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Brown v. Smith

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

June 7, 2017

ADE BROWN, Plaintiff,
v.
WILLIE SMITH, 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 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 Thurlby and Larson. The Court will serve the complaint against Defendants Tumbelson, Larson, Sikkemer, Derochas, Stambaul, Enderlie, Fracker, Thompson, and Carlisle. The Court will dismiss without prejudice for improper joinder the remaining 28 Defendants.

         Discussion

         I. Factual allegations

         Plaintiff Ade Brown presently is incarcerated with the Michigan Department of Corrections (MDOC) and housed at the Ionia Correctional Facility (ICF). In his amended complaint (ECF No. 8), Plaintiff sues MDOC Director Heidi Washington, MDOC Director of Mental Health Services Tony Rome, and the following 36 ICF officials: Warden Willie Smith; Deputy Wardens J. Christiansen and (unknown) Scheibner; Assistant Deputy Warden (unknown) Snyder; Prisoner Counselor Lloyd Thurlby; Resident Unit Manager (RUM (unknown) Larson; Sergeants (unknown) Derochas, (unknown) Davis, (unknown) Shaw, and (unknown) Greenfield; Correctional Officers (COs) (unknown) Stambaul, (unknown) Andrews, (unknown) Conners, (unknown) Enderlie, (unknown) Fracker, (unknown) Carlisle, (unknown) Williams, (unknown) Wells, (unknown) Tumbelson, (unknown) Montgomery, (unknown) Mygrants, (unknown) Schaefer, (unknown) Phelps, and (unknown) Ogburn; Lieutenants (unknown) Rysky, (unknown) Zwisker, and (unknown) Howard; Psychiatric Providers (unknown) Doseman and (unknown) Apaul; Nurses (unknown) Sikkemer, (unknown) Thompson, and (unknown) Lang; Nurse Practitioner (unknown) Schaefer; Grievance Coordinator (unknown) Lewis; and Mailroom Officials (unknown) Karber and D. Christiansen.

         Plaintiff's lengthy, tedious amended complaint, like his original complaint, consists of 17 pages of tiny handwriting and chronicles a series of incidents from March 18, 2016, when Plaintiff first arrived at ICF, through February 16, 2017. Plaintiff adds an additional five pages of tiny print requesting preliminary injunctive relief. In his amended complaint, Plaintiff sues 38 Defendants and raises claims of excessive force, unclean living conditions, the unconstitutional use of loud fans, retaliation, failure to provide mental health treatment, interference with telephonic and written communications, interference with the prison grievance process, and denial of equal protection. He purports to bring the action on behalf of himself and all similarly situated prisoners. For relief, Plaintiff seeks compensatory and punitive damages, together with 19 types of injunctive relief.

         In his first set of allegations, Plaintiff complains of an incident that occurred on June 1, 2016, at around 10:15 a.m. On that occasion, Defendant Tumbelson was passing out store purchases to inmates in Level V confinement.[1] Plaintiff, however, did not receive his purchases, as Defendant Thurlby had instructed Defendant Tumbelson not to deliver them, because Plaintiff had ordered an excessive number of items, valued at more than $100.00 and including five of each food item ordered.[2] Defendant Larson allegedly agreed with Thurlby to stop the delivery. Plaintiff complains that Thurlby's order was not a result of policy, or, at least, policy of which Plaintiff was aware.[3] Instead, he contends that Thurlby was retaliating against Plaintiff because he had written grievances on Thurlby in the past. Plaintiff also contends that, by not giving Plaintiff his store purchases, Thurlby was subjecting Plaintiff to cruel and unusual punishment.

         Plaintiff then took his food slot hostage and told Defendant Tumbelson that he wanted to speak with Defendant Thurlby. Thurlby refused to come. Sergeant Derochas came to Plaintiff's cell, which was located in the segregation unit. Derochas demanded that Plaintiff cuff up, so that they could shut his food slot. Plaintiff obeyed. However, instead of returning Plaintiff to his cell, as Plaintiff had anticipated, staff took Plaintiff down to the shower, where he was strip-searched. They put him in ankle, hands, and belly chains. Defendants Thurlby and Larson allegedly watched without intervening, and Defendant Nurse Sikkemer was in attendance. Plaintiff asked why this was happening to him, given that he had already released his food slot. Defendant Sikkemer checked his chains to determine whether they were too tight. Despite Plaintiff's claim that they were extremely tight, Sikkemer found that they were all right.

