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McGowan v. Morse

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

March 16, 2017

DEMETRIC McGOWAN, Plaintiff,
v.
DIANA MORSE et al., Defendants.

          OPINION

          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 Americans with Disabilities Act (ADA) 42 U.S.C. § 12101, and the Federal Rehabilitation Act (RA) 29 U.S.C. § 794(a). 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. § 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.

         Discussion

         I. Factual allegations

         Plaintiff Demetric McGowan is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Kinross Correctional Facility in Kincheloe, Michigan. The events of which he complains, however, occurred while he was incarcerated at the Muskegon Correctional Facility (MCF) in Muskegon Heights, Michigan.

         Plaintiff is suing MCF Corrections Officers Diana Morse and (unknown) Jones; MCF Sergeants (unknown) Nielson and (unknown) Marrero; and MCF Warden Sherry Burt. Each Defendant is sued in his or her official and individual capacity.

         On July 24, 2016, Plaintiff was enjoying a visit with his wife at MCF. During the visit, Defendant Morse approached Plaintiff and his wife and inquired whether “everything was ok.” (Compl., ECF No. 1, PageID.3.) Plaintiff responded “yes” and then his wife responded “yes” as well. (Id.) Defendant Morse's concern was apparently prompted by physical contact between Plaintiff and his wife.

         Shortly thereafter, Defendant Marrero arrived and instructed Plaintiff to step into the hallway. Plaintiff was handcuffed. Defendant Marrero instructed Defendant Morse to write a misconduct ticket on Plaintiff for assault on a visitor.[1]

         Plaintiff was taken to segregation. While awaiting placement in a segregation cell, Plaintiff informed Defendant Jones that Plaintiff had multiple sclerosis and asked to be put in a cell where “the windows was out.” (Id.)[2] Defendant Jones informed Plaintiff that “This is not a hotel.” (Id.)

         Later that night, Defendant Nielsen reviewed the ticket with Plaintiff.[3] Plaintiff informed Defendant Nielsen about his illness.

         The night of July 24, 2016, was a hot night in Muskegon. Plaintiff alleges that there was no ventilation in his cell. He overheated, and suffered a multiple sclerosis exacerbation as a result. The next afternoon he was taken to health care services via wheelchair. Physician's Assistant Barbra Bien examined Plaintiff, prescribed prednisone and wrote a detail for ice and a fan. Plaintiff does not allege any health problems thereafter. Plaintiff was released from segregation on July 28, 2016, and no further action was taken on the misconduct ticket.

         After leaving segregation, Plaintiff contacted his wife. She informed him that Defendant Marrero had obtained a written statement from her regarding the incident. Defendant Marrero confirmed that he had obtained a statement from Mrs. McGowan, but he refused to confirm that fact in writing and, Plaintiff alleges, failed to turn the statement over to Defendant Nielsen, the reviewing officer.

         Plaintiff pursued a series of grievances regarding the “false” misconduct ticket and his alleged mistreatment in segregation. Plaintiff attaches the grievances and grievance responses to his complaint. Plaintiff's wife wrote a letter to Defendant Burt regarding these incidents. He attaches as exhibits to the complaint Defendant Burt's response and his wife's reply. With regard to the incident in the visiting room, Defendant Burt wrote:

I have had the opportunity to view the video. The behavior I observed was not appropriate in the visiting area. I feel the officer reported what she observed and would have been remiss in her duties if she had not checked on you based on the behavior being displayed by the two of you. I trust you are aware that the misconduct was pulled, therefore no action was taken.

         (Compl. Ex. I, ECF No. 1-1, PageID.32.)

         Plaintiff also wrote to the Legislative Corrections Ombudsman asking for an investigation. (Compl. Ex. L, ECF No. 1-1, PageID.37.) Plaintiff attaches and relies upon the written response of Eric Mattson, Ombudsman Analyst, who wrote:

The ticket was written by C/O Morse, who believed you squeezed your wife's neck during the visit with force in your hand. After reviewing the video, our office can see why the officer may have come to this conclusion. When watching the video, initially you [sic] wife seemed annoyed and frustrated with you before you placed your hand on her neck. You poked her with your right hand numerous times and your wife is seen physically brushing your arm off of her before you placed your hand on your wife's neck during the visit. However, it does not appear that you used excessive force when you placed your hand on your wife's neck during the visit. Your wife submitted a statement that claimed you were not harmful in any way. The ticket was pulled and no hearing was held on this misconduct. Therefore, the process worked and you were not found guilty of this ticket.

         (Compl. Ex. M, ECF No. 1-1, PageID.41.)

         Plaintiff lists separate causes of action against each defendant.

