Opinion
Case No. 1:00-cv-819
May 6, 2002
Michael B. Runyon, Pro Se.
Paul J. Greenwald, Varnum, Riddering, Schmidt Howlett, LLP, Grand Rapids, MI., for Defendant.
REPORT AND RECOMMENDATION
This is a civil rights action brought pro se by a state prisoner pursuant to 42 U.S.C. § 1983. Presently before the Court for consideration are the motions for summary judgment brought by the Defendants Glynn, Gates, Miedema, Dougan, Hess, Kent County Sheriff's Department and John Doe #4 ("County Defendants") (docket #67) and Defendant Correctional Medical Services ("CMS") (docket #58). Plaintiff filed briefs in opposition to both of the motions for summary judgment (dockets ##69, 78). For the reasons set forth below, I recommend that Defendants' motions for summary judgment be granted.
Facts
Plaintiff is currently incarcerated in the Ojibway Correctional Facility, but the events giving rise to his action occurred at the Kent County Correctional Facility (KCCF) in Grand Rapids. In his original complaint, Plaintiff sued James R. Dougan, Kent County Sheriff Joseph Glynn, Kent County Sheriff's Deputy Ron Gates, Detective at the Kent County Sheriff's Department; Gerald Miedema, Lieutenant at the Kent County Sheriff's Department; John Doe #1 (Medical Administrator); John Doe #2 (Medical Superintendent); John Doe #3 (Medical Staff Worker); John Doe #4 (Kent County employee responsible for responding to request to file complaint); and John Doe #5 (Kent County employee responsible for prisoner mail). In his first amended complaint, Plaintiff identified John Doe #1 as Stephen Spanel, Medical Administrator at KCCF; John Doe #2 as CMS, and John Doe #5 as Jon Hess, Captain and Jail Administrator at KCCF. Plaintiff also added the Kent County Sheriff's Department as a Defendant.
John Doe #3 was never served in this action. A plaintiff has 120 days after he files his complaint with the court to effect service of the summons and complaint upon a defendant. See FED. R. Civ. P. 4(m). The summons issued for John Doe #3 was returned unexecuted on April 6, 2001 (docket #18). Plaintiff made no further effort to identify John Doe #3 or to effect service upon him. Under Rule 4(m), Plaintiff's complaint against John Doe #3 should be dismissed without prejudice. See Habib v. General Motors Corp. 15 F.3d 72, 73 (6th Cir. 1994); Garrin v. Gillis, No. 96-6235, 1998 WL 553020, at *2 (6th Cir. Aug. 17, 1998).
Stephen Spanel has not entered an appearance in this action. Spanel was served by certified mail at the Kent County Sheriff's Department.See docket #51. The Certified mail receipt was signed on August 15, 2001, by Mark Hoogerhyde, who is not a named Defendant and whose relationship to Defendant Spanel is unknown. Certified mail at one's place of employment is not an acceptable method of service on an individual who does not answer the complaint or otherwise appear under federal law. See FED. R. Civ. P. 4(e)(1), (2); McAllister v. Jack's Marina South, No. CIV. A. 99-1255, 1999 WL 962585, at *2 (E.D. Pa. Oct. 22, 1999); see also Lowe v. Hart, 157 F.R.D. 550, 552 (M.D. Fla. 1994) (leaving copies of summons and complaint with someone at individual defendants' place of business ineffective unless individual accepting service is authorized to do so on their behalf). Because the Court cannot determine whether Spanel was served in accordance with FED. R. Civ. P. 4(e), he should be dismissed without prejudice. Even if Spanel was properly served, I find below that Plaintiff failed to state an Eighth Amendment claim arising from his medical treatment.
Plaintiff raises several claims flowing from his arrest by Kent County Sheriff's Deputy Joseph Glynn. Plaintiff contends that Glynn used excessive force in arresting him on July 20, 1999. Plaintiff also raises a state tort claim of assault and battery against Deputy Glynn. Plaintiff further claims that Defendant CMS violated his Fourteenth Amendment rights when they delayed twenty-four days in providing him with medical attention for the neck injury he sustained during his arrest. In addition, Plaintiff contends that Defendants Gates, Miedema, Dougan, Hess, Kent County Sheriff's Department and John Doe #4 violated his due process right of access to the courts when they ignored his repeated requests to file a complaint for assault and battery against Deputy Glynn. Finally, Plaintiff claims that Defendants Dougan, Hess and the Kent County Sheriff's Department interfered with his outgoing mail in violation of his First Amendment rights. The facts surrounding each of Plaintiff's claims are set forth below.
I. Excessive Use of Force
On July 20, 1999, while Plaintiff was in a 7-Eleven store on Plainfield, N.E., in Kent County, Deputy Glynn approached him in the 7-Eleven and asked for his identification. (Amend. Compl., 4.) Glynn told Plaintiff that he wanted the identification because he was investigating a prior incident of larceny that occurred at the store, but Glynn was evasive about the details. (Amend. Compl., 4-5.) Plaintiff claims that he and Glynn walked out of the store together and went to Glynn's car parked outside. During that time, they continued to discuss the identification. (Amend. Compl., 5.) Plaintiff states that he sat in his car with the door open, started the car, and put the car in reverse with his foot on the brake. (Amend. Compl., 5.) According to Plaintiff, Defendant did not indicate that Plaintiff was under arrest or being detained. (Amend. Compl., 5.) Plaintiff claims:
[A]s the car nudged backwards a little, Defendant Glynn lunged in and struck the Plaintiff hard in the side of the neck with his forearm elbow. Defendant then continued his attack on the Plaintiff in the vehicle, roughly handling the Plaintiff's head and upper body during which time the Plaintiff never struggled back or resisted. The Defendant didn't bother to handcuff the Plaintiff, but roughly forced the Plaintiff to the side of the car and pinned the Plaintiff's neck to the door window area with excessive force using his weight and grinding into the Plaintiff's neck causing damage.
