United States District Court, E.D. Michigan, Southern Division
ORDER ADOPTING REPORT AND RECOMMENDATION (DKT.
TERRENCE G. BERG UNITED STATES DISTRICT JUDGE.
a civil rights case brought pursuant to 42 U.S.C. §
1983. Plaintiff Randy Veeder was previously confined at the
Midland County Jail. His claims concern events occurring while
he was serving a term of parole at two residential drug
treatment facilities, TRI-CAP and New Paths, Inc., located in
Saginaw and Flint, Michigan, respectively. On November 3,
2017, this Court referred all pretrial matters to Magistrate
Judge Patricia T. Morris (Dkt. 16)
matter is before the Court on Magistrate Judge Patricia T.
Morris's January 10, 2018 report and recommendation (Dkt.
21), recommending that several Defendants and claims be
dismissed from this lawsuit, and that Plaintiff's motion
for access to a law library (Dkt. 3), motion to transfer
facilities (Dkt. 6) and motion for discovery (Dkt. 7) each be
denied. The law provides that either party may serve and file
written objections “[w]ithin fourteen days after being
served with a copy” of a report and recommendation. 28
U.S.C. § 636(b)(1). The district court will make a
“de novo determination of those portions of the report
. . . to which objection is made.” Id.
Plaintiff filed timely objections to the report and
recommendation (Dkt. 22). For the reasons set forth below,
Plaintiff's objections are OVERRULED,
and the report and recommendation is hereby
ACCEPTED and ADOPTED.
Judge Morris's report and recommendation does an
admirable job summarizing the claims raised in
Plaintiff's Complaint, and there is no need to reiterate
that summary here. Based on her review of Plaintiff's
Complaint, Magistrate Judge Morris recommends that
Plaintiff's claims against the Michigan Department of
Corrections be dismissed based on Eleventh Amendment immunity
(Dkt. 21, Pg IDs 106-107). She next recommends that
Plaintiff's claims against all Defendants in their
official capacities should likewise be similarly dismissed
based on immunity. Id. Pg IDs 107-108.
Defendants Beamon, Cochran, Davis, Ervins, Floyd, Nadzan,
Washington, and Williams, Magistrate Judge Morris notes that
Plaintiff's Complaint either fails to allege any specific
wrongdoing (as in the case of Floyd and Williams), or alleges
only supervisory liability (Washington, Beaman, Cochran,
Davis, Ervins, and Nadzan).
Judge Morris next considers Plaintiff's claim against
Defendant Lacross. This claim revolves around an incident
that occurred at TRI-CAP on February 17, 2017, as Plaintiff
and others returned from a work detail outside the facility
(Dkt. 19, Amend. Compl. at 5). TRI-CAP staff routinely
strip-searched residents returning from such outside details,
but Plaintiff alleges that on this occasion, the search
crossed a line into sexual assault. Id. He describes
how TRI-CAP staff member Lacross instructed the residents to
strip and stand with their hands against the wall, and then
spread each resident's buttocks to search for contraband
in the anal cavity. Id. Lacross had never touched
Plaintiff's buttocks during a search before, and
Plaintiff makes no allegation that any TRI-CAP employee had
done so since. Id. Magistrate Judge Morris concludes
that these allegations, even when accepted as are true and
viewed in a light most favorable to Plaintiff, do not give
rise to the level of cruel and unusual punishment under the
Magistrate Judge Morris recommends dismissal of Plaintiff
HIPAA claim (because that statute does not permit a private
cause of action), and that three motions filed by Plaintiff
(for access to a law library, to transfer facilities, and to
compel discovery) each be denied.
raises three objections (Dkt. 22) to Magistrate Judge
Morris's recommendations. First, Plaintiff argues that it
is improper to dismiss his official capacity claims, as he
intended (but failed), to include a claim for
“prospective injunctive relief” in his Amended
Complaint (Dkt. 22). This objection is not well-taken,
because Plaintiff no longer resides in the New Paths or
TRI-CAP facilities, and is now incarcerated in the Macomb
Correctional Facility. See, e.g., Cardinal v.
Metrish, 564 F.3d 794, 799 (6th Cir. 2009) citing
Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996)
(holding prisoner's claim for injunctive and declaratory
relief mooted by his transfer to new facility).
second objection concerns Magistrate Judge Morris's
recommended dismissal of the supervisory Defendants.
Plaintiff argues in somewhat conclusory fashion that
Defendants as a “whole” approved of the
violations he alleges. Plaintiff's objections are
unconvincing. The doctrine of respondeat superior does not
apply in § 1983 lawsuits to impute liability to
supervisory personnel, see Monell v. Department of Social
Services of New York, 436 U.S. 658, 691-95, 98 S.Ct.
2018 (1978), unless it is shown “that the supervisor
encouraged the specific incident of misconduct or in some
other way directly participated in it.”
Bellamy v. Bradley, 729 F.2d 416, 421 (6th
Cir. 1984). A supervisor's failure to supervise, train or
control an employee is not actionable under § 1983,
unless the plaintiff shows “the official at least
implicitly authorized, approved, or knowingly acquiesced in
the unconstitutional conduct . . .” Hays v.
Jefferson County, Ky., 668 F.2d 869, 874 (6th Cir.
1982); see also Shehee v. Luttrell, 199 F.3d 295,
300 (6th Cir. 1999) (“[A] supervisory official's
failure to supervise, control or train the offending
individual is not actionable unless the supervisor either
encouraged the specific incident of misconduct or in some
other way directly participated in it.”) (internal
quotation marks omitted). In this case, Plaintiff fails to
allege any specific conduct by these Defendants that would
support a finding that they directly participated in,
encouraged, or implicitly authorized or approved the alleged
unconstitutional conduct. Because Magistrate Judge
Morris's recommendation is sound, these Defendants will
be dismissed from this action.
third and final objection concerns Defendant Lacross.
Plaintiff argues that a single incident during a strip search
when Defendant Lacross allegedly touched Plaintiff's
buttocks gives rise to a constitutional claim, under the
Eighth Amendment. Magistrate Judge Morris correctly found
that this is not the law. See, e.g., Jackson v.
Madery, 158 Fed. App'x. 656, 661-62 (6th Cir. 2005)
(guard's rubbing and grabbing the plaintiff's
buttocks in a degrading and humiliating manner during a
“shakedown” does not amount to cruel and unusual
punishment under the Eighth Amendment); see also Johnson
v. Ward, No. 99-1596, 2000 WL 659354, at *1 (6th Cir.
May 11, 2000) (prisoner's claim that a male officer
placed his hand on the prisoner's buttock in a sexual
manner and made an offensive sexual remark did not meet the
objective component of the Eighth Amendment). As such, this
objection is also overruled.
reasons set forth above, Magistrate Judge Morris's
January 10, 2018 report and recommendation (Dkt. 21) is
hereby ACCEPTED and
ADOPTED. The following Defendants are hereby
DISMISSED from this case -- “Ms.
Beaman, ” Janet Cochran, Gary Davis, Vicki Ervin,
“Mr. Floyd, ” “Mr. Lacross, ” the
Michigan Department of Corrections (“MDOC”),
Pamela Nadzan, Heidi Washington, and “Mr.
Williams.” Plaintiff's official capacity claims
against the remaining Defendants are also
DISMISSED. Finally, Plaintiff's motion
for access to the law library (Dkt. 3), motion to transfer to
a facility with a law library (Doc. 6), and motion for
discovery (Doc. 7) are each DENIED.