Opinion
No: 00-73817
March 9, 2001
Ralph COTTENHAM, II, #270752, Adrian, MI. in forma pauperis
Peter C. JENSEN (P-25001), JENSEN, GILBERT, SMITH BORRELLO, P.C. Saginaw, MI. Attorneys for Defendants.
I. Introduction
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983. The Plaintiff is presently incarcerated at the Gus Harrison Correctional Facility. There are eight (8) outstanding motions. These can be resolved without oral argument.
II. Background
Plaintiff has instituted suit against the Saginaw County Sheriff, Undersheriff, Auditor and other "John Does" as well as the following members of the Saginaw County Board of Commissioners: Michael P. O'Hare, Robert D. Blame, Robert L. Fish, Kenneth B. Horn, Patrick Wurtzel, Terry W. Sangster, Robert M. Woods, Jr., Edward E. Mason, Todd M. Hare, Barbara J. McDonald, James M. Graham, Thomas A. Basil, James A. Koski, Raymond E. Bartels Richard F. Mallette.
In Plaintiff's pro se complaint, he alleges that the conditions at the Saginaw County Jail, where he was incarcerated as a pretrial detainee, violated his constitutional rights (i.e., 8th Amendment). With regard to specific complaints, they are enumerated as follows: (1) the sheriff/county did not develop a proper procedure for classification; (2) no method of properly summoning guards; (3) "no treatment for alcohol withdrawal;" (4) "no opportunity for regular exercise;" (5) "no mattress or bedding;" (6) "no recreation in or out of cell;" (7) "no adequate heat or ventilation;" (8) "no ventilation;" (9) "cold sack food;" (10) "no cleaning supplies;" (11) "excessive noise;" (12) "no fire protection;" (13) "overcrowded cells;" (14) "inadequate medical care;" and (15) "no access to jail library."
A. Plaintiff's Motion For Appointment of Counsel Plaintiff's Motion for Appointment of Counsel or Law Student
The defense did not submit a response to Plaintiff's request for appointment of counsel. Succinctly, Plaintiff maintains that because of the following, he is entitled to the appointment of counsel: (1) his lack of education; (2) his inability to investigate the facts of his case due to his incarcerated status; and, (3) the complexity of the case.
28 USCA § 1915 governs the fees and cost aspect of proceedings in forma pauperis:
"(e)(1) The court may request an attorney to represent any person unable to afford counsel." 28 USCA § 1915
However, case law provides that there is no Sixth Amendment right to counsel in a civil matter. Saunders v. Tanedo, 56 F.2d 195, WL 84111 (6th Cir. 1988). In Saunders, a pro se Ohio prisoner moved for appointment of counsel. Id. In his 42 U.S.C. § 1983 complaint he sought damages and injunctive relief due to Defendants' alleged failure to provide medical treatment for Plaintiff's prostate condition. Id. The Saunders Court held that the district court did not abuse its discretion in denying plaintiff's motion for appointment of counsel when the court reviewed defendant's pending motion for Summary Judgment and deemed it was proper. Id.
Trial courts have no duty to appoint counsel to represent indigent civil litigants, imprisoned or not, but rather trial courts have the discretion to do so. Jackson v. U.S. 221 F. Supp. 755 (E.D. Pa. 1963).
Upon a court's review of a defense motion for summary judgment, if there is a finding that said motion should be granted, then that is a sufficient basis to justify the denial of a plaintiff's request for counsel. Similarly, if the court, dismisses portions of or in its entirety, a plaintiff's complaint based upon the court's review of the allegations set forth in the complaint, denial of appointment of counsel would also be justified and within the discretion of the court.
In this Court's September 11, 2000 Opinion Order of Partial Dismissal, several portions of Plaintiff's Complaint were dismissed outright, based upon the Court's review of Plaintiff's Complaint (i.e., no entitlement to injunctive or declaratory relief; no cognizable cause of action against The Saginaw County Board of Commissioners; no viable claim against the Sheriff's Department). The Court finds that Defendant's Summary Judgment Motion requesting the disposal of Plaintiff's remaining claims is meritorious, as explained below. Consequently, Plaintiff's request for appointment of counsel and/or law student is denied.
