Goldman #542675 v. Michigan, State of et al

Filing 5

OPINION ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)

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

LANCE ADAM GOLDMAN,
Plaintiff,

Case No. 1:17-cv-774

v.

Honorable Robert J. Jonker

STATE OF MICHIGAN et al.,
Defendants.
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OPINION
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. 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.
Factual Allegations
Plaintiff Lance Adam Goldman presently is incarcerated with the Michigan
Department of Corrections (MDOC) at the Parnall Correctional Facility (SMT). Plaintiff sues the

State of Michigan and its Department of Corrections, MDOC Director Heidi Washington, SMT
Warden Melinda Braman, and SMT Nurse Jim (unknown).
Plaintiff arrived at SMT on June 26, 2017. He complains that A-Unit of SMT is dirty
and mold-infested, and that, because one bathroom is under construction, he is exposed to chemicals
and fumes and lacks adequate access to bathroom facilities. He contends that the dirty, damp, dusty,
and moldy conditions are dangerous to prisoner health and safety and that Defendants have elected
to disregard the unsanitary conditions.
On August 14, 2017, Plaintiff developed flu-like symptoms. On August 16, 2017,
he sought urgent medical care, because he was coughing up “green and yellow phlegm with black
specs.” (Compl., ECF No. 1, PageID.6.) Defendant Nurse Jim examined him, but merely provided
him five packs of Aypanal, a type of acetominophen. Nurse Jim did not schedule a follow-up
appointment. Later that day, Plaintiff sent a letter to Defendant Washington, complaining about
Nurse Jim’s “obvious inadequate medical care and treatment.” (Id.) Plaintiff alleges that he
continued to be ill as of the filing of his complaint on August 21, 2017, and that he was feverish and
coughing up mucus that contained specks of blood.
Plaintiff also alleges that, beginning on August 1, 2017, he served five days of toplock
and 30 days’ loss of privileges, after being convicted of a Class-II misconduct. At the end of his
toplock period, he allegedly did not receive out-of-cell recreation time, as he should have under the
policy. He argues that being kept from out-of-cell exercise for 30 days during his loss-of-privileges
sanction amounts to an Eighth Amendment violation.

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Plaintiff acknowledges that he has not exhausted his administrative remedies, noting
that he filed his grievance at the same time he filed his complaint. He argues that exhausting the
grievance process would be futile, so he seeks immediate relief in this Court. He seeks declaratory
and injunctive relief, together with compensatory and punitive damages.
Discussion
I.

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); Dominguez v. Corr.
Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009). 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.

State of Michigan & MDOC

Plaintiff may not maintain a § 1983 action against the State of Michigan and 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 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, regardless of the form of relief requested by the Plaintiff. See, e.g., McCoy v.
Michigan, 369 F. App’x 646, 653-54 (6th Cir. 2010); Turnboe v. Stegall, No. 00-1182, 2000
WL1679478, at *2 (6th Cir. Nov. 1, 2000). In addition, the State of Michigan (acting through the
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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 dismisses the State of Michigan and its
department, the Michigan Department of Corrections.
B.

Defendant Washington

Plaintiff fails to make specific factual allegations against Defendant Washington,
other than his conclusory claim that she is responsible for the conditions at SMT and therefore must
have a policy of permitting unsanitary conditions. Plaintiff’s allegations against Defendant
Washington are wholly conclusory, resting on assumptions arising from her role as Director of the
MDOC. 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). “[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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C.

Defendants Warden Braman and Nurse Jim

Plaintiff alleges that Defendant Nurse Jim failed to adequately treat his medical
condition on August 14, 2017. He also alleges that Defendant Braman was aware of the dirty and
moldy conditions at SMT, but engaged in a policy of allowing those conditions. Plaintiff frankly
admits in his complaint that he has not yet exhausted his administrative remedies. Instead, he
declares, he filed his grievance on the same date he filed his civil rights complaint. (Compl., ECF
No. 1, PageID.13.)
The PLRA requires state prisoner to follow and exhaust all applicable state
administrative remedies before filing suit in federal court. 42 U.S.C. § 1997(e)(a) (“No action shall
be brought with respect to prison conditions under section 1983 of this title, or any other Federal law,
by a prisoner confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.”); see also Mattox v. Edelmon, 851 F.3d 583, 590 (6th Cir.
2017). The PLRA does not impose a heightened pleading requirement; a prisoner is not required to
plead that he has exhausted his administrative remedies. Jones v. Bock, 549 U.S. 199, 213-14
(2007). “[T]hat is not to say that failure to exhaust cannot be a basis for dismissal for failure to state
a claim. It is to say that there is no basis for concluding that Congress implicitly meant to transform
exhaustion from an affirmative defense to a pleading requirement.” Id. at 216. “A complaint is
subject to dismissal for failure to state a claim if the allegations, taken as true, show the plaintiff is
not entitled to relief. If the allegations, for example, show that relief is barred by [an affirmative
defense], the complaint is subject to dismissal for failure to state a claim.” Jones, 549 U.S. at 215.

