeod and Thurlby
and non-Defendant Officers Fralick and Fineis took legal property from Plaintiff’s cell, ostensibly
in retaliation for Plaintiff’s grievances and lawsuits. On September 13, 2015, Defendant Leitheim
allegedly sprayed Plaintiff with chemical agent in violation of the Eighth Amendment. On an
unspecified date, Defendant McLeod called Plaintiff “child molester” and “rat snitch.” (Id. at 39.)
On another unspecified date, Defendant Eaton and unknown others destroyed documents from
Plaintiff’s pending lawsuit, Gresham v. Napel et al., No. 2:14-cv-253 (W.D. Mich.).
On August 1, 2015, Defendants Sherwood and Watkins allegedly denied Plaintiff a
haircut in retaliation for Plaintiff’s grievances. On August 12, 2015, Defendant Stambaugh removed
from Plaintiff’s cell a response from the Attorney General and a court order in Gresham v. Stewart
et al., No. 2:13-cv-10189 (E.D. Mich.), as well as a book on true crime, two pictures of a bikini-clad
woman, and a letter to Willie X. Harris. Defendants Conklin, Jameson, and Stambaugh and
Officers Howard, Conner and Rase4 also allegedly used excessive force to place Plaintiff in
restraints while they stole his personal property.
Plaintiff also alleges that, on August 20, 2015, he filed documents in another
prisoner’s criminal case, after which the other prisoner was wrongfully accused of a misconduct by
a correctional officer who is not a Defendant in this action. Plaintiff also alleges that Defendant
Thurlby partially authorized a legal mail disbursement, but denied the disbursement with respect to

4

Officers Howard, Conner and Rase have not been named as Defendants in the action.

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one set of materials. Plaintiff alleges that Thurlby stole those materials, which allegedly consisted
of a variety of letters and other “evidence” to be used in a future lawsuit.
On August 24, 2015, Defendants Thurlby and Miniard allegedly boasted that they
would not provide Plaintiff a box in which to mail the court-ordered 33 copies of the complaint in
Gresham v. Napel et al., No. 2:14-cv-253 (W.D. Mich.). Plaintiff alleges that Defendants Thurlby
and Miniard attempted to interfere with Plaintiff’s right to access the courts. On August 31, 2014,
Defendant Miniard came to Plaintiff’s cell. After reading Plaintiff’s legal mail addressed to the
court, Miniard declared that he was not mailing the document and falsely accused Plaintiff of trying
to spit on him. Social worker James Apol wrote a grievance against Gresham for threatening
behavior. During the review on the grievance, Plaintiff told the hearing investigator (not named as
a defendant) to interview certain witnesses, but the hearing investigator refused, telling Plaintiff,
“F*** you Gresham and your lawsuit . . . .” (Compl., PageID.38.)
Plaintiff next claims that, on September 11, 2015, Defendant Thurlby picked up
Plaintiff’s legal mail (a 138-page lawsuit), marked it with a green X, and declared that it was not
legal mail. Thurlby then confiscated the documents.
On September 3, 2013, Defendants Miniard and Thurlby told Plaintiff that they had
his copies for case No. 2:14-cv-253. Defendants allegedly told Plaintiff that they had a plan to
destroy them so that he could not mail them to the court. They told him that they would contact their
administrators and attorneys and place Judge Bell on the under-the-table MDOC payroll, so that he
would dismiss the case.
When Gresham was out of his cell that same day, Defendants Thurlby, Mullins,
McLeod, Smith, Zwiker, and Leitheim and non-Defendant Officers Richardson and Cassel allegedly

