Krusell #460118 v. Wallin et al

Filing 9

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

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.
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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.

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II.

Failure to state a claim

A complaint may be dismissed for failure to state a claim if it fails “‘to give the defendant
fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 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.,
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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);
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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
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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).
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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

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