Belser #352904 v. Woods et al

Filing 31

OPINION; Plaintiff's claims against Giesen, Huss, McLean, Theut, and Falk will bedismissed; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

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

MARVIN BELSER, et al.,
Plaintiff,

Case No. 2:16-cv-134

v.

Honorable Paul L. Maloney

JEFF 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 Giesen, Huss, and McLean, Theut, and Falk. The Court will
serve the complaint against Defendants Ormsbee, Woods, Isard, Horton, Baldino, and Goldberg.

Discussion
I.

Factual allegations

Plaintiff Marvin Belser, a state prisoner currently incarcerated at the Carson City
Correctional Facility, filed this case on June 6, 2016. On August 4, 2016, the Court dismissed
Plaintiff’s claims against Defendants Woods, Horton, Isard, Goldberg, Baldino, and McLean for
failure to state a claim. However, the Court ordered service on Defendants Canias, Laplunt, Brown,
Filion, and Hatfield with regard to Plaintiff’s Eighth Amendment claims against them. See ECF
Nos. 12 and 13. Following the order for service, Plaintiff filed two motions to supplement his
complaint to include new claims. See ECF Nos. 5 and 18. On September 15, 2016, the Court denied
Plaintiff’s motions. The Court also instructed Plaintiff to file an amended complaint on the proper
form, including all the Defendants that Plaintiff intended to sue and all the claims that he intended
to raise. See ECF No. 23. On September 29, 2016, Plaintiff filed his amended complaint. See ECF
No. 26.
In the amended complaint, Plaintiff names multiple individuals as plaintiffs in
addition to himself, including Precious Rene Belser (Roby), Marvin Belser, Jr., Latrina Marie Belser,
Genesis Lashette Underwood, and Elijah LaMarvin Underwood. Plaintiff also names all of the
Defendants previously named in this case, including those Defendants who were dismissed by the
Court on August 4, 2016. Finally, Plaintiff names Sergeant Unknown Ormsbee, Hearing Officer
Unknown Theut, Assistant Resident Unit Supervisor K. Giesen, Deputy Warden Erica Huss, and Dr.
Derek Falk as new Defendants in this case.
In Plaintiff’s original complaint, he set forth the following allegations:
Plaintiff arrived to prison in his personal electric wheelchair on July 28, 2006.
PageID.10. A few weeks later, Plaintiff was taken to the hospital for chest pain and
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difficulty breathing. PageID.10. When Plaintiff returned to the prison, the nurse told
Plaintiff that another inmate who had been discharged from prison mistakenly took
Plaintiff’s personal electric wheelchair. PageID.10. Some of Plaintiff’s other property
was missing too, such as a cushion. PageID.10. These items were never returned.
In addition, Plaintiff has a Child Protective Services case that is documented
in the Michigan Department of Corrections (MDOC) computer system, which
includes his name and his children’s names. PageID.5. Plaintiff contends that he did
not consent to this case being available through the law library or MDOC computer
system. PageID.5. Plaintiff has asked the law library supervisor (Defendant
Goldberg) over twenty times to take his case off of the MDOC computers, but he has
not done so. PageID.5. Plaintiff believes that having his, as well as his children’s,
personal information on the MDOC computers has placed himself and his children
in danger. PageID.5. For instance, Plaintiff indicated that he was attacked by inmates,
thrown from his wheelchair, hit in the head from behind, harassed by prison staff, and
denied medical attention by Defendants Canias, Laplunt, Filion, Hatfield, and Brown.
PageiD.5.
Moreover, Defendants Canias, Laplunt, Filion, Hatfield, and Brown would
laugh at Plaintiff and tell him that he had nothing wrong with him despite Plaintiff’s
several kites and requests for medical attention. PageID.5. Plaintiff stated that he
requires “nitrotapps, incontinate [sic] garments, transfer board, shower chair,
replacement velcro shoes, air mattress, singal [sic] cell detail, P.T. on aide to assist
detail and to be transferred to a medically assistant [sic] living facility because [he]
cant [sic] stand or walk,” for example, but is not receiving them. PageID.5.
On March 1, 2014, while housed at Chippewa Correctional Facility, Plaintiff
was attacked by three inmates. PageID.5-6. After this incident, when Plaintiff had
returned back to his cell, he was attacked again by three more inmates. PageID.6.
These attacks resulted in Plaintiff being unable to stand, walk, move his left side,
open his left eye, or speak clearly, and he also had pain in his spine, neck, and right
foot. PageID.6. As a result of this incident, Plaintiff requested that he be placed in
protective custody. PageID.6.
From March 1, 2014, through March 20, 2016, Plaintiff was told by doctors
at Chippewa that he needed a wheelchair. PageID.7. So, Plaintiff was provided a nonelectric wheelchair and special details. PageID.7. However, Plaintiff states that while
at Chippewa Correctional Facility, Plaintiff’s wheelchair, medical equipment, and
medical details were taken away from him. PageID.6. From March 29 through April
1, 2014, Plaintiff was at the War Memorial hospital because he was having chest
pains and difficulty breathing. PageID.6. Plaintiff stated that the physician at the
hospital had made arrangements for Plaintiff to be sent to a medically assisted living
facility, for which the Chippewa medical staff agreed to make arrangements, but
never did. PageID.6.
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Plaintiff was discharged from the hospital on April 1, 2014. PageID.6. Two
officers came to the hospital to pick up Plaintiff and transfer him back to the
Chippewa facility. PageID.6. While at the hospital, the two officers ordered that
Plaintiff stand and dress himself before they left. PageID.6. Plaintiff told them that
he could not do that without help, but the officers refused to help Plaintiff. PageID.6.
Sergeant Ormsbee eventually told the two officers to not worry about Plaintiff putting
his clothes on, and to put Plaintiff in full restraints. PageID.6. The officers then
helped Plaintiff off of the hospital bed and put him into a wheelchair. PageID.7. The
officers took Plaintiff outside to the transport van, at which time Sergeant Ormsbee
told Plaintiff to get out of the wheelchair and enter the van, or else he would be tased
pursuant to orders from Defendant Woods. PageID.7. Sergeant Ormsbee tased
Plaintiff in the chest twice, which caused Plaintiff to pass out. PageID.7. When he
woke up, Plaintiff was naked and being pulled out of the transport van by two
officers and placed in a wheelchair. PageID.7.
On May 6, 2014, Plaintiff was transferred to Baraga Maximum Facility.
PageID.7. There, he was forced to “crawl on the floor and ground to move around”
his cell and the facility. PageID.7. On May 25, 2016, Plaintiff was transferred back
to the Chippewa Correctional Facility. PageID.7. When he arrived back to Chippewa,
he asked Officer Smith to place him in protective custody, but she said that Sergeant
Ormsbee needed to approve this type of request. PageID.7. Sergeant Ormsbee denied
Plaintiff’s request to be placed in protective custody. PageID.7. Instead, Plaintiff was
placed back in the same unit where he was attacked in March of 2014. PageID.7.
However, officers told Plaintiff that Defendants Woods, Horton, and Isard stated that
Plaintiff should speak up if he is having problems there. PageID.8.
