Opinion
Case Number 99-10251-BC
July 15, 2002
OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION, OVERRULING PLAINTIFF'S OBJECTIONS, AND DISMISSING COMPLAINT
The plaintiff in this case, an inmate in the custody of the Michigan Department of Corrections, filed a pro se civil rights action alleging various violations of his constitutional rights to 42 U.S.C. § 1983. All of the claims stem from the plaintiff's tenure at the Standish Maximum Correctional Facility (SMF), from which the plaintiff has since been transferred. Although some the plaintiff's allegations are patently frivolous, others were sufficiently serious to cause the Court to stay the matter and appoint counsel to represent the prisoner. Counsel filed an amended complaint, to which the defendants have responded with motions to dismiss and for summary judgment.
The matter was referred to Magistrate Judge Charles E. Binder for full case management, and is now before the Court on his report and recommendation that this case should be dismissed as to all defendants. Specifically, the Magistrate Judge recommended that the claims against defendant Urban be dismissed without prejudice for failure to conform with the exhaustion requirements of the Prison Litigation Reform Act and that the remaining defendants' motion for summary judgment be granted. The plaintiff filed objections through counsel on May 20, 2002, and the Court, after having conducted a de novo review of the matter, concludes that the Magistrate Judge correctly determined the applicable law and properly applied it to the allegations of the plaintiff's am ended complaint. The report and recommendation therefore will be adopted and the plaintiff's complaint will be dismissed.
I.
The plaintiff's most serious allegations are directed against corrections officers Roth, Ward and Hasse, whom the plaintiff contends physically assaulted him on his first day at SMF. The plaintiff alleges that these defendants beat and kicked him after the plaintiff threatened to file grievances against them for previously-uttered abusive remarks. The plaintiff did file a grievance arising from the alleged beating, which was investigated by defendant Lockwood who determined that plaintiff's allegations were without merit. Thereafter, the plaintiff was charged with a major misconduct violation for filing a false grievance, for which the plaintiff was found guilty and punished. The plaintiff has sued Lockwood for conspiring with Roth, Ward and Hasse to cover up the beating incident.
The plaintiff has sued defendant Ford, a health care nurse at SMF, and defendant Urban, a doctor at the facility, for failure to provide medical care after the plaintiff threatened to file a grievance against Ford and the rest of the medical staff because the plaintiff had to wait too long for treatment. The plaintiff contends that he has a constitutional right to threaten to file grievances, and that Ford's action amounted to retaliation against the plaintiff for exercising this alleged constitutional right.
The suit against defendants Newell and Magnapora arises from the plaintiff's letters to the deputy warden at SMF that these two corrections officers were not making cell inspection rounds frequently enough. The plaintiff wrote another letter to the deputy warden a week later complaining that in retaliation for his initial letter, the corrections officers began "riding roughshod over my property with impunity with an avalanche of cell shakedowns."
The plaintiff's claim against defendant Meagher, SMF's deputy warden, is based on the plaintiff's transfer to a facility in Michigan's Upper Peninsula, which the plaintiff claims was in retaliation for threatening to sue other prison officials. The plaintiff seeks injunctive relief against this defendant, including a transfer back to SMF.
II. A.
The plaintiff first objects to the recommendation of dismissal as to Doctor Urban. The Magistrate Judge found that the plaintiff had failed to exhaust his administrative remedies with respect to Doctor Urban because his alleged misconduct was never grieved to prison officials. See 42 U.S.C. § 1997e. The plaintiff claims this determination was erroneous, and insists that Doctor Urban was mentioned in "the grievance filed against Defendant Ford." It is questionable whether naming an individual in the body of a grievance would meet the Sixth Circuit's requirement that the "prisoner file a grievance against the person he ultimately seeks to sue." Curry v. Scott, 249 F.3d 493, 505 (6th Cir. 2001). The Court need not resolve this issue today, however, as the Court's review of "the grievance" filed against defendant Ford indicates that the plaintiff's objection is factually incorrect — nowhere in Steps II or III of this grievance is Doctor Urban mentioned. Compliance with the exhaustion requirement of the Prison Litigation Reform Act requires that Michigan prisoners pursue all three steps of the grievance process against the individuals they seek to sue. See Williams v. McGinnis, 192 F. Supp.2d 757, 763 (E.D. Mich. 2002).
