Opinion
Case No. 00-CV-10051-BC.
November 6, 2001.
Plaintiff, Joseph Ziegler, a state prisoner currently confined at the Riverside Correctional Facility in Ionia, Michigan, has filed a pro se prisoner civil rights action against the director of the Michigan Department of Corrections ("MDOC"), Bob Martin, and seven MDOC employees who work at the Standish Maximum Correctional Facility ("SMF"), where the plaintiff was formerly incarcerated: Dan Bolden, security director; Thomas Birkett, warden; Barbara Meagher, deputy warden; Dale Suiter, assistant deputy warden, Timothy Ball, resident unit manