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Kelly v. Hursh

March 22, 2010

OPELTON KELLY #225090, PLAINTIFF,
v.
BEATRICE HURSH, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. R. Allan Edgar

OPINION

I. Facts

Plaintiff Opelton Kelly, an inmate at the Earnest C. Brooks Correctional Facility, filed this civil rights action pursuant to 42 U.S.C. § 1983 against Defendants Corrections Officer Beatrice Hursh, Steven Sharrett, the Michigan Department of Corrections (MDOC), Warden David Bergh, and MDOC Director Patricia L. Caruso.

Plaintiff's complaint alleges that on November 17, 2006, he was called out of his cell by Defendant Sharrett, in order to be questioned by Defendant Hursh. Plaintiff submitted to a body search, as ordered, and was taken to an isolated room, where Defendant Hursh questioned Plaintiff about a grievance he had filed against Resident Unit Officer T. DeJung. Defendant Hursh indicated that she had a personal relationship with Officer DeJung and indicated that if Plaintiff did not drop the grievance, he would face possible retaliation. Plaintiff refused to drop the grievance. Defendant Hursh then ended the interview, claiming that Plaintiff had made an inappropriate comment. Plaintiff stood up to leave and Defendant Hursh pulled out her personal protection device, with the intent to assault Plaintiff. Defendant Sharrett then advanced on Plaintiff from behind and pushed him to the ground, causing injury to Plaintiff's arms, wrists and body. However, in Plaintiff's amended complaint, he omits any reference to excessive force by Defendant Sharrett, and fails to claim that he suffered any injury. Plaintiff was subsequently taken to segregation.

Plaintiff later received a major misconduct for threatening behavior written by Defendant Hursh. Plaintiff was reclassified to administrative segregation on November 29, 2006, where he remained for more than six months.

Plaintiff claims that defendants' actions violated his rights under the First, Fourth, Eighth, and Fourteenth Amendments to the United States Constitution. Plaintiff is seeking compensatory and punitive damages, as well as declaratory relief.

II. Analysis

A. Standard of Review

Presently before the Court are the Defendants' Motions to Dismiss (docket #21, #30, and #35), pursuant to Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the pleading, requiring the court to determine whether the plaintiff would be entitled to relief if everything alleged in the complaint is true. Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of its claim which would entitle [the plaintiff] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The court must construe the complaint in the light most favorable to plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A judge may not dismiss the complaint simply because he disbelieves the complaint's factual allegations. Conley, 355 U.S. at 47.

Generally, a complaint need only give "fair notice of what the plaintiff's claim is and the grounds upon which it rests." In re Delorean Motor Co. v. Weitzman, 991 F.2d 1236, 1240 (6th Cir. 1993) (quoting Conley, 355 U.S. at 47). The fundamental purpose of pleadings under the Federal Rules of Civil Procedure is to give adequate notice to the parties of each side's claims and to allow cases to be decided on the merits after an adequate development of the facts. Mayer, 355 U.S. at 638. While this standard is decidedly liberal, it requires more than the bare assertion of legal conclusions. Delorean, 991 F.2d at 1240. "In practice, a complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Id. (internal quote omitted).

B. Defendant MDOC

Defendant MDOC states that it is entitled to dismissal for failure to state a claim because such a claim is barred under the Eleventh Amendment. Plaintiff may not maintain a § 1983 action against the Michigan Department of Corrections. Regardless of the form of relief requested, the states and their departments are immune under the Eleventh Amendment from suit in the federal courts, if the state has not waived immunity and Congress has not 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. 1993). 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., Turnboe v. Stegall, No. 00-1182, 2000 WL1679478, at *2 (6th Cir. Nov. 1, 2000); Erdman v. Mich. Dep't of Corr., No. 94-2109, 1995 WL 150341, at *1 (6th Cir. Apr. 5, 1995); Cullens v. Bemis, No. 92-1582, 1992 WL 337688, at *1 (6th Cir. Nov. 18, 1992); Adams v. Mich. Dep't of Corr., No. 86-1803, 1987 WL 36006, at *1 (6th Cir. May 7, 1987). 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 (2002) (citing Will v. Mich. Dep't of State Police, 491 U.S. 58 (1989)). Therefore, the Court dismisses the Michigan Department of Corrections.

C. Defendants Caruso and Bergh

Defendants Caruso and Bergh claim that they are entitled to dismissal because Plaintiff's claims against them are based solely on their positions as supervisory officials in the MDOC. 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), ...


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