         Plaintiff then was escorted to his cell by Defendants Derochas and Stambaul, who, according to Plaintiff, hit him, shoved him into the wall, “choked [him] up, ” and tried to slam Plaintiff into the floor, “but [Plaintiff] did not allow them too [sic].” (Compl., ECF No. 8, PageID.56.) When Plaintiff reached his cell, Defendant Stambaul adjusted Plaintiff's chains, placing him in “fetal chains, ” which apparently tied his hands behind him and pulled his legs into the air, preventing him from standing up or moving.[4] (Id.) Defendants Stambaul and Derochas then threw Plaintiff in his cell. Either Defendant Tumbelson or Officer Johnson (not a Defendant) was video-recording the incident. Plaintiff was left in chains and in that position for 14 hours. He was not given water breaks or restroom breaks, and the chains were so tight that he continues to this day to have bruising at his wrist and belly. Defendant Sikkemer did not return to Plaintiff's cell to check on the chains. Plaintiff alleges that DefendantsThurlby, Derochas, Stambaul, Tumbelson, Sikkemer, and Larson, as well as Officer Johnson, all left work at the end of their shifts without removing the chains.

         After the first-shift officers left, second-shift Defendants Enderlie and Fracker continued to keep Petitioner in chains for their entire eight-hour shift. The officers taunted and laughed at Plaintiff the entire time, and they called Plaintiff a variety of names. Plaintiff was denied food, water and the use of a bathroom. He was forced to urinate on himself and sit in his urine for the entire shift. Plaintiff kept begging and crying out about the pain, but he was ignored. At 8:00 p.m., Defendant Nurse Thompson stopped by his cell. After hearing his complaints, she promised to help him. However, she left and never returned. Defendant CO Carlisle also ignored Plaintiff.

         Plaintiff was released from his chains at 12:00 a.m., when the third shift came on duty. Plaintiff was dehydrated and in serious pain, had lost circulation, and felt as if his body was broken. His body was swollen and bruised. He suffered severe headaches for a substantial period of time. When he received medical treatment the next day or the day after, he was provided pain pills until his headaches finally went away.

         Plaintiff next makes a series of allegations about his inability to have his grievances heard and successfully resolved. He alleges that he wrote grievances the next day, but he never received either a response or a grievance identifier. On June 8 or 9, 2016, he received notice that he had been placed on modified grievance access[5] on May 19, 2016. He complains that he did not receive the appropriate notice and that Defendants Smith and Lewis placed him on modified access in retaliation for his exercise of his First Amendment rights. He also alleges that he filed a grievance about the issue, but his placement on modified access prevented him from exhausting his remedies, in violation of his right to due process and as further retaliation. In addition, he alleges that Defendants Christiansen and Schreibner retaliated against him, violated his right to due process when they denied his grievance, falsified evidence and violated policy. Plaintiff sent additional grievances, and he alleges that Defendants Lewis and Smith retaliated against him and violated his right to due process by denying his grievances. He contends that Defendants Christiansen, Scheibner, Lewis and Smith also violated his right to petition government and his right to access the courts.

         Plaintiff next contends that Defendants Smith, J. Christiansen, Scheibner, Thurlby and Larson suspended his telephone calls, in violation of his right to free speech and association, as well as in retaliation for his grievances. Plaintiff indicates that his telephone problems dated back to his arrival at ICF in March 2016, when calls he made did not connect. He acknowledges that he does not know why they did not work, but he concludes that it must be retaliation. And, although Defendant Thurlby gave him a new pin number, the phone continued not to work.

         During this period, Plaintiff continued to submit multiple grievances, to which he never received responses. He raised his complaints about his telephone at every SCC (Security Classification Committee[6]) meeting, and would not stop raising them, leading Defendant Thurlby to kick him out of the meetings. In addition, on November 18, 2016, Plaintiff again talked to Thurlby about being unable to access the phone, Defendant Thurlby told him that “they won't let me un-suspend it.” (Id., PageID.59.) When Plaintiff continued to complain, Thurlby told Defendant that, if he did not stop complaining to him, Thurlby would drop his segregation level from stage 6, the best, to stage 2, at which point Plaintiff would not be eligible to make calls. Plaintiff still complained, and Thurlby did what he had threatened to do. The following day, Plaintiff was dropped to stage 2 and transferred from the B-wing of the unit (the better side) to the A-wing of the unit (the worse side). Plaintiff claims that Defendants Smith, Thurlby, Larson, Christiansen and Scheibner “all must [have] conspired to do this violating my 1st amendment right to free speech and association, access to telephone. And did this out of retaliation for me exercising my 1st amend. rights.” (Id.)

         Plaintiff also alleges that his Jpay mail account was working between March and August 2016. After Plaintiff was placed on modified grievance access in June, he began to help other segregation inmates file grievances and participate in litigation. In July, Plaintiff received a letter from his mother, informing him that she had not received some of the letters he sent home. On July 29, 2016, Plaintiff sent a kite to the mailroom inquiring about the problem. He received an unspecified response on August 2, 2016, from Defendant D. Christiansen.[7] Shortly thereafter, his mother advised him that she could no longer use Jpay to communicate with him. Plaintiff sent a kite to Defendant Thurlby, who did not respond. On September 9, 2016, Petitioner was informed that his Jpay would be suspended while he was on loss-of-privileges status. Plaintiff complains that interference with his ability to use Jpay, which is the fastest method of communication with his home, denies him his First Amendment right to freedom of speech and association, and constitutes an Eighth Amendment violation. Plaintiff was not given a grievance form by the grievance coordinator, despite his repeated kites submitted between September 2016 and the present.