B. Plaintiff's Motion for Continuance on Summary Judgment Pending Discovery for Opposition to Defendants' Claims
Defendants did not file a response to this motion. Plaintiff contends that a ruling on the Summary Judgment motion should be held in abeyance because he is waiting to be appointed counsel; and, he has some mental health care and chronic back issues which he attributes to his incarceration at the Saginaw County Jail.
Plaintiff brings this Motion in reliance upon Fed.R.Civ.P. 56(f) which states:
"(f) When Affidavits are Unavailable. Should it appear from the affidavits of the party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application or judgment or may order a continuance to permit the affidavit to be obtained or depositions to be taken or discovery to be had or may make such other as is just." Fed.R.Civ.P. 56(f)
Case law provides that when bringing this type of motion under Fed.R.Civ.P. 56(f), the movant must demonstrate what the requested discovery would prove and how the discovery would support his position and preclude the grant of summary judgment in favor of the defendants. Emmons v. McLaughlin, 874 F.2d 351, 356-57 (6th Cir. 1989) Furthermore, case law as well as the federal rules set forth the requirement that an affidavit be submitted by the movant showing why further discovery is needed. See, Klepper v. First of America Bank, 916 F.2d 337, 343 (6th Cir. 1990)
In order to establish an 8th Amendment violation, Plaintiff is required to show that he was incarcerated under conditions posing a substantial risk of serious harm and that the Defendants deliberately disregarded the risk. See, Farmer v. Brennan, 511 U.S. 825 (1994). Therefore, Plaintiff must demonstrate in his affidavit that further discovery would assist in establishing the requirements necessary to substantiate a viable 8th Amendment claim, thus altering the outcome of Plaintiff's case in his favor. See, Klepper, supra.
Plaintiff failed to file an affidavit demonstrating why further discovery is needed. Plaintiff also failed to state in his motion what discovery is requested, what the requested discovery would prove and how the discovery would support his position and preclude the grant of summary judgment in favor of Defendants. Further, Plaintiff did not provide the Court with any facts showing how additional discovery would establish an 8th Amendment violation and how said discovery could alter the outcome of his case.
Since Plaintiff's Motion does not provide a sufficient basis for granting a continuance, this motion is denied.
C. Plaintiff's Opposition Motion to Strike Affidavit of William Thompson
Defendants did not file a response to this Motion. Plaintiff asserts that the Affidavit of William Thompson (attached as Exhibit A to Defendants' Motion for Summary judgment) who at all times was the Lieutenant in Charge at Saginaw County Jail.
Plaintiff relies upon Fed.R.Civ.P. 12(f) in support of this Motion:
"(f) Motion to Strike. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the pleading upon the party or upon the courts own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent or scandalous matter.
In his motion, Plaintiff sets forth the reasons he believes Thompson's Affidavit is a misrepresentation. However, disagreement with the facts as alleged in an affidavit is not a basis to strike it from the record. The pleading must establish an "insufficient defense" or be redundant or immaterial or impertinent or scandalous in order for there to be justification to strike it from the record. Clearly, Lieutenant Thompson's affidavit is not immaterial, impertinent or redundant because it directly addresses Plaintiff's claims of a lacking classification system and overcrowding. The affidavit also has attached to it procedures relative to the issues raised in Plaintiff's Complaint (i.e., visitation, use of law library, telephone privileges and exercise of inmates). Further, the subjects raised in Lieutenant Thompson's affidavit are not scandalous; and, the affidavit is a key piece of evidence for the Defendants in establishing its case. Therefore, in accordance with Fed.R.Civ.P. 12(f), there is no viable basis to strike Lieutenant Thompson's Affidavit. Thus, this motion is denied.