Accordingly, the Court finds that the Magistrate Judge properly recommended that the claims against defendant Urban be dismissed without prejudice.
B.
Next, the plaintiff objects to the recommended dismissal of his retaliation claims against defendants Ward, Roth, Hasse, and Lockwood based on the line of cases that prohibits collateral attack through § 1983 actions against state court convictions and prison discipline proceedings. See Heck v. Humphrey, 512 U.S. 477 (1994); Edwards v. Balisok, 520 U.S. 641 (1997). The plaintiff's objections amount to an attempt to factually distinguish Heck, but they do not accurately address Edwards. A prisoner in the plaintiff's circumstance finds himself on the horns of a dilemma: the Prison Litigation Reform Act requires him to file a grievance if he is assaulted by a guard before the prisoner can come to court to seek relief; but he had better win his grievance, lest he suffer additional discipline and be barred from suit as well. Following the Supreme Court's command in Edwards, then, as it has extended the rule in Heck, results in an enablement of the prison system to insulate some official conduct from judicial review.
Nonetheless, the Magistrate Judge correctly found that the plaintiff's allegations of assault and cover-up were barred by the Supreme Court's decision in Edwards, which found that prisoners cannot collaterally challenge adverse, disciplinary findings of guilt through a 42 U.S.C. § 1983 action. Before such an action will be cognizable, the prisoner's disciplinary conviction must have been invalidated or otherwise overturned. Id. at 646. The plaintiff first complains that Edwards does not extend to prison disciplinary hearings, and that only unpublished Sixth Circuit opinions have suggested that it can. This contention is not accurate. Edwards itself concerned a disciplinary hearing, and the Sixth Circuit has explicitly recognized in at least one published opinion that Edwards applies to prison disciplinary proceedings. Huey v. Stine, 230 F.3d 226, 230-31 (6th Cir. 2000). Therefore, the plaintiff's claims against Ward, Roth, and Hasse are barred by Edwards.
The plaintiff does not address with specificity the Magistrate Judge's conclusion that Edwards bars a retaliation claim against Lockwood as well, but this proposition appears to be correct. See Henderson v. Baird, 29 F.3d 464, 469 (8th Cir. 1994) (finding that guilty determination at prisoner disciplinary hearing "checkmates" a retaliation claim against the charging officer, as the prisoner does not have the right to submit false grievances).
C.
Next, the plaintiff objects to the Magistrate Judge's recommendation that the retaliation and Eighth Amendment claims against defendant Ford be dismissed. In order to state a valid retaliation claim in this Circuit, the plaintiff must show that:
(1) the plaintiff engaged in protected conduct; (2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) there is a causal connection between elements one and two — that is, the adverse action was motivated at least in part by the plaintiff's protected conduct.Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). The Magistrate Judge found that the conduct about which the plaintiff complained — that Nurse Ford threatened to deny medical treatment if the plaintiff filed a grievance — would not deter a person of ordinary firmness from continuing to engage in the filing of grievances. This conclusion was correct. Nurse Ford was but a single member of a medical staff at a large correctional facility. According to the plaintiff's allegations, Ford was reacting to the plaintiff's initial salutation which included a threat to sue him. Furthermore, the plaintiff admits that he was seen by Doctor Urban a few minutes after these threats were made and in fact received a prescription. The plaintiff thus received the medical attention he requested regardless of Ford's alleged threat. The plaintiff also appears to have filed many grievances subsequent to this incident which bolsters the conclusion that the second prong has not been met.
