Jennings #213611 v. Bradley et al

Filing 199

(DISREGARD) OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb) Modified on 3/2/2009; document filed in wrong case (gjf).

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

CLEOPHANS KILGORE, Plaintiff, v. GARY KOOP, Defendant. ____________________________________/ 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, Plaintiff's action will be dismissed for failure to state a claim. Case No. 1:09-cv-117 Honorable Robert Holmes Bell

Discussion I. Factual allegations

Plaintiff Cleophans Kilgore presently is incarcerated with the Michigan Department of Corrections (MDOC) and housed at the Charles Egeler Reception and Guidance Center, though the actions he complains of occurred while he was housed with Project Rehab Transitional Housing. Plaintiff sues a supervisor of Project Rehab, Gary Koop. According to the complaint, Plaintiff recently tested positive for Hepatitis C, a sexually transmitted disease. He alleges that he approached the chaplain at Project Rehab to ask him to inform the woman with whom Plaintiff had been sexually active, so that she could get tested and treated. The woman is on parole under the supervision of the MDOC, and Plaintiff is not permitted to have direct contact with her. Plaintiff alleges that Defendant Koop made false representations to the chaplain, informing him that Plaintiff was stalking the woman. As a consequence, Koop would not allow a message from Plaintiff to be passed to the woman concerning her possible infection with Hepatitis C. Plaintiff asserts that Defendant Koop's conduct places the woman and any of her future sexual partners at substantial health risk. Plaintiff also claims that Koop's false statements about Plaintiff damaged Plaintiff's reputation. Plaintiff seeks monetary damages and injunctive relief in the form of disciplinary action against Defendant Koop. 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 Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 -2-

(1957)); see also Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). The standard requires that a "complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Glassner v. R.J. Reynolds Tobacco Co., 223 F.3d 343, 346 (6th Cir. 2001). While a complaint need not contain detailed factual allegations, a plaintiff's allegations must include more than labels and conclusions. Twombly, 127 S. Ct. at 1965; Lewis v. ACB Business Serv., Inc., 135 F.3d 389, 405 (6th Cir. 1998) (holding that a court need not accept as true legal conclusions or unwarranted factual inferences). The court must determine whether the complaint contains "enough facts to state a claim to relief that is plausible on its face." Twombly, 127 S. Ct. at 1974; see also United States v. Ford Motor Co., 532 F.3d 496, 503 (6th Cir. 2008); United States ex rel. Bledsoe v. Comty. Health Sys., Inc., 501 F.3d 493, 502 (6th Cir. 2007). 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). To the extent Plaintiff complains that Defendant Koop's actions have created unnecessary health risks for other prisoners or parolees at Project Rehab, he lacks standing to pursue the claim. Federal law specifies that cases in the courts of the United States may be conducted only by the parties personally or through counsel. 28 U.S.C. § 1654. That statute provides that, "in all courts of the United States, the parties may plead and conduct their own cases personally or by counsel, as, by the rules of such courts, respectively, are permitted to manage and conduct causes -3-

therein." 28 U.S.C. § 1654 (emphasis added). The statute clearly makes no provision for a pro se party to represent others. The federal courts have long held that section 1654 preserves a party's right to proceed pro se, but only with respect to her own claims. Only a licensed attorney may represent other persons. See Rowland v. California Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 201-03 (1993); United States v. 9.19 Acres of Land, 416 F.2d 1244, 1245 (6th Cir. 1969). As a layman, Plaintiff may only represent himself with respect to his individual claims, and may not act on behalf of others. See Newsom v Norris, 888 F.2d 371, 381 (6th Cir. 1989); Raines v. Goedde, No. 92-3120, 1992 WL 188120, at *2 (6th Cir. Aug. 6, 1992); O'Malley v. Brierley, 477 F.2d 785 (3d Cir. 1973); Lutz v. LaVelle, 809 F. Supp. 323, 325 (M.D. Pa. 1991); Snead v. Kirkland, 462 F. Supp. 914, 918 (E.D. Pa. 1978). Plaintiff therefore lacks standing to remedy the alleged injury to the health of others. To the extent Plaintiff complains that Koop made false statements and impugned Plaintiff's character, Plaintiff's allegations are insufficient to implicate a constitutional right. Construing Plaintiff's complaint in the light most favorable to Plaintiff, Plaintiff arguably raises claims under the Eighth Amendment1 and under the Due Process Clause of the Fourteenth Amendment. The Eighth Amendment imposes a constitutional limitation on the power of the states to punish those convicted of crimes. Punishment may not be "barbarous" nor may it contravene

