Irvin #305352 v. Owens et al

Filing 4

OPINION ; signed by Judge R. Allan Edgar (EDTN Judge R. Allan Edgar, cam)

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

BENNIE IRVIN, Plaintiff, v. UNKNOWN OWENS et al., Defendants. ____________________________________/ 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 C. Linhart and Jeannie Stephenson. The Court will serve the complaint against Defendants Unknown Owens and B. Rosebrock. Case No. 2:10-cv-18 Honorable R. Allan Edgar

Discussion I. Factual allegations

Plaintiff currently is incarcerated at Chippewa Correctional Facility (URF). In his pro se complaint, he sues the following URF employees: doctor unknown Owens, dentist C. Linhart, and nurses Jeannie Stephenson and B. Rosebrock. He alleges that he saw Dr. Owens on July 16, 2009 regarding pain that was being caused by his wisdom tooth. He received a cursory examination by Defendant Owens and was told to kite if he had further problems. Plaintiff submitted a kite the next day stating that the pain from his tooth had become unbearable. Defendant Rosebrock responded and told Plaintiff to rekite if it became infected or swollen. Plaintiff then filed a grievance regarding his lack of medical treatment. Step I was denied by Defendant Linhart. Plaintiff appealed to Step II, which was denied by Defendant Stephenson. He appealed to Step III, but does not attach a response. Plaintiff alleges that he is still in pain from his tooth. (Compl. at 4, docket #1.) For relief, Plaintiff requests to have his tooth removed and monetary damages for his pain and suffering. 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, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (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, 129 S. Ct. 1937, 1949 (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

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"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." Ashcroft, 129 S. Ct. at 1949. 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." Ashcroft, 129 S. Ct. at 1949 (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." Ashcroft, 129 S. Ct. at 1950 (quoting FED. R. CIV. P. 8(a)(2)). 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). Plaintiff's only allegations against Defendants Linhart and Stephenson are that they improperly denied his grievance. The Sixth Circuit held that where the defendant's only

involvement in the allegedly unconstitutional conduct is "the denial of administrative grievances or the failure to act," the defendant cannot be liable under § 1983. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). The reason is that there must be active unconstitutional behavior. Failing to intervene on a prisoner's behalf to remedy alleged unconstitutional behavior does not amount to active unconstitutional behavior by a person who merely denies an administrative grievance. Id.

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Also, in unpublished decisions, the Sixth Circuit has held that a prisoner's allegation that a defendant improperly denied a grievance is not a claim of constitutional dimension because there is "no inherent constitutional right to an effective prison grievance procedure." See Overholt v. Unibase Data Entry, Inc., No. 98-3302, 2000 WL 799760, at *3 (6th Cir. June 14, 2000); Lyle v. Stahl, No. 97-2007, 1998 WL 476189, at *1 (6th Cir. Aug. 3, 1998); see also Wynn v. Wolf, No. 932411, 1994 WL 105907, at *1 (6th Cir. Mar. 28, 1994) (no constitutional right to a grievance procedure). The Sixth Circuit has only found that there is a constitutional right not to be retaliated against for having filed a nonfrivolous grievance. See Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000); Shehee, 199 F.3d at 301. However, Plaintiff does not allege retaliation. In light of the foregoing authority, Plaintiff's allegation that Defendants Linhart and Stephenson improperly denied his grievance and grievance appeal fails to state a claim of constitutional dimension. Plaintiff's claims against Defendants Owens and Rosebrock are sufficient to state a claim for denial of medical care in violation of the Eighth Amendment. Conclusion Having conducted the review now required by the Prison Litigation Reform Act, the Court determines that Defendants Linhart and Stephenson 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 Owens and Rosebrock. An Order consistent with this Opinion will be entered.

Dated:

3/9/2010

/s/ R. Allan Edgar R. Allan Edgar United States District Judge

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