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stacked the paperwork for Case No. 2:14-cv-253 right next to the cell door, so that Defendant
Leitheim could later spray the paperwork with chemical spray. While passing out food trays,
Defendant McLeod allegedly yelled, “Hey Gresham I read your file and your [sic] a child molester
and rat snitch . . . . Hey everybody Gresham is a snitch and a child molester . . . .” (Id. at 39.) Upon
hearing McLeod’s remarks, several dangerous prisoners began to bang on their doors and shouted
that they were going to stab and kill Plaintiff. McLeod allegedly told the prisoners that she would
have sex with the first one to stab and kill Plaintiff. As the result of McLeod’s conduct, Plaintiff
claims to be in imminent danger of serious physical harm.
In addition, after picking up Plaintiff’s food tray, Defendant McLeod allegedly did
something to the food slot to make it stay open and then falsely accused Plaintiff of holding his food
slot hostage. Defendant Leitheim also allegedly fabricated a story to summon the emergency
response team. Defendants Correctional Officers Smith and Leitheim and non-Defendant Officer
Richardson also came to the cell. Leitheim shook the can of chemical agent, saying, “[i]t’s payback
time . . . .” (Id. at 41.) Leitheim pretended that Plaintiff was not complying with orders to back up
and be cuffed, in order to manufacture an excuse for spraying chemical agent into Plaintiff’s chest,
head, genitals and face. Leitheim also sprayed the rest of the can of chemical agent onto the stack
of 33 legal copies. The unknown members of the emergency response team5 then bent Plaintiff’s
hands, wrists, fingers and arms and punched Plaintiff in the face, head and body until his lip and
nose swelled and began bleeding. The team hogtied Plaintiff and cuffed him, allegedly causing
excruciating pain.

Plaintiff alleges that these Defendants conspired to violate his Eighth

5
In the body of his complaint, Plaintiff indicates that six unknown parties were the members of the ERT. In
his list of Defendants, however, Plaintiff has named only the “Emergency Response Team” as a Defendant in the action.

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Amendment rights and to retaliate against him. Defendant Sickler and non-Defendant Nurse
Gleason thereafter allegedly denied Plaintiff medical treatment.
On September 3, 2015, Defendants McLeod, Leitheim and Mullins allegedly
fabricated three misconduct tickets against Plaintiff, in order to justify Plaintiff being placed in hard
restraints. On September 4, 2015, Defendant Jameson refused to release Plaintiff from hard
restraints. Defendant Leitheim and non-Defendant Officer Kelly allegedly refused to release
Plaintiff from hard restraints on September 5, 2015. Defendants Miniard and Thurlby allegedly
denied the request on September 4, 2015, and Defendants Grandy and J. Smith denied the request
on September 5, 2015.6 All Defendants allegedly told Plaintiff that they were conspiring to keep
him in restraints because he filed too many complaints and lawsuits.
Plaintiff alleges that Defendant McLeod and non-Defendant Officer Kronk came to
his cell on various occasions between May 14, 2015 and October 6, 2015, asking to see his penis.
Defendant McLeod threatened not to serve Plaintiff’s food tray and to have him chemically sprayed
unless he complied. Kronk allegedly told Plaintiff that unless he showed her his penis and
masturbated, she would write him a misconduct ticket and lie, in order to have his psychotropic
medications increased.
According to the complaint, Defendant Thurlby and non-Defendant Mailroom Officer
Farrel confiscated Plaintiff’s revolution newspapers, which purportedly advocated only peaceful
protest against government corruption. Plaintiff alleges that the confiscations occurred on August
11, August 28, September 4, and September 17, 2015. Plaintiff complains that the actions were
retaliatory and violated his freedom of speech.
6
Plaintiff alleges that Correctional Officers Wiiliams, Woods and Hair and Lieutenant Stewart, none of whom
are named as Defendants, also denied his requests to be released from restraints.

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On September 14, 2015, Plaintiff gave non-Defendant Officer Eaton 20 legal letters
listed on 2 disbursement forms. Plaintiff saw Eaton bring the letters to Defendant Thurlby’s office.
Defendants Thurlby and Miniard refused to process the legal mail, telling Plaintiff that they were
not sending the mail out. Plaintiff complained to Defendant Christiansen, who told Plaintiff that he
personally had ordered Thurlby and Miniard to take Plaintiff’s mail. On September 30, 2015, when
Plaintiff submitted a disbursement form, seeking additional legal supplies and a large box for
mailing. Defendant Thurlby denied the request.
Plaintiff complains that, between May 14, 2015 and October 6, 2015, he complained
to Defendants Scheibner, Christiansen, Zwicker, Concklin, Leithem and non-Defendant Officers
Howard and Riske that his life was in danger from various prisoners because he had been called a
snitch, a rat, and a child-molester. Every Defendant allegedly told Plaintiff that they would protect
him only if he stopped filing lawsuits. Plaintiff alleges that he sent a “declaratory ruling and request
for protection” to Defendant Washington, in which he included allegations that staff were smuggling
drugs and forcing and bribing a female correctional officer into a sexual relationship that resulted
in a pregnancy, and that Warden McKee was operating a prostitution ring. Plaintiff also alleges
that, on June 4, 2015, he talked with Defendant Willie Smith and non-Defendant Brooke Snyder
while they were conducting rounds, explaining that he was in danger because unspecified officers
had called him a snitch.7
In sum, Plaintiff alleges that Defendants violated his First Amendment right to free
speech, retaliated against him for exercising his First Amendment rights to petition government,
interfered with his access to the courts, and confiscated his property without due process. Plaintiff
7
The Court notes that the date precedes virtually all of the other allegations in the complaint, including the
allegations that he was called a snitch on September 3, 2015.