In addition, after his transfer back to the Chippewa facility, Plaintiff requested
a single cell due to his wheelchair needs and incontinence issues. PageID.8.
However, Plaintiff’s request was denied. PageID.8. On May 5, 2016, Plaintiff was
assigned a “bunky.” PageID.8. Plaintiff caught his bunky stealing Plaintiff’s personal
property; however, the bunky stated that he would physically harm Plaintiff if
Plaintiff told the staff about his stealing. PageID.8. The bunky harassed Plaintiff and
made fun of his medical issues, too. PageID.8. Plaintiff fears for his life. PageID.8.
On May 6, 2016, Plaintiff requested that he be placed in protective custody
again. PageID.8. After this request, Plaintiff was placed in segregation while his
request was pending. PageID.8. That same day, Plaintiff was interviewed by the
Security Classification Committee to determine whether he should be placed in
protective custody. PageID.8. The committee concluded that Plaintiff should return
to the cell he was originally assigned to, and that if he did not return there, he would
be issued a Class I misconduct ticket for disobeying a direct order. PageID.8. In
response to this order, Plaintiff told the hearing officer (Mr. Theut) that he was in fear
for his life, and that he could not defend himself. PageID.8. Plaintiff was then issued
a misconduct ticket, for which he was later found guilty and sanctioned to five days
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in segregation. PageID.8. Similarly, on May 21, 2016, Plaintiff received another
misconduct ticket for disobeying a direct order. PageID.8. Plaintiff asserts that this
denial of protective custody constitutes a claim for failure to protect under the Eighth
Amendment. PageID.8.
Moreover, for three years, Plaintiff has not been able to brush his teeth
because his long-handled toothbrush was taken by MDOC staff while he was housed
at Marquette Branch Prison. PageID.9. Defendant Baldino has refused to renew
Plaintiff’s detail for a long-handled toothbrush. PageID.9. Plaintiff has tried to use
a standard toothbrush, but he cannot use it well because he lost the feeling in his right
hand. PageID.9.
In addition, after Plaintiff was transferred back to Chippewa prison, his
personal property was lost. PageID.9. Plaintiff has asked several officers and written
many grievances regarding this issue, but he has not received any sort of positive
responses. PageID.9. In addition, Plaintiff could not exhaust his administrative
remedies relating to some other issues because Defendant McLean (the grievance
coordinator) did not provide some of Plaintiff’s grievances identifier numbers or did
not reply to or send a Step II responses for certain grievances. PageID.9-10.
Finally, Plaintiff asserts that Defendant Goldberg has improperly told the law
librarians not to respond to any of Plaintiff’s kites. PageID.10. Based on all of these
occurrences, Plaintiff alleges that Defendants violated his constitutional rights.
See ECF No. 12, PageID.70 - PageID.74.
In Plaintiff’s amended complaint, he reasserts his claims against Defendants Canias,
Laplunt, Brown, Filion, and Hatfield. In addition, Plaintiff reasserts his allegations against Sergeant
Ormsbee, who he now includes as a Defendant. Plaintiff claims that on October 7, 2014, Defendant
Giesen destroyed over $2000.00 worth of Plaintiff’s personal property and told Plaintiff that she did
not care that he was being forced to crawl on the floor because it was what he deserved as a result
of his case with child protective services (CPS). Defendant Huss also told Plaintiff that he did not
deserve a wheelchair because of his CPS case. Plaintiff alleges that Defendant Falk examined
Plaintiff twice and refused to do anything for him.

