Opinion
1:24-cv-1221
12-16-2024
JESSE KOLLY, Plaintiff, v. PETER FELVER et al., Defendants.
OPINION
SALLY J. BERENS, UNITED STATES MAGISTRATE JUDGE
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. The Court grants Plaintiff leave to proceed in forma pauperis. Pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure, Plaintiff consented to proceed in all matters in this action under the jurisdiction of a United States Magistrate Judge. (ECF No. 6.)
This case is presently before the Court for preliminary review under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c). The Court is required to conduct this initial review prior to the service of the complaint. See In re Prison Litig. Reform Act, 105 F.3d 1131, 1131, 1134 (6th Cir. 1997); McGore v. Wrigglesworth, 114 F.3d 601, 604-05 (6th Cir. 1997).
Service of the complaint on the named defendants is of particular significance in defining a putative defendant's relationship to the proceedings. “An individual or entity named as a defendant is not obliged to engage in litigation unless notified of the action, and brought under a court's authority, by formal process.” Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347 (1999). “Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.” Id. at 350. “[O]ne becomes a party officially, and is required to take action in that capacity, only upon service of a summons or other authority-asserting measure stating the time within which the party served must appear and defend.” Id. (citations omitted). That is, “[u]nless a named defendant agrees to waive service, the summons continues to function as the sine qua non directing an individual or entity to participate in a civil action or forgo procedural or substantive rights.” Id. at 351. Therefore, the PLRA, by requiring courts to review and even resolve a plaintiff's claims before service, creates a circumstance where there may only be one party to the proceeding-the plaintiff-at the district court level and on appeal. See, e.g., Conway v. Fayette Cnty. Gov't, 212 Fed.Appx. 418 (6th Cir. 2007) (“Pursuant to 28 U.S.C. § 1915A, the district court screened the complaint and dismissed it without prejudice before service was made upon any of the defendants . . . [such that] . . . only [the plaintiff] [wa]s a party to this appeal.”).
Here, Plaintiff has consented to a United States Magistrate Judge conducting all proceedings in this case under 28 U.S.C. § 636(c). That statute provides that “[u]pon the consent of the parties, a full-time United States magistrate judge . . . may conduct any or all proceedings . . . and order the entry of judgment in the case ....” 28 U.S.C. § 636(c). Because the named Defendants have not yet been served, the undersigned concludes that they are not presently parties whose consent is required to permit the undersigned to conduct a preliminary review under the PLRA, in the same way they are not parties who will be served with or given notice of this opinion. See Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995) (“The record does not contain a consent from the defendants[; h]owever, because they had not been served, they were not parties to this action at the time the magistrate entered judgment.”).
But see Coleman v. Lab. & Indus. Rev. Comm'n of Wis., 860 F.3d 461, 471 (7th Cir. 2017) (concluding that, when determining which parties are required to consent to proceed before a United States Magistrate Judge under 28 U.S.C. § 636(c), “context matters” and the context the United States Supreme Court considered in Murphy Bros. was nothing like the context of a screening dismissal pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c)); Williams v. King, 875 F.3d 500, 503-04 (9th Cir. 2017) (relying on Black's Law Dictionary for the definition of “parties” and not addressing Murphy Bros.); Burton v. Schamp, 25 F.4th 198, 207 n.26 (3d Cir. 2022) (premising its discussion of “the term ‘parties' solely in relation to its meaning in Section 636(c)(1), and . . . not tak[ing] an opinion on the meaning of ‘parties' in other contexts”).
Under the PLRA, the Court is required to dismiss any prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiff's pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff's allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Applying these standards, the Court will dismiss Plaintiff's complaint for failure to state a claim against Defendants Brooke, Moyer, Valentine, West, Stepanovich, Sieces, Advanced Correctional Healthcare, Inc., and Unknown Party #1. The Court will also dismiss, for failure to state a claim, Plaintiff's retaliation claim against Defendant Carr, and Fourth and Fourteenth Amendment excessive force claims against Defendants Felver and Carr. Plaintiff's Eighth Amendment excessive force claims against Defendants Felver and Carr remain in the case.