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also alleges that Defendants deprived him of his property without due process and inflicted cruel and
unusual punishment in violation of the Eighth Amendment.
For relief, Plaintiff seeks in excess of $500 million in compensatory and punitive
damages.
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, 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

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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.

Lack of Allegations

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, a 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 the 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.

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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 to mention Defendants Daphne Johnson, Ott, Yarbarra,
DeShais, Wendt, Stuten, Michael Smith, Cowling, Stine, Perkins, Cummings, Miller, Heyns, Young,
Farr, Unknown Party #1, Pawdy, Norwood, Nevins, Jaramillo, Brown, Nelson, Krovis, Doolittle,
Schad, Lebarre, (unknown) Johnson, and Sikkema in the body of his complaint. 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”). Plaintiff’s complaint against
these Defendants therefore will be dismissed for failure to state a claim.
B.

Misjoinder

As earlier discussed, Plaintiff’s original complaint was filed jointly with two other
Plaintiffs who alleged wholly different constitutional violations. The Court dismissed the other
Plaintiffs for improper joinder. At this juncture, the Court concludes that the majority of Plaintiff’s
claims against Defendants also are subject to dismissal for improper joinder.
Federal Rule of Civil Procedure 20(a) limits the joinder of parties in single lawsuit,
whereas Federal Rule of Civil Procedure 18(a) limits the joinder of claims. Rule 20(a)(2) governs
when multiple defendants may be joined in one action: “[p]ersons . . . may be joined in one action
as defendants if: (A) any right to relief is asserted against them jointly, severally, or in the
alternative with respect to or arising out of the same transaction, occurrence, or series of transactions
or occurrences; and (B) any question of law or fact common to all defendants will arise in the

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action.” Rule 18(a) states: “A party asserting a claim . . . may join, as independent or alternative
claims, as many claims as it has against an opposing party.”
Courts have recognized that, where multiple parties are named, as in this case, the
analysis under Rule 20 precedes that under Rule 18:
Rule 20 deals solely with joinder of parties and becomes relevant only when there
is more than one party on one or both sides of the action. It is not concerned with
joinder of claims, which is governed by Rule 18. Therefore, in actions involving
multiple defendants Rule 20 operates independently of Rule 18. . . .
Despite the broad language of Rule 18(a), plaintiff may join multiple defendants in
a single action only if plaintiff asserts at least one claim to relief against each of them
that arises out of the same transaction or occurrence and presents questions of law
or fact common to all.
7 CHARLES ALLEN WRIGHT, ARTHUR R. MILLER, MARY KAY KANE, FEDERAL PRACTICE &
PROCEDURE CIVIL § 1655 (3d ed. 2001), quoted in Proctor v. Applegate, 661 F. Supp. 2d 743, 778
(E.D. Mich. 2009), and Garcia v. Munoz, No. 08-1648, 2007 WL 2064476, at *3 (D.N.J. May 14,
2008); see also Neitzke v. Williams, 490 U.S. 319, 328 (1989) (joinder of defendants is not permitted
by Rule 20 unless both commonality and same transaction requirements are satisfied).
Therefore, “a civil plaintiff may not name more than one defendant in his original or
amended complaint unless one claim against each additional defendant is transactionally related to
the claim against the first defendant and involves a common question of law or fact.” Proctor, 661
F. Supp. 2d at 778. When determining if civil rights claims arise from the same transaction or
occurrence, a court may consider a variety of factors, including, “the time period during which the
alleged acts occurred; whether the acts of . . . are related; whether more than one act . . . is alleged;
whether the same supervisors were involved, and whether the defendants were at different