D. Defendants' Motion for Summary Judgment Pursuant to Fed.R.Civ. p. 56(c)
Plaintiff has not filed a response to Defendants' Motion. Relative to the 8th Amendment issue, Plaintiff's Complaint cites to a myriad of problems with the Saginaw County Jail as set forth above. After listing all of these complaints, Plaintiff then states that he has suffered and continues to suffer from: chronic diarrhea, chronic skeletal pain, back, hip, and neck pain, "horrifying nightmares," depression anxiety, other mental health issues, decreased breathing, eye pain and other medical conditions. ( See Plaintiff's Complaint) Defendants contend that Plaintiff's Complaint does not state that the alleged deplorable living conditions caused his injuries; and, there is no specificity as to what living conditions caused which injuries. Consequently, it is Defendants' position that Plaintiff's vague and conclusory statements about the conditions of the Saginaw County do not rise to the level of an 8th Amendment constitutional violation.
A motion under Fed.R.Civ.P. 56(c), is to be granted by the Court if, considering all relevant pleadings, papers and affidavits, there are no genuine issues of material fact. Fed.R.Civ.P. 56(c).
Further, 28 USCA § 1915, which governs proceedings in forma pauperis provides:
"(b) Grounds for Dismissal — on review, the court shall identify cognizable claims or dismiss the complaint or any portion of the complaint, if the complaint — (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." 28 USCA § 1915A(b)
1. Eight Amendment Claim
The 8th Amendment's protections against cruel and unusual punishment extend to pretrial detainees through the Fourteenth Amendment's Due Process Clause. Whitley v. Albert, 475 U.S. 312, 327 (1986). Thus, claims by pretrial detainees challenging conditions of confinement are analyzed under the 8th Amendment. See, Thompson v. County of Medina, 29 F.3d 238, 242 (6th Cir. 1994) (exercise and recreation are not protected liberty interests).
To establish a violation of the 8th Amendment, the offending conduct must reflect an unnecessary and wanton infliction of pain. Ingraham v. Wright, 430 U.S. 651, 670 (1977). A viable 8th Amendment claim has objective and subjective components. Farmer, supra The objective component requires that the pain be serious, Hudson v. McMillian, 503 U.S. 1, 8-9 (1992), and the subjective component requires that the defendant act with deliberate indifference to an inmate's health or safety. Wilson v. Seiter, 501 U.S. 294, 302-03 (1991). Even if Plaintiff's allegations are accepted as true, in order to establish an 8th Amendment violation, the plaintiff must show that they were incarcerated under conditions posing a substantial risk of serious harm and that defendants deliberately disregarded the risk. Farmer, supra. In more detailed fashion, the Farmer Court held as follows:
" . . . a prison official cannot be found liable under the 8th Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must be both aware of the fact from which the inference could be drawn that a substantial risk of serious harm exists, and he must draw the inference . . . The 8th Amendment does not outlaw cruel and unusual "conditions;" it outlaws cruel and unusual "punishment." An act or omission unaccompanied by knowledge of a significant risk of harm might well be something society wishes to discourage, and if harm does result society might well wish to assure compensation . . . But an official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for accommodation, cannot under our cases be condemned as the infliction of punishment." Farmer, supra.
An 8th Amendment violation cannot be based on the totality of the circumstances, but rather must identify "specific conditions" that violates the inmate's right to personal safety. Walker v. Mintzes, 771 F.2d 920, 925 (6th Cir. 1985) Vague conclusions are "insufficient to establish an Amendment claim. Ruiz v. Estelle, 679 F.2d 1115, 1139-1140 (5th Cir. 1982). In order to support an 8th Amendment claim, the pretrial detainee must show a loss of a protected liberty interest. Hewitt v. Helms, 459 U.S. 460, 470 (1983). The standard for incarceration simply requires a "minimal civilized measure of life's necessities." Rhodes v. Chapman, 452 U.S. 337 (1981)
Based on these guiding principles, the Court finds that even if Plaintiff's allegations were true, they do not state a violation of his 8th Amendment rights.
