Gresham #272603 v. Granholm et al

Filing 193

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 166 denying motion 143 ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cam)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
MICHAEL GRESHAM,
Plaintiff,
v.

Case No. 2:09-cv-231
HON. R. ALLAN EDGAR

JENNIFER M. GRANHOLM, et. al.,
Defendants.
____________________________________/

MEMORANDUM AND ORDER
Plaintiff Michael Gresham, a Michigan state prisoner in the custody of the Michigan
Department of Corrections (MDOC), brings this federal civil rights action under 42 U.S.C. § 1983.
Gresham is currently imprisoned at the Ionia Correctional Facility (ICF) in Ionia, Michigan.
The Court dismissed all of Gresham’s claims except for the claims against remaining
defendants David Peterson and Robert White.1 [Court Doc. No. 10]. During the time period relevant
to his complaint, Gresham was imprisoned in the Marquette Branch Prison (MBP). Defendants
Peterson and White were employed by MDOC as residential unit officers at MBP. Gresham claims
that he was sexually assaulted and/or raped by defendants Peterson and White in MBP on July 10,
2009. These are the only claims that remain before this Court for adjudication.
On May 10, 2012, the Court received a pro se motion from plaintiff Gresham containing
multiple requests for relief. [Court Doc. No. 143]. Magistrate Judge Timothy P. Greeley has

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The Magistrate Judge’s report and recommendation incorrectly states that the only
remaining defendant is Unknown Peterson.
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submitted his report and recommendation that the entire multi-part motion be denied. [Court Doc.
No. 166]. Gresham has filed objections to the report and recommendation accompanied by his
“attachments” or supplement to the objections. [Court Doc. Nos. 172, 173]. After reviewing the
record de novo, the Court concludes that Gresham’s objections are DENIED. The Court agrees with
the Magistrate Judge’s recommendation that Gresham’s motion [Court Doc. No. 143] be denied for
the following reasons.
I.

Motion for Preliminary Injunction Under Fed. R. Civ. P. 65(a)
In the motion under review [Court Doc. No. 143], Gresham alleges that he has two hernias

and a large cluster of cysts or lumps under his skin which possibly constitute untreated cancer.2
Gresham contends that MDOC is not providing him with adequate medical treatment (surgery) for
the hernias and cysts. This allegation of inadequate medical care is unrelated to and does not arise
out of the subject matter of Gresham’s sexual assault/rape claims against defendants Peterson and
White. Gresham improperly seeks to expand the scope of this case to include the allegations that
MDOC is not providing him with adequate medical care for his hernias and cysts.
In an effort to obtain more or better medical care for his alleged health problems, Gresham
moves for a preliminary injunction pursuant to Fed. R. Civ. P. 65(a). Gresham wants the Court to
issue a preliminary injunction requiring MDOC and/or the defendants to provide him with surgery
to repair Gresham’s hernias and remove the cysts which may be cancerous.
The Magistrate Judge analyzes the Rule 65(a) motion for preliminary injunction by applying
the traditional test of balancing four factors: (1) whether Gresham has shown a strong or substantial
likelihood or probability of success on the merits of his claim that he is being denied adequate
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In his objections to the report and recommendation, Gresham also alleges that he is not
receiving adequate medical treatment from MDOC for his sleep apnea. [Court Doc. No. 172, pp.
1, 5].
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medical care; (2) whether Gresham has made a showing that he will suffer irreparable harm without
a preliminary injunction; (3) whether the preliminary injunction could cause harm to third parties;
and (4) whether the public interest would be served by issuing a preliminary injunction. McNeilly
v. Land, 2012 WL 2547287 , * 3 (6th Cir. July 3, 2012); Washington v. Reno, 35 F.3d 1093, 1099
(6th Cir. 1994). The Magistrate Judge’s report and recommendation finds that Gresham fails to meet
his burden of establishing a substantial likelihood or probability of success on the merits of his
Eighth Amendment claim that he is being denied necessary medical care. The report and
recommendation observes that the prison officials employed by MDOC are already required by the
Eighth Amendment to the United States Constitution to provide Gresham with appropriate medical
care. [Court Doc. No. 166, p. 2].
In his objection to the report and recommendation, Gresham argues these four elements
weigh in his favor. The Court concludes that it is unnecessary to reach the question whether any of
the four elements weigh in Gresham’s favor under Rule 65. It is not necessary to analyze Gresham’s
motion for preliminary injunction based on the traditional four-part test. Instead, the motion for
preliminary injunction must be denied for a different reason.
Gresham’s contention that he is not being provided with adequate medical treatment by
MDOC concerning his hernias and cysts is not directly related to the subject matter of his sexual
assault/rape claims against defendants Peterson and White. The preliminary injunction sought by
Gresham goes far beyond the scope of the pleadings and the subject matter of his pending claims
defendants Peterson and White. The claims against defendants Peterson and White are predicated
solely on an alleged sexual assault and/or rape which is entirely different from Gresham’s contention
that he is being deprived of necessary medical care (surgery) for his hernias and cysts in violation
of the Eighth Amendment. Gresham’s contention that he is being denied adequate medical care is