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geographical locations.” Id. (quoting Nali v. Michigan Dep’t of Corrections, 2007 WL 4465247,
*3 (E.D. Mich. December 18, 2007)).
Permitting the improper joinder in a prisoner civil rights action also undermines the
purpose of the PLRA, which was to reduce the large number of frivolous prisoner lawsuits that were
being filed in the federal courts. See Riley v. Kurtz, 361 F. 3d 906, 917 (6th Cir. 2004). Under the
PLRA, a prisoner may not commence an action without prepayment of the filing fee in some form.
See 28 U.S.C. § 1915(b)(1). The PLRA also contains a “three-strikes” provision requiring the
collection of the entire filing fee after the dismissal for frivolousness, etc., of three actions or appeals
brought by a prisoner proceeding in forma pauperis, unless the statutory exception is satisfied. 28
U.S.C. § 1915(g). The “three strikes” provision was also an attempt by Congress to curb frivolous
prisoner litigation. See Wilson v. Yaklich, 148 F. 3d 596, 603 (6th Cir. 1998). These “new fee
provisions of the PLRA were designed to deter frivolous prisoner litigation by making all prisoner
litigants feel the deterrent effect created by liability for filing fees.” Williams v. Roberts, 116 F. 3d
1126, 1127-28 (5th Cir. 1997). Allowing a prisoner to file a complaint against different defendants
concerning unrelated occurrences would “‘defeat, or at least greatly dilute, the clear intent of the fee
payment and three-strikes provisions of the statute.’” Green v. Callahan, No. 2:14-cv-11453, 2014
WL 1652335, at *3) (quoting Walls v. Scott, 1998 WL 574903, * 3 (N.D. Tex. Aug. 28, 1998)); see
also George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (“A buckshot complaint that would be
rejected if filed by a free person -- say, a suit complaining that A defrauded the plaintiff, B defamed
him, C punched him, D failed to pay a debt, and E infringed his copyright, all in different
transactions -- should be rejected if filed by a prisoner.”); Brown v. Blaine, 185 F. App’x 166, 16869 (3d Cir. 2006) (allowing prisoner to assert unrelated claims against new defendants would defeat

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purpose of the three-strikes provision of the PLRA); Patton v. Jefferson Corr. Ctr., 136 F.3d 458,
464 (5th Cir. 1998) (discouraging “creative joinder of actions” by prisoners attempting to
circumvent the PLRA’s three-strikes provision).
Under Rule 21 of the Federal Rules of Civil Procedure, “[m]isjoinder of parties is not
a ground for dismissing an action.” Instead, Rule 21 provides two remedial options: (1) misjoined
parties may be dropped on such terms as are just; or (2) any claims against misjoined parties may
be severed and proceeded with separately. See DirecTV, Inc. v. Leto, 467 F.3d 842, 845 (3d Cir.
2006); Carney v. Treadeau, No. 07-cv-83, 2008 WL 485204, at *2 (W.D. Mich. Feb. 19, 2008);
Coal. to Defend Affirmative Action v. Regents of Univ. of Mich., 539 F. Supp. 2d 924, 940 (E.D.
Mich. 2008); see also Michaels Bldg. Co. v. Ameritrust Co., N.A., 848 F.2d 674, 682 (6th Cir. 1988)
(“Parties may be dropped . . . by order of the court . . . of its own initiative at any stage of the action
and on such terms as are just.”). “Because a district court’s decision to remedy misjoinder by
dropping and dismissing a party, rather than severing the relevant claim, may have important and
potentially adverse statute-of-limitations consequences, the discretion delegated to the trial judge
to dismiss under Rule 21 is restricted to what is ‘just.’” DirecTV, 467 F.3d at 845.
At least three judicial circuits have interpreted “on such terms as are just” to mean
without “gratuitous harm to the parties.” Strandlund v. Hawley, 532 F.3d 741, 745 (8th Cir. 2008)
(quoting Elmore v. Henderson, 227 F.3d 1009, 1012 (7th Cir. 2000)); see also DirecTV, Inc., 467
F.3d at 845. Such gratuitous harm exists if the dismissed parties lose the ability to prosecute an
otherwise timely claim, such as where the applicable statute of limitations has lapsed, or the
dismissal is with prejudice. Strandlund, 532 F.3d at 746; DirecTV, 467 F.3d at 846-47; Michaels
Building Co., 848 F.2d at 682.