Plaintiff sets forth a laundry list of complaints as noted above. While overcrowded conditions can be restrictive and even harsh, they do not violate the Eighth Amendment unless they deprive the inmate of the minimal civilized measure of life's necessities. See, Rhodes, supra at 347. Although Plaintiff may have been subjected to uncomfortable conditions, he does not allege with any specificity that he was denied essential food, basic sanitation, or safe temperatures.
Plaintiff's allegation that he feared for his safety while in the Saginaw County Jail also fails to state a claim. A prisoner's personal safety claim may not be based on the totality of the circumstances, but rather must specify a specific condition that violates his right to safety. See, Thompson, supra at 242. While a prisoner need not demonstrate that he has been the victim of an actual attack to bring a personal safety claim, he must establish that he reasonably feared such an attack. Id.
Plaintiff has not set forth sufficient facts establishing that he reasonably feared an attack on his personal safety. Plaintiff argues that, as a pretrial detainee, he should not have been incarcerated with convicted felons. However, the placement of pretrial detainees in a county jail facility with convicted inmates does not violate the 8th Amendment, without evidence demonstrating that a pretrial detainee was injured by the cell placement. Martin v. Tyson, 845 F.2d 1451, 1456 (7th Cir. 1988)
Because Plaintiff's factual claims are vague, conclusory and unsupported by evidence, Plaintiff has failed to set forth a meritorious case. Moreover, even if Plaintiff's allegations are accepted as true, they do not rise to the level of cruel and unusual punishment and thus, there is no 8th Amendment violation.
2. Deprivation of Jail Library Access
Plaintiff did not respond to this Motion. Defendants contend that Plaintiff has suffered no "actual injury" as a result of his alleged deprivation of access to the jail library, nor any prejudice ( See, Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996)). Moreover, Plaintiff has set forth no facts to support his allegation that he was denied access to the jail library.
The U.S. Supreme Court has held that the fundamental constitutional right of access to the courts requires prison authorities to assist prisoners in the preparation and filing of meaningful legal papers by providing them with adequate law libraries or adequate assistance from persons trained in the law. Bounds v. Smith, 430 U.S. 817 (1977) However, the Bounds opinion was re-examined by the Supreme Court and, in Lewis v. Casey, 518 U.S. 343 (1996), the Court considerably narrowed the Bounds holding. Ruling that Bounds did not create an abstract, free standing right to access to a law library or to legal assistance, the Lewis Court held that to establish standing, an inmate must demonstrate an "actual injury" which, the Court said cannot be shown "simply by establishing that his prison's law library or legal assistance program is sub-par in the some theoretical sense." Id. Instead, the court held:
"the inmate . . . must go one step further and demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a [non frivolous] legal claim. The legal claim impaired must be one cognizable under the access to the courts law developed by the Supreme Court." Lewis, supra.
The Lewis Court made it clear that denial of an adequate law library or adequate legal assistance is not actionable unless the mute can show that he suffered actual injury as a result of the inadequacy. Id.; See also, Carter v. McCaleb, 29 F. Supp.2d 423 (W.D. Mich. 1998).
This Court has accepted Plaintiff's Complaint and all of Plaintiff's motions for consideration on the merits. Not only does Plaintiff fail to allege that his motions have been dismissed for failure to adhere to procedural requirements, which would trigger the sort of concern expressed by Lewis (i.e., actual injury), but Plaintiff's motions have in fact been addressed on the merits. No evidence has been presented which indicates that Plaintiff's pleadings and motions have been dismissed as a result of technical deficiencies, which would result in this Court not considering Plaintiff's substantive position.
Consequently, there is no showing that Plaintiff has been "injured" by being deprived of library access. If anything, the pleadings that have been filed indicate that Plaintiff has in fact had adequate access to the law library and/or other legal assistance. Plaintiff's motions contain proper citations to local court rules, case law and federal rules of civil procedure. The only way that this could occur is if Plaintiff had access to the law library and/or other legal assistance. Therefore, Plaintiff does not have a viable claim relative to denial of jail library access.