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That is the case here. While Plaintiff was not required to plead exhaustion, id., he
nevertheless elected to declare that he had not exhausted his administrative remedies.1 As a result,
Plaintiff’s allegations show that the relief he seeks under § 1983 is barred by the affirmative defense
of failure to exhaust.
Plaintiff argues, however, that he should not be required to exhaust his administrative
remedies, because he believes that doing so would be futile. Plaintiff, however, cannot simply
declare that administrative procedures are futile in order to escape the requirement of exhaustion.
A prisoner’s subjective belief that he would not be granted relief in the prison grievance process will
not excuse his failure to exhaust. See Napier v. Laurel Cty., Ky., 636 F.3d 218, 222 (6th Cir. 2011);
Boyd v. Corrections Corp. of America, 380 F.3d 989, 998 (6th Cir. 2004). Indeed, the Supreme
Court, in Ross v. Blake, 136 S. Ct. 1850 (2016), recently reiterated that courts are not free to impose
discretionary exceptions to the statutory requirement that a prisoner exhaust available remedies. Id.
at 1858. Plaintiff does not contest that administrative remedies are and were available to him. He
therefore has not met the exhaustion requirement of 42 U.S.C. § 1997(e)(a). See Barnett v. Laurel
County, Ky., No. 16-5658, 2017 WL 3402075, at *2 (6th Cir. Jan. 30, 2017) (citing Ross, 136 S. Ct.
at 1856-57) (holding that a prisoner’s belief that administrative remedies will be futile does not
excuse the exhaustion requirement).

1

Plaintiff elected to use an out-of-date version of the form § 1983 complaint in drafting his action. The
complaint Plaintiff used has not been current for more than 10 years, since the issuance of Woodford v. Ngo, 548 U.S.
81 (2006), which barred courts from requiring prisoners to provide information about their efforts to exhaust their
administrative remedies. Because he has filed multiple earlier complaints on the correct form, Plaintiff is well aware that
the current version of the form complaint for this Court does not require a recitation of Plaintiff’s efforts to exhaust his
claims. See Goldman v. Consumers Credit Union et al., No. 1:16-cv-1372 (W.D. Mich.); Goldman v. Kalamazoo Cnty.
Jail et al., No. 1:16-cv-359 (W.D. Mich.); Goldman v. Kalamazoo Cnty. Sheriff’s Office et al., No. 1:16-cv-52 (W.D.
Mich.). Because Plaintiff nevertheless elected to use an expired form, his provision of the information must be
considered wholly voluntary.

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Because Plaintiff admits that he has not exhausted his administrative remedies,
Plaintiff fails to state an Eighth Amendment claim against Defendants Braman and Nurse Jim at this
juncture.2
D.

Pending Motion

Also pending at this time is Plaintiff’s “Emergency Motion to Expedite Initial Review
of Complaint . . . (ECF No. 2). In light of the Court’s disposition of the case, Plaintiff’s motion to
expedite will be denied as moot.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff’s action 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). Plaintiff’s claims against Defendants
MDOC and Washington will be dismissed with prejudice. Plaintiff’s claims against Defendants
Braman and Jim (unknown) will be dismissed without prejudice
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

2

Although the action fails to state a claim at this juncture, the Court’s dismissal of Defendants Braman and
Nurse Jim is without prejudice, because Plaintiff filed a grievance at the same time he filed his complaint, and he may
ultimately exhaust his administrative remedies. See, e.g., Alexander v. Salmi, No. 2:16-cv-96, 2017 WL 915393 (W.D.
Mich. Mar. 8, 2017) (dismissing for failure to state a claim, but without prejudice, when the plaintiff had failed to exhaust
administrative remedies before filing the complaint); see also Brown v. Lebanon Corr. Inst., No. 1:09-cv-513, 2009 WL
2913930, at *3 (S.D. Ohio Sept. 9, 2009).

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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).
A Judgment consistent with this Opinion will be entered.

Dated:

September 21, 2017

/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE

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