         Defendant Morse

         With respect to Defendant Morse, Plaintiff contends that she failed to “write a correct misconduct ticket” and thereby violated Plaintiff's rights under the Fifth, Eighth, and Fourteenth Amendments. (Compl., ECF No. 1, PageID.7.) Plaintiff also alleges that Defendant Morse “knowingly made false federal law pursuant to 18 U.S.C. § 11519.” (Compl., ECF No. 1, PageID.6-7.)

         Defendant Marrero

         Plaintiff alleges that Defendant Marrero violated Michigan Compiled Law 791.4405. There is no such statutory section. There are Department of Corrections regulations that bear similar numbers; but, there are no regulations that are designated “791.4405.” Plaintiff alleges that Defendant Marrero violated Mich. Comp. Laws §§ 28.773, 750.478, and 750.505, because he failed to turn over Plaintiff's wife's statement to Defendant Nielsen.

         Chapter 28 of the Michigan Compiled Laws relates to the Michigan State Police. There is no statutory section designated 28.773. Chapter 750 of the Michigan Compiled Laws is the Michigan Penal Code. Section 750.478 declares a public officer's willful neglect to perform the officer's duty a misdemeanor. Section 750.505 imposes criminal penalties for the commission of an offense that was indictable at common law but for which no provision is otherwise made in Michigan's statutes.

         Plaintiff also alleges that the same conduct (refusing to turn over Plaintiff's wife's statement) violates Mich. Comp. Laws § 791.5501. There is no such statutory section. There is a regulation 791.5501. The regulation relates to misconduct proceedings; however, it does not impose any requirement for documents or other evidence to be provided to a prisoner.

         Defendant Nielson

         Plaintiff alleges that Defendant Nielson was aware of Plaintiff's wife's statement, but failed to turn it over to a hearing investigator in violation of Mich. Comp. Laws §§ 28.773, 750.478, 750.505, 79[1].5501, 791.251. Section 791.251 of the Michigan Compiled Laws provides for a hearings division within the MDOC and specifies the hearings for which the division is responsible, but the section does not impose any obligation to provide documents. Moreover, although the statutory section requires the hearings division to be involved before the imposition of punitive segregation or classification to administrative segregation, it does not require such involvement for temporary segregation.[4]

         Plaintiff alleges further that Defendant Nielson was aware of the statement but kept Plaintiff in segregation for five days in violation of Mich. Comp. Laws § 791.5501. Again, there is no such statutory section. The regulation designated 791.5501 relates to misconduct hearings; but it does not cover proceedings relating to placement in temporary segregation nor does it cover the provision of documents to prisoners for misconduct proceedings.

         Defendant Jones

         Plaintiff alleges that he informed Defendant Jones that Plaintiff suffered from multiple sclerosis and requested of Defendant Jones that Plaintiff be placed in a cell with a window that opened. Plaintiff claims that Defendant Jones's response evidenced deliberate indifference to Plaintiff's serious medical need in violation of the Eighth Amendment. Plaintiff alleges that Defendant Jones's conduct also violated the RA, 29 U.S.C. § 705(20)(b); the Persons with Disabilities Civil Rights Act (PWDCRA), Mich. Comp. Laws § 37.1101; and the ADA, 42 U.S.C. § 12101. Plaintiff also apparently contends, based on his reference to a statute regarding governmental liability for negligence, Mich. Comp. Laws § 691.1401, that Defendant Jones was negligent.

         Defendant Burt

         Finally, Plaintiff alleges that Defendant Burt, because she ordered all the segregation cells to be shut and bolted such that there is no ventilation, violated the Eighth Amendment, the RA, the PWDCRA, and the ADA.

         Plaintiff asks the Court to enter a judgment declaring that Defendants have violated his Fifth, Eighth, and Fourteenth Amendment rights; firing all of the Defendants; enjoining the MDOC from transferring Plaintiff in retaliation for filing this suit; awarding compensatory damages of $25, 000 against each Defendant; awarding punitive damages of $25, 000 against each Defendant; and awarding emotional distress damages of $25, 000 against each Defendant.

         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 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).

         A. Rights, privileges, or immunities secured by the United States Constitution or laws

         Plaintiff makes specific reference to three federal constitutional amendments in support of his claim under § 1983; but, he also references violations of MDOC policies, state criminal laws, state correctional laws and regulations, and federal criminal laws. Plaintiff's allegations of state policy, regulatory, and statutory violations, cannot form the basis for relief under § 1983. Claims under §1983 can only be brought for “deprivation of rights secured by the constitution and laws of the United States.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982). Section 1983 does not provide redress for a violation of a state law. Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir. 1995); Sweeton v. Brown, 27 F.3d 1162, 1166 (6th Cir. 1994). Plaintiff's assertion that Defendants violated state law, regulation, or policy, therefore, fails to state a claim under § 1983.

         The Court is unable to decipher Plaintiff's cryptic allegations that Defendant Morse “knowingly made false federal law pursuant to 18 U.S.C. § 11519.” (Compl., ECF No. 1, PageID.6-7.) Presumably, it ...


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