Belser #352904 v. James et al
Filing
5
OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
MARVIN BELSER,
Plaintiff,
Case No. 2:15-cv-199
v.
Honorable Robert Holmes Bell
BRENDA JAMES,
Defendants.
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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 Huss and Giesen. The Court will serve the complaint against
Defendants James, Austin, Rose, Miliko, Caron, and Napel.
Discussion
I.
Factual allegations
Plaintiff Marvin Belser, a Michigan state prisoner currently confined at the Marquette
Branch Prison (MBP), filed this pro se civil rights action pursuant to 42 U.S.C. § 1983. In his
complaint, Plaintiff names Health Care Unit Manager Brenda James, Dr. James Austin, D.O., Nurse
Practitioner Angela Rose, Steve Miliko, L.P.N., Grievance Coordinator Glenn Caron, Warden
Robert Napel, Deputy Warden Erica Huss, and Assistant Resident Unit Supervisor K. Giesen.
Plaintiff alleges that prior to his transfer to MBP, MDOC medical personnel took his
personal electric wheelchair and gave it to another inmate who was being discharged. MDOC
officials also lost his O2 concentrator. Plaintiff was given a non-electric wheelchair, but that chair
was taken away from Plaintiff on March 1, 2014, which forced Plaintiff to crawl on the floor in order
to get around his cell. Plaintiff was transferred to MBP and arrived at the prison in a wheelchair on
October 7, 2014. Plaintiff was met by Defendant James, who informed him that he would not be
allowed to keep the wheelchair. Plaintiff was taken to a level 5 segregation unit and was forced to
crawl from the wheelchair into the cell while in full restraints.
Plaintiff asserts that he cannot move his left side, has constant pain in his spine, neck,
chest, and left foot, that his left eye is closed, and that he is being denied pain medication and nitro
tablets. Plaintiff has not been allowed a shower since March 1, 2014. Plaintiff was attacked by three
inmates after asking for protective custody. Plaintiff’s condition has continued to worsen, making
it difficult for him to speak and see.
Plaintiff has written several grievances to Defendant Caron. On October 13, 2014,
Defendant Caron met with Plaintiff regarding grievance identifier MBP 2014-10-1807-12DI, and
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told Plaintiff to sign off on the grievance because nothing was going to be done. Defendant Austin
saw Plaintiff regarding his health issues and wrote Plaintiff a prescription for a pain medication,
telling Plaintiff that nothing more would be done.
Plaintiff alleges that Defendant Rose told him that his medication would be stopped
if he did not comply with her orders. Defendant Rose told Plaintiff that if he got up, he would be
sent to an assisted living facility, despite knowing that Plaintiff was unable to stand or walk. All of
Plaintiff’s prescribed pain medications were discontinued, as well as some of his other medications.
Defendant Miliko refused to order pain medications for Plaintiff after they had been prescribed by
the doctor. Plaintiff further states that in 2008, he observed Defendant Miliko pour urine in his
beverage and put urine in his insulin. Consequently, Plaintiff does not trust anyone who works in
health services.
Plaintiff alleges that Defendant Caron refuses to process any of Plaintiff’s grievances.
Defendant Giesen told Plaintiff that all of his personal property would be destroyed. Over $2000.00
in Plaintiff’s property was destroyed. Plaintiff sent kites to Defendants Napel and Huss, but received
no response. Defendant Napel came to Plaintiff’s cell and Plaintiff explained that he could not stand
or walk and was forced to crawl and sleep on the floor near the toilet to change his incontinent
garments. However, Defendant Napel took no corrective action.
Plaintiff claims that Defendants violated his rights under the First and Eighth
Amendments, as well as under state law. Plaintiff seeks damages and equitable relief.
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.
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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
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).