3. Deprivation of Adequate Medical Care
Plaintiff did not respond to this Motion. Defendants maintain that Plaintiff was provided with adequate medical care and that his claim of inadequate medical care is without merit.
One of the earliest cases to discuss state of mind for 8th Amendment violations was Estelle v. Gamble, 429 U.S. 97 (1976), in which a prisoner charged that he was subjected to cruel and unusual punishment because he was denied adequate medical care. The Court determined that the objective component of the Amendment encompasses not only "physically barbarous punishments," but also the infliction of "unnecessary suffering [that] is inconsistent with contemporary standards of decency." Id. at 102-103 Estelle acknowledged that "punishment" could go beyond that which was specifically part of the sentence and could include the conditions facing the inmate once imprisoned. The Estelle Court concluded on the facts before it that "deliberate indifference to serious medical needs of prisoners constitutes the `unnecessary and wanton infliction of pain' required to state a cause of action, but that `inadvertent failure to provide adequate medical care' does not reach the threshold." Id. at 104-105.
In order to state an 8th Amendment claim in a medical mistreatment case, then, a prisoner must show unnecessary suffering brought about by the deliberate indifference of prison medical staff to his needs. Case law has established the standard of care required for medical care as follows:
"We believe that a prisoner states a proper cause of action when he alleges that prison authorities have denied reasonable requests for medical treatment in the face of an obvious need for such attention where the inmate is thereby exposed to undue suffering or threat of tangible residual injury." Westlake v. Lucas, 537 F.2d 857 (6th Cir. 1976)
Defendants attach to their Brief in Support of their Motion for Summary Judgment, as Exhibit B, an Affidavit from Nurse Amy Valerio. Nurse Valerio attests to the fact that Plaintiff has received dental treatment on one occasion and refused continued dental care. She also attests to the fact that Plaintiff was prescribed Tagamet for his gastrointestinal problems, Pamlor for stress and Kloupin for his depression. Further, Plaintiff was seen by a mental health specialist and a psychiatrist. Also attached to the Affidavit are in excess of 25 pages of medical records regarding various medical visits by Plaintiff and treatment Plaintiff has undergone.
In light of this factual evidence, Plaintiff's claim that he was denied medical care has no basis. Moreover, Plaintiff has not presented any evidence demonstrating that Defendants showed deliberate indifference relative to his medical welfare or that Defendants wantonly inflicted pain and suffering upon Plaintiff. Finally, Plaintiff has presented no evidence showing that his medical condition was caused by the conditions in the Saginaw County Jail. Therefore, Plaintiff's claim of inadequate medical care is not viable.
E. Plaintiff's Motion to Enter Exhibits, Plaintiff's Motion to Enter Character Evidence at MDOC Plaintiff's Motion to Compel Discovery
Based upon the Court's determination on the previously briefed motions, review of Plaintiff's Motion to Enter Exhibits, Plaintiff's Motion to Enter Character Evidence at MDCC Plaintiff's Motion to Compel Discovery on the merits is rendered moot and therefore, these motions are denied.
III. CONCLUSION
Based upon the foregoing, the Court makes the following findings:
(1) Plaintiff's Motion for Appointment of Counsel [Doc. #1-1] [Doc. #7-1] is DENIED
(4) Plaintiff's Motion for Continuance on Summary Judgment Pending Discovery for Opposition to Defendant's Claims [Doc. #12-1] is DENIED
(2) Defendant's Motion for Summary Judgment Pursuant to Fed.R.Civ.P. 56(c) [Doe. #9-1] is GRANTED (3) Plaintiff's Motion for Appointment of Counsel or Law Student [Doc. #11-11 is DENIED (5) Plaintiff's Motion to Enter Exhibits [Doc. #14-1] is DENIED (6) Plaintiff's Opposition Motion to Strike Affidavit of William Thompson [Doc. #15-11 is DENIED (7) Plaintiff's Motion to Enter Character Evidence at MDOC [Doc. # -11 is DENIED
(8) Plaintiff's Motion to Compel Discovery [Doc. # -1] is DENIED .