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Dismissal of Plaintiff’s unrelated claims would not cause gratuitous harm. 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 220.8 All of Plaintiff’s claims arose in 2015. Plaintiff therefore will not be barred from
pursuing his claims by the statute of limitations.
The Court therefore will look to Plaintiff’s first set of factual allegations and to
Plaintiff’s first named Defendant in determining which portion of the action should be considered
related. In his first set of allegations, Plaintiff states that he was in imminent danger of serious
physical injury because unnamed staff are placing objects in his food, denying him medical
treatment for his hernias and rectal bleeding, and forcing him to take antipsychotics that are causing
him chest pains and difficulty breathing. (Compl., ECF No. 1, PageID.4.) Plaintiff makes no further
claims about his improper medical treatment of these conditions. Because Plaintiff’s allegations on
this issue are wholly conclusory and because he fails to identify any Defendant responsible for the

8

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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alleged deprivations, Plaintiff’s first claim is dismissed on the basis of insufficient factual
allegations. Because the remainder of the allegations are wholly unrelated to his initial claim and
are unconnected to any Defendant named in the first claim, allowing Plaintiff to join together a
number of unrelated claims and defendants into one action would thwart the purpose of the PLRA.
Moreover, should the Court consider the complaint by looking at the allegations
against the first Defendant, MDOC Director Heidi Washington, Plaintiff would not avoid dismissal
of his claims. Plaintiff’s only allegations against Defendant Washington are that she failed to
respond to his letters, denied his grievances, and otherwise failed to supervise her 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, 575-76 (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 576; 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 Defendant Washington
engaged in any active unconstitutional behavior. Accordingly, he fails to state a claim against her.

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Because Plaintiff’s remaining claims are neither transactionally related to either the
same transaction as his first claim, and because no other viable claims were made against Defendant
Washington acting in conjunction with another official, Plaintiff’s remaining claims against all the
other Defendants are improperly joined under Rules 18 and 20 of the Federal Rules of Civil
Procedure. See Proctor, 661 F. Supp. 2d at 778; Garcia, 2007 WL 2064476, at *3; see also Neitzke
v. Williams, 490 U.S. 319, 328 (1989); George, 507 F.3d at 607. The Court therefore will dismiss
the remaining claims against the remaining Defendants without prejudice.
C.

Abusive Filings

Plaintiff Gresham has been a particularly active litigant in this Court, having filed
nearly 40 actions. In eight of his cases, all of his claims were dismissed because they were frivolous,
malicious or failed to state a claim. See Gresham v. Caruso et al., No. 2:10-cv-196 (W.D. Mich.
Oct. 27, 2011); Gresham et al. v. Canlis et al., No. 2:11-cv-179 (W.D. Mich. July 29, 2011);
Gresham v. Paine et al., No. 1:10-cv-1146 (W.D. Mich. Mar. 8, 2011); Gresham v. Caruso et al.,
No. 1:10-cv-1038 (W.D. Mich. Jan. 26, 2011); Gresham v. Wolak et al., No. 2:10-cv- 239 (W.D.
Mich. July 25, 2011); Gresham v. Verville et al., No. 2:10-cv-198 (W.D. Mich. Jan. 19, 2011);
Gresham v. Caruso et al., No. 2:10-cv-195 (W.D. Mich. Apr. 11, 2011); Gresham v. Mich. Dep’t
of Corr. et al., No. 2:07-cv-241 (W.D. Mich. June 9, 2008). In each of these actions, Plaintiff sued
many defendants with respect to a number of unrelated sets of circumstances.
Thereafter, Plaintiff was denied leave to proceed in forma pauperis in 16 cases. See
Gresham et al. v. Yunker et al., No. 2:13-cv-221 (W.D. Mich. Aug. 29, 2013); Gresham v. Nader
et al., 2:13-cv-212 (W.D. Mich. July 22, 2013); Gresham et al. v. Napel et al., No. 2:13-cv-176
(W.D. Mich. June 12, 2013); Gresham v. Prelesnik et al., No. 1:12-cv-276 (W.D. Mich. July 2,