Plaintiff does not indicate whether he was housed at Project Rehab as a convicted inmate or as a pretrial d e t a i n e e . Although the Eighth Amendment's protections apply specifically to post-conviction inmates, see Barber v. C i t y of Salem, Ohio, 953 F.2d 232, 235 (6th Cir. 1992), the Due Process Clause of the Fourteenth Amendment operates t o guarantee those same protections to pretrial detainees as well. Thompson v. County of Medina, Ohio, 29 F.3d 238, 2 4 2 (6th Cir. 1994); see also M o l t o n v. City of Cleveland, 839 F.2d 240, 243 (6th Cir. 1988) (stating that alleged v io l a tio n of pretrial detainee's Eighth and Fourteenth Amendment rights is governed by the "deliberate indifference" s t a n d a r d ) . As a result, regardless of Plaintiff's status at the time, any claim concerning his poor treatment by Koop is g o v e rn e d by the same standard.

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society's "evolving standards of decency." Rhodes v. Chapman, 452 U.S. 337, 345-46 (1981). The Amendment, therefore, prohibits conduct by prison officials that involves the "unnecessary and wanton infliction of pain." Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987) (per curiam) (quoting Rhodes, 452 U.S. at 346). The deprivation alleged must result in the denial of the "minimal civilized measure of life's necessities." Rhodes, 452 U.S. at 347; see also Wilson v. Yaklich, 148 F.3d 596, 600-01 (6th Cir. 1998). The Eighth Amendment is only concerned with "deprivations of essential food, medical care, or sanitation" or "other conditions intolerable for prison confinement." Rhodes, 452 U.S. at 348 (citation omitted). Moreover, "[n]ot every unpleasant experience a prisoner might endure while incarcerated constitutes cruel and unusual punishment within the meaning of the Eighth Amendment." Ivey, 832 F.2d at 954. The making of false and degrading statements about a prisoner cannot be considered to rise to the level of punishment that violates the Eighth Amendment. Harassing or degrading language by a prison official, although unprofessional and deplorable, does not rise to constitutional dimensions. See Ivey v. Wilson, 832 F.2d 950, 954-55 (6th Cir. 1987); see also Johnson v. Dellatifa, 357 F.3d 539, 546 (6th Cir. 2004) (harassment and verbal abuse do not constitute the type of infliction of pain that the Eighth Amendment prohibits); Violett v. Reynolds, No. No. 02-6366, 2003 WL 22097827, at *3 (6th Cir. Sept. 5, 2003) (verbal abuse and harassment do not constitute punishment that would support an Eighth Amendment claim); Thaddeus-X v. Langley, No. 96-1282, 1997 WL 205604, at *1 (6th Cir. Apr. 24, 1997) (verbal harassment is insufficient to state a claim). Accordingly, Plaintiff fails to state an Eighth Amendment claim against Defendant Koop for making false statements to the chaplain.

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To the extent that Plaintiff intends to assert a claim that he was deprived of some interest without due process of law, his claim also fails. "Without a protected liberty or property interest, there can be no federal procedural due process claim." Experimental Holdings, Inc. v. Farris, 503 F.3d 514, 519 (6th Cir. 2007) (citing Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 579 (1972)). The Supreme Court long has held that the Due Process Clause does not protect every change in the conditions of confinement having an impact on a prisoner. See Meachum v. Fano, 427 U.S. 215, 225 (1976). In Sandin v. Conner, 515 U.S. 472, 484 (1995), the Court set forth the standard for determining when a state-created right creates a federally cognizable liberty interest protected by the Due Process Clause. According to the Sandin Court, a prisoner is entitled to the protections of due process only when a deprivation imposes an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484; see also Jones v. Baker, 155 F.3d 810, 812 (6th Cir. 1998); Rimmer-Bey v. Brown, 62 F.3d 789, 790-91 (6th Cir. 1995). Here, Plaintiff clearly has failed to suggest that Koop's false statements imposed an atypical and significant hardship upon Plaintiff. Indeed, the only hardship alleged by Plaintiff is an injury to his reputation. Such concerns fail to rise to the level of a due process violation for prisoners and nonprisoners alike. See, e.g., Doe v. Mich. Dep't of State Police, 490 F.3d 491, 501 (6th Cir. 2007) (holding that youthful offenders had no liberty interest in reputation alone) (citing Paul v. Davis, 424 U.S. 693 (1976) (establishing "stigma-plus" test and holding that the Due Process Clause only protects reputation where some other more tangible interest such as employment also is implicated)).

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Conclusion Having conducted the review now 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). 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 $455.00 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 $455.00 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: March 2, 2009

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

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