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Plaintiff alleges that on March 20, 2016, he was transferred to the Baraga Correctional
Facility (AMF). A doctor at AMF gave Plaintiff a detail for a wheelchair beginning on March 23,
2016, and running until March 23, 2017. Plaintiff was subsequently transferred to Chippewa
Correctional Facility (URF). As noted above, when Plaintiff arrived at URF, Defendant Ormsbee
denied Plaintiff’s request for barrier free / wheelchair accessible / handicap cell, as well as for
protective custody, and placed Plaintiff on the same wing where he had previously been attacked.
Plaintiff alleges in his amended complaint that Dr. Pohn informed custody staff at URF that Plaintiff
could not stand or walk and that Plaintiff should be sent to a medically assisted living facility.
Defendant Ormsbee also told Plaintiff that Defendants Woods, Isard, and Horton were all aware of
Plaintiff’s medical condition and requests, and that they agreed with the denial. However, Plaintiff
was told that if anything went wrong, he would be placed in protective custody.
Plaintiff alleges that the bunky he was given on May 5, 2016, said that law library
supervisor Reid Goldberg had told him about Plaintiff’s case with Child Protective Services and
informed him how to look up Plaintiff’s information on the law library public computer. As noted
previously, Plaintiff was placed in segregation after he requested protection and, when protective
custody was denied, Plaintiff received a misconduct ticket for refusing to return to his cell.
Defendant Theut found Plaintiff guilty of the misconduct.
Plaintiff states that while he was confined at URF, he had dental work that included
the removal of all the teeth from the back of his mouth, so Plaintiff cannot chew properly. Plaintiff
also alleges that he is unable to move his left side, and that his right hand is unstable and shakes
uncontrollably. Plaintiff almost swallowed the standard sized toothbrush because of his medical
condition. Plaintiff has requested false teeth so that he can chew, but his request was denied by
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Defendant Baldino. As noted previously by the court, Plaintiff also alleges that Defendant Baldino
denied Plaintiff’s request for a long handled toothbrush because of Plaintiff’s Child Protective
Services case, which caused Plaintiff to be unable to brush his teeth for the past three and a half
years. Plaintiff claims that he was prevented from filing step III grievance appeals at URF by
Defendant McLean, who refused to give Plaintiff his step II responses.
Plaintiff claims that Defendants violated his rights under the Eighth and Fourteenth
Amendments, the Americans with Disabilities Act (ADA), and under state law. Plaintiff sues
Defendants in both their individual and official capacities. Plaintiff seeks 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.
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
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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).
Initially, the court notes that Plaintiff names his children as plaintiffs in this action.
Plaintiff lacks standing to assert the constitutional rights of others. 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).
As a layman, Plaintiff may only represent himself with respect to his individual claims, and may not
act on behalf of others. See 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 is not a licensed attorney. 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 therein.” 28 U.S.C. § 1654 (emphasis added). The statute
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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. Calif. 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). Relying on this statute, the Sixth Circuit has squarely held that a pro
se party may not prosecute a representative wrongful death action brought under section 1983, where
the beneficiaries thereof included persons other than himself. Shepherd v. Wellman, 313 F.3d 963,
970 (6th Cir. 2003). The court relied on an earlier Second Circuit case, which had held that an
administratrix or executrix of an estate may not proceed in a wrongful death action pro se when the
estate has beneficiaries and creditors other than the litigant. Pridgen v. Andresen, 113 F.3d 391, 393
(2d Cir. 1997). Therefore, all named plaintiffs except for prisoner Marvin Belser are dismissed.
In addition, Plaintiff’s claims for deliberate indifference to medical needs by
