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Ouimet v. Michigan Dep't of Corrections

February 26, 2010

JESSIE OUIMET ET AL., PLAINTIFFS,
v.
MICHIGAN DEPARTMENT OF CORRECTIONS ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable Janet T. Neff

OPINION

This is a civil rights action originally brought by four state prisoners pursuant to 42 U.S.C. § 1983. The Court granted Plaintiffs leave to proceed in forma pauperis, and Plaintiffs have complied with the initial partial filing fee requirements. 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 Plaintiffs' pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiffs' allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Applying these standards, Plaintiffs' action will be dismissed for failure to state a claim.

Discussion

I. Factual Allegations

This civil rights action was brought by four Plaintiffs: Jessie Ouimet, Andrew LeeLeo Hill, Kenyon Clinton, and William Belbot. Plaintiffs sued the Michigan Department of Corrections (MDOC); MDOC Director Patricia Caruso; MDOC Hearings Administrator Richard Stapleton; Warden Kenneth McKee at the Bellamy Creek Correctional Facility (IBC); the State Office of Administrative Hearings and Rules; the Michigan Department of Health Care Provider; Hearing Investigator Brian Novak; Hearing Officers Kathy Talbot and A. Baerwalde; IBC Nurses (unknown) Kelnins, T. Grubaugh, S. Gregurek, and (unknown) Chick; Practitioner Assistant (PA) Valorie K. Hammond; and IBC Risk Management Prevention Coordinator Joshua D. Schad. The original complaint contained separate sets of allegations for each Plaintiff.

On January 11, 2010, the Court ordered Plaintiffs to file an amended complaint on the form within 28 days, in accordance with W.D. Mich. LCivR 5.6(a). Thereafter, Plaintiff Jessie Ouimet filed an amended complaint on the form, raising only those claims related to himself. In his amended complaint, Plaintiff Ouimet named only the following six of the original sixteen Defendants: Patricia Caruso, Richard Stapleton, Kenneth McKee, Brian Novak, the State Office of Administrative Hearings and Rules, and the Michigan Department of Health Care Provider. No other Plaintiff responded to the Court's order. On the basis of the amended complaint, Defendants MDOC, Talbot, Baerwald, Kelnins, Grubaugh, Gregurek, Chick, Hammond, and Schad were automatically terminated from the action.

In his amended complaint Plaintiff Ouimet alleges that he was hospitalized from July 7, 2009 through July 15, 2009 for back surgery performed on July 10, 2009. When he returned from surgery, he was unable to walk or care for himself for some time. On August 2, 2009, Nurse Kalinis was assigned to care for his wound and change the bandage on his back. Plaintiff asked Kalinis to clean the wound before replacing the bandage. Kalinis allegedly refused, saying she was directed only to change the bandage. Plaintiff filed a complaint against Kalinis for failing to give him the care he needed and for being rude when he tried to explain the bandage-changing process.

Two days later, on August 4, 2009, Kalinis again refused to clean his back wound, and Plaintiff exchanged words with Kalinis. Later that morning, Plaintiff was called to the medication line. Kalinis gave Plaintiff his medications and then falsely accused Plaintiff of hiding his medication under his tongue rather than swallowing it. Plaintiff again exchanged words with Kalinis and called for the unit officer to intervene. The unit officer asked Plaintiff to return to his cell. Kalinis wrote a misconduct ticket against Plaintiff, alleging attempted substance abuse. Plaintiff alleges that Kalinis filed the misconduct ticket in retaliation for his grievance about her failure to care for his back wound. Plaintiff, however, does not name Kalinis as a Defendant in this action.

On August 5, 2009, Sergeant Rominouez came to Plaintiff's cell to review the major misconduct ticket. Plaintiff requested that a hearing interpreter be provided at his interview with the hearing investigator. Defendant Hearing Investigator Brian Novak met with Plaintiff on August 6, 2009. Novak did not provide a hearing interpreter, even after Plaintiff had shown his medical accommodation for communication assistance for hearing. Instead, Novak conducted the interview by an exchange of handwritten notes. Plaintiff alleges that Novak's interview was conducted in violation of his right to due process and MDOC policy.

A hearing on the misconduct ticket was conducted before Hearings Officer Talbot on August 26, 2009. Plaintiff alleges that he repeatedly asked for a hearing interpreter, but Talbot denied the request. Plaintiff ultimately was found guilty of the misconduct, ostensibly in violation of his due process rights.

For relief, Plaintiff seeks an injunction overturning the misconduct conviction.

II. Plaintiffs Hill, Clinton and Belbot

On January 11, 2010, the Court ordered all Plaintiffs to file an amended complaint on the form within 28 days, in accordance with W.D. Mich. LCivR 5.6(a). In that order, Plaintiffs were expressly notified that "[t]he amended complaint will take the place of the original complaint, so it must include all of the Defendants that Plaintiffs intend to sue and all of the claims that Plaintiffs intend to raise." (Docket #10.) The Court further warned that, if Plaintiffs failed "to submit an amended complaint in proper form within the time allowed, the complaint may be dismissed without prejudice by the district judge." (Id.)

Plaintiff Ouimet was the only Plaintiff to respond to the Court's order, and the amended complaint he filed raised only his own claims. Because Plaintiffs Hill, Clinton and Belbot have wholly failed to comply with the Court's January 11, 2010 order, their ...


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