Ghee #497729 v. Woods et al
Filing
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OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
KENNETH GHEE,
Plaintiff,
v.
Case No. 2:12-cv-446
Honorable Gordon J. Quist
JEFFREY WOODS, 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 Howes, Hubbard, Mackie, and Horton, and the Michigan
Department of Corrections. In addition, because “John Doe” Defendants cannot be identified or
served, they are not proper parties to this action. The Court will serve the complaint against
Defendants Woods.
Discussion
I.
Factual allegations
Plaintiff Kenneth Ghee II, a state prisoner currently confined to the Alger Maximum
Correctional Facility (LMF), filed this civil rights action pursuant to 42 U.S.C. § 1983 against
Defendants Warden Jeffrey Woods, Inspector Larry Howes, Inspector P. Hubbard, Deputy Warden
T. Mackie, Deputy Warden Unknown Horton, and the Michigan Department of Corrections. In
Plaintiff’s complaint, he alleges that while he was in segregation, Defendant Woods and other staff
members were notified that Plaintiff would be assaulted by Robert Bell upon Plaintiff’s release from
segregation. On June 12, 2012, Plaintiff was released from segregation and stabbed several times
in the big yard. As a result, Plaintiff suffered a broken nose, a concussion, and several lacerations.
Officers in the yard failed to prevent or stop the assault. Plaintiff seeks damages.
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 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 678. 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,
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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
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); 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).
Liability under Section 1983 must be based on more than merely the right to control
employees. Polk Cnty. v. Dodson, 454 U.S. 312, 325-26 (1981); Monell v. New York City Dep’t of
Soc. Servs., 436 U.S. 658 (1978). Thus, Section 1983 liability cannot be premised upon mere
allegations of respondeat superior. Monell, 436 U.S. at 691; Polk Cnty., 454 U.S. at 325. A party
cannot be held liable under Section 1983 absent a showing that the party personally participated in,
or otherwise authorized, approved or knowingly acquiesced in, the allegedly unconstitutional
conduct. See, e.g., Leach v. Shelby Co. Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989), cert. denied,
495 U.S. 932 (1990); Hays v. Jefferson Cnty., Ky., 668 F.2d 869, 874 (6th Cir.), cert. denied, 459
U.S. 833 (1982). See also Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.), cert. denied, 469 U.S.
845 (1984).
Supervisory officials can be held liable for the acts of their subordinates only if
plaintiff establishes that the supervisor failed to appropriately discharge his supervisory duties, and
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that this failure resulted in a denial or deprivation of plaintiff’s federal rights. See, e.g., Leach, 891
F.2d at 1246; Hayes v. Vessey, 777 F.2d 1149, 1154 (6th Cir. 1985). However, the failure of a
supervisor to supervise, control or train the offending employee is not actionable absent a showing
that the official implicitly encouraged, authorized, approved or knowingly acquiesced in, or in some
other way directly participated in, the offensive conduct. Leach, 891 F.2d at 1246. Such a claim
requires, at a minimum, that the official had knowledge of the offending employee’s conduct at a
time when the conduct could be prevented, or that such conduct was otherwise foreseeable or
predictable. See, e.g., Gibson v. Foltz, 963 F.2d 851, 854 (6th Cir. 1992). In addition, plaintiff must
show that defendant had some duty or authority to act. See, e.g., Birrell v. Brown, 867 F.2d 956, 959
(6th Cir. 1989) (lower level official not liable for shortcomings of building); Ghandi v. Police Dept.
of City of Detroit, 747 F.2d 338, 351 (6th Cir. 1984) (mere presence at the scene is insufficient
grounds to impose Section 1983 liability in the absence of a duty to act); accord Hall v. Shipley, 932
F.2d 1147, 1154 (6th Cir. 1991). In addition, merely bringing a problem to the attention of a
supervisory official is not sufficient to impose such liability. See Shelly v. Johnson, 684 F. Supp.
941, 946 (W.D. Mich. 1987) (Hillman, C.J.), aff’d, 849 F.2d 228 (6th Cir. 1988). Finally,
supervisory liability claims cannot be based on simple negligence. Leach, 891 F.2d at 1246; Weaver
v. Toombs, 756 F. Supp. 335, 337 (W.D. Mich. 1989), aff’d, 915 F.2d 1574 (6th Cir. 1990).
Plaintiff has not alleged facts establishing that Defendants Howes, Hubbard, Mackie,
and Horton were personally involved in the activity which forms the basis of his claim. In fact,
Plaintiff fails to even mention Defendants Howes, Hubbard, Mackie, and Horton in the body of his
complaint. Accordingly, the Court concludes that Plaintiff’s claims against Defendants Howes,
Hubbard, Mackie, and Horton are properly dismissed for lack of personal involvement.
In addition, Plaintiff may not maintain a § 1983 action against the Michigan
Department of Corrections. Regardless of the form of relief requested, the states and their
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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. 1994).
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. See, e.g., McCoy v. Michigan, 369 F. App’x 646, 653-54 (6th Cir. Mar. 12,
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 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, 617 (2002) (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989)). Therefore,
the Court dismisses the Michigan Department of Corrections.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Defendants Howes, Hubbard, Mackie, and Horton, and the Michigan Department
of Corrections 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 Defendant Woods.
An Order consistent with this Opinion will be entered.
Dated: July 10, 2013
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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