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Plaintiff’s sole claim against Defendant Giesen is that she told him that all of his
personal property would be destroyed by staff, and his property was subsequently destroyed. To the
extent that Plaintiff is claiming that Defendant Giesen violated his due process rights, this claim is
properly dismissed. Plaintiff’s due process claim is barred by the doctrine of Parratt v. Taylor, 451
U.S. 527 (1981), overruled in part by Daniels v. Williams, 474 U.S. 327 (1986). Under Parratt, a
person deprived of property by a “random and unauthorized act” of a state employee has no federal
due process claim unless the state fails to afford an adequate post-deprivation remedy. If an adequate
post-deprivation remedy exists, the deprivation, although real, is not “without due process of law.”
Parratt, 451 U.S. at 537. This rule applies to both negligent and intentional deprivation of property,
as long as the deprivation was not done pursuant to an established state procedure. See Hudson v.
Palmer, 468 U.S. 517, 530-36 (1984). Because Plaintiff’s claim is premised upon allegedly
unauthorized acts of a state official, he must plead and prove the inadequacy of state post-deprivation
remedies. See Copeland v. Machulis, 57 F.3d 476, 479-80 (6th Cir. 1995); Gibbs v. Hopkins, 10
F.3d 373, 378 (6th Cir. 1993). Under settled Sixth Circuit authority, a prisoner’s failure to sustain
this burden requires dismissal of his § 1983 due-process action. See Brooks v. Dutton, 751 F.2d 197
(6th Cir. 1985).
Plaintiff has not sustained his burden in this case. Plaintiff’s claim regarding the
destruction of his property is entirely conclusory and unsupported by specific factual allegations.
Plaintiff has not alleged that state post-deprivation remedies are inadequate. Moreover, numerous
state post-deprivation remedies are available to him. First, a prisoner who incurs a loss through no
fault of his own may petition the institution’s Prisoner Benefit Fund for compensation. MICH. DEP’T
OF CORR., Policy Directive 04.07.112, ¶
B (effective Dec. 12, 2013). Aggrieved prisoners may also
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submit claims for property loss of less than $1,000 to the State Administrative Board. MICH. COMP.
LAWS § 600.6419; MDOC Policy Directive 03.02.131 (effective Oct. 21, 2013). Alternatively,
Michigan law authorizes actions in the Court of Claims asserting tort or contract claims “against the
state and any of its departments, commissions, boards, institutions, arms, or agencies.” MICH. COMP.
LAWS § 600.6419(1)(a). The Sixth Circuit specifically has held that Michigan provides adequate
post-deprivation remedies for deprivation of property. See Copeland, 57 F.3d at 480. Plaintiff does
not allege any reason why a state-court action would not afford him complete relief for the
deprivation, either negligent or intentional, of his personal property. Accordingly, Plaintiff’s claims
against Defendant Giesen will be dismissed.
With regard to Defendant Huss, Plaintiff merely alleges that she failed to respond to
a kite. Liability under Section 1983 must be based on more than merely the right to control
employees. Polk Co. v. Dodson, 454 U.S. 312, 325-26 (1981); Monell v. New York City Department
of Social Services, 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, 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, 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
that this failure resulted in a denial or deprivation of plaintiff’s federal rights. See e.g. Leach, 891
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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 (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 Defendant Huss was personally
involved in the activity which forms the basis of his claim. The only role that Defendant Huss had
in this action involved the denial of administrative grievances or the failure to act. Defendant Huss
cannot be liable for such conduct under § 1983. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir.
1999), cert. denied, 530 U.S. 1264 (2000). Accordingly, the Court concludes that Plaintiff’s claims
against Defendant Huss are properly dismissed for lack of personal involvement.
