Hardy v. Community Mental Health et al

Filing 24

OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

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

GREGORY HARDY,
Plaintiff,
v.

Case No. 1:16-CV-1415

COMMUNITY MENTAL HEALTH
ORGANIZATION, et al.,

HON. GORDON J. QUIST

Defendants.
/
OPINION
Plaintiff, Greg Hardy, has sued Defendants alleging violations of his First, Eighth, and
Fourteenth Amendment rights arising out of his termination from employment at the Justice In
Mental Health Organization. All Defendants have moved to dismiss. The motions have been fully
briefed and are ready for decision. 1
I. ALLEGATIONS
Defendant Clinton-Eaton-Ingham Community Mental Health (CMH) is a Community
Mental Health Services Provider organized under the Michigan Mental Health Code.
Defendant Justice In Mental Health Organization (JIMHO) is a private non-profit
corporation with a contractual relationship with CMH. JIMHO runs “a consumer run drop-in
service on an independent contractor basis.” (ECF No. 11-5 at PageID.95.) JIMHO receives state
and federal funding through CMH, and has agreed to follow various guidelines of operation. (Id.

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All Defendants requested oral argument on their motions. However, the motions have been fully briefed and the
Court believes oral argument to be unnecessary. W.D.Mich. LCivR 7.2(d).

at PageID.96.) Defendants Brian Wellwood, Emily Jarvis, Terry Cuyler, Vicki Sandbrook and
Patrick McPherson were employees of JIMHO.
JIMHO hired Plaintiff Gregory Hardy in July 2014. (ECF No. 1 at PageID.5.) Plaintiff
was hired to work as a front desk clerk at JIMHO’s drop-in center in Lansing, Michigan. (Id.) On
February 26, 2015, a JIMHO member 2 Rodquies Johnson assaulted Plaintiff while Plaintiff was at
work. (Id.) Plaintiff contacted the Lansing Police Department to initiate a complaint against
Johnson. (Id. at PageID.6.)
Defendant Terry Cuyler witnessed the assault, and allegedly told Plaintiff that Cuyler had
called 911. Plaintiff alleges that Cuyler did not in fact call the police at the time of the assault, and
only spoke with the police after Plaintiff contacted the police himself. Cuyler also allegedly tried
to convince the prosecuting attorney not to file charges against Johnson.
Defendant Emily Jarvis was Plaintiff’s supervisor at JIMHO. Plaintiff claims that Jervis
and Cuyler issued Plaintiff a written warning on February 27, 2015, the day after the assault, after
Plaintiff complained about his injuries and threatened to sue JIMHO. (Id. at PageID.8.) The
warning notes that Plaintiff was in a physical altercation with a JIMHO member, and would be
fired if he was in another physical or verbal altercation. (ECF No. 1-1 at PageID.21.)
Plaintiff later met with Defendants Wellwood, Cuyler, and Jarvis and confronted Cuyler
about Cuyler’s “delusional statements and false write-ups both created which is (bogus).” (ECF
No. 1 at PageID.8.) Plaintiff met again with Wellwood, Jarvis, and Cuyler on March 6, 2015, to
complain that Cuyler was behaving inappropriately because Cuyler lacked interest in “properly
resolv[ing] the assault incident, as Defendant Cuyler stood watching, giving false statements to
state’s prosecutor, or false information to police officer(s) as to his involvement, when question

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“Member” appears to be a term used for a customer or client of JIMHO.

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would later delude statements.” (Id. at PageID.9.) Johnson was allowed to return to the JIMHO
drop-in center after 45 days. (Id.)
Plaintiff continued to complain to Jarvis that Jarvis failed to enforce adequately JIMHO
policy regarding members who became threatening or verbally abusive. (Id. at PageID.10.) Jarvis
was rude to Plaintiff as a response, and “began to act if though she had a bad attitude daily in how
she chose to express herself to plaintiff as to degrade him, making plaintiff feel singled[]out,
believing that there was a problem with her about him being black.” (Id.) Plaintiff also alleges
that Jarvis did not allow Plaintiff to secure his coat while working and stopped Plaintiff from using
rubbing alcohol to clean his work area, which was infested with bed bugs. (Id.)
In May 2015, Plaintiff told Defendant Vicki Sandbrook that JIMHO members Kevin
Starnes and Cirus Milton had performed oral sex on each other. (Id. at PageID.11.) Defendant
Sandbrook allegedly told Starnes and Milton what Plaintiff told her, causing Milton to harass
Plaintiff. (Id.) Sandbrook also researched Plaintiff’s background and reminded Plaintiff that
Plaintiff was a registered sex offender and falsely accused Plaintiff of threatening to rape her. (Id.
at PageID.12.) Sandbrook and Jarvis then began harassing Plaintiff, and Wellwood allegedly
allowed this harassment because Sandbrook, Jarvis, and Wellwood are all white. (Id.)
In August of 2015, Plaintiff overheard Milton and Defendant Patrick McPherson
discussing Plaintiff’s sex offender status. (Id. at PageID.14.) McPherson later told Jarvis that “we
need to get rid of this nigger.” (Id.) Plaintiff was given another written warning and suspended
for three days without pay after Defendant McPherson told an unspecified lie to other defendants.
(Id. at PageID.15.)
Around the same time that he was suspended, Plaintiff contacted CMH and “sought to seek
his administrative remedies concerning each of the issues.” (Id.) Plaintiff spoke with Defendant