The plaintiff objects that the threat of denied medical care is significant, and claims that subsequent filing of grievances is irrelevant. The Court disagrees. The undisputed facts show that the plaintiff was promptly seen by Doctor Urban and received medical treatment, if the plaintiff was denied medical care outright, a different case would be presented. Here, however, the gravamen of the plaintiff's claim against defendant Ford is that an expressed reluctance by a nurse to treat a patient, whose opening gambit invites him to go directly from the examining room to the courtroom, could deter the filing of grievances, when a few minutes later the plaintiff was treated by a doctor who, presumably, was not threatened with suit. Coupled with the plaintiff's continuing grievances against staff members after this incident, the Court finds that a person of ordinary firmness would not have been deterred by Nurse Ford's alleged remarks.
The plaintiff also objects to the Magistrate Judge's recommendation that his Eighth Amendment claim be dismissed. The Magistrate Judge found two potential incidents involving defendant Ford. The first, on the 18th of February, 1999, allegedly included verbal threats and harassment by Ford. Verbal threats, however, do not implicate the Eighth Amendment. See Ivey v. Wilson, 832 F.2d 950, 954-55 (6th Cir. 1987); Meadows v. Gibson, 855 F. Supp. 223, 225 (W.D. Tenn. 1994) (holding that the Eighth Amendment "does not mandate polite prison guards or officials"). In the second, on February 22, 1999, the plaintiff's medical records indicate that Ford saw the plaintiff and noted his complaints, took the plaintiff's vital signs, listened to the plaintiff's respirations, palpated parts of the plaintiff's body where he was complaining of pain, and ordered blood work, which was drawn the next morning. The plaintiff protests that this record was fabricated, and insists that he was instead ordered back to his cell. The plaintiff further insists that a conflict exists between competing affidavits that necessitates a trial. The Court has examined the affidavit that the plaintiff submitted, and nowhere does it state that the plaintiff sought to receive health care on the 22nd, much less that the plaintiff was told to "return to his cell" and was denied medical care. The plaintiff alleged in his complaint that he was denied care on the 22nd of February, see Compl. ¶ 47, but his affidavit mentions no incident on the 22nd of February. Accordingly, there is no conflict of affidavits, and the plaintiff; having failed to move beyond his allegations in response to the defendant's summary judgment challenge, cannot avoid dismissal. See Street v. J.C. Bradford Co., 886 F.2d 1472, 1479 (6th Cir. 1989).
C.
The plaintiff's objections did not respond to the Magistrate Judge's recommendation that the claims against defendants Meagher, Newell, and Magnapora be dismissed with prejudice. The failure to object to these portions of the Magistrate Judge's report releases the Court from its duty to independently review these claims. Thomas v. Arn, 474 U.S. 140, 149 (1985). However, the Court agrees with the findings and conclusions of the Magistrate Judge.
III.
The plaintiff failed to exhaust his claims against defendant Urban. The plaintiff fails to present triable factual claims against defendants Magnapora, Roth, Ward, Hasse, Lockwood, and Meagher. Finally, defendant Ford is entitled to summary judgment on the plaintiff's Eighth Amendment claim.
Despite the best efforts of plaintiff's very able counsel to suggest otherwise, the evidence in this case is not such that a reasonable jury could find in favor of the plaintiff. The Court thanks plaintiff's counsel for their service.
Accordingly, it is ORDERED that the plaintiff's claims against defendant Urban are DISMISSED WITHOUT PREJUDICE for failure to comply with the Prison Litigation Reform. Act.
It is further ORDERED that the remaining defendants' Motion for Summary Judgment [dkt #20] is GRANTED and that plaintiff's claims against these defendants are DISMISSED WITH PREJUDICE.
It is further ORDERED that the remaining motions in this case, including, but not limited to the plaintiff's Motion for Temporary Restraining Order or Preliminary Injunction [dkt #31], Motion for Immediate Evidentiary Hearing and Recusal of Judge Binder [dkt #101], plaintiff counsel's Motion to Withdraw [dkt #99], defendant Urban's Motion to Dismiss or for Summary Judgment [dkt #50], Motion to Dismiss for Failure to Prosecute [dkt #68], and defendants' Motion for Leave to Take Deposition of Prisoner [dkt #96] are DENIED AS MOOT.