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2012); Gresham v. Czop et al., No. 1:12-cv-494 (W.D. Mich. June 18, 2012); Gresham v. Heyns et
al., No. 1:12-cv-277 (W.D. Mich. Apr. 11, 2012); Gresham v. Snyder et al., No. 1:12-cv-143 (W.D.
Mich. Mar. 6, 2012); Gresham v. Mutschler et al., No. 2:12-cv-12 (W.D. Mich. Apr. 20, 2012);
Gresham v. Snyder et al., No. 2:12-cv-22 (W.D. Mich. Mar. 30, 2012); Gresham v. Mutschler et al.,
No. 2:12-cv-9 (W.D. Mich. Feb. 10, 2012); Gresham v. Snyder et al., No. 2:12-cv-5 (W.D. Mich.
Jan. 27, 2012); Gresham v. Violetta et al., No. 2:12-cv-24 (W.D. Mich. Feb. 6, 2012); Gresham v.
Dahl et al., No. 2:12-cv-21 (W.D. Mich. Feb. 6, 2012); Gresham v. Napel et al., No. 2:11-cv-520
(W.D. Mich. Feb. 6, 2012); Gresham v. LaChance et al., No. 2:11-cv-231 (W.D. Mich. June 24,
2011); Dennis et al v. Canlis et al., No. 2:11-cv-186 (W.D. Mich. June 6, 2011). In many of these
actions, Plaintiff named dozens of Defendants and raised multiple unrelated issues. None of the
actions, however, successfully alleged that Plaintiff was in imminent danger of serious physical
injury within the meaning of 28 U.S.C. § 1915(g).
During the course of being denied leave to proceed in forma pauperis, Plaintiff
learned to pursue several different avenues for avoiding the three-strikes rule. In a number of cases,
as in the instant case, he filed improperly joined complaints in conjunction with other Plaintiffs, in
an attempt to reduce his portion of the filing fee under the three-strikes rule. See Tillman v. Huss
et al., No. 1:13-cv-297 (W.D. Mich.); Gresham et al. v. Yunker et al., No. 2:13-cv-221 (W.D.
Mich.); Sanders v. Napel et al., No. 2:13-cv-264 (W.D. Mich.); Gresham et al. v. Napel et al., No.
2:13-cv-176 (W.D. Mich.); Oliver v. Parkkila et al., No. 2:12-cv-292 (W.D. Mich.); Gresham et al.
v. Mutschler et al., No. 2:12-cv-12 (W.D. Mich.); Dennis et al. v. Canlis et al., No. 2:11-cv-186
(W.D. Mich.); Gresham et al. v. Canlis, No. 2:11-cv-179 (W.D. Mich.); Gresham et al. v. Neubecker