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With regard to Plaintiff’s claim that Defendant Miliko put urine in his beverages and
insulin in 2008, this claim is untimely. State statutes of limitations and tolling principles apply to
determine the timeliness of claims asserted under 42 U.S.C. § 1983. Wilson v. Garcia, 471 U.S. 261,
268-69 (1985). For civil rights suits filed in Michigan under § 1983, the statute of limitations is
three years. See MICH. COMP. LAWS § 600.5805(10); Carroll v. Wilkerson, 782 F.2d 44, 44 (6th
Cir.1986) (per curiam); Stafford v. Vaughn, No. 97-2239, 1999 WL 96990, at *1 (6th Cir. Feb. 2,
1999). Accrual of the claim for relief, however, is a question of federal law. Collyer v. Darling, 98
F.3d 211, 220 (6th Cir. 1996); Sevier v. Turner, 742 F.2d 262, 272 (6th Cir. 1984). The statute of
limitations begins to run when the aggrieved party knows or has reason to know of the injury that
is the basis of his action. Collyer, 98 F.3d at 220.1
Plaintiff alleges that he observed Defendant Miliko placing urine in his beverages and
insulin in 2008. Plaintiff had reason to know of the “harms” done to him at the time they occurred.
Hence, his claims accrued in 2008. However, he did not file his complaint until December of 2015,
well past Michigan’s three-year limit. Moreover, Michigan law no longer tolls the running of the
statute of limitations when a plaintiff is incarcerated. See MICH. COMP. LAWS § 600.5851(9).
Further, it is well established that ignorance of the law does not warrant equitable tolling of a statute
of limitations. See Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991); Jones v. Gen. Motors Corp.,
939 F.2d 380, 385 (6th Cir. 1991); Mason v. Dep’t of Justice, No. 01-5701, 2002 WL 1334756, at
*2 (6th Cir. June 17, 2002).
1
28 U.S.C. § 1658 created a “catch-all” limitations period of four years for civil actions arising under federal
statutes enacted after December 1, 1990. The Supreme Court’s decision in Jones v. R.R. Donnelley & Sons Co., 541 U.S.
369 (2004), which applied this federal four-year limitations period to a suit alleging racial discrimination under § 1981
does not apply to prisoner claims under 28 U.S.C. § 1983 because, while § 1983 was amended in 1996, prisoner civil
rights actions under § 1983 were not “made possible” by the amended statute. Id. at 382.
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A complaint “is frivolous where it lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint may be dismissed as frivolous if it is
time-barred by the appropriate statute of limitations. See Dellis v. Corr. Corp. of Am., 257 F.3d 508,
511 (6th Cir. 2001). The Sixth Circuit has repeatedly held that when a meritorious affirmative
defense based upon the applicable statute of limitations is obvious from the face of the complaint,
sua sponte dismissal of the complaint is appropriate. See Dellis, 257 F.3d at 511; Beach v. Ohio, No.
03-3187, 2003 WL 22416912, at *1 (6th Cir. Oct. 21, 2003); Castillo v. Grogan, No. 02-5294, 2002
WL 31780936, at *1 (6th Cir. Dec. 11, 2002); Duff v. Yount, No. 02-5250, 2002 WL 31388756, at
*1-2 (6th Cir. Oct. 22, 2002); Paige v. Pandya, No. 00-1325, 2000 WL 1828653 (6th Cir. Dec. 5,
2000). Accordingly, Plaintiff’s claim that Defendant Miliko placed urine in his beverages and
insulin in 2008 must be dismissed as frivolous.
Plaintiff claims that Defendants violated his First Amendment right to be free from
retaliation. Retaliation based upon a prisoner’s exercise of his or her constitutional rights violates
the Constitution. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). In order
to set forth a First Amendment retaliation claim, a plaintiff must establish that: (1) he was engaged
in protected conduct; (2) an adverse action was taken against him that would deter a person of
ordinary firmness from engaging in that conduct; and (3) the adverse action was motivated, at least
in part, by the protected conduct. Id. Moreover, a plaintiff must be able to prove that the exercise
of the protected right was a substantial or motivating factor in the defendant’s alleged retaliatory
conduct. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001) (citing Mount Healthy City
Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).
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In this case, Plaintiff makes a conclusory assertion that Defendants retaliated against
him. Plaintiff states that he filed grievances, which is constitutionally protected conduct for which
a prisoner cannot be subjected to retaliation. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir.
2001); Hall v. Nusholtz, No. 99-2442, 2000 WL 1679458, at *2 (6th Cir. Nov. 1, 2000); Burton v.