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not a claim or cause of action that has been pleaded in this civil action. Consequently, the medical
care issue is not before the Court for adjudication and it will not go to trial in this case. Because the
motion for preliminary injunction is not related to and does not arise out of the subject matter of
Gresham’s remaining claims against defendants Peterson and White, the motion must be denied.
In a futile effort to create and dredge up some tenuous connection between these different
matters, Gresham raises two arguments. First, Gresham argues that unless he receives medical
treatment (surgery) for the hernias and cysts, it will be impossible to represent himself pro se without
a court-appointed attorney and complete the taking of discovery depositions. Second, Gresham
alleges that the reason MDOC employees are depriving him of medical care for the hernias and cysts
is to retaliate against Gresham for bringing the present federal civil rights lawsuit and other similar
lawsuits against officials and employees of MDOC and the State of Michigan.
These two arguments fail. Gresham’s allegations are vague, conclusory and unsupported by
probative facts. The Court is not persuaded that Gresham is unable to proceed with the taking of
discovery depositions unless he receives medical treatment (surgery) for the alleged hernias and
cysts. Gresham appears to have sufficient good health and physical strength be able to represent
himself since he continues to persistently inundate this Court with a plethora of complaints, motions,
briefs, and other documents of every kind. The numerous pro se filings by Gresham in the present
case and in other civil lawsuits brought by Gresham in this Court demonstrate that he does not lack
the physical ability and energy needed to litigate this case.
Gresham’s motion for a preliminary injunction under Rule 65 is DENIED.
II.

Confiscation of Plaintiff Gresham’s Legal Property
In connection with his motion for preliminary injunction, Gresham also moves the Court to

order MDOC and officials at ICF to return to him certain books and legal papers or files. Gresham

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contends that MDOC and prison officials at ICF have confiscated, stolen, or lost 13 duffle bags of
his legal property. Gresham argues that he needs the legal property to assist him litigating this case.
The issue of the confiscated duffel bags has been brought to the Court’s attention in other
motions by Gresham. Defendants previously advised the Court that this matter would be the subject
of a MDOC administrative hearing at ICF. [Court Doc. No. 153].
To the extent that Gresham moves the Court for a preliminary injunction under Rule 65 to
require MDOC and officials at ICF to return the confiscated duffle bags of legal property to
Gresham, the motion is DENIED. This is not an appropriate subject for a preliminary injunction.
Instead, the issue can be reviewed and decided in the context of a different motion by Gresham. On
June 8, 2012, Gresham filed a motion seeking discovery sanctions under Fed. R. Civ. P. 37
combined with a motion seeking the return of his confiscated duffle bags of legal property. [Court
Doc. No. 164]. That motion remains pending before the Court.
III.

