United States District Court, W.D. Michigan, Southern Division
L. Maloney United States District Judge.
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.
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,
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.
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.
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
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.) Defendant Jones informed Plaintiff that
“This is not a hotel.” (Id.)
that night, Defendant Nielsen reviewed the ticket with
Plaintiff. Plaintiff informed Defendant Nielsen about
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.
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.
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
Ex. I, ECF No. 1-1, PageID.32.)
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
Ex. M, ECF No. 1-1, PageID.41.)
lists separate causes of action against each defendant.
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.)
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.
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.
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
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, 79.5501, 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
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.
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
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.
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.
Failure to state a claim
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)).
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).
Rights, privileges, or immunities secured by the United
States Constitution or laws
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.
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 ...