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Greg Fox, who “refused to assist plaintiff in anyway [sic]” and “so rudely explained that there
infact [sic] was no such grievance forms designed for (JIMHO), or for its employees.” (Id.)
“Defendant Fox later contacted Defendant Wellwood to inform him that it was in their best interest
to get rid of the plaintiff.” (Id.)
After Defendant Cuyler filed another complaint, Plaintiff was terminated from JIMHO
some time after October 20, 2015. (Id. at PageID.16.)
II. STANDARD
Pursuant to Federal Rule of Civil Procedure 8(a), a complaint must provide “a short and
plain statement of the claim showing that the pleader is entitled to relief.” Detailed factual
allegations are not required, but “a plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127
S. Ct. 1955, 1964–65 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 103 (1957)).
The court must accept all of the plaintiff’s factual allegations as true and construe the complaint
in the light most favorable to the plaintiff. Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009).
Courts may also consider various documents without converting the motion to a motion for
summary judgment. “When a court is presented with a Rule 12(b)(6) motion, it may consider the
Complaint and any exhibits attached thereto, public records, items appearing in the record of the
case and exhibits attached to defendant’s motion to dismiss so long as they are referred to in the
Complaint and are central to the claims contained therein.” Bassett v. NCAA, 528 F.3d 426, 430
(6th Cir. 2008) (citation omitted).
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, 127 S. Ct. at 1974. “A claim has

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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.” Ashcroft v. Iqbal,
556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009). 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.” Id. (quoting Twombly, 550 U.S. at 556, 127 S. Ct. at 1965).
“[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.” Id. at 679, 129 S. Ct. at 1950 (quoting Fed. R. Civ. P. 8(a)(2)).
III. DISCUSSION
A. CMH and Defendant Fox
1. First Amendment Retaliation
A First Amendment retaliation claim requires proof that
(1) the plaintiff engaged in protected conduct; (2) an adverse action was taken
against the plaintiff that would deter a person of ordinary firmness from continuing
to engage in that conduct; and (3) there is a causal connection between elements
one and two—that is, the adverse action was motivated at least in part by the
plaintiff's protected conduct.
Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). The CMH Defendants argue
that the complaint fails to allege properly any of these elements.
Plaintiff argues that the protected activity was his complaint to CMH and Defendant Fox
regarding the assault at JIMHO, and that adverse action occurred when the JIMHO Defendants
“conspired to cover the assault… refused to treat him for injuries… [and] fired him according to
their policies or procedures after he stated he would file suit because they refused to assist him.”
(ECF No. 18 at PageID.267.)

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The complaint alleges that the JIMHO Defendants, rather than CMH, took these actions.
The only arguably adverse action alleged to have been taken by either CMH or Defendant Fox
would be that “Defendant Fox [] contacted Defendant Wellwood to inform him that it was in their
best interest to get rid of the plaintiff,” but Plaintiff did not develop or argue any legal theory based
on this single line in the complaint. (Id.) This claim against CMH and Defendant Fox will be
dismissed.
2. Deliberate Indifference
The complaint alleges a count of deliberate indifference to a serious medical need under
the Eighth Amendment. (ECF No. 1 at PageID.4.) As the CMH Defendants point out, however,
deliberate indifference claims apply only to post-conviction inmates through the Eighth
Amendment and to pretrial detainees through the Fourteenth Amendment. See Ford v. Cnty. of
Grand Traverse, 535 F.3d 483, 495 (6th Cir. 2008). Plaintiff does not allege that he was in any
sort of custody at the time of his alleged mistreatment. This claim will be dismissed against CMH
and Defendant Fox.
3. Fourteenth Amendment Employment Discrimination
Finally, Plaintiff alleges that CMH Defendants violated Plaintiff’s Fourteenth Amendment
rights. To succeed on a Fourteenth Amendment claim in the employment context, the plaintiff
must establish that (1) a public employer took adverse employment action against him and (2)
“that the employment decision at issue would not have been made ‘but for’ the plaintiff's race.”
Toth v. City of Toledo, 480 F. App’x 827, 832 (6th Cir. 2012) (citing Weberg v. Franks, 229 F.3d
514, 522 (6th Cir. 2000)).
The CMH Defendants argue that “Plaintiff has not alleged, let alone established, that
Defendant CEI-CMH was his employer. Further, he has not alleged, let alone established, that