(Amend. Compl., 5-6.) Plaintiff maintains that he never resisted, struggled, or fought back during the encounter with Glynn. (Amend. Compl., 5-6.) Nevertheless, Plaintiff was convicted by a jury in the Kent County Circuit Court of resisting and obstructing an officer and receiving and concealing stolen goods in excess of $1,000.
Deputy Glynn's version of the events differs substantially from Plaintiff's. In his affidavit, Glynn testified that he was dispatched to the 7-Eleven after they received a call from the store that a suspect involved in an earlier retail fraud matter had returned to the store. (Glynn Aff., ¶ 2, County Defendants' Motion for Summary Judgment, Exhibit 4.) When Glynn entered the store, the clerk pointed out Plaintiff as the individual who was involved in the prior retail fraud incident. (Glynn Aff., ¶ 3.) Glynn approached Plaintiff and asked for his identification. (Glynn Aff., ¶ 4.) Plaintiff asked Glynn why he needed his identification, and Glynn explained that he had reason to believe that Plaintiff was involved in a prior retail fraud at the store. (Glynn Aff., ¶ 5.) Plaintiff refused to disclose his name, but told Glynn that his identification was in his car. (Glynn Aff., ¶ 6.) Glynn walked outside with Plaintiff to his car. (Glynn Aff., ¶ 6.) Plaintiff told Glynn that his identification was in the glove compartment and got into his car. Glynn stood in the open door of the car while Plaintiff looked in the glove compartment. (Glynn Aff, ¶ 7.) Glynn further testified that "[Plaintiff] leaned over toward the glove compartment but at the same time, tried to kick me with his left foot, he started the vehicle, and tried to back the vehicle to flee the scene." (Glynn Aff., ¶ 8.) To avoid being struck by the vehicle, Glynn jumped inside to subdue Plaintiff and take him into custody. (Glynn Aff., ¶ 9-10.)
Glynn provided a similar version of his encounter with Plaintiff in his police report:
This subject then reached over for the glove compartment but immediately swung his left foot out and I stepped back so I would not be kicked and he put the key in the ignition and started the car up and placed it in reverse in an attempt to back up and flee from the area. I then immediately struck this subject with my right forearm elbow area into his neck as to prevent him from pulling away while I was still leaning into his vehicle with the door open. This subject then continued to place his foot on the gas and I immediately stomped on the brake pedal with my left foot and was able to get the car out of gear but then continued to struggle with the person and fight with him in the front seat of the vehicle.
(See Police Report, County Defendants' Motion for Summary Judgment, Exhibit 4.) In his testimony at Plaintiff's criminal trial, Glynn gave the following details concerning what happened after he got into the car with Plaintiff:
Q: What happens then, if you could tell the jury? Could you describe for the jury what happens as the two of you are in the front seat of that vehicle?
A: At that point I am basically laying on top of him, placing my right elbow against his ear and neck area, against the passenger door, still with my left foot on the brake, to prevent the vehicle from moving.
Q: What's he doing at that time?
A: He is struggling. I had both of my hands on his hands, because I did not know if there were any weapons or any other instruments in the vehicle that I could be harmed with. So I contained both of his hands with both of my hands.
Q: How long did the two of you struggle like this?
A: At the maximum, probably four minutes.
Q: At any time during this, were you able to call for help?
A: Yes, I had to let go of one of his hands so I could activate my button on my shoulder microphone to call for help.
Q: Could he throw a punch at this time?
A: He was probably able with one hand that I had to let go when I keyed my microphone, but he did not strike me.
Q: Now, as you call for help, what happens between the two of you after you call for help?
A: I continued to hold his hands and place pressure against his ear and neck area, against the passenger side door, until help arrived, to help me get him out of the vehicle.
Q: Now, at any point in time are you talking to him during this struggle in the front seat?
A: Not carrying on a conversation.
Q: Is there any words transpiring between you? Does he say anything?
A: He did say that I was placing pressure on his neck, so I relieved some of the pressure with my elbow.
(Trial Transcript, 53-56, Plaintiff's Response to County Defendants' Motion for Summary Judgment, Exhibit 3.)
II. Delay of Medical Treatment
Upon his arrival at KCCF on July 20, 1999, Plaintiff was given a medical screen. Plaintiff told the intake staff that he was hurt and in great pain. The clerk noted on a jail form "Remarks: states neck injury from arrest." (See KCCF Medical Screening Form, CMS Motion for Summary Judgment, Exhibit B.) Plaintiff wrote kites to the medical department on August 4, 6, 7, 9, 10 and 12. (See Kites, CMS Motion for Summary Judgment, Exhibit E.) The kites dated August 10 and 12 were also sent to KCCF Administration. In the kites, Plaintiff repeatedly claimed that he suffered a neck injury during his arrest on July 20, and was suffering neck and head pain. In the August 4 kite, he also claimed that there was a hole in his jaw where the officer's force caused his tooth to break the skin. Plaintiff claims that he had difficulty sleeping due to pain in his neck, and suffered from severe headaches. (Amend. Compl., 7.) He further alleges that he had difficulty conducting normal daily activities because he could not move his neck without pain. Plaintiff also contends that the delay in treatment caused his condition to "aggravate and escalate," and increased the risk of permanent damage. (Amend. Compl., 8.)
Plaintiff wrote two kites to the Medical Department on August 7, 1999.