Discussion
I. Factual Allegations
Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Thumb Correctional Facility (TCF) Lapeer, Lapeer County, Michigan. The events about which he complains, however, occurred at the Bellamy Creek Correctional Facility (IBC) in Ionia, Ionia County, Michigan. Plaintiff sues Corrections Officers Peter Felver and Andrew Carr; Grievance Coordinator N. Brooke; Unknown Moyer; Registered Nurses Cassie Valentine; Katherine West, and Denise Stepanovich; Dr. Unknown Sieces; Advanced Correctional Healthcare, Inc.; and Unknown Party #1 named as unknown medical company. Plaintiff sues Defendants in their individual capacities. (Compl., ECF No. 1, PageID.1-4.)
Plaintiff alleges that on November 26, 2021, Defendants Felver and Carr entered his cell while he was sleeping and pulled him violently to his feet and threw his body to the concrete floor. Plaintiff's face hit the floor, injuring him and breaking his only pair of prescription glasses. Plaintiff subsequently went without glasses for over a year, causing injury to his eyesight. (Id., PageID.5.) Defendant Felver held Plaintiff to the ground while Defendant Carr forcefully handcuffed Plaintiff's hands behind his back. (Id., PageID.6.) Defendant Carr then repeatedly kicked and punched Plaintiff in his head, face, legs, and feet, breaking Plaintiff's dentures and causing injuries to his mouth and jaw. (Id.) Defendant Felver violently struck Plaintiff's feet, breaking his toe and causing other injuries. (Id.) Plaintiff states that he did not resist or fight back. (Id.)
As a result of this incident, Plaintiff sustained a boot print on his face, a lump on his head, a limp, ingrown toenails, a fracture of his left big toe which healed incorrectly, lacerations to the head and body, broken dentures that have not been replaced causing a deformity to his mouth and jaw, impaired eyesight due to the loss of his glasses, numbness in his hands and arms, six stitches on his right foot, and an aggravation of his plantar fasciitis. (Id., PageID.7.)
Plaintiff states that during the cell extraction, Defendant Carr told Plaintiff that he had better not tell anyone about the incident or the next time it would be worse. (Id., PageID.10.)
Defendant Brooke subsequently refused to file Plaintiff's grievances and violated procedure by acting as the respondent to Plaintiff's step I grievance. (Id., PageID.11.) Plaintiff states that Defendant Brooke did not ensure that the MDOC responses to Plaintiff's grievances were timely. (Id.) Defendant Moyer told Plaintiff that things would get worse for him if he filed grievances against the corrections officers. (Id.) Defendants Brooke and Moyer failed to ensure that the cell extraction of Plaintiff by Defendants Carr and Felver was investigated by internal affairs. (Id.) Plaintiff asserts that this constituted retaliation by Defendants Carr, Brooke, and Moyer. (Id., PageID.13-14.)
Plaintiff alleges that following the use of excessive force by Defendants Carr and Felver, he was seen by Defendants Valentine, West, Stepanovich, and Sieces for his injuries. (Id., PageID.15.) Defendants placed stitches in Plaintiff's right foot but refused “necessary diagnostic tests to fully understand his injury and treat his injury properly.” (Id.) Plaintiff also makes a conclusory assertion that Defendants Valentine, West, Stepanovich, and Sieces refused to give him necessary medications and therapy to treat his physical and emotional injuries. (Id.) Plaintiff states that his request for a medical shoe detail was also denied. (Id.)
Plaintiff also contends that Defendant Advanced Correctional Healthcare failed properly to screen, train, and supervise staff, which resulted in Plaintiff receiving inadequate care for his injuries. (Id., PageID.20-21.)
Plaintiff states that Defendants violated his rights under the First, Fourth, Eighth, and Fourteenth Amendments. Plaintiff seeks damages, as well as injunctive and declaratory relief.
II. Failure to State a Claim
A complaint may be dismissed for failure to state a claim if it fails “to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint need not contain detailed factual allegations, a plaintiff's allegations must include more than labels and conclusions. Id.; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). The court must determine whether the complaint contains “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 679. Although the plausibility standard is not equivalent to a “‘probability requirement,' . . . it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678 (quoting Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-that the pleader is entitled to relief.” Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)); see also Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the Twombly/Iqbal plausibility standard applies to dismissals of prisoner cases on initial review under 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(ii)).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right secured by the federal Constitution or laws and must show that the deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). Because Section 1983 is a method for vindicating federal rights, not a source of substantive rights itself, the first step in an action under Section 1983 is to identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994).