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CEI-CMH or Mr. Fox took an adverse employment action against him or otherwise discriminated
against him based on his race.” (ECF No. 11 at PageID.81.) The CMH Defendants are correct.
The complaint alleges that several JIMHO Defendants took adverse action against him, but does
not allege that CMH or Defendant Fox took any action with regard to the Defendant based on
Defendant’s race. This claim will be dismissed against CMH and Defendant Fox.
B. JIMHO Defendants
The JIMHO Defendants argue that their activity does not amount to state action required
for liability under § 1983. “To state a claim under § 1983, plaintiffs ‘must demonstrate that the
defendant deprived them of their ‘rights, privileges, or immunities secured by the Constitution’
under color of state law.’” Campbell v. PMI Food Equip. Grp., Inc., 509 F.3d 776, 783 (6th Cir.
2007) (quoting Lindsey v. Detroit Entm't, LLC, 484 F.3d 824, 827 (6th Cir. 2007)). “The ‘ultimate
issue’ in determining whether a private party is subject to suit under § 1983 is whether ‘the alleged
infringement of federal rights [is] fairly attributable to the State.’” Id. at 783–84 (quoting Rendell–
Baker v. Kohn, 457 U.S. 830, 838, 102 S. Ct. 2764, 2770 (1982) (alterations in original)). Plaintiff
advances two theories of state action.
1. State Compulsion
Plaintiff argues that JIMHO was a state actor under the “state compulsion” test because
JIMHO’s contract with CMH required JIMHO to “comply with rules and policies established by”
CMH. (ECF No. 18 at PageID.258.) “The state compulsion test requires that ‘a state exercise
such coercive power or provide such significant encouragement, either overt or covert, that in law
the choice of the private actor is deemed to be that of the state.’” Campbell, 509 F.3d at 784
(quoting Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992)). Because “[n]o state law or any

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state entity required” JIMHO to terminate Plaintiff’s employment, Plaintiff has failed to allege
adequately that JIMHO was a state actor under this theory. Id.
2. Symbiotic Relationship or Nexus Test
Plaintiff also argues that JIMHO could qualify as a state actor under the symbiotic
relationship test.
Under this test, also known as the nexus test, a private party’s conduct constitutes
state action where “there is a sufficiently close nexus between the state and the
challenged action of the regulated entity so that the action of the latter may be fairly
treated as that of the state itself.”
Marie v. Am. Red Cross, 771 F.3d 344, 363 (6th Cir. 2014) (quoting Wilcher v. City of Akron, 498
F.3d 516, 520 (6th Cir. 2007)). “[I]t is important to note that this test evaluates whether ‘there is
a sufficiently close nexus between the state and the challenged action.’” Id. (quoting Wilcher, 498
F.3d at 520 (emphasis in original)).
In support of this argument, Plaintiff only asserts that “[t]he Defendants Community
Mental Health (CMH) and its alleged relationship with Justice In Mental Health Organization
(JIMHO), appears to be fairly attributed to state action.” (ECF No. 18 at PageID.260.) “Issues
adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation,
are deemed waived. It is not sufficient for a party to mention a possible argument in the most
skeletal way, leaving the court to put flesh on its bones.” McPherson v. Kelsey, 125 F.3d 989,
995–96 (6th Cir. 1997) (internal quotation marks and alterations omitted). Plaintiff’s assertion
amounts to an unsupported and undeveloped argument, and Plaintiff has waived this issue.

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IV. CONCLUSION
For the foregoing reasons, the Court will grant Defendants’ motions to dismiss.
A separate Order will enter.

Dated: August 25, 2017

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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