Plaintiff was first examined by a nurse on August 13, 1999. (See CMS Interdisciplinary Progress Notes for 8/13/99, CMS Motion for Summary Judgment, Exhibit F.) Plaintiff told the nurse that he was injured by the arresting officer, and it hurt to turn his neck from side to side. The nurse provided Plaintiff with Tylenol and scheduled him for further evaluation. On August 17, a second nurse evaluated Plaintiff. The nurse prescribed Motrin and advised Plaintiff to use a warm compress. She also placed Plaintiff on the sick call list to see the jail physician. (See CMS Interdisciplinary Progress Notes for 8/17/99, CMS Motion for Summary Judgment, Exhibit F.) Plaintiff was examined by the jail physician the following day. The physician diagnosed Plaintiff with a "neck sprain," prescribed 600 mg. of Motrin for seven days, and ordered a c-spine x-ray. (See CMS Interdisciplinary Progress Notes for 8/18/99, CMS Motion for Summary Judgment, Exhibit H.) Plaintiff received the x-ray the same day, which was negative for any fracture or subluxation. (See X-ray Report, CMS Motion for Summary Judgment, Exhibit G.) A progress note indicated that an upper floor deputy found 15-20 Tylenol and Ibuprofin pills stashed in Plaintiff's cell on August 22, 1999. (See CMS Interdisciplinary Progress Notes for 8/22/99, CMS Motion for Summary Judgment, Exhibit H.)
Plaintiff was examined by the jail physician on September 2, 1999. The physician noted that Plaintiff was "in no distress, neck is stiff, ROM [range of motion] normal." The physician again referred to Plaintiff having a "neck sprain," and prescribed him Mortin and Robaxin for pain. (See CMS Interdisciplinary Progress Notes for 9/2/99, CMS Motion for Summary Judgment, Exhibit H.) About a month later, on October 4, 1999, the jail physician examined Plaintiff and observed "ROM passive and not painful in full extension or full flexion." The prescriptions for Motrin and Robaxin were continued. (See CMS Interdisciplinary Progress Notes for 10/4/99, CMS Motion for Summary Judgment, Exhibit H.) On October 28, 1999, the jail physician examined Plaintiff and observed "exam of neck normal, ROM normal." According to the physician's notes, Plaintiff indicated that the pain in his neck was not as intense as before. (See CMS Interdisciplinary Progress Notes for 10/28/99, CMS Motion for Summary Judgment, Exhibit H.) The jail physician referred Plaintiff to the Orthoclinic at St. Mary's Health Services on November 10, 1999. The clinic also diagnosed Plaintiff with a muscle strain, and recommended that Plaintiff continue with the Motrin and Robaxin. The clinic also prescribed warm compresses on the neck and ROM exercises. (See St. Mary's Medical Records, CMS Motion for Summary Judgment, Exhibit I.) Plaintiff was also seen by the jail physician on December 6 and 8, 1999, and January 12, 1999. Each time, Plaintiff complained of "neck pain," and each time the physician prescribed Motrin and Robaxin. (See St. Mary's Medical Records, CMS Motion for Summary Judgment, Exhibit H.)
On January 26, 2000, Plaintiff was transferred to the custody of the Michigan Department of Corrections (MDOC) and placed at the State Prison of Southern Michigan in Jackson. Plaintiff testified at his deposition that he remained on Mortin "as needed," but his prescription for Robaxin was terminated upon his transfer to the MDOC. (Runyon Dep., 18.) Plaintiff testified that he worked as a server in the cafeteria at the Ojibway Correctional Facility five days a week. (Runyon Dep., 21.) According to Defendants, Plaintiff's medical records indicate that he has received at least two hand injuries from playing basketball during his incarceration in MDOC facilities.
III. Denial of Right to File a Complaint
While he was incarcerated at KCCF, Plaintiff requested to file an assault and battery complaint with the Kent County Sheriff's Department against Deputy Glynn. Plaintiff made three requests by mail to the Sheriff's Department, but did not receive any response. (Amend. Compl., 9.) Plaintiff began to believe that his letters, including those to the NAACP, ACLU, and several attorneys, were not being mailed out of the jail. On November 11, 1999, he wrote a letter to the Internal Affairs Division of the Kent County Sheriff's Department and explained that "he was not being allowed to file a complaint," and that "there appears to be a problem with his correspondence mail reaching out for help." Again, Plaintiff received no response. However, on November 28, 1999, Sheriff's Deputy Randy Dykema went to Plaintiff's cell and asked him questions about his request to file a complaint. (Amend. Compl., 10.) After the interview, Plaintiff did not have any further contact with Dykema. Plaintiff continued to write letters in December and January requesting to file a complaint against Glynn. On January 14, 2000, Plaintiff was interviewed by Kent County Sheriff's Detective Ron Gates. (Amend. Compl., 11.) Gates told Plaintiff that Lieutenant Miedema had to take a complaint that was being made against a Deputy. Plaintiff claims that Gates told him that Miedema would take his complaint the following week, but that never occurred. (Amend. Compl., 11.)
Lieutenant Miedema states in his affidavit that he was advised by Detective Sikkema on December 1, 1999, that a criminal matter involving Plaintiff required an internal affairs investigation. (Miedema Aff., ¶ 3, County Defendants' Motion for Summary Judgment, Exhibit 3.) Miedema states that he conducted a complete investigation of Plaintiff's allegations of excessive use of force in his arrest. (Miedema Aff., ¶¶ 4-5.) He concluded that the officers who arrested Plaintiff used force, but only the amount necessary to effect the arrest. (Miedema Aff., ¶ 6.) A copy of the Internal Affairs Investigation Report, dated December 9, 1999, is attached to Lieutenant Miedema's affidavit.