A. Excessive Force by Defendants Felver and Carr
Plaintiff claims that Defendants Felver and Carr used excessive force against him when performing a cell extraction on November 26, 2021. Plaintiff states that he brings this claim under the Fourth and Fourteenth Amendments. (Compl., ECF No. 1, PageID.8.)
Claims of excessive force are governed by the provisions of the Fourth, Eighth, and Fourteenth Amendments, depending upon where in the criminal process the use of force occurs. For convicted prisoners, such as Plaintiff, the Eighth Amendment's ban on cruel and unusual punishment governs the use of excessive force. See Wilkins v. Gaddy, 559 U.S. 34, 37-39 (2010). In contrast, for pretrial detainees, the protection against the use of excessive force is afforded by the Fourteenth Amendment's Due Process Clause, see Kingsley v. Hendrickson, 576 U.S. 389, 392-93 (2015); see also Westmoreland v. Butler Cnty., Ky., 29 F.4th 721, 727 (6th Cir. 2022), reh'g en banc denied, 35 F.4th 1051 (6th Cir. 2022), and the Fourth Amendment protects against the use of excessive force against someone “in the course of an arrest, investigatory stop, or other ‘seizure.'” Graham v. Connor, 490 U.S. 386, 395 (1989). Accordingly, because Plaintiff was a convicted prisoner at the time of the events in question, any intended Fourth and Fourteenth Amendment claims regarding the alleged use of excessive force against Plaintiff will be dismissed.
The Eighth Amendment embodies a constitutional limitation on the power of the states to punish those convicted of a crime. Punishment may not be “barbarous” nor may it contravene society's “evolving standards of decency.” See Rhodes v. Chapman, 452 U.S. 337, 345-46 (1981); see also Trop v. Dulles, 356 U.S. 86, 101 (1958). The Eighth Amendment also prohibits conditions of confinement which, although not physically barbarous, “involve the unnecessary and wanton infliction of pain.” Rhodes, 452 U.S. at 346. Among unnecessary and wanton inflictions of pain are those that are “totally without penological justification.” Id.
Plaintiff's claim must be analyzed in the context of admonitions by the Supreme Court regarding the deference that courts must accord to prison or jail officials as they attempt to maintain order and discipline within dangerous institutional settings. See, e.g., Whitley v. Albers, 475 U.S. 312, 321-22 (1986). The Supreme Court has held that “whenever guards use force to keep order,” the standards enunciated in Whitley, 475 U.S. 312, should be applied. Hudson v. McMillian, 503 U.S. 1, 6 (1992); see also Wilkins v. Gaddy, 559 U.S. 34, 37-39 (2010). Under Whitley, the core judicial inquiry is “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 6-7; Wilkins, 559 U.S. at 37. In determining whether the use of force is wanton and unnecessary, the court should evaluate the need for application of force, the relationship between that need and the amount of force used, the threat “reasonably perceived by the responsible officials,” and any efforts made to temper the severity of the forceful response. Hudson, 503 U.S. at 7 (citing Whitley, 475 U.S. at 321); accord Griffin v. Hardrick, 604 F.3d 949, 953-54 (6th Cir. 2010); McHenry v. Chadwick, 896 F.2d 184 (6th Cir. 1990). Physical restraints are constitutionally permissible where there is penological justification for their use. Rhodes, 452 U.S. at 346; Jones v. Toombs, No. 95-1395, 1996 WL 67750, at *1 (6th Cir. Feb. 15, 1996); Hayes v. Toombs, No. 93-2207, 1994 WL 28606, at * 1 (6th Cir. Feb. 1, 1994); Rivers v. Pitcher, No. 95-1167, 1995 WL 603313, at *2 (6th Cir. Oct. 11, 1995).