         Plaintiff next complains that ICF has a policy and custom of violating all prisoners' rights. He also asserts that he should be able to bring all of his claims in a single lawsuit, because they are all connected to each other.

         In another set of allegations, Plaintiff complains that the prison has a practice of leaving large fans on in the unit (and elsewhere in the prison) for 24 hours a day, seven days a week, between June and November. He alleges that the custom started before he arrived, “but I caught on and start writing grievances on officers every day who would come in and turn and leaves fans on as soon as inmates started talking with 1 another.” (Id., PageID.60.) Plaintiff alleges that Defendants Thurlby, Larson, Derochas, and Davis, as first and second-shift supervisors permitted this ill treatment. Plaintiff reiterates that he sent kites to the grievance coordinator about the same issue almost every day. He complains that he never received a response. As a result of his repetitious grievances, he was placed on modified grievance access for a total additional eight months by Defendant Smith.

         Plaintiff also alleges that he wrote grievances about not being given cleaning supplies in administrative segregation. He suggests that the use of the fans in segregation and the lack of cleaning supplies were instituted to retaliate against him and to punish him for writing grievances.

         In addition to claiming that his transfer from B-wing to A-wing was retaliatory, he sweepingly claims that only white prisoners are sent to B-wing, while black prisoners are sent to Awing. He therefore contends that his transfer was discriminatory and violated the Equal Protection Clause.

         Plaintiff alleges that Defendants Andrews and Conners are the head correctional officers in his unit. Plaintiff contends that these officers were given control over him because of all the grievances he files. Plaintiff asserts that Andrews and Conners have done such things as take his trays, depriving him of showers, and destroying the property in his cell. They also have dropped his stage while he was on the wing. Plaintiff asked Defendant Thurlby why Andrews and Conners have done these things. Thurlby allegedly yelled at Plaintiff and told him he had nothing to do with it. Plaintiff claims that he knew that Thurlby was lying. Thurlby then told Plaintiff to stop talking to him about it or he would drop Plaintiff's stage. Plaintiff told Thurlby that he could not keep retaliating against him like that when he complained. Thurlby responded, “[W]atch me.” (Id., PageID.62.) Thurlby then dropped Plaintiff to a stage 1 and started laughing at Plaintiff.

         On February 16, 2017, Plaintiff wrote to Defendants J. Christiansen, Scheibner, Lewis, Washington, and Rome, complaining about the discrimination and retaliation he experienced. Plaintiff received no response, and no one stopped the conduct about which he complained.

         In yet another set of allegations, Plaintiff contends that Defendants Warden Smith, Deputy Warden J. Christiansen, Chief Psychiatrist Maranka, psychiatric providers Doseman and Apaul, Director of Mental Health Tony Rome, and Nurse Schaefer all were deliberately indifferent to his mental health needs. Plaintiff alleges that when he arrived at ICF on March 18, 2016, he already was being denied necessary mental health services. Plaintiff continued to send kites about his mental health needs. Plaintiff alleges that he was depressed, but did not see a psychiatric provider until June. About two or three weeks after he was placed in fetal chains, Plaintiff alleges that he became suicidal, and he was placed on suicide watch for about a week and a half. While Plaintiff was on suicide watch, Defendant Doseman came to see him on several occasions, along with other psychiatric providers, including Gruestferia and Kern (not Defendants). Doseman told Plaintiff that, if he came off suicide watch, Doseman would help Plaintiff to get admitted to outpatient mental health treatment. Once Plaintiff came off suicide watch, Doseman allegedly refused to evaluate Plaintiff or follow mental health policies. Plaintiff suggests that other prisoners with mental health needs were similarly ignored. Plaintiff and his mother both sent letters to Defendants MDOC Director Heidi Washington and Director of Mental Health Services Tony Rome. In response, Defendant Rome evaluated Plaintiff and placed him on outpatient mental health services. In August 2016, Defendant Nurse Practitioner Schaefer diagnosed Plaintiff with several axis 1 and 2 diagnoses, but allegedly failed to include old diagnoses, including schizophrenia, bipolar disorder, major depression and ADHD. She monitored Plaintiff's medication once per month. Plaintiff alleges that Schaefer refused to add the diagnoses Plaintiff demanded, ostensibly because such diagnoses in his file would warrant his removal from segregation. He contends that Defendants Maranka and Doseman told her to do what she did. Plaintiff contends that Defendant Deputy Warden J. Christiansen effectively runs the mental health program, and he does not want to let Plaintiff out of the hole.