IV. Interference with Mail
Plaintiff claims that when his efforts to file a complaint against Officer Glynn were being "ignored and obstructed" he wrote letters seeking assistance to the NAACP, ACLU and Attorneys Paul Mayhue, Michael Liquigli, Helen Niewenhuis, Damian Nunzio, Stephen Drew and John Beason. (Amend. Compl., 12.) In late September, Plaintiff realized that he had not received any responses to his letters. Plaintiff believed that there was a conspiracy to interfere with his mail in order to prevent him from filing a complaint. He wrote letters to the Postmaster General and Kent County Circuit Court Judge Kolenda, expressing his concerns. Plaintiff claims that he was finally able to communicate with Helen Nieuwenhuis through a cell mate whom she was representing. Nieuwenhuis told Plaintiff's cell mate that she never received any correspondence from Plaintiff. (Amend. Compl., 14.) A member of Plaintiff's family also contacted Paul Mayhue, and was told that he never received any correspondence from Plaintiff. (Amend. Compl., 14.)
For relief, Plaintiff seeks declaratory judgment, as well as compensatory and punitive damages against each of the Defendants.
Applicable Standard
As the Sixth Circuit has noted, the federal courts have entered a "new era" in summary judgment practice. Cox v. Kentucky Dep't of Transp., 53 F.3d 146, 150 (6th Cir. 1995); Street v. J. C. Bradford Co., 886 F.2d 1472, 1478-81 (6th Cir. 1989). While preserving the constitutional right of civil litigants to a trial on meritorious claims, the courts are now vigilant to weed out fanciful, malicious, and unsupported claims before trial. Summary judgment is appropriate when the record reveals that there are no issues as to any material fact in dispute and the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c); Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006, 1009 (6th Cir. 1997) (en banc), cert. denied, 522 U.S. 1084 (1998); Sable v. General Motors Corp., 90 F.3d 171, 175 (6th Cir. 1996); Payne v. Board of Education, 88 F.3d 392, 397 (6th Cir. 1996) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). The standard for determining whether summary judgment is appropriate is "whether 'the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" See Adcox v. Teledyne, Inc., 21 F.3d 1381, 1385 (6th Cir. 1994) (quoting Anderson, 477 U.S. at 251-52); see also Crabbs v. Copperweld Tubing Products Co., 114 F.3d 85, 88 (6th Cir. 1997).
The Court must consider all pleadings, depositions, affidavits, and admissions on file, and draw all justifiable inferences in favor of the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Wathen v. General Elec. Co., 115 F.3d 400, 403 (6th Cir. 1997). The party moving for summary judgment bears the initial burden of pointing out to the district court that there is an absence of evidence to support the nonmoving party's case, but need not support its motion with affidavits or other materials "negating" the opponent's claim. Moore v. Philip Morris Companies, Inc., 8 F.3d 335, 339 (6th Cir. 1993). Once the defendants show that "there is an absence of evidence to support the nonmoving party's case," the plaintiff has the burden of coming forward with evidence raising a triable issue of fact.Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To sustain this burden, the plaintiff may not rest on the mere allegations of his pleadings. FED. R. Cw. P. 56(e); Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995); Cox, 53 F.3d at 150. A party opposing a motion for summary judgment has the burden to come forth with requisite proof to support his legal claim. See Noble v. Chrysler Motors Corp., 32 F.3d 997, 999 (6th Cir. 1994); Street, 886 F.2d at 1478-81; Booker v. Brown Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th Cir. 1989). In so doing, the plaintiff must set forth specific facts showing that there is a genuine issue for trial. FED. R. CIV. P. 56(e); see Mounts v. Grand Trunk Western R.R., 198 F.3d 578, 580 (6th Cir. 2000); Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996); Brennan v. Township of Northville, 78 F.3d 1152, 1156 (6th Cir. 1996).
Discussion
I. Excessive Use of Force
The Fourth Amendment provides that, "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated . . . ." U.S. Const. amend. IV. The Constitutional right is enforced against the states through the Due Process Clause of the Fourteenth Amendment. See Mapp v. Ohio, 367 U.S. 643, 655 (1961). Federal claims challenging allegedly unlawful searches and seizures arise under the Fourth Amendment. Additionally, inGraham v. Connor, 490 U.S. 386 (1989), the Supreme Court held that a free citizen's claim that law enforcement officials used excessive force in the course of making an arrest, investigatory stop, or other seizure of his or her person, are to be evaluated under the Fourth Amendment's objective reasonableness test as well. Id. at 388. Plaintiff's complaint asserts that Defendant Glynn subjected Plaintiff to an unconstitutional use of excessive force, in violation of Plaintiff's Fourth Amendment rights.
Determining whether the force used by a law enforcement officer to effect a particular seizure is "reasonable" under the Fourth Amendment requires "a careful balancing of 'the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Graham, 490 U.S. at 396 (quoting United States v. Place, 462 U.S. 696, 703 (1983)). The "reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. . . . With respect to a claim of excessive use of force, the same standard of reasonableness at the moment applies: 'Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment. The calculus of the reasonableness must embody allowance for the fact that officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation." Graham, 490 U.S. at 396-97; see Neague v. Cynkar, 258 F.3d 504, 507 (6th Cir. 2001).