Motion for Mental and Physical Examination Under Fed. R. Civ. P. 35
Gresham moves the Court to order that he be provided with physical and mental

examinations under Fed. R. Civ. P. 35 to treat his hernias and cysts. Rule 35(a) provides that the
Court in its discretion may order a party whose mental or physical condition is “in controversy” to
submit to a physical or mental examination by a licensed or certified examiner. The Court has the
authority to order a party to produce for such examination a person who is in its custody or under its
legal control.
The motion is DENIED. Gresham seeks to improperly use Rule 35 as an avenue to obtain
medical treatment (surgery) from MDOC for his alleged hernias and cysts, including physical and
mental examinations by independent physicians and psychiatrists outside of MDOC. This he cannot
do. This Court has no authority under Rule 35 to order MDOC or any defendants in this case to

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provide medical treatment to Gresham for his hernias and cysts. The physical and mental
examinations sought by Gresham under Rule 35 for the medical treatment of his hernias and cysts
are not related to his sexual assault/rape claims against defendants Peterson and White. With regard
to the claims against defendants Peterson and White, Gresham’s physical and mental conditions
concerning his hernias and cysts are not in controversy and are immaterial. Gresham cannot utilize
Rule 35 to obtain medical treatment, i.e. physical and mental examinations by independent
physicians and psychiatrists outside of MDOC, when the physical and mental examinations would
be unrelated to deciding any claim or issue actually in controversy in this case.
IV.

Request for Transfer to Mound Correctional Facility
Next, Gresham requests that the Court order MDOC to transfer him from the ICF to the

Mound Correctional Facility. [Court Doc. No. 143, p. 11]. Gresham contends the transfer is
necessary for two reasons: (1) to get Gresham away from any MDOC staff at ICF who might retaliate
against him; and (2) to provide Gresham with medical treatment including an outpatient mental
health program.
In his objections to the Magistrate Judge’s report and recommendation, Gresham states:
The transfer to Mound should be granted based on Mr. Gresham is on
the outpatient mental health program and Mound has such facilities to
provide him with treatment for his post traumatic stress syndrome
disorder and depression and given there are no defendants there
involved in this action it’s likely Mr. Gresham could prosecute
this action and communicate with the court more effectively.
[Court Doc. No. 172, p. 8].
This request for transfer is DENIED. Generally, prisoners have no inherent right under the
United States Constitution to be housed in a particular prison facility. Olim v. Wakinekona, 461 U.S.
238, 245 (1983); Meachum v. Fano, 427 U.S. 215, 224 (1976); Beard v. Livesay, 798 F.2d 874, 876

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(6th Cir. 1986). In the absence of some extraordinary or compelling reason, this Court denies
motions and requests by prisoners to be transferred to different correctional facilities. The Court is
required to exercise restraint and show due deference to MDOC’s decisions concerning its
administration and management of the Michigan prison system. Procunier v. Martinez, 416 U.S.
396, 404-05(1974); Kendrick v. Bland, 740 F.2d 432, 438 n. 3(6th Cir. 1984).
There is no extraordinary or compelling reason here that warrants a transfer. Gresham has
not met his burden of showing that it is necessary to order MDOC to transfer him to the Mound
Correctional Facility. ICF provides medical services for its prisoners including an outpatient mental
health program in which Gresham participates. Gresham fails to establish that the outpatient mental
health program at the Mound Correctional Facility is any different or significantly better than the one
at ICF.
V.

Motion for Appointment of Counsel
Gresham makes another repetitive motion for the appointment of counsel which is again

DENIED. The Court has previously denied other similar motions by Gresham seeking appointment
of counsel to represent him in this case. [Court Doc. Nos. 14, 46, 50, 74, 114, 129, 130, 155, 157,
168]. The Court has not changed its mind.
In civil cases, an indigent party does not have a right under the United States Constitution
to representation by a court-appointed attorney. Mallard v. U.S. District Court, 490 U.S. 296 (1989);
Richmond v. Settles, 450 Fed. Appx. 448, 452 (6th Cir. 2011); Lince v. Youngert, 136 Fed. Appx.
779, 782 (6th Cir. 2005); Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir. 2003); Abdur-Rahman v.
Michigan Department of Corrections, 65 F.3d 489, 492 (6th Cir. 1995); Lavado v. Keohane, 992
F.2d 601, 604-06 (6th Cir. 1993). The Court in its discretion may request an attorney to represent
a civil litigant who is unable to afford counsel pursuant to 28 U.S.C. § 1915(e)(1). The denial of