In this case, Plaintiff alleges that he was sleeping when Defendants entered his cell and violently grabbed him. Plaintiff states that he was repeatedly hit and kicked and that he offered no resistance. At this stage of the proceedings, these allegations, taken as true, are sufficient to state Eighth Amendment excessive force claims against Defendants Felver and Carr.
B. Eighth Amendment Denial of Medical Care Claims
1. Defendants Valentine, West, Stepanovich, and Sieces
Plaintiff claims that Defendants Valentine, West, Stepanovich, and Sieces provided inadequate medical care in violation of the Eighth Amendment. 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 for the deprivation of adequate medical care has an objective and a subjective component. Farmer v. Brennan, 511 U.S. 825, 834 (1994). To satisfy the objective component, the plaintiff must allege that the medical need at issue is sufficiently serious. Id. In other words, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm. Id. The objective component of the adequate medical care test is satisfied “[w]here the seriousness of a prisoner's need[] for medical care is obvious even to a lay person.” Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 899 (6th Cir. 2004); see also Phillips v. Roane Cnty., 534 F.3d 531, 539-40 (6th Cir. 2008). Obviousness, however, is not strictly limited to what is detectable to the eye. Even if the layman cannot see the medical need, a condition may be obviously medically serious where a layman, if informed of the true medical situation, would deem the need for medical attention clear. See, e.g., Rouster v. Saginaw Cnty., 749 F.3d 437, 446-51 (6th Cir. 2014) (holding that a prisoner who died from a perforated duodenum exhibited an “objectively serious need for medical treatment,” even though his symptoms appeared to the medical staff at the time to be consistent with alcohol withdrawal); Johnson v. Karnes, 398 F.3d 868, 874 (6th Cir. 2005) (holding that prisoner's severed tendon was a “quite obvious” medical need, since “any lay person would realize to be serious,” even though the condition was not visually obvious). If the plaintiff's claim, however, is based on “the prison's failure to treat a condition adequately, or where the prisoner's affliction is seemingly minor or non-obvious,” Blackmore, 390 F.3d at 898, the plaintiff must “place verifying medical evidence in the record to establish the detrimental effect of the delay in medical treatment,” Napier v. Madison Cnty., 238 F.3d 739, 742 (6th Cir. 2001) (internal quotation marks omitted), abrogation on other grounds recognized by Lawler as next friend of Lawler v. Hardeman Cnty., Tenn., 93 F.4th 919 (6th Cir. 2024).
The subjective component requires an inmate to show that prison officials have “a sufficiently culpable state of mind” in denying medical care. Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000). Deliberate indifference “entails something more than mere negligence,” but can be “satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.” Farmer, 511 U.S. at 835. “[T]he 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. To prove a defendant's subjective knowledge, “[a] plaintiff may rely on circumstantial evidence . . .: A jury is entitled to ‘conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.'” Rhinehart v. Scutt, 894 F.3d 721, 738 (6th Cir. 2018) (quoting Farmer, 511 U.S. at 842)).
However, not every claim by a prisoner that he has received inadequate medical treatment states a violation of the Eighth Amendment. Estelle, 429 U.S. at 105. As the Supreme Court explained:
[A]n inadvertent failure to provide adequate medical care cannot be said to constitute an unnecessary and wanton infliction of pain or to be repugnant to the conscience of mankind. Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.Id. at 105-06 (quotations omitted). Thus, differences in judgment between an inmate and prison medical personnel regarding the appropriate medical diagnoses or treatment are not enough to state a deliberate indifference claim. Darrah v. Krisher, 865 F.3d 361, 372 (6th Cir. 2017); Briggs v. Westcomb, 801 Fed.Appx. 956, 959 (6th Cir. 2020); Mitchell v. Hininger, 553 Fed.Appx. 602, 605 (6th Cir. 2014). This is so even if the misdiagnosis results in an inadequate course of treatment and considerable suffering. Gabehart v. Chapleau, No. 96-5050, 1997 WL 160322, at *2 (6th Cir. Apr. 4, 1997).