Plaintiff was convicted by a jury of resisting and obstructing an officer. The Michigan statute for resisting and obstructing is very broad. An officer's efforts to keep the peace include ordinary police functions that do not directly involve placing a person under arrest. See People v. Little, 456 N.W.2d 237, 240 (Mich. 1990). "[T]he broad statutory clause 'maintain, preserve and keep the peace' includes all of the duties legally executed by a police officer." People v. Weatherspoon, 248 N.W.2d 889, 891 (Mich.Ct.App. 1967). At the time Defendant Glynn acted, Michigan law provided that "passive or strictly verbal conduct" could constitute resisting or obstructing. See People v. Vasquez, 612 N.W.2d 162, 165 (Mich.Ct.App. 2000), rev'd 631 N.W.2d 711 (Mich. 2001). It was not until July of last year that the Michigan Supreme Court more narrowly constructed the statute and held that "Michigan's 'resisting and obstructing' statute does not proscribe any manner of interference with a police officer, and it also does not proscribe only conduct that poses a threat to the safety of police officers; rather, it proscribes threatened, either expressly or impliedly, physical interference and actual physical interference with a police officer." 631 N.W.2d at 721. Even under the present construction of the statute, a police officer does not have to wait until a suspect strikes the first blow. "[A]ctual physical interference is unnecessary to support a charge under the 'resisting and obstructing' statute. Rather, conduct that rises to the level of threatened physical interference is sufficient to support a charge under the statute. Additionally, we agree that an expressed threat of physical interference is unnecessary to support a charge under the statute. Rather, any conduct that rises to the level of threatened physical interference, whether it is expressed or not, is sufficient to support a charge under the statute." Vasquez 631 N.W.2d at 720. Objectively viewed from the position of a police officer, Plaintiff's starting the car, putting it in reverse and "nudging backward" constituted threatened physical interference in the form of an assault. Furthermore, any objective officer would have believed that Plaintiff was attempting to flee. Accordingly, Deputy Glynn had probable cause to arrest plaintiff for violation of this statute when he placed his car in reverse and moved backward.
Mich Comp Laws § 750.479 provides, in part, as follows:
Any person who shall knowingly and wilfully . . . obstruct, resist, oppose, assault, beat or wound any of the above named officers, . . . in their lawful acts, attempts and efforts to maintain, preserve and keep the peace, shall be guilty of a misdemeanor, punishable by imprisonment in the state prison not more than 2 years, or by a fine of not more than 1,000 dollars.
Plaintiff contends that Deputy Glynn never told him that he was under arrest or gave him any commands to "stop" before Glynn struck him. In this case, it was reasonable for Glynn to take immediate action to protect himself once Plaintiff began to move his car backward.
Plaintiff does not allege or show that his conviction for resisting and obstructing a police officer was overturned on appeal. Under Michigan Law, collateral estoppel precludes relitigation of an issue in a subsequent, different cause of action between the same parties where the prior proceeding culminated in a valid, final judgment and the issue was (1) actually litigated, and (2) necessarily determined. Jacobson v. Miller, 155 N.W. 1013, 1014 (Mich. 1879); Howell v. Vito's Trucking Excavating Co., 191 N.W.2d 313, 315 (Mich. 1971). Although collateral estoppel usually applies where there are two civil proceedings, the principle is also applicable to cases of "cross-over estoppel," which involve issue preclusion in a civil proceeding following a criminal proceeding or vice versa. People v. Gates, 452 N.W.2d 627, 630 (Mich. 1990), cert. denied, 497 U.S. 1004 (1990); People v. Goss, 503 N.W.2d 682, 684 n. 1 (Mich.App. 1993). The federal courts have generally accorded preclusive effect to issues decided by state courts.See Allen v. McCurry, 449 U.S. 90, 95 (1980). Thus, collateral estoppel not only reduces unnecessary litigation and fosters reliance on adjudication, but also promotes the comity between state and federal courts. Id. Accordingly, Plaintiff is precluded from relitigating the issue of whether he resisted or opposed Deputy Glynn. Nevertheless, this Court must determine whether the force used by Deputy Glynn was reasonable in light of Plaintiff's resistance.
Under the circumstances, Deputy Glynn used reasonable force to protect himself from injury and to effect a lawful arrest of a fleeing suspect when he initially struck Plaintiff in the neck with forearm and elbow and jumped into the car on top of him. See Hart v. Rogers, No. 97-2472, 1998 WL 340374 (4th Cir. June 16, 1998) (whether plaintiff was tackled or lost his balance during a struggle did not create a genuine issue of material fact where the intoxicated suspect had shoved the officer and fled the scene); Giese v. Wichita Police Dep't. No. 94-3439, 1995 WL 634173, at * 2 (10th Cir. Oct. 30, 1995) (tackle of suspect resulting in broken arm was not excessive force); McGregor v. City of Olathe, Kan., 158 F. Supp.2d 1225, 1236-37 (D. Kan. Mar. 22, 2001) (tackling suspect attempting to flee scene of investigation was not excessive force).
Plaintiff maintained in his complaint that he never resisted, struggled, or fought back while he was in the car with Glynn. (Amend. Compl., 5-6.) In his response to the County Defendants' motion for summary judgment, Plaintiff reiterated that he did not "fight back" or strike Deputy Glynn once Glynn pinned him at the neck; however, he indicated that he did struggle: "The defendants state that the plaintiff struggled after his neck was pinned. The defendants here interpret a natural human response to hurt and pain as a struggle; as if the plaintiff was supposed to just lay there, and not respond to pain, while Deputy Glynn pumped and grind in his neck." (Plaintiff's Response to County Defendants' Motion for Summary Judgment, 20.) While Plaintiff maintains that his struggling was merely a response to pain, as opposed to an attempt to harm Deputy Glynn or flee the scene, Deputy Glynn was not aware of Plaintiff's subjective intent. Furthermore, Plaintiff does not dispute that Glynn reduced the amount of pressure on his neck in response to Plaintiff's request. In light of these facts, the force applied by Glynn to maintain control over Plaintiff until backup arrived was eminently reasonable.
While Glynn does not raise the defense of qualified immunity, it clearly applies in this case. Government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). I concluded above that Plaintiff has failed to allege and support with evidence facts showing that Deputy Glynn's conduct violated a constitutional right. See Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 2155-56 (2001). Even if Plaintiff could show a Fourth Amendment violation, no Supreme Court or Sixth Circuit case clearly establishes that the force used by Deputy Glynn in apprehending Plaintiff constitutes excessive force in violation of Fourth Amendment rights. See id.