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et al., No. 2:11-cv-171 (W.D. Mich.); Gresham et al. v. Smith et al., No. 1:10-cv-1233 (W.D.
Mich.); Gresham et al. v. Smith et al., No. 1:10-cv-1215 (W.D. Mich.).
Applying a different strategy, Plaintiff filed motions in other prisoners’ actions,
seeking joinder of his own claims or consolidation with his own cases. See Sanders v. Napel et al.,
No. 2:13--cv-264 (W.D. Mich.) (Mot. for Joinder, ECF No. 86, May 7, 2015). Tillman v. Huss et
al., No. 1:13-cv-297 (W.D. Mich.) (Mot. for Joinder, ECF No. 10, June 6, 2013); Hursey v.
Romanowski et al., No. 1:12-cv-1403 (W.D. Mich.) (Mot. for Joinder, ECF No. 4, Jan. 25, 2013);
Wills v. Barber et al., 1:12-cv-434 (W.D. Mich.) (Mot. for Joinder, ECF No. 55, Dec. 17, 2012);
Oliver v. Parkkila et al., No. 2:12-cv-292 (W.D. Mich.) (Mot. for Joinder, ECF No. 53, June 19,
2013); Aubry v. Wolak et al., No. 2:12-cv-168 (W.D. Mich.) (Mot. for Joinder, ECF No. 5, Apr. 30,
2012); Mays v. Gorman et al., No. 1:11-cv-694 (W.D. Mich.) (Mot. for Joinder, ECF No. 76,
December 17, 2012). By seeking to join or joining already filed complaints, Plaintiff could avoid
entirely any responsibility for the filing fee.
Finally, Plaintiff made sure that he included at least one claim that arguably involved
imminent danger of serious physical injuries among his other sets of allegations. Nevertheless, most
of Plaintiff’s remaining actions were either dismissed in whole without prejudice because Plaintiff
had failed to comply with a Court order, or dismissed in part with prejudice because many if not
most of the allegations failed to state a claim.
Over the course of the last several years, the Court has generously considered each
of Plaintiff’s claims, regardless of whether they were properly joined. Plaintiff, however, continues
to abuse the litigation process by filing lengthy complaints that routinely name 40 or 50 defendants
and allege conduct that occurred over months of his incarceration. In these cases, as in the instant

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case, Plaintiff was able to avoid being barred from proceeding in forma pauperis by the three-strikes
rule only because he was able to allege that he was in imminent danger with respect to a single set
of allegations, which formed only a small part of his complaint. The remainder of the allegations
of these complaints related to issues such as access to the courts and retaliation, none of which
would permit Plaintiff to overcome the bar of the three-strikes rule. Moreover, Plaintiff’s cramped
writing and the complexity of his many allegations has required this Court to expend enormous
resources to simply understand and organize the allegations.
At this juncture, the Court must consider how to address Plaintiff’s abusive litgation
strategies. The Sixth Circuit regularly has approved the imposition of prefiling restrictions on
plaintiffs who continuously file abusive litigation. “While this court cannot absolutely forbid an
individual from initiating an action or pursuing an appeal in federal court, Ortman v. Thomas, 99
F.3d 807, 811 (6th Cir. 1996), the court may impose pre-filing restrictions on an individual with a
history of repetitive or vexatious litigation.” Shephard v. Marbley, 23 F. App’x 491, 493 (6th Cir.
2001) (citing Feathers v. Chevron U.S.A., Inc., 141 F.3d 264, 269 (6th Cir. 1998); Ortman, 99 F.3d
at 811). Plaintiff’s prolongued abuse of the joinder process and his convoluted attempts to avoid
the application of the three-strikes rule warrant the Court exercising its inherent authority to restrict
his filings. As a consequence, the Court will prohibit Plaintiff from filing any future complaint that
contains claims arising out of more than a single transaction. The Court also will prohibit Plaintiff
from filing any complaint jointly with another prisoner and from seeking to join another Plaintiff’s
action. Further, Plaintiff may not file any future complaint exceeding 10 pages in length.

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Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff’s complaint against Defendants Washington, Daphne Johnson, Ott,
Yarbarra, DeShais, Wendt, Stuten, Michael Smith, Cowling, Stine, Perkins, Cummings, Miller,
Heyns, Young, Farr, Unknown Party #1, Pawdy, Norwood, Nevins, Jaramillo, Brown, Nelson,
Krovis, Doolittle, Schad, Lebarre, (unknown) Johnson, and Sikkema 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 dismiss the remaining claims and Defendants without prejudice, because they were
improperly joined. The Court also will order restrictions on Plaintiff’s future filings.
The Court must next decide whether an appeal of this action would be in good faith
within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611
(6th Cir. 1997). For the same reasons that the Court dismisses the action, the Court discerns no
good-faith basis for an appeal. Should Plaintiff appeal this decision, the Court will assess the
$505.00 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless
Plaintiff is barred from proceeding in forma pauperis, e.g., by the “three-strikes” rule of § 1915(g).
If he is barred, he will be required to pay the $505.00 appellate filing fee in one lump sum.
This is a dismissal as described by 28 U.S.C. § 1915(g).
An Order and Judgment consistent with this Opinion will be entered.

Dated: January 6, 2016

/s/ Janet T. Neff
Janet T. Neff
United States District Judge

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