The Sixth Circuit distinguishes “between cases where the complaint alleges a complete denial of medical care and those cases where the claim is that a prisoner received inadequate medical treatment.” Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976). If “a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims which sound in state tort law.” Id.; see also Rouster, 749 F.3d at 448; Perez v. Oakland Cnty., 466 F.3d 416, 434 (6th Cir. 2006); Kellerman v. Simpson, 258 Fed.Appx. 720, 727 (6th Cir. 2007); McFarland v. Austin, 196 Fed.Appx. 410 (6th Cir. 2006); Edmonds v. Horton, 113 Fed.Appx. 62, 65 (6th Cir. 2004); Brock v. Crall, 8 Fed.Appx. 439, 440-41 (6th Cir. 2001); Berryman v. Rieger, 150 F.3d 561, 566 (6th Cir. 1998). “Where the claimant received treatment for his condition, as here, he must show that his treatment was ‘so woefully inadequate as to amount to no treatment at all.'” Mitchell, 553 Fed.Appx. at 604-05 (quoting Alspaugh v. McConnell, 643 F.3d 162, 169 (6th Cir. 2011)). He must demonstrate that the care he received was “so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.” See Miller v. Calhoun Cnty., 408 F.3d 803, 819 (6th Cir. 2005) (quoting Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989)).
In this case, Plaintiff alleges that Defendants Valentine, West, Stepanovich, and Sieces all saw Plaintiff after he was subjected to excessive force by Defendants Carr and Felver. Plaintiff states that Defendants-he does not specify a particular individual-gave him six stitches, which caused him extreme pain. (Compl., ECF No. 1, PageID.15.) Plaintiff asserts that Defendants refused to give him necessary tests, medications, physical therapy, and mental health therapy, or to provide a medical shoe detail for his injured foot. (Id., PageID.15-16.) Plaintiff states that as a result, he suffers from physical and psychological injuries. (Id., PageID.16.)
Plaintiff's claims regarding the lack of adequate medical treatment are entirely conclusory. Plaintiff concedes that he was seen by medical defendants and that they stitched his injured foot. Although he claims that he was deprived of necessary medications and treatments, Plaintiff fails to specify the nature of his medical needs. Such conclusory allegations of unconstitutional conduct without specific factual allegations fail to state a claim under Section 1983. See Iqbal, 556 U.S. at 678-79; Twombly, 550 U.S. at 555.
Moreover, it is a basic pleading essential that a plaintiff attribute factual allegations to particular defendants. See Twombly, 550 U.S. at 544 (holding that, in order to state a claim, a plaintiff must make sufficient allegations to give a defendant fair notice of the claim). Where a person is named as a defendant without an allegation of specific conduct, the complaint is subject to dismissal, even under the liberal construction afforded to pro se complaints. See Gilmore v. Corr. Corp. of Am., 92 Fed.Appx. 188, 190 (6th Cir. 2004) (dismissing complaint where plaintiff failed to allege how any named defendant was involved in the violation of his rights); Frazier v. Michigan, 41 Fed.Appx. 762, 764 (6th Cir. 2002) (dismissing plaintiff's claims where the complaint did not allege with any degree of specificity which of the named defendants were personally involved in or responsible for each alleged violation of rights); Griffin v. Montgomery, No. 00- 3402, 2000 WL 1800569, at *2 (6th Cir. Nov. 30, 2000) (requiring allegations of personal involvement against each defendant); Rodriguez v. Jabe, No. 90-1010, 1990 WL 82722, at *1 (6th Cir. June 19, 1990) (“Plaintiff's claims against those individuals are without a basis in law as the complaint is totally devoid of allegations as to them which would suggest their involvement in the events leading to his injuries”).
Plaintiff's allegations do not specifically state what any one of the named Defendants did or did not do. Instead, Plaintiff's allegations refer to the “medical Defendants” or simply “Defendants.” (See, e.g., Compl., ECF No. 1, PageID.15-17.) However, “[s]ummary reference to a single, five-headed ‘Defendants' does not support a reasonable inference that each Defendant is liable ....” Boxill v. O'Grady, 935 F.3d 510, 518 (6th Cir. 2019). Therefore, Plaintiff's claims against Defendants Valentine, West, Stepanovich, and Sieces fall far short of the minimal pleading standards under Rule 8 of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 8 (requiring “a short and plain statement of the claim showing that the pleader is entitled to relief”).