II. Delay of Medical Treatment
Plaintiff claims that Defendant CMS violated his Fourteenth Amendment rights when they delayed twenty-four days in providing him with medical attention for the neck injury he sustained during his arrest. In his response to Defendant CMS' motion for summary judgment, Plaintiff emphasized that he does not challenge the treatment he received; rather, he challenges the delay in receiving that treatment.
It is well settled that a local governing body may not be sued under 42 U.S.C. § 1983 for an injury inflicted solely by its employees or agents; i.e., liabilities may not be imposed merely upon the basis of respondeat superior. Monell v. New York City Dept. of Social Serv., 436 U.S. 658, 691-92 (1978); Johnson v. Hardin County, Kentucky, 908 F.2d 1280, 1285 (6th Cir. 1990); Beddingfield v. City of Pulaski, Tenn., 861 F.2d 968, 971 (6th Cir. 1988). Thus, an employer will not be held liable under 42 U.S.C. § 1983 unless the allegedly unconstitutional act constitutes a governmental "policy" or "custom."Beddingfield, 861 F.2d at 971; Molton v. City of Cleveland, 839 F.2d 240, 146 (6th Cir. 1988), cert. denied, 489 U.S. 1068 (1989). While Monell concerned a governmental municipality, this Court noted in Street v. Corrections Corp. of Am., 102 F.3d 810, 818 (1996), that "every circuit to consider the issue has extended the holding to private corporations as well." Accordingly, CMS may only liable under § 1983 when its policy or custom causes the injury.
Plaintiff failed to allege in his complaint that CMS maintained or endorsed any policy, practice, or procedure that delayed Plaintiff's initial medical assessment and/or treatment. In his response to CMS' motion for summary judgment, Plaintiff contends that the series or pattern of acts, i.e., failing to respond to his repeated requests for treatment, is sufficient to establish a corporate policy or custom. I disagree. A "policy" includes a "policy statement, ordinance, regulation, or decision officially adopted and promulgated" by CMS.Monell, 436 U.S. at 690. An alleged pattern of conduct on the part of CMS employees clearly does not fit within the definition of a corporate policy. The Sixth Circuit has explained that a "custom"
. . . for the purposes of Monell liability must be so permanent and well settled as to constitute a custom or usage with the force of law. In turn, the notion of "law" includes deeply embedded traditional ways of carrying out state policy. It must reflect a course of action deliberately chosen from among various alternatives. In short, a "custom" is a "legal institution" not memorialized by written law.Doe v. Claiborne County, 103 F.3d 495, 507 (6th Cir. 1996) (citations and quotations omitted). An alleged pattern of conduct by CMS employees in one isolated case falls far short of establishing a corporate custom or "unwritten law" as defined by the Sixth Circuit. Therefore, CMS is entitled to judgment on Plaintiff's Eighth Amendment claim. Even so, Plaintiff cannot establish that his Eighth Amendment rights were violated.
The Eighth Amendment prohibits the infliction of cruel and unusual punishment against those convicted of crimes. U.S. Const. amend. VIII. The Eighth Amendment obligates prison authorities to provide medical care to incarcerated individuals, as a failure to provide such care would be inconsistent with contemporary standards of decency.Estelle v. Gamble, 429 U.S. 97, 103-04 (1976). A claim under the Eighth Amendment comprises an objective and subjective component: (1) a sufficiently grave deprivation and (2) a sufficiently culpable state of mind. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Woods v. LeCureux, 110 F.3d 1215, 1222 (6th Cir. 1997). The deliberate indifference standard applies to all claims challenging conditions of confinement, which include claims of inadequate medical care. Wilson v. Seiter, 501 U.S. 294, 303 (1991). For a medical claim, the Eighth Amendment is violated when a prison official is deliberately indifferent to the serious medical needs of a prisoner. Estelle, 429 U.S. at 104-05; Sanderfer v. Nichols, 62 F.3d 151, 154 (6th Cir. 1995). The deliberate indifference standard "describes a state of mind more blameworthy than negligence." Farmer, 511 U.S. at 835. To act with deliberate indifference, a prison official must both know of and disregard an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists and he must also draw the inference. Id. at 837.
Plaintiff was a pretrial detainee at the time of the events giving rise to his medical claim. The Eighth Amendment's prohibition against cruel and unusual punishment applies to pretrial detainees through the Fourteenth Amendment's Due Process Clause. See Bell v. Wolfish, 441 U.S. 520, 535 n. 16 (1979). Thus, Plaintiff's claims are analyzed under Eighth Amendment precedent. See Thompson v. County of Medina, 29 F.3d 238, 242 (6th Cir. 1994).
Plaintiff's claim falls far short of satisfying the deliberate indifference standard. "Because society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are 'serious.'" Hudson v. McMilliam, 503 U.S. 1, 9 (1992). In this case, Plaintiff was never diagnosed with anything more than a muscle sprain in his neck. While Plaintiff may have been uncomfortable, his injury was not "serious." The medical professionals who ultimately examined Plaintiff prescribed only warm compresses and pain medication. Plaintiff could obtain an over-the-counter pain reliever from the prison store between July 20 and August 14, 1999. At most, Defendants were negligent in failing to provide Plaintiff with immediate medical attention. Mere negligence, or even gross negligence, is insufficient to establish an Eighth Amendment violation. See Farmer, 511 U.S. at 835-36;Estelle, 429 U.S. at 106; Williams v. Mehra, 186 F.3d 685, 691 (6th Cir. 1999) (en banc); Westlake v. Lucas, 537 F.2d 857, 860-61 n. 5 (6th Cir. 1976).
