United States District Court, E.D. Michigan, Southern Division
ORDER DENYING MOTION TO AMEND JUDGMENT AND TO APPOINT
COUNSEL
TERRENCE G. BERG UNITED STATES DISTRICT JUDGE.
William
Burns, a pro se plaintiff presently in the custody
of the Michigan Department of Corrections
(“MDOC”), filed this lawsuit alleging that
employees of the MDOC prohibited him from receiving proofs of
books he has authored, in violation of his civil rights. On
September 11, 2019, this Court adopted the Report and
Recommendation issued by Magistrate Judge Elizabeth Stafford
granting in part and denying in part the motion for summary
judgment filed by Defendants Michelle Floyd, Jennifer Norder,
James King, Christine McCumber-Hemry, Kimberly Napier, Shawn
Brewer, and Greg Wilton. ECF Nos. 26, 45, 50. On Magistrate
Judge Stafford's recommendation, the Court also sua
sponte dismissed Plaintiff's claims against
Defendants Fredeane Artis and Brent Rohrig, finding that
Plaintiff had failed to state any plausible claims against
them. See ECF Nos. 45, 50. Petitioner now contends
that his claims against Artis and Rohrig were prematurely
dismissed because the Court had not yet received his response
to Artis and Rohrig's motion for summary judgment. As
relief, Petitioner requests that this Court's previous
Order and Magistrate Judge Stafford's Report and
Recommendation be modified to revive his claims against Artis
and Rohrig, and that the motion for summary judgment filed by
those Defendants be stricken. See ECF Nos. 48, 51.
The Court will deny that motion because it has dismissed his
claims against those Defendants sua sponte, i.e. of
the Court's own accord, not on the basis of their motion
for summary judgment. Petitioner has also filed a second
motion for appointment of counsel (ECF No. 52), as well as
additional miscellaneous motions that are now moot (ECF Nos.
47, 48). For reasons explained below, the Court will deny
those pending motions and also deny as moot the motion for
summary judgment filed by Defendants Artis and Rohrig as the
claims against those individuals have been dismissed.
Petitioner's First-Amendment claims against Defendants
Napier and King have survived summary judgment and remain
pending.
DISCUSSION
Defendants
Fredeane Artis and Brent Rohrig were employed at G. Robert
Cotton Correctional Facility during the events that gave rise
to the allegations in Plaintiff's complaint. Artis was an
Assistant Deputy Warden and Rohrig a Resident Unit Manager.
See ECF No. 1, PageID.2- 3 (Compl.). In his
Complaint, Plaintiff alleges violations of his due process
rights related to the correctional facility's decision to
deny him possession of four books his wife had mailed to him.
See generally ECF No. 1. The facts and claims at
issue in this litigation are set forth in more detail in the
Court's previous orders.
“[A]
district court may, at any time, sua sponte, dismiss
a complaint for lack of subject matter jurisdiction pursuant
to Rule 12(b)(1) of the Federal Rules of Civil Procedure when
the allegations of a complaint are totally implausible,
attenuated, unsubstantial, frivolous, devoid of merit, or no
longer open to discussion.” Apple v. Glenn,
183 F.3d 477, 479 (6th Cir. 1999) (citing Hagans v.
Lavine, 415 U.S. 528, 536-37 (1974)); see 28
U.S.C. § 1915(e)(2)(B)(ii) (providing that under the
Prison Litigation Reform Act district courts may sua
sponte dismiss an indigent plaintiff's civil rights
action if it fails to state a claim upon which relief can be
granted). A plaintiff fails to state a claim “if it
appears beyond a doubt that the plaintiff can prove no set of
facts in support of his claim that would entitle him to
relief.” Brown v. Bargery, 207 F.3d 863, 867
(6th Cir. 2000). To sufficiently allege liability on the part
of a defendant in a § 1983 civil rights suit, a
plaintiff must show that the named defendant was personally
involved in the allegations underlying the complaint.
Smith v. Doyle, No. 15-10090, 2017 WL 3780047, *2
(E.D. Mich. Jul. 5, 2017) (citing Rizzo v. Goode,
423 U.S. 362, 372 (1976) and Bellamy v. Bradley, 729
F.2d 416 (6th Cir. 1984)). The Sixth Circuit has held that
simply reviewing or denying a prisoner's grievance cannot
establish personal involvement of the defendant sufficient to
support § 1983 liability. Shehee v. Lutrell,
199 F.3d 295, 300 (6th Cir. 1999); Skinner v.
Govorchin, 463 F.3d 518, 525 (6th Cir. 2006).