         Between October and December 2016, Defendant Apaul was his psychiatric provider. Plaintiff complained to Apaul about the alleged retaliation and his inability to get grievances heard. Apaul allegedly did not take any action. Plaintiff also complains that Apaul did not document his symptoms and did not help get him out of segregation. Instead, Apaul told him that it was his own fault that he was in segretation, and he recommended that Plaintiff stop writing up staff. Plaintiff claims that he and Apaul did not like each other and that Apaul quit talking to him. Plaintiff also alleges that he used to be sexually harassed by Doseman, who allegedly made sexual comments. Plaintiff complains that Doseman stopped talking to him after he complained. Plaintiff alleges that he is diagnosed with “mood disorder, emotional misconduct, personality disorder, High depression, and Anxiety, polysubstance dependence, and more, and with-out medication [he] cannot function.” (Id., PageID.64.) He claims that Apaul, Maranka and Doseman are deliberately indifferent to his mental health needs, because they will not authorize his placement in inpatient mental health services or the RTP (Residential Treatment Program[8]) at ICF. He also claims that Defendants Rome and Schaefer are deliberately indifferent for not getting him out of segregation and into a mental health program that includes counseling and group therapy. He also alleges that the failure to treat him is due to the retaliation of Defendants Smith, Maranka, Doseman, Apaul, Thurlby, Larson, and J. Christiansen, because of Plaintiff's grievances and litigation.

         Plaintiff argues that the entire course of conduct from June 1, 2016, to February 16, 2017, constitutes a campaign of harassment of which Defendant Heidi Washington and all other Defendants were aware.

         II. Class Action

         Plaintiff purports to bring his complaint as a class action. The Court construes the allegation as a request for class certification. For a case to proceed as a class action, the court must be satisfied on a number of grounds, including the adequacy of class representation. See Fed. R. Civ. P. 23(a)(4). It is well established that pro se litigants are inappropriate representatives of the interests of others. See Garrison v. Mich. Dep't of Corr., 333 F. App'x 914, 919 (6th Cir. 2009) (citing Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975)); see also Dodson v. Wilkinson, 304 F. App'x 434, 438 (6th Cir. 2008); Ziegler v. Michigan, 59 F. App'x 622, 624 (6th Cir. 2003); Palasty v. Hawk, 15 F. App'x 197, 200 (6th Cir. 2001); Howard v. Dougan, No. 99-2232, 2000 WL 876770, at *1 (6th Cir. June 23, 2000). Because Plaintiff is an incarcerated pro se litigant, the Court finds that he is not an appropriate representative of a class. Therefore, the Court will deny Plaintiffs' request for class certification.

         III. Misjoinder

         Federal Rule of Civil Procedure 20(a) limits the joinder of parties in a single lawsuit, whereas Federal Rule of Civil Procedure 18(a) limits the joinder of claims. Rule 20(a)(2) governs when multiple defendants may be joined in one action: “[p]ersons . . . may be joined in one action as defendants if: (A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the action.” Rule 18(a) states: “A party asserting a claim . . . may join, as independent or alternative claims, as many claims as it has against an opposing party.”

         Courts have recognized that, where multiple parties are named, as in this case, the analysis under Rule 20 precedes that under Rule 18:

Rule 20 deals solely with joinder of parties and becomes relevant only when there is more than one party on one or both sides of the action. It is not concerned with joinder of claims, which is governed by Rule 18. Therefore, in actions involving multiple defendants Rule 20 operates independently of Rule 18. . . .
Despite the broad language of Rule 18(a), plaintiff may join multiple defendants in a single action only if plaintiff asserts at least one claim to relief against each of them that arises out of the same transaction or occurrence and presents questions of law or fact common to all.

         7 Charles Allen Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice & Procedure Civil § 1655 (3d ed. 2001), quoted in Proctor v. Applegate, 661 F.Supp.2d 743, 778 (E.D. Mich. 2009), and Garcia v. Munoz, No. 08-1648, 2007 WL 2064476, at *3 (D.N.J. May 14, 2008); see also Neitzke v. Williams, 490 U.S. 319, 328 (1989) (joinder of defendants is not permitted by Rule 20 unless both commonality and same transaction requirements are satisfied).

         Therefore, “a civil plaintiff may not name more than one defendant in his original or amended complaint unless one claim against each additional defendant is transactionally related to the claim against the first defendant and involves a common question of law or fact.” Proctor, 661 F.Supp.2d at 778. When determining if civil rights claims arise from the same transaction or occurrence, a court may consider a variety of factors, including, “the time period during which the alleged acts occurred; whether the acts of . . . are related; whether more than one act . . . is alleged; whether the same supervisors were involved, and ...


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