The "seriousness" of an inmate's medical needs also may be decided by reference to the effect of delay in treatment. Gaudreault v. Municipality of Salem, Mass., 923 F.2d 203, 208 (1st Cir. 1990), cert. denied, 500 U.S. 956 (1991); Monmouth County v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987), cert. denied, 486 U.S. 1006 (1988). Where the delay results in an inmate's suffering "a life-long handicap or permanent loss, the medical need is considered serious." Id. Furthermore, an inmate who complains that delay in medical treatment rose to a constitutional violation must place verifying medical evidence in the record to establish the detrimental effect of delay in medical treatment to succeed. Napier v. Madison County, 238 F.3d 739, 741 (6th Cir. 2001). The twenty-four-day delay in treatment at issue in this case was not excessive in light of the nature of Plaintiff's injury. Plaintiff contends that the delay in treatment caused his condition to "aggravate and escalate," and increased the risk of permanent damage (Amended Compl., 8); however, Plaintiff has failed to produce any evidence whatsoever to support his claim. Moreover, Plaintiff's claim is inconsistent with the nature of his injury and the treatment he ultimately received. In fact, the only prescribed treatment was warm compresses and pain medication.
Furthermore, Plaintiff has failed to present any evidence that he suffered permanent disability as the result of his neck sprain. Plaintiff's full-time employment as a server in the cafeteria at the Ojibway Correctional Facility demonstrates that he is able to undertake physical work on a daily basis. In addition, Plaintiff does not deny that he has played basketball during his incarceration with the MDOC and has been twice treated for hand injuries as a result of his play. Accordingly, Plaintiff has failed to present evidence that could establish that he suffered a detrimental effect from the delay in medical treatment. Because there is no issue as to any material fact in dispute CMS is entitled to judgment as a matter of law on Plaintiff's Eighth Amendment claim.
III. Denial of Right to File a Complaint
Plaintiff contends that Defendants Gates, Miedema., Dougan, Hess, John Does #4 and the Kent County Sheriff's Department, violated his due process right of access to the courts when they ignored his repeated requests to file a complaint for assault and battery against Deputy Glynn. As a preliminary matter, the Kent County Sheriff's Department does not exist as a separate legal entity it is simply an agent of the county. Vine v. County of Ingham, 884 F. Supp. 1153, 1158 (W.D. Mich. 1995) (citing Hughson v. County of Antrim, 707 F. Supp. 304, 306 (W.D. Mich. 1988) and Bayer v. Almstadt, 185 N.W.2d 40, 44 (1970)). Accordingly, the Court will dismiss the Kent County Sheriff's Department. However, construing Plaintiff's pro se complaint with all required liberality, Haines, 404 U.S. at 520, I assume that Plaintiff intended to sue Kent County.
Kent County may only be liable under § 1983 when its policy or custom causes the injury. Monell, 436 U.S. at 694. In a municipal liability claim, the finding of a policy or custom is the initial determination to be made. Doe, 103 F.3d at 509. The policy or custom must be the moving force behind the constitutional injury, and a plaintiff must identify the policy, connect the policy to the governmental entity and show that the particular injury was incurred because of the execution of that policy. Doe, 103 F.3d at 508-509; Searcy v. City of Dayton, 38 F.3d 282, 287 (6th Cir. 1994). It is the court's task to identify the officials or governmental bodies which speak with final policymaking authority for the local government in a particular area or on a particular issue. McMillian v. Monroe County, 520 U.S. 781, 785 (1997). In matters pertaining to the conditions of the jail and to the operation of the deputies, the sheriff is the policymaker for the county. MICH. COMP. LAWS § 51.75 (sheriff has the "charge and custody" of the jails in his county); MICH. COMP. LAWS § 51.281 (sheriff prescribes rules and regulations for conduct of prisoners); MICH. COMP. LAWS § 51.70 (sheriff may appoint deputies and revoke appointments at any time); Kroes v. Smith, 540 F. Supp. 1295, 1298 (E.D. Mich. 1982) (the sheriff of "a given county is the only official with direct control over the duties, responsibilities, and methods of operation of deputy sheriffs" and thus, the sheriff "establishes the policies and customs described in Monell). Thus, the Court looks to the allegations in Plaintiff's complaint to determine whether he has alleged that the sheriff has established a policy or custom which caused Plaintiff to be deprived of a constitutional right.
Plaintiff's action fails at this first step because his allegations have not identified a policy or custom as defined in the previous section. Where a plaintiff fails to allege that a policy or custom existed, dismissal of the action for failure to state a claim is appropriate. Rayford v. City of Toledo, No. 86-3260, 1987 WL 36283, at *1 (6th Cir. 1987); see also Bilder v. City of Akron, No. 92-4310, 1993 WL 394595, at *2 (6th Cir. 1993) (affirming dismissal of § 1983 action when plaintiff allegation of policy or custom was conclusory, and plaintiff failed to allege facts tending to support the allegation). Therefore, I find that Plaintiff's due process claim against Kent County should be dismissed.
Plaintiff indicates that he "request[ed] to file an 'assault and battery' complaint to the Kent County Sheriff's Department against the Department's Officer Joseph Glynn for his injurying [sic] and assault on the Plaintiff of 7/20/99." (Amend. Compl., 9.) While it is not entirely clear what type of "complaint" Plaintiff sought to file, it appears that he wished to make a criminal complaint against Deputy Glynn so that he would be prosecuted. Plaintiff's claim does not concern the denial of his First Amendment right of "access to the courts" as defined by Bounds v. Smith, 430 U.S. 817, 822, 828 (1977), which requires prison officials to provide adequate law libraries and materials to ensure that inmates have adequate, effective, and meaningful access to the courts. At most, Plaintiff's contention concerns access to the courts as protected by the due process clause. See McCray v. Maryland, 456 F.2d 1, 6 (4th Cir. 1972) (analyzing complaint against deputy clerk for impeding the filing of papers under the due process clause); Morrison v. Lipscomb, 877 F.2d 463, 467 (6th Cir. 1989) (the heart of the constitutional right to due process of the law is the fundamental right to seek vindication of rights in court).