Accordingly, for these reasons, Plaintiff's Eighth Amendment claims against Defendants Valentine, West, Stepanovich, and Sieces will be dismissed.
2. Defendants Advanced Correctional Healthcare, Inc. and Unknown Party #1 named as Unknown Medical Company
Plaintiff asserts that Defendant Advanced Correctional Healthcare, Inc. failed to screen, train, or supervise its employees properly. In addition, although Plaintiff names Unknown Party #1 “unknown medical company” as a defendant, he fails to mention this Defendant in the body of his complaint or to provide any factual basis for his claim.
A private entity which contracts with the state to perform a traditional state function like providing healthcare to inmates-like Advanced Correctional Healthcare, Inc.-can “be sued under § 1983 as one acting ‘under color of state law.'” Hicks v. Frey, 992 F.2d 1450, 1458 (6th Cir. 1993) (quoting West v. Atkins, 487 U.S. 42, 54 (1988)). The requirements for a valid Section 1983 claim against a municipality apply equally to private corporations that are deemed state actors for purposes of Section 1983. See Starcher v. Corr. Med. Sys., Inc., 7 Fed.Appx. 459, 465 (6th Cir. 2001) (recognizing that the holding in Monell has been extended to private corporations); Street v. Corr. Corp. of Am., 102 F.3d 810, 817-18 (6th Cir. 1996) (same); Rojas v. Alexander's Dep't Store, Inc., 924 F.2d 406, 409 (2d Cir. 1990) (same); Cox v. Jackson, 579 F.Supp.2d 831, 85152 (E.D. Mich. 2008) (same).
Consequently, Advanced Correctional Healthcare, Inc., and any other private entity such as Unknown Party #1, like a governmental entity, may be held liable under Section 1983 if they caused a constitutional deprivation. See Starcher, 7 Fed.Appx. at 465 (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978)). Liability in a Section 1983 action cannot be based on a theory of respondeat superior. City of Canton v. Harris, 489 U.S. 378, 385 (1989). A custom is a practice “that has not been formally approved by an appropriate decision maker,” but is “so widespread as to have the force of law.” Board of Cnty. Comm'rs v. Brown, 520 U.S. 397, 404 (1997). Moreover, the policy or custom “must be the moving force of the constitutional violation.” Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994) (internal quotation marks omitted).
In this case, Plaintiff asserts in conclusory fashion that Defendant Advanced Correctional Healthcare had a policy and/or custom of “failing to staff, screen, train and/or supervise its employees,” and that such policy and/or custom was a “moving force” behind the violations of Plaintiff's rights. (ECF No. 1, PageID.21.) However, Plaintiff fails to allege any specific facts in support of this assertion. Nor does Plaintiff allege any specific facts regarding Defendant Unknown Party #1. Conclusory allegations of unconstitutional conduct without specific factual allegations fail to state a claim under Section 1983. See Iqbal, 556 U.S. at 678-79; Twombly, 550 U.S. at 555. As noted above, to the extent that Plaintiff is attempting to assert that Defendants Advanced Correctional Healthcare and Defendant Unknown Party #1 were responsible for the conduct of their employees, a Section 1983 action cannot be based on a theory of respondeat superior. City of Canton, 489 U.S. at 385. Therefore, Plaintiff's claims against Defendants Advanced Correctional Healthcare, Inc. and Unknown Party #1 are properly dismissed.
C. First Amendment Claims against Defendants Carr, Brooke, and Moyer
Plaintiff claims that Defendants Carr, Brooke, and Moyer retaliated against him in violation of his First Amendment rights. Retaliation based upon a prisoner's exercise of his or her constitutional rights violates the Constitution. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). To set forth a First Amendment retaliation claim, a plaintiff must establish three elements: (1) he was engaged in protected conduct; (2) an adverse action was taken against him that would deter a person of ordinary firmness from engaging in that conduct; and (3) the adverse action was motivated, at least in part, by the protected conduct. Id. Moreover, a plaintiff must be able to prove that the exercise of the protected right was a substantial or motivating factor in the defendant's alleged retaliatory conduct. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001) (citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).