Rowley, No. 00-1144, 2000 WL 1679463, at *2 (6th Cir. Nov. 1, 2000). However, Plaintiff fails to
allege any specific facts in support of his claim that Defendants’ conduct was motivated by a desire
to retaliate against him for his use of the grievance procedure. Temporal proximity “may be
‘significant enough to constitute indirect evidence of a causal connection so as to create an inference
of retaliatory motive.’” Muhammad v. Close, 379 F.3d 413, 417-18 (6th Cir. 2004) (quoting DiCarlo
v. Potter, 358 F.3d 408, 422 (6th Cir. 2004)). However, “[c]onclusory allegations of temporal
proximity are not sufficient to show a retaliatory motive.” Skinner v. Bolden, 89 F. App’x 579, 580
(6th Cir. 2004).
Moreover, Muhammad does not stand for the proposition that temporal proximity
alone is sufficient to create an issue of fact as to retaliatory motive.
In Muhammad the Sixth Circuit did not resolve the issue, but merely
observed that “temporal proximity alone may be ‘significant enough
to constitute indirect evidence of a causal connection so as to create
an inference of retaliatory motive.’” Id. at 418 (quoting DiCarlo v.
Potter, 358 F.3d 408, 422 (6th Cir.2004) (emphasis added). Even if
temporal proximity may in some cases create an issue of fact as to
retaliatory motive, it would only be sufficient if the evidence was
“significant enough.” Plaintiff’s conclusory and ambiguous evidence
is not “significant enough” to create an issue of fact as to retaliatory
motive.
Brandon v. Bergh, 2010 WL 188731, slip op. at 1 (W.D. Mich., Jan. 16, 2010). The court concludes
that Plaintiff’s retaliation claims are properly dismissed.
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With regard to Plaintiff’s state law claims, the court notes that claims under§ 1983
can only be brought for “deprivation of rights secured by the constitution and laws of the United
States.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982). Section 1983 does not provide
redress for a violation of a state law. Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir. 1995); Sweeton
v. Brown, 27 F.3d 1162, 1166 (6th Cir. 1994). Plaintiff’s assertion that Defendants violated state
law therefore fails to state a claim under § 1983. Moreover, to the extent that Plaintiff seeks to
invoke this Court’s supplemental jurisdiction over a state-law claim, the Court declines to exercise
jurisdiction. In determining whether to retain supplemental jurisdiction, “[a] district court should
consider the interests of judicial economy and the avoidance of multiplicity of litigation and balance
those interests against needlessly deciding state law issues.” Landefeld v. Marion Gen. Hosp., Inc.,
994 F.2d 1178, 1182 (6th Cir. 1993). Ordinarily, where a district court has exercised jurisdiction
over a state-law claim solely by virtue of supplemental jurisdiction and the federal claims are
dismissed prior to trial, the court will dismiss the remaining state-law claims. Id. Dismissal,
however, remains “purely discretionary.” Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639
(2009) (citing 28 U.S.C. § 1367(c)); Orton v. Johnny’s Lunch Franchise, LLC, 668 F.3d 843, 850
(6th Cir. 2012). Here, the balance of the relevant considerations weighs against the continued
exercise of supplemental jurisdiction. Accordingly, Plaintiff’s state-law claim will be dismissed
without prejudice.
Finally, the court notes that Plaintiff’s Eighth Amendment claims against Defendants
James, Austin, Rose, Miliko, Caron, and Napel are nonfrivolous and are not properly dismissed upon
initial review.
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Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Defendants Huss and Giesen 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), as will Plaintiff’s retaliation
claims against Defendants James, Austin, Rose, Miliko, Caron, and Napel. In addition, Plaintiff’s
claim that Defendant Miliko placed urine in his beverages and insulin in 2008 are barred by the
statute of limitations. The Court will serve the complaint against Defendants James, Austin, Rose,
Miliko, Caron, and Napel with regard to Plaintiff’s Eighth Amendment claims against them.
An Order consistent with this Opinion will be entered.
Dated: January 26, 2016
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
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