Plaintiff's claim must fail because a private citizen "lacks a judicially cognizable interest in the prosecution or nonprosecution of another." Diamond v. Charles, 476 U.S. 54, 63 (1986). Simply put, members of the general public (even if they claim to be witnesses or victims to a crime) lack standing to enforce the criminal laws or to seek a judicial order compelling initiation of a criminal prosecution. See Linda R. S. v. Richard D., 410 U.S. 614, 619 (1973); Associated Builders Contractors v. Perry, 16 F.3d 688, 691-92 (6th Cir. 1994); see also Mercer v. Lexington Fayette Urban County Gov't., No. 94-6645, 1995 WL 222178, at *1 (6th Cir. Apr. 13, 1995) (the authority to initiate a criminal complaint rests exclusively with state and federal prosecutors). Consequently, even assuming that Defendants are somehow derelict in their duty for not pursuing certain crimes, their action or inaction does not involve any legal right of the Plaintiff.
Plaintiff does not allege that Defendants prevented or interfered with his ability to bring a civil action on his own behalf against Deputy Glynn. Moreover, an internal investigation of Plaintiff's complaint was conducted by the Kent County Sheriff's Department. Lieutenant Miedema stated in his affidavit that he conducted a complete investigation of Plaintiff's allegations of excessive use of force in his arrest. (Miedema Aff., ¶¶ 4-5.) He concluded that the officers who arrested Plaintiff used force, but only the amount necessary to effect the arrest. (Miedema Aff., ¶ 6.) A copy of the Internal Affairs Investigation Report, dated December 9, 1999, is attached to Lieutenant Miedema's affidavit. Accordingly, I find that Plaintiff also fails to state a due process claim against Defendants Gates, Miedema, Dougan, Hess, and John Doe #4.
IV. Interference with Mail
Plaintiff claims that his First Amendment rights were violated when unknown individuals conspired to interfere with his outgoing mail in order to prevent him from filing a complaint against Deputy Glynn. He contends that the letters he wrote seeking assistance from the NAACP, ACLU and several attorneys, were not mailed from the KCCF. Plaintiff contends that Defendants Sheriff Dougan, Captain Hess and the Kent County Sheriff's Department are responsible for ensuring that inmate correspondence is processed without interference. As set forth in the previous section, the Kent County Sheriff's Department does not exist as a separate entity from Kent County. Once again, I will assume that Plaintiff intended to bring his claim against Kent County. Plaintiff fails to state a claim against Kent County because he has not alleged that a policy or custom established by Sheriff Dougan was the moving force behind the constitutional injury. Doe, 103 F.3d at 508-509; Searcy v. City of Dayton, 38 F.3d 282, 287 (6th Cir. 1994).
Plaintiff does not allege that Defendants Dougan and Hess interfered with his mail; rather, he claims that they were "responsible" for ensuring that inmate correspondence is processed without interference. A plaintiff bringing an action pursuant to § 1983 cannot premise liability upon a theory of respondeat superior or vicarious liability.Street, 102 F.3d at 818 (quoting Monell, 436 U.S. 658). Plaintiff must establish that Hess and Dougan were personally involved, or that they otherwise encouraged or condoned the action of the offending employees.Copeland v. Machulis, 57 F.3d 476, 481 (6th Cir. 1995) (citing Rizzo v. Goode, 423 U.S. 362, 375-76 (1976) and Bellamy v. Bradley, 729 F.2d 416, 429 (6th Cir.), cert. denied, 469 U.S. 845 (1984)). There must be more than merely a right to control employees, as Plaintiff must show that Hess and Dougan at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending employees.Walton v. City of Southfield, 995 F.2d 1331, 1340 (6th Cir. 1993); Leach v. Shelby County Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989), cert. denied, 495 U.S. 932 (1990). Plaintiff fails to allege any facts that show Hess and Dougan encouraged or condoned the alleged conduct of jail employees, or that they authorized, approved or knowingly acquiesced in the conduct. Because Plaintiff's First Amendment claim is premised on nothing more than respondeat superior liability, he fails to state a claim against Defendants Hess and Dougan.
V. State Law Claim
Plaintiff also raises a state tort claim for assault and battery against Deputy Glynn arising from his arrest. Section 1983 does not provide redress for a violation of a state law. Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir. 1995); Sweeton v. Brown, 27 F.3d 1162, 1166 (6th Cir. 1994), cert. denied, 513 U.S. 1158 (1995). To the extent that Plaintiff's complaint presents allegations under state law, this Court should decline to exercise jurisdiction. "Where a district court has exercised jurisdiction over a state law claim solely by virtue of supplemental jurisdiction and the federal claims are dismissed prior to trial, the state law claims should be dismissed without reaching their merits." Coleman v. Huff, No. 97-1916, 1998 WL 476226, at *1 (6th Cir. Aug. 3, 1998) (citing Faughender v. City of North Olmsted, Ohio, 927 F.2d 909, 917 (6th Cir. 1991)). Accordingly, Plaintiff's claim of assault and battery should be dismissed without prejudice.
Recommended Disposition
For the reasons set forth above, I recommend that the Court grant the motion for summary judgment brought by the County Defendants (docket #67), and dismiss Plaintiff's action against Defendants Glynn, Gates, Miedema, Dougan, Hess, Kent County Sheriff's Department and John Doe #4. I also recommend that the Court grant the motion for summary judgment brought by Defendant CMS (docket #58).