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LaPine v. City of Detriot

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

December 26, 2019

DARRIN LaPINE, Plaintiff,
v.
CITY OF DETROIT, COUNTY OF WAYNE, WAYNE COUNTY PROSECUTOR'S OFFICE, DR. HUQ, DR. MYLES, DR. PATSALIS, RN DURAM, RN LONG, RN GRAHAM, DEPT. D. JONES, DEPT. DEGASRIAPO, CORP. DYER, CORP. DICKSEN, CORP. BORDEAU, DEREK EMME, MICHAEL MILESKI, MICHAEL NELSON, and JANE and JOHN DOES, Defendants.

         MEMORANDUM ORDER GRANTING PLAINTIFF'S APPLICATION TO PROCEED WITHOUT PREPAYING FEES AND COSTS, DIRECTING INITIAL PARTIAL FILING FEE PAYMENT AND SUBSEQUENT PAYMENTS, DISMISSING PLAINTIFF'S CLAIMS UNDER 42 U.S.C. §§ 1981, 1985, AND 1986, DISMISSING PLAINTIFF'S CLAIMS CHALLENGING HIS ASSAULT CONVICTION AND PRISON DISCIPLINARY PROCEEDING, AND DIRECTING PLAINTIFF TO PROVIDE ADDRESSES FOR THE TWELVE DEFENDANTS THAT REMAIN IN THE CASE

          David M. Lawson United States District Judge.

         Plaintiff Darrin LaPine, a state prisoner at the Macomb Correctional Facility in Lenox Township, Michigan, recently filed a pro se civil rights complaint and an application to proceed without prepaying the fees or costs for this action. He alleges that the defendants have violated state law and his federal constitutional rights by prosecuting him for an assault on another inmate and by denying him medical care. Because his challenges to the fairness of the prison disciplinary proceeding and criminal prosecution are not properly asserted in a civil rights action, those claims must be dismissed. And because LaPine has not alleged facts that support recovery under any legal theory contemplated by 42 U.S.C. §§ 1981, 1985 or 1986, those claims will be dismissed as well. LaPine may proceed with his medical claims under 42 U.S.C. § 1983, but he must follow the procedures outlined in this order, which includes furnishing addresses for the defendants who remain in this case.

         I.

         LaPine alleges in his complaint that on May 24, 2015, while he was on parole at the Detroit Reentry Center, a fellow inmate named Michael Mileski accused him of biting Mileski's cheek and attempting to scratch Mileski's face. Later, Mileski changed his claim and maintained that LaPine had inserted his fingers in Mileski's eyes and tried to gouge them out. Defendant Michael Nelson filed a critical incident report about the alleged assault, but LaPine was not provided with any discovery materials, and the hearing investigator refused to investigate the matter. LaPine was found guilty of the disciplinary charge even though no one questioned the witnesses or provided any physical evidence to support the charge. The disciplinary case was then referred to the Michigan State Police for possible criminal charges. LaPine claims that he was arrested without probable cause and has been falsely imprisoned since then. Compl., ¶ 1, PageID. 3-6.

         Defendant Derek Emme of the Michigan State Police requested a warrant, and around September 14, 2016, the Wayne County Prosecutor's Office authorized a warrant. LaPine was charged with one count of assault with intent to maim or disfigure Mileski. On October 18, 2016, a video arraignment was conducted, and at a preliminary examination on November 30, 2016, the presiding judge concluded that there was probable cause to charge LaPine with a felony. LaPine, however, contends that there was no probable cause to charge him, his arrest was illegal, and his imprisonment is illegal. Compl., ¶¶1-2, PageID 6-7.

         Continuing, LaPine alleges that, on February 21, 2017 or thereabout, while he was being held in the Wayne County Jail, he was handcuffed to another prisoner and told to climb the stairs instead of taking the elevator in the tunnel that leads between the jail and the county courts. Defendant Dyer stood by and allowed this to happen, despite knowing that LaPine could not climb stairs. The other inmate lost control of his legal materials, and both he and LaPine fell to the tunnel floor below. LaPine suffered cuts, abrasions, lumps, bruises, and pain from the fall, but he did not receive any treatment for his injuries. He complained to defendant D. Jones who did nothing, and defendant Dicksen threatened to beat him if he complained about being injured and needing medical care. LaPine claims that he would not have fallen or been injured if it had not been for the order to climb the stairs. Compl., ¶ 5, PageID. 7-9.

