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Belser v. Woods

United States District Court, W.D. Michigan, Northern Division

November 29, 2016

MARVIN BELSER, et al., Plaintiff,
JEFF WOODS, et al., Defendants.


          Paul L. Maloney, United States District Judge

         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.


         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 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.
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 in segregation. PageID.8. Similarly, on May 21, 2016, ...

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