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appointment of counsel will be overturned on appeal only when it results in fundamental unfairness
impinging on a party’s right to constitutional due process. Lince, 136 Fed. Appx. at 782; Lavado,
992 F.2d at 604-05; Reneer v. Sewell, 975 F.2d 258, 261 (6th Cir. 1992).
The appointment of counsel in civil cases is justified only in exceptional circumstances. To
determine whether exceptional circumstances exist, the Court considers the complexity of the factual
and legal issues involved, the procedural posture of the case, and plaintiff Gresham’s ability to
represent himself. Richmond, 450 Fed. Appx. at 452; Lince, 136 Fed. Appx. at 782; Lanier, 332
F.3d at 1006; Lavado, 992 F.2d at 606. Gresham is not entitled to the appointment of counsel merely
because his case may proceed to trial. Lince, 136 Fed. Appx. at 782-83. After considering these
factors, the Court finds that it unnecessary to request an attorney to represent Gresham pursuant to
28 U.S.C. § 1915(e)(1). The Court is not persuaded that the denial of counsel will result in
fundamental unfairness that impinges upon Gresham’s constitutional right to due process.
VI.

Motion Objecting to Discovery Depositions
Defendants took Gresham’s discovery deposition on May 18, 2012. Gresham complains that

no one is taking discovery depositions on his behalf from defendants Peterson and White and other
witnesses. Gresham objects to the taking of discovery depositions while he is representing himself
pro se without appointed counsel and without medical treatment (surgery) for his hernias and cysts.
Gresham accuses defendants Peterson and White of attempting to obtain “tainted or coerced”
testimony from Gresham by taking his deposition while Gresham has no way to similarly obtain
evidence from the defendants. Gresham contends that this gives defendants Peterson and White an
unfair advantage. [Court Doc. No. 143, p. 6]. Gresham further asserts that it is impossible for him
to complete the taking of discovery depositions due to his hernias and cysts. Gresham objects to
being required to give testimony under oath in his deposition without representation by appointed

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counsel, and he invokes his right against self-incrimination under the Fifth Amendment to the United
States Constitution. [Court Doc. No. 143, pp. 11, 12].
Gresham’s motion or objection on this point is a little difficult to decipher. Gresham’s
objection to his discovery deposition being taken by defendants Peterson and White is DENIED.
Defendants Peterson and White have every right under the Fderal Rules of Civil Procedure to
expeditiously proceed with the taking of depositions and other discovery, including Gresham’s
deposition, in order to prepare for trial. Moreover, to the extent that Gresham may be moving to stay
the taking of further discovery depositions until such time as the Court appoints counsel to represent
Gresham, that motion is DENIED.
VII.

Motion for Hearing on Alleged Bias by Court
Gresham moves the Court to hold a hearing and show cause why Magistrate Judge Greeley

and District Judge R. Allan Edgar are not biased against Gresham. In other words, Gresham
contends that Magistrate Judge Greeley and District Judge Edgar are biased against him and/or
biased in favor of the defendants. The sole basis for this contention is that Gresham says Magistrate
Judge Greeley and District Judge Edgar have issued orders and made decisions in the case that are
adverse to Gresham and favorable to the defendants.
The motion for a show cause hearing is DENIED. Gresham’s vague, conclusory allegations
of bias are insufficient to warrant a hearing.
It appears that Gresham is in effect making a motion to disqualify Magistrate Judge Greeley
and District Judge Edgar pursuant to 28 U.S.C. § 455(a). Gresham signed his objections to the report
and recommendation under penalty of perjury pursuant to 28 U.S.C. § 1746. Gresham states that he
wants the facts alleged in his objections to also serve as an affidavit of bias against Magistrate Judge
Greeley pursuant to 28 U.S.C. §§ 144 and 455. [Court Doc. No. 172, p. 14].

