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Foster v. Caruso

March 3, 2010


The opinion of the court was delivered by: Honorable Paul L. Maloney


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, and Plaintiff has been directed to pay the initial partial filing fee when funds become available. 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, Plaintiff's action will be dismissed for failure to state a claim.


I. Factual Allegations

Plaintiff Michael Foster presently is incarcerated with the Michigan Department of Corrections (MDOC) and housed at the Oaks Correctional Facility (ECF). He sues MDOC Director Patricia Caruso, MDOC Deputy Director Dennis Straub, MDOC Correctional Facilities Administrator Jim Armstrong, and the Michigan Parole Board, together with the following ECF employees: Warden Cindi S. Curtin, Deputy Warden Tim Ball, and Assistant Deputy Warden Rick Sharp.

According to the amended complaint, on November 19, 2008, Plaintiff appeared at a parole hearing before parole board member David Kleinhardt. Kleinhardt asked about Plaintiff's completion of the Assaultive Offender Program (AOP). The resident unit manager who represented Plaintiff at the hearing, Lynne Phillipson, advised Kleinhardt that Plaintiff's transfer to a Level 4 facility had been approved. Phillipson told Kleinhardt that, once Plaintiff was at Level 4, he would be able to access AOP. With that information, Kleinhardt gave Plaintiff a twelve-month continuance so that he could complete AOP.

On January 14, 2009, Plaintiff arrived at Level 4 of ECF. He asked how he could get enrolled in AOP. He was told that ECF did not offer AOP. Plaintiff explained to Assistant Resident Unit Supervisor Schiebner that he needed to complete AOP before his next parole hearing. Schiebner told Plaintiff that, because he was working his way down from Level 5, he would need to stay at ECF Level 4 for a year before he would be eligible for transfer. Plaintiff met with Psychologist Amy D'Amata, seeking an evaluation of his need for AOP. D'Amata told Plaintiff that ECF did not offer AOP and that she could do nothing for him.

Plaintiff then kited Defendant Warden Curtin, describing his situation and requesting a transfer. Curtin did not reply. Plaintiff filed a grievance concerning the matter, which was denied at all three steps of the grievance process. The Step III grievance respondent was Defendant Armstrong.

Plaintiff had another parole hearing on May 11, 2009. He was interviewed by parole board member David Fountain. Plaintiff described his efforts to take the AOP classes. Parole was denied on May 15, 2009, because Plaintiff had not completed AOP.

Plaintiff sought a declaratory ruling directly from Defendant Caruso, seeking acknowledgment of his rights to be placed in a therapy program and transferred to another facility. Defendant Caruso did not respond. Plaintiff mailed to the Attorney General's Office a copy of the document sent to Caruso. The Attorney General's Office responded that it could not represent individuals, but it had forwarded his letter to Defendant Caruso.

On September 21, 2009, Plaintiff was scheduled for a parole hearing in front of Paul Condino. He was denied parole a third time for not having completed AOP.

Plaintiff alleges that Defendants' denial of a transfer and access to AOP violated numerous prison procedures. He further argues that he has a liberty interest in the AOP program under state law and that his deprivation violated his right to due process. He also alleges that Defendants' failure to transfer Plaintiff so that he could fulfill his mandatory therapy for the parole board denied him ...

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