Krusell #460118 v. Wallin et al

Filing 9

OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

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UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION MICHAEL JAMES KRUSELL, Plaintiff, Case No. 1:15-cv-1159 v. Honorable Paul L. Maloney PETE WALLIN 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 Plaintiff’s complaint for failure to state a claim against Defendants Wallin and Ford. The Court will serve the complaint against Defendants Hunt, Britton and Allen. Discussion I. Factual allegations Plaintiff Michael James Krusell presently is incarcerated with the Michigan Department of Corrections at the Bellamy Creek Correctional Facility, though the actions about which he complains occurred while he was housed at the Emmet County Correctional Facility. He sues the following Emmet County officials in both their official and personal capacities: Sheriff Pete Wallin; Jail Administrator Brenda Ford; Sergeant Sam Hunt; and Deputies Ben Britton and Kristy Allen. On April 13, 2014, Defendants Allen, Britton and Hunt instructed all inmates to exit the cell. One inmate left the cell before Plaintiff. As Plaintiff was leaving the cell and without provocation, Defendant Hunt grabbed Plaintiff’s arm, tripped him, and threw him to the floor. Deputy Britton jumped on top of Plaintiff, controlling both of Plaintiff’s arms. Britton then used unnecessary force to twist Plaintiff’s arms and wrist. The three officers began yelling, “Stop resisting,” as they used Tasers on Plaintiff’s back and legs. (Compl., ECF No. 1, PageID#.4.) Plaintiff alleges that he never resisted, but he had spasmodic muscle movements when he was tased. The incident occurred out of range of any camera. Defendant Hunt strip and cavity-searched Plaintiff, finding nothing. Plaintiff was then transported by EMS to McLaren Hospital. Before he was taken to the hospital, Defendants told him, “to go to Jackson and don’t come back.” (Id.) Plaintiff alleges that the county ignored or hampered his attempts to grieve the issue. Plaintiff seeks injunctive relief in the form of an investigation of the incident and a reprimand of the county, together with compensatory damages. -2- 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 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., -3- 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). Plaintiff fails to make specific factual allegations against Defendants Wallin and Ford, other than to suggest that they failed to conduct an investigation in response to his grievances and 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, 575-76 (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 Defendants Wallin and Ford engaged in any active unconstitutional behavior. Accordingly, he fails to state a claim against them. Moreover, to the extent that Plaintiff intends to allege that Emmet County is liable for the actions of its officers, he also fails to state a claim. Emmet County may not be held vicariously liable for the actions of its employees under § 1983. See Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011); -4- City of Canton v. Harris, 489 U.S. 378, 392 (1989); Monell, 436 U.S. at 694. In a municipal liability claim, the finding of a policy or custom is the initial determination to be made. Doe v. Claiborne Cnty., 103 F.3d 495, 509 (6th Cir. 1996). The policy or custom must be the moving force behind the constitutional injury, and a plaintiff must identify the policy, connect the policy to the governmental entity and show that the particular injury was incurred because of the execution of that policy. Turner v. City of Taylor, 412 F.3d 629, 639 (6th Cir. 2005); Alkire v. Irving, 330 F.3d 802, 815 (6th Cir. 2003); Doe, 103 F.3d at 508-509. It is the court’s task to identify the officials or governmental bodies which speak with final policymaking authority for the local government in a particular area or on a particular issue. McMillian v. Monroe County, 520 U.S. 781, 784-85 (1997). In matters pertaining to the conditions of the jail and to the operation of the deputies, the sheriff is the policymaker for the county. MICH. COMP. LAWS § 51.75 (sheriff has the “charge and custody” of the jails in his county); MICH. COMP. LAWS § 51.281 (sheriff prescribes rules and regulations for conduct of prisoners); MICH. COMP. LAWS § 51.70 (sheriff may appoint deputies and revoke appointments at any time); Kroes v. Smith, 540 F. Supp. 1295, 1298 (E.D. Mich. 1982) (the sheriff of “a given county is the only official with direct control over the duties, responsibilities, and methods of operation of deputy sheriffs” and thus, the sheriff “establishes the policies and customs described in Monell”). Thus, the court looks to the allegations in Plaintiff’s complaint to determine whether plaintiff has alleged that the sheriff has established a policy or custom which caused plaintiff to be deprived of a constitutional right. Plaintiff’s action fails at this first step because his allegations have not identified a policy or custom. A “policy” includes a “policy statement, ordinance, regulation, or decision officially adopted and -5- promulgated” by the sheriff. Monell, 436 U.S. at 690. Plaintiff has not asserted that there is an official policy. Plaintiff also has not identified a custom. The Sixth Circuit has explained that a “custom” . . . for the purposes of Monell liability must be so permanent and well settled as to constitute a custom or usage with the force of law. In turn, the notion of “law” includes deeply embedded traditional ways of carrying out state policy. It must reflect a course of action deliberately chosen from among various alternatives. In short, a “custom” is a “legal institution” not memorialized by written law. Claiborne Cnty., 103 F.3d at 507 (citations and quotations omitted). Plaintiff merely implies that the sheriff and jail administrator failed to take action to prevent or investigate the incident. Such allegations are insufficient to show that the sheriff had a custom of failing to act which resulted in the conduct that caused Plaintiff’s injuries. Any suggestion that the sheriff was negligent in this situation does not show that the sheriff took “a course of action deliberately chosen from among various alternatives.” Claiborne Cnty., 103 F.3d at 507. Mere negligence in failing to take preventive measures is insufficient to show § 1983 liability. Molton v. City of Cleveland, 839 F.2d 240, 246 (6th Cir. 1988), cert. denied, 489 U.S. 1068 (1989). In other words, allegations that there were negligent acts by the sheriff as the policymaker for Emmet County, without a showing that the acts were the result of a policy or custom, do not support liability under § 1983. Molton, 839 F.2d at 246. Thus, Plaintiff has failed to allege that the sheriff, as final policymaker for conditions of the jail and operations of the deputies, had a policy or custom that caused plaintiff to be deprived of a constitutional right. Where a plaintiff fails to allege that a policy or custom existed, dismissal for failure to state a claim is appropriate. Rayford v. City of Toledo, No. 86-3260, 1987 WL 36283, at *1 (6th Cir. Feb. 2, 1987); see also Bilder v. City of Akron, No. 92-4310, 1993 WL 394595, at *2 (6th Cir. Oct. 6, 1993) (affirming dismissal of § 1983 action when plaintiff allegation of policy or custom was conclusory, and plaintiff failed to allege facts tending to support the allegation). -6- Upon review, the Court concludes that Plaintiff has alleged sufficient facts to warrant service of the complaint on the remaining Defendants. Conclusion Having conducted the review required by the Prison Litigation Reform Act, the Court determines that Defendants Wallin and Ford 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 Hunt, Britton and Allen. An Order consistent with this Opinion will be entered. Dated: February 5, 2016 /s/ Paul L. Maloney Paul L. Maloney United States District Judge -7-

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