Defendants Canias, Laplunt, Brown, Filion, and Hatfield are essentially identical to those asserted
against them in the original complaint. Therefore, for the reasons set forth in the opinion dated
August 4, 2016 (ECF No. 12), Plaintiff’s Eighth Amendment claims against Defendants Canias,
Laplunt, Brown, Filion, and Hatfield are not clearly frivolous and may not be dismissed on initial
review.
In addition, Plaintiff claims that Defendants Giesen and Huss both told Plaintiff that
he did not deserve a wheelchair because of his Child Protective Services case. Plaintiff also claims
that Defendant Falk refused to do anything for him while he was confined at MBP. However,
Plaintiff fails to allege any facts showing that Giesen and Huss were involved in the actual denial
of a wheelchair, or that Defendant Falk was deliberately indifferent to Plaintiff’s serious medical
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needs. Conclusory allegations of unconstitutional conduct without specific factual allegations fail
to state a claim under § 1983. See Ashcroft v. Iqbal, 556 U.S. 662, 678-69 (2009); Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007). Therefore, Plaintiff’s claims that Defendants Giesen, Huss,
and Falk denied him necessary medical care in violation of the Eighth Amendment are properly
dismissed.
Moreover, allegations of verbal harassment or threats by prison officials toward an
inmate do not constitute punishment within the meaning of the Eighth Amendment. Ivey v. Wilson,
832 F.2d 950, 955 (6th Cir.1987). Nor do allegations of verbal harassment rise to the level of
unnecessary and wanton infliction of pain proscribed by the Eighth Amendment. Id. Therefore, any
comments by Defendants Giesen and Huss asserting that Plaintiff did not deserve a wheelchair,
although unprofessional, do not constitute a violation of Plaintiff’s constitutional rights.
Plaintiff claims that Defendant Ormsbee violated his Eighth Amendment right to be
free from excessive force. The Eighth Amendment embodies a constitutional limitation on the
power of the states to punish those convicted of a crime. Punishment may not be “barbarous” nor
may it contravene society’s “evolving standards of decency.” See Rhodes v. Chapman, 452 U.S. 337,
345-46 (1981); Trop v. Dulles, 356 U.S. 86, 101 (1958). The Eighth Amendment also prohibits
conditions of confinement which, although not physically barbarous, “involve the unnecessary and
wanton infliction of pain.” Rhodes, 452 U.S. at 346. Among unnecessary and wanton infliction of
pain are those that are “totally without penological justification.” Id.
The Supreme Court has held that “whenever guards use force to keep order,” the
standards enunciated in Whitley v. Albers, 475 U.S. 312 (1986), should be applied. Hudson v.
McMillian, 503 U.S. 1, 7 (1992); see also Wilkins v. Gaddy, 130 S. Ct. 1175, 1178-79 (2010). Under
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Whitley, the core judicial inquiry is “whether force was applied in a good-faith effort to maintain or
restore discipline, or maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 6-7; Wilkins,
130 S. Ct. at 1178. In determining whether the use of force is wanton and unnecessary, the court
should evaluate the need for application of force, the relationship between that need and the amount
of force used, the threat “reasonably perceived by the responsible officials,” and any efforts made
to temper the severity of the forceful response. Hudson, 503 U.S. at 6-7 (citing Whitley, 475 U.S.
at 321); accord Griffin v. Hardrick, 604 F.3d 949, 953-54 (6th Cir. 2010); McHenry v. Chadwick,
896 F.2d 184 (6th Cir. 1990).
As noted above, Plaintiff alleges that on April 1, 2014, Defendant Ormsbee told
transporting officers to not worry about Plaintiff putting his clothes on before taking him from the
hospital, and to put Plaintiff in full restraints. The officers then helped Plaintiff off of the hospital
bed and put him into a wheelchair. When Plaintiff arrived at the transport van, Defendant Ormsbee
told Plaintiff to get out of the wheelchair and enter the van, or else he would be tased. Because
Plaintiff was unable to comply, Defendant Ormsbee tased Plaintiff in the chest twice, which caused
Plaintiff to pass out. When he woke up, Plaintiff was naked and being pulled out of the transport
van by two officers and placed in a wheelchair. The Court concludes that Plaintiff’s excessive force
claim against Defendant Ormsbee may not be dismissed on initial review.
Plaintiff also alleges that Defendant Ormsbee denied him a barrier free / wheelchair