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The gist of the motion for disqualification is that Gresham disagrees with and objects to the
orders and decisions issued by Magistrate Judge Greeley and District Judge Edgar in this case. The
Court concludes that motion for a hearing and/or motion for disqualification is without merit.
28 U.S.C. § 455 provides in pertinent part:
(a)

(b)

Any justice, judge, or magistrate judge of the United States
shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.
He shall also disqualify himself in the following
circumstances:
(1)
Where he has a personal bias or prejudice concerning
a party . . . .

Disqualification under § 455(a) is mandated if a reasonable person, knowing all of the
relevant facts and circumstances, would question the judge’s impartiality. A federal judge must
recuse under § 455(a) if the judge knows of facts that would undermine the appearance of
impartiality in the minds of reasonable persons. Liteky v. United States, 510 U.S. 540, 547-48
(1994); Youn v. Track, Inc., 324 F.3d 409, 422-23 (6th Cir. 2003); Reed v. Rhodes, 179 F.3d 453,
467 (6th Cir. 1999); United States v. Hartsell, 199 F.3d 811, 820 (6th Cir. 1999); Union Planters
Bank v. L&J Development Co., Inc., 115 F.3d 378, 383 (6th Cir. 1997).
The standard is an objective one. Liteky, 510 U.S. 540; Liljeberg v. Health Services
Acquisition Corp., 486 U.S. 847, 865 (1988); United States v. Dandy, 998 F.2d 1344, 1349 (6th Cir.
1993); United States v. Sammons, 918 F.2d 592, 599 (6th Cir. 1990). A judge need not recuse or
disqualify himself based solely on the subjective view of a disgruntled party, no matter how strongly
that subjective view is held. Sammons, 918 F.2d at 599; Browning v. Folz, 837 F.2d 276, 279 (6th
Cir. 1988). Plaintiff Gresham bears the burden of showing that a reasonable person, knowing the
facts and circumstances in this case, would believe that Magistrate Judge Greeley and District Judge