         On February 22, 2017, defendants Degasriapo and D. Jones took LaPine to the medical unit in a wheelchair, but the deputies, nurses, and Dr. Huq laughed at him, and he was not treated for his injuries. Dr. Huq made him walk, but he fell again and re-injured himself. He was finally given a stroller with a seat, and defendant Bordeau escorted him back to his cell, where he had to give up his stroller. Compl., ¶ 5, PageID. 9-10.

         On February 24, 2017, defendant Degasriapo informed LaPine that he would have to walk about half a mile to the medical unit to get medical treatment and x-rays. LaPine never received any medical treatment because he could not walk to the medical unit. Compl., ¶6, PageID. 10.

         On February 27, 2017, LaPine's criminal case on the assault charge was dismissed due to pre-arrest delay. The prosecutor, however, appealed the trial judge's decision, and on November 15, 2018, the Michigan Court of Appeals remanded the case because no intentional delay or prejudice had been shown. The Michigan Supreme Court declined to grant leave to appeal. LaPine, however, maintains that the Wayne County Prosecutor's Office misrepresented to the state circuit court that there were no videos, no intentional delay, and no known witnesses. He also alleges in conclusory fashion that the criminal case was the result of a conspiracy and that it was a retaliatory act done in violation of his right to due process. Compl., ¶ 7, PageID. 10-11.

         In 2019, LaPine's parole was suspended, reinstated, and suspended again, apparently as a result of the criminal case against him. Additionally, the state trial court refused to hear LaPine's motions to dismiss the criminal case even though the motions alleged that the defendants had engaged in corrupt conduct. Compl., ¶¶ 8-9, PageID. 11.

         LaPine concludes his complaint by alleging that he was scheduled for spinal surgery on October 2, 2019, and that he was assured by defendants Duram, Graham, and Long that the scheduled surgery had been coordinated with Henry Ford Hospital. Dr. Patsalis and Dr. Myles also assured LaPine that he was having surgery on October 2, 2019. According to LaPine, the surgery was not performed, and there is a reasonable likelihood that he will be paralyzed as a result of the failure to receive the surgery. Compl. ¶ 9, PageID. 11-12.

         LaPine does not say what relief he wants, but he contends that the defendants intentionally delayed his arrest to their advantage, maliciously prosecuted him, and deprived him of medical treatment and surgery. These acts and omissions, he claims, violated his rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments. Compl. ¶ 9, PageID. 12-13.

         II.

         When, as here, a plaintiff has asked the Court to waive fees and costs because he cannot afford to pay them, the Court has an obligation to screen the case for merit and dismiss the case if it “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

         Three or more of LaPine's previous civil cases were dismissed as frivolous or for failure to state a claim. See LaPine v. Romanowski, No. 15-cv-11362, ECF No. 6, PageID. 42-43 (E.D. Mich. May 15, 2015) (collecting cases). Therefore, he is subject to the “three strikes” rule, which means that he is not entitled to proceed without prepayment of the fees and costs for this action unless he “is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). As contemplated by that statute, “[a] physical injury is ‘serious' . . . if it has potentially dangerous consequences such as death or severe bodily harm.” Gresham v. Meden, 938 F.3d 847, 850 (6th Cir. 2019).

         LaPine has satisfied that exception here. He alleges that he has impingement on nerve roots, severe spinal stenosis, degenerative disk disease, acute sciatica, herniated and bulging disks, severe arthritis, and severe neuropathy. According to him, the surgery that was scheduled to alleviate these problems has been postponed and, therefore, he is at risk of irreparable harm and he is in imminent danger of a life-threatening injury. Compl., ECF No. 1, PageID. 2-3. These are sufficient allegations of “imminent danger” to trigger the exception in § 1915(g).

         LaPine will be permitted to proceed without prepaying the fees or costs for this action, but he eventually must pay the full filing fee for this action. 28 U.S.C. § 1915(b)(1). The Court must assess and, if funds exist, collect an initial partial filing fee consisting of 20% of the greater of (1) the average monthly deposits to LaPine's prison trust fund account or (2) the average monthly balance in LaPine's account for the preceding six months. Ibid. After LaPine pays the initial partial filing ...


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