accessible / handicap cell, and that he told Plaintiff that Defendants Woods, Isard, and Horton were
all aware of Plaintiff’s medical condition and needs, and that they all agreed that he should not be
given a handicap cell. The Eighth Amendment obligates prison authorities to provide medical care
to incarcerated individuals, as a failure to provide such care would be inconsistent with
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contemporary standards of decency. Estelle v. Gamble, 429 U.S. 102, 103-04 (1976). The Eighth
Amendment is violated when a prison official is deliberately indifferent to the serious medical needs
of a prisoner. Id. at 104-05; Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001).
A claim for the deprivation of adequate medical care has an objective and a subjective
component. Farmer v. Brennan, 511 U.S. 825, 834 (1994). To satisfy the objective component, the
plaintiff must allege that the medical need at issue is sufficiently serious. Id. In other words, the
inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.
Id. The objective component of the adequate medical care test is satisfied “[w]here the seriousness
of a prisoner’s need[ ] for medical care is obvious even to a lay person.” Blackmore v. Kalamazoo
Cnty., 390 F.3d 890, 899 (6th Cir. 2004). If the plaintiff’s claim, however, is based on “the prison’s
failure to treat a condition adequately, or where the prisoner’s affliction is seemingly minor or
non-obvious,” Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 898 (6th Cir. 2004), the plaintiff must
“place verifying medical evidence in the record to establish the detrimental effect of the delay in
medical treatment,” Napier v. Madison Cnty., 238 F.3d 739, 742 (6th Cir. 2001) (internal quotation
marks omitted).
The subjective component requires an inmate to show that prison officials have “a
sufficiently culpable state of mind in denying medical care.” Brown v. Bargery, 207 F.3d 863, 867
(6th Cir. 2000) (citing Farmer, 511 U.S. at 834). Deliberate indifference “entails something more
than mere negligence,” Farmer, 511 U.S. at 835, but can be “satisfied by something less than acts
or omissions for the very purpose of causing harm or with knowledge that harm will result.” Id.
Under Farmer, “the official must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837.
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Not every claim by a prisoner that he has received inadequate medical treatment states
a violation of the Eighth Amendment. Estelle, 429 U.S. at 105. As the Supreme Court explained:
[A]n inadvertent failure to provide adequate medical care cannot be
said to constitute an unnecessary and wanton infliction of pain or to
be repugnant to the conscience of mankind. Thus, a complaint that
a physician has been negligent in diagnosing or treating a medical
condition does not state a valid claim of medical mistreatment under
the Eighth Amendment. Medical malpractice does not become a
constitutional violation merely because the victim is a prisoner. In
order to state a cognizable claim, a prisoner must allege acts or
omissions sufficiently harmful to evidence deliberate indifference to
serious medical needs.
Id. at 105-06 (quotations omitted). Thus, differences in judgment between an inmate and prison
medical personnel regarding the appropriate medical diagnoses or treatment are not enough to state
a deliberate indifference claim. Sanderfer v. Nichols, 62 F.3d 151, 154-55 (6th Cir. 1995); Ward v.
Smith, No. 95-6666, 1996 WL 627724, at *1 (6th Cir. Oct. 29, 1996). This is so even if the
misdiagnosis results in an inadequate course of treatment and considerable suffering. Gabehart v.
Chapleau, No. 96-5050, 1997 WL 160322, at *2 (6th Cir. Apr. 4, 1997).
The Sixth Circuit distinguishes “between cases where the complaint alleges a
complete denial of medical care and those cases where the claim is that a prisoner received
inadequate medical treatment.” Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976). If “a
prisoner has received some medical attention and the dispute is over the adequacy of the treatment,
federal courts are generally reluctant to second guess medical judgments and to constitutionalize
claims which sound in state tort law.” Id.; see also Rouster v. Saginaw Cnty., 749 F.3d 437, 448 (6th
Cir. 2014); Perez v. Oakland County, 466 F.3d 416, 434 (6th Cir. 2006); Kellerman v. Simpson, 258
F. App’x 720, 727 (6th Cir. 2007); McFarland v. Austin, 196 F. App’x 410 (6th Cir. 2006); Edmonds