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Edgar are not impartial and are biased against him or biased in favor of the defendants. Consolidated
Rail Corp. v. Yashinsky, 170 F.3d 591, 597 (6th Cir. 1999); Rhodes v. McDannel, 945 F.2d 117, 120
(6th Cir. 1991).
The Court finds that Gresham fails to meet this burden. Gresham has not presented any proof
or facts to establish that a reasonable person, knowing the facts and circumstances in this case, would
believe that Magistrate Judge Greeley and District Judge Edgar are either biased against Gresham
or biased in favor of the defendants.
Disqualification for personal bias or prejudice under 28 U.S.C. § 455 is subject to the
limitation of the extrajudicial source doctrine. Liteky, 510 U.S. at 540; United States v. Grinnell
Corp., 384 U.S. 563, 583 (1966); Youn, 324 F.3d at 423; United States v. Howard, 218 F.3d 556,
566 (6th Cir. 2000); Reed, 179 F.3d at 468; Green v. Nevers, 111 F.3d 1285, 1303-04 (6th Cir.
1997); Sammons, 918 F.2d at 599. The alleged bias or prejudice must “stem from an extrajudicial
source and result in an opinion on the merits on some basis other than what the judge learned from
his participation in the case.” Grinnell Corp., 384 U.S. at 583; accord United States v. Jamieson,
427 F.3d 394, 405 (6th Cir. 2005); Youn, 324 F.3d at 423; Sammons, 918 F.2d at 599; Wheeler v.
Southland Corp., 875 F.2d 1246, 1251-52 (6th Cir. 1989).
Gresham is required to allege specific, non-conclusory facts showing that Magistrate Judge
Greeley and District Judge Edgar have a personal bias or prejudice that emanates from an
extrajudicial source as distinguished from a judicial source, i.e. court proceedings. The alleged
personal bias or prejudice must arise out of the judge’s background and associations, and not from
the judge’s views and opinions of the law. Youn, 324 F.3d at 423; Ullmo, 273 F.3d at 681;
Consolidated Rail Corp., 170 F.3d at 597; Green, 111 F.3d at 1303-04; United States v. Story, 716
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F.2d 1088, 1090-91 (6th Cir. 1983). Plaintiff Gresham cannot make the requisite showing of
personal bias or prejudice necessary for disqualification based on an extrajudicial source merely by
arguing that Magistrate Judge Greeley and District Judge Edgar have made, what Gresham believes
to be, erroneous or incorrect judicial decisions.
Judicial rulings alone almost never constitute a valid basis to disqualify a judge. Only in the
rarest of circumstances will a judicial decision evidence the degree of personal bias, animosity, or
prejudice required for disqualification when no extrajudicial source is involved. Almost invariably,
judicial decisions may be appealed to a higher court but they are not a proper basis for
disqualification under 28 U.S.C. § 455. Liteky, 510 U.S. at 555; Wilson v. Parker, 515 F.3d 682, 701
(6th Cir. 2008); United States v. Hynes, 467 F.3d 951, 960 (6th Cir. 2006); Price v. Caruso, 2009
WL 4823868, * 2 (W.D. Mich. Dec. 9, 2009); United States v. White, 2009 WL 2923729, * 1 (W.D.
Mich. Sept. 10, 2009); Burnett v. Lyon, 2007 WL 1284940, * 1 (W.D. Mich. April 30, 2007).
An opinion formed by a judge on the basis of facts introduced or events occurring in the
course of judicial proceedings does not constitute a valid basis for a motion to disqualify unless the
judge’s opinion displays a deep-seated favoritism or antagonism that would make fair judgment
impossible. Judicial remarks and comments that are critical or disapproving of, or even hostile to,
a party or to a party’s case ordinarily do not support a motion to disqualify a judge on the ground of
personal bias or prejudice. Liteky, 510 U.S. at 555; Alley v. Bell, 307 F.3d 380, 388 (6th Cir. 2002);
Warfield v. Lebanon Correctional Inst., 181 F.3d 723, 731 (6th Cir. 1999); Green, 111 F.3d at 130304; White, 2009 WL 2923729, at * 2.
Plaintiff Gresham completely fails to demonstrate that Magistrate Judge Greeley and District
Judge Edgar harbor a personal bias or prejudice against him emanating from an extrajudicial source.
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Gresham has not presented any facts that would support a federal judge’s disqualification or recusal
under 28 U.S.C. § 455. An objectively reasonable person viewing the record in this case could not
believe that Magistrate Judge Greeley and District Judge Edgar are personally biased against
Gresham or personally biased in favor of the defendants.
The orders and decisions rendered by Magistrate Judge Greeley and District Judge Edgar in
this case do not contain any improper comments or hostile remarks that display a deep-seated
personal bias, prejudice, or antagonism against Gresham that would make fair and impartial
judgment impossible. Gresham may subjectively believe that Magistrate Judge Greeley and District
Judge Edgar are biased against him. However, Magistrate Judge Greeley and District Judge Edgar
need not disqualify or recuse themselves based merely on the subjective views of Gresham.
Sammons, 918 F.2d at 599; Browning, 837 F.2d at 279.
VIII. Motion for Jury Trial
Gresham makes a repetitive request for a jury trial rather than a bench trial. This request is
DENIED. Gresham failed to make a timely demand for a jury trial as required by Fed. R. Civ. P. 38.
Because Gresham did not comply with Rule 38, he waived his right to a jury trial.
Gresham argues that a jury trial is necessary because he believes that Magistrate Judge
Greeley and District Judge Edgar are biased against Gresham and biased in favor of the defendants.
This argument fails. There are no facts and probative proof showing any such alleged bias on the
part of Magistrate Judge Greeley and District Judge Edgar.
IX.

Conclusion
All of the plaintiff’s objections to the report and recommendation [Court Doc. Nos. 172, 173]

are DENIED. For the reasons expressed in this memorandum and order, the Court ACCEPTS and
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ADOPTS the Magistrate Judge’s report and recommendation [Court Doc. No. 166] pursuant to 28
U.S.C. § 636(b)(1) and W.D. Mich. LCivR 72.3(b). Plaintiff Gresham’s multi-part motion [Court
Doc. No. 143] is DENIED in its entirety.
SO ORDERED.
Date: July 31, 2012.

/s/ R. Allan Edgar
R. ALLAN EDGAR
UNITED STATES DISTRICT JUDGE

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