Plaintiff claims that during the cell extraction, Defendant Carr threatened Plaintiff by saying that if he told anyone about the use of force, he would make sure that “next time” would be worse. (Compl., ECF No. 1, PageID.10.) Plaintiff states that Defendants Brooke and Moyer told him that he had better not file a grievance, or things would get worse for him. (Id., PageID.11.) Plaintiff also makes a vague assertion that Defendant Brooke interfered with his ability to file grievances. (Id.)
Initially, the Court notes that Plaintiff does not allege that he engaged in protected conduct prior to the use of threats by Defendants Carr, Brooke, and Moyer, but instead alleges that he was threatened by these Defendants in order to prevent him from engaging in protected conduct. The Court further notes that, in this case, the alleged threats by Defendants Carr, Brooke, and Moyer that things would “get worse” for Plaintiff if he filed a grievance were entirely vague and were unaccompanied by any actual conduct, such as the writing of a misconduct ticket, a Notice of Intent, or a further assault on Plaintiff. Courts have concluded that such a vague statement would not deter a person of ordinary firmness from exercising his or her First Amendment rights. See, e.g., Hardy v. Adams, No. 16-2055, 2018 WL 3559190, at *3 (6th Cir. Apr. 13, 2018) (“The alleged threat by Adams that she would make Hardy's life ‘hell' is simply too vague to pass this threshold.”); Shisler v. Golladay, No. 2:19-cv-80, 2019 WL 2590693, at *4 (W.D. Mich. June 25, 2019) (Golladay's threat that the ticket would be the least of the plaintiff's worries was “simply too vague” to support a First Amendment retaliation claim); Dahlstrom v. Butler, No. 2:18-cv-101, 2019 WL 91999, at *11 (W.D. Mich. Jan. 3, 2019) (“Krause's threat[--to ‘get' a prisoner who files a grievance on Krause and ‘steps out of line'--] is too vague and non-specific to deter a person of ordinary firmness from engaging in protected conduct.”); Yates v. Rogers, No. 2:18-cv-180, 2018 WL 6629366, at *7 (W.D. Mich. Dec. 19, 2018) (“Defendant's vague threat to ‘get' Plaintiff does not carry the same seriousness ....”); Johnson v. Govern, No. 2:17-cv-125, 2018 WL 6321548, at *2 (W.D. Mich. Dec. 4, 2018) (“Govern's alleged threat to ‘put a case' on Johnson . . . was too vague to constitute adverse action.”); Hunter v. Palmer, No. 1:17-cv-109, 2017 WL 1276762, at *11 (W.D. Mich. Apr. 6, 2017) (“Defendant DeMaeyer told Plaintiff that complaining would get him into a lot of trouble .... Such a vague threat of unspecified harm falls short of adverse action.”). Accordingly, Plaintiff's retaliation claims against Defendants Carr, Brooke, and Moyer are properly dismissed.
D. Interference with the Grievance Process by Defendant Brooke
To the extent that Plaintiff claims that Defendant Brooke interfered with the grievance process, such a claim lacks merit. Plaintiff has no due process right to file a prison grievance. The courts repeatedly have held that there exists no constitutionally protected due process right to an effective prison grievance procedure. See Hewitt v. Helms, 459 U.S. 460, 467 (1983); Walker v. Mich. Dep't of Corr., 128 Fed.Appx. 441, 445 (6th Cir. 2005); Argue v. Hofmeyer, 80 Fed.Appx. 427, 430 (6th Cir. 2003); Young v. Gundy, 30 Fed.Appx. 568, 569-70 (6th Cir. 2002); Carpenter v. Wilkinson, No. 99-3562, 2000 WL 190054, at *2 (6th Cir. Feb. 7, 2000); see also Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (collecting cases). Michigan law does not create a liberty interest in the grievance procedure. See Olim v. Wakinekona, 461 U.S. 238, 249 (1983); Keenan v. Marker, 23 Fed.Appx. 405, 407 (6th Cir. 2001); Wynn v. Wolf, No. 93-2411, 1994 WL 105907, at *1 (6th Cir. Mar. 28, 1994). Because Plaintiff has no liberty interest in the grievance process, Defendants' conduct did not deprive him of due process.