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v. Horton, 113 F. App’x 62, 65 (6th Cir. 2004); Brock v. Crall, 8 F. App’x 439, 440 (6th Cir. 2001);
Berryman v. Rieger, 150 F.3d 561, 566 (6th Cir. 1998). “Where the claimant received treatment for
his condition, as here, he must show that his treatment was ‘so woefully inadequate as to amount to
no treatment at all.’” Mitchell v. Hininger, 553 F. App’x 602, 605 (6th Cir. 2013) (quoting Alspaugh
v. McConnell, 643 F.3d 162, 169 (6th Cir. 2011)).
In this case, Plaintiff alleges that Defendants Orsmbee, Woods, Horton, and Isard
were all involved in denying Plaintiff’s request for a handicap cell, despite the fact that Plaintiff
required a wheelchair and was incontinent. The Court concludes that Plaintiff’s Eighth Amendment
claim regarding the denial of a wheelchair accessible handicap cell against Defendants Ormsbee,
Woods, Horton, and Isard is not properly dismissed upon initial review.
Plaintiff claims that Defendant Baldino denied Plaintiff dentures and a long handled
tooth brush for more than three and a half years. Plaintiff’s claim regarding his need for a long
handled toothbrush was previously asserted in his original complaint and is essentially the same
claim. Therefore, for the reasons stated in the August 4, 2016, opinion, this claim is properly
dismissed. However, the Court concludes that dismissal of Plaintiff’s claim regarding the denial of
dentures would be premature given Plaintiff’s allegations that he is unable to chew his food without
dentures.
Plaintiff also claims that Defendant Goldberg placed him in danger when he told his
bunky about Plaintiff’s Child Protective Services case. In addition, Plaintiff claims that Defendants
Orsmbee, Woods, Horton, and Isard improperly denied his request for protective custody after
Plaintiff was threatened by his bunky. Inmates have a constitutionally protected right to personal
safety grounded in the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 833 (1994). Thus,
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prison staff are obliged “to take reasonable measures to guarantee the safety of the inmates” in their
care. Hudson v. Palmer, 468 U.S. 517, 526-27 (1984). To establish a violation of this right, Plaintiff
must show that Defendant was deliberately indifferent to the Plaintiff’s risk of injury. Walker v.
Norris, 917 F.2d 1449, 1453 (6th Cir. 1990); McGhee v. Foltz, 852 F.2d 876, 880-81 (6th Cir. 1988).
While a prisoner does not need to prove that he has been the victim of an actual attack to bring a
personal safety claim, he must at least establish that he reasonably fears such an attack. Thompson
v. County of Medina, Ohio, 29 F.3d 238, 242-43 (6th Cir. 1994) (holding that plaintiff has the
minimal burden of “showing a sufficient inferential connection” between the alleged violation and
inmate violence to “justify a reasonable fear for personal safety.”) In his amended complaint,
Plaintiff specifically claims that Defendant Goldberg provided his bunky with information which
made Plaintiff a target, and that Defendants Orsmbee, Woods, Horton, and Isard refused to protect
him from his bunky. The Court concludes that, based solely on the information in the amended
complaint, Plaintiff’s claims that Defendants Goldberg, Orsmbee, Woods, Horton, and Isard failed
to protect him are nonfrivolous and may not be dismissed on initial screening.
Plaintiff claims that Defendant Giesen destroyed over $2000 worth of his personal
property. 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.
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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 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 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 due process claim against Defendant
Giesen is properly dismissed.
Plaintiff alleges that Defendant McLean violated his rights by refusing to give him
step II grievance responses, which prevented Plaintiff from filing step III grievance appeals. Plaintiff
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has no due process right to file a prison grievance. The courts repeatedly have held that there exists
no constitutionally protected due process right to an effective prison grievance procedure. See
Hewitt v. Helms, 459 U.S. 460, 467 (1983); Walker v. Mich. Dep’t of Corr., 128 F. App’x 441, 445
(6th Cir. 2005); Argue v. Hofmeyer, 80 F. App’x 427, 430 (6th Cir. 2003); Young v. Gundy, 30 F.
App’x 568, 569-70 (6th Cir. 2002); Carpenter v. Wilkinson, No. 99-3562, 2000 WL 190054, at *2
(6th Cir. Feb. 7, 2000); see also Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Adams
v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (collecting cases). Michigan law does not create a liberty
interest in the grievance procedure. See Olim v. Wakinekona, 461 U.S. 238, 249 (1983); Keenan v.