Plaintiff's
Complaint contains only scant reference to Artis and Rohrig
and fails to state any plausible allegations against these
Defendants that could support § 1983 liability.
Artis's actions are specifically described only in the
following portion of the Complaint: “On 5/18/16
Administrative Assistant Napier sent a memorandum to Deputy
Floyd and Deputy Artis to assist in the hearing of Step I
grievance.” ECF No. 1, PageID.7. To the extent
Plaintiff is suggesting Artis is liable for the alleged due
process violations because he reviewed a grievance Plaintiff
filed in connection with the MDOC's decision denying him
permission to possess the books mailed to him, that grievance
review as a matter of law cannot support Plaintiff's
§ 1983 claim against Artis. See Shehee, 199
F.3d at 300. In his claim for relief section, Plaintiff also
asserts that Artis and other Defendants “fail[ed] to
enforce policy” but he fails to make any specific
factual allegations that would permit the Court to draw a
reasonable inference that Artis is liable for any misconduct.
ECF No. 1, PageID.10-11; see Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). Plaintiff has not alleged facts
that, even if proven to be true, would establish Artis was
personally involved in the alleged due process violations, or
any other conduct that could establish liability. Sua
sponte dismissal of Plaintiffs' claim against Artis
was therefore appropriate.
Concerning
Rohig, the Complaint alleges that “On 4/14/16 Plaintiff
Burns received three (3) notice of package/mail rejections
Exhibit B). The signature was not legible. P.C. King and ROM
Roh[i]g reported the signature was J. Norder's.”
ECF No. 1, PageID.5. Again, even if true, this factual
allegation is insufficient to establish that Rohig was
personally involved in any violation of Plaintiff's due
process rights, or any other rights guaranteed by the United
States Constitution. As with Artis, Plaintiff also asserts
that Rohig “fail[ed] to enforce policy” but does
not allege any facts explaining how or why Plaintiff failed
to enforce MDOC policy, or what that failure would support a
claim for civil rights violations under § 1983. ECF No.
1, PageID.10-11. Because Plaintiff has failed to allege facts
that could plausibly establish a basis for Rohig's
liability, the Court declines to alter its decision to
sua sponte dismiss Plaintiff's claims against
him.
The
Court now turns to Plaintiff's motion for appointment of
counsel. Unlike in criminal cases, there is no constitutional
or statutory right to appointment of counsel in civil cases.
See Lavado v. Keohane, 992 F.2d 601, 605-06 (6th
Cir. 1993); Wright v. West, 505 U.S. 277, 293
(1992). A collateral attack on an underlying criminal
conviction is civil in character. Pennsylvania v.
Finley, 481 U.S. 551, 556-57 (1987). But when “the
interests of justice so require, ” district courts may,
in their discretion, appoint counsel for an indigent prisoner
“seeking relief under section 2241, 2254, or 2255 of
title 28” through a habeas petition. 18 U.S.C. §
3006A(a)(2); see Henry v. City of Detroit Manpower
Dep't, 763 F.2d 757, 760 (6th Cir.) (en banc). In
determining whether appointment of counsel is warranted,
district courts should consider, among other factors,
“the viability or frivolity of the [petitioner's]
claims, the nature and complexity of the case, and the
indigent's ability to present the case.”
Sellers v. United States, 316 F.Supp.2d 516, 522
(E.D. Mich. 2004) (citations omitted). The Court does not
consider this case the type of extraordinary circumstance
that might warrant appointment of counsel. Plaintiff has on
several occasions demonstrated his ability to cogently
advance his legal claims. Additionally, the civil rights
violations Plaintiff is alleging do not appear particularly
complex or of a nature that implicates Plaintiff's safety
or physical wellbeing. The Court will accordingly deny the
motion for appointment of counsel.
CONCLUSION
For
these reasons, Plaintiff Williams Burns's motions to
amend the Court's September 11, 2019 Order (ECF No. 51)
and to appoint counsel (ECF No. 52) are
DENIED. Further, Plaintiff's motion for
enlargement of time (ECF No. 47) and motion to strike
Defendants Artis and Rohrig's motion for summary judgment
and portions of the Magistrate Judge's August 15, 2019
Report and Recommendation (ECF No. 48) are
DENIED as moot. Additionally, the motion for
summary judgment filed ...