Nor does the First Amendment “right to petition the government . . . guarantee a response to the petition or the right to compel government officials to act on or adopt a citizen's views.” Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999); see also Minnesota State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271, 285 (1984) (holding the right to petition protects only the right to address government; the government may refuse to listen or respond).
Furthermore, Defendants' actions have not barred Plaintiff from seeking a remedy for his grievances. See Cruz v. Beto, 405 U.S. 319, 321 (1972). “A prisoner's constitutional right to assert grievances typically is not violated when prison officials prohibit only ‘one of several ways in which inmates may voice their complaints to, and seek relief, from prison officials' while leaving a formal grievance procedure intact.” Griffin v. Berghuis, 563 Fed.Appx. 411, 415-16 (6th Cir. 2014) (citing Jones v. N.C. Prisoners' Labor Union, Inc., 433 U.S. 119, 130 n.6 (1977)). Indeed, Plaintiff's ability to seek redress is underscored by his pro se invocation of the judicial process. See Azeez v. DeRobertis, 568 F.Supp. 8, 10 (N.D. Ill. 1982). Even if Plaintiff had been improperly prevented from filing a grievance, his right of access to the courts to petition for redress of his grievances (i.e., by filing a lawsuit) cannot be compromised by his inability to file institutional grievances, and he therefore cannot demonstrate the actual injury required for an access-to-the-courts claim. See, e.g., Lewis v. Casey, 518 U.S. 343, 355 (1996) (requiring actual injury); Bounds v. Smith, 430 U.S. 817, 821-24 (1977). The exhaustion requirement only mandates exhaustion of available administrative remedies. See 42 U.S.C. § 1997e(a). If Plaintiff were improperly denied access to the grievance process, the process would be rendered unavailable, and exhaustion would not be a prerequisite for initiation of a civil rights action. See Ross v. Blake, 578 U.S. 632, 640-44 (2016) (reiterating that, if the prisoner is barred from pursuing a remedy by policy or by the interference of officials, the grievance process is not available, and exhaustion is not required); Kennedy v. Tallio, 20 Fed.Appx. 469, 470-71 (6th Cir. 2001). In light of the foregoing, the Court finds that Plaintiff fails to state a cognizable claim against Defendant Brooke for interfering with his ability to file grievances.
III. Motion for Appointment of Counsel
Plaintiff has filed a motion requesting a court-appointed attorney. (ECF No. 8.) Indigent parties in civil cases have no constitutional right to a court-appointed attorney. Abdur-Rahman v. Mich. Dep't of Corr., 65 F.3d 489, 492 (6th Cir. 1995); Lavado v. Keohane, 992 F.2d 601, 60405 (6th Cir. 1993). The Court may, however, request an attorney to serve as counsel, in the Court's discretion. Abdur-Rahman, 65 F.3d at 492; Lavado, 992 F.2d at 604-05; see Mallard v. U.S. Dist. Ct., 490 U.S. 296 (1989).
Appointment of counsel is a privilege that is justified only in exceptional circumstances. In determining whether to exercise its discretion, the Court should consider the complexity of the issues, the procedural posture of the case, and Plaintiff's apparent ability to prosecute the action without the help of counsel. See Lavado, 992 F.2d at 606. The Court has carefully considered these factors and determines that, at this stage of the case, the assistance of counsel does not appear necessary to the proper presentation of Plaintiff's position. Plaintiff's request for appointment of counsel (ECF No. 8) will therefore be denied.
Conclusion
The Court will grant Plaintiff leave to proceed in forma pauperis. Further, having conducted the review required by the Prison Litigation Reform Act, the Court determines that Defendants Brooke, Moyer, Valentine, West, Stepanovich, Sieces, Advanced Correctional Healthcare, Inc., and Unknown Party #1 will be dismissed for failure to state a claim, under 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c). The Court will also dismiss, for failure to state a claim, Plaintiff's retaliation claims against Defendant Carr, and Fourth and Fourteenth Amendment excessive force claims against Defendants Felver and Carr. Plaintiff's Eighth Amendment excessive force claims against Defendants Felver and Carr remain in the case.
The Court will also deny Plaintiff's motion for appointment of counsel (ECF No. 8).
An order consistent with this opinion will be entered.