Marker, 23 F. App’x 405, 407 (6th Cir. 2001); Wynn v. Wolf, No. 93-2411, 1994 WL 105907, at *1
(6th Cir. Mar. 28, 1994). Because Plaintiff has no liberty interest in the grievance process,
Defendants’ conduct did not deprive him of due process.
Moreover, Defendant McLean’s actions have not barred Plaintiff from seeking a
remedy for his grievances. See Cruz v. Beto, 405 U.S. 319, 321 (1972). “A prisoner’s constitutional
right to assert grievances typically is not violated when prison officials prohibit only ‘one of several
ways in which inmates may voice their complaints to, and seek relief, from prison officials’ while
leaving a formal grievance procedure intact.” Griffin v. Berghuis, 563 Fed. App’x 411, 415-416 (6th
Cir. 2014) (citing North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 130 n. 6 (1977)).
Indeed, Plaintiff’s ability to seek redress is underscored by his pro se invocation of the judicial
process. See Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982). Even if Plaintiff had been
improperly prevented from filing a grievance, his right of access to the courts to petition for redress
of his grievances (i.e., by filing a lawsuit) cannot be compromised by his inability to file institutional
grievances, and he therefore cannot demonstrate the actual injury required for an access-to-the-courts
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claim. See, e.g., Lewis v. Casey, 518 U.S. 343, 355 (1996) (requiring actual injury); Bounds v. Smith,
430 U.S. 817, 821-24 (1977). The exhaustion requirement only mandates exhaustion of available
administrative remedies. See 42 U.S.C. § 1997e(a). If Plaintiff were improperly denied access to
the grievance process, the process would be rendered unavailable, and exhaustion would not be a
prerequisite for initiation of a civil rights action. See Ross v. Blake, 136 S. Ct. 1850, 1858-59 (2016)
(reiterating that, if the prisoner is barred from pursuing a remedy by policy or by the interference of
officials, the grievance process is not available, and exhaustion is not required); Kennedy v. Tallio,
20 F. App’x 469, 470 (6th Cir. 2001). In light of the foregoing, the Court finds that Plaintiff fails
to state a cognizable claim against Defendant McLean.
Plaintiff claims that Defendant Theut violated his due process rights by finding
Plaintiff guilty of a major misconduct ticket for refusing to return to the general population after he
was denied protective custody. Defendant Theut is a hearing officer whose duties are set forth at
MICH. COMP. LAWS § 791.251 through § 791.255. Hearing officers are required to be attorneys and
are under the direction and supervision of a special hearing division in the Michigan Department of
Corrections. See MICH. COMP. LAWS § 791.251(e)(6). Their adjudicatory functions are set out in
the statute, and their decisions must be in writing and must include findings of facts and, where
appropriate, the sanction imposed. See MICH. COMP. LAWS § 791.252(k). There are provisions for
rehearings, see MICH. COMP. LAWS § 791.254, as well as for judicial review in the Michigan courts.
See MICH. COMP. LAWS § 791.255(2). Accordingly, the Sixth Circuit has held that Michigan hearing
officers are professionals in the nature of administrative law judges. See Shelly v. Johnson, 849 F.2d
228, 230 (6th Cir. 1988). As such, they are entitled to absolute judicial immunity from inmates’ §
1983 suits for actions taken in their capacities as hearing officers. Id.; and see Barber v. Overton,
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496 F.3d 449, 452 (6th Cir. 2007); Dixon v. Clem, 492 F.3d 665, 674 (6th Cir. 2007); cf. Pierson v.
Ray, 386 U.S. 547, 554-55 (1967) (judicial immunity applies to actions under § 1983 to recover for
alleged deprivation of civil rights). Therefore, Plaintiff’s claim against Defendant Theut is properly
dismissed.
The Court concludes that Plaintiff’s claims that Defendants Ormsbee, Woods, Isard,
and Horton violated his rights under the Americans with Disabilities Act (ADA) when they denied
him accommodation related to his need for a wheelchair and a handicap accessible cell are not
clearly frivolous and may not be dismissed on initial review. In addition, Plaintiff’s pendent state
law claims against Defendants Ormsbee, Woods, Isard, Horton, Baldino, and Goldberg are not
properly dismissed on initial review.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff’s claims against Giesen, Huss, and McLean, Theut, and Falk 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 Ormsbee, Woods, Isard,
Horton, Baldino, and Goldberg.
An Order consistent with this Opinion will be entered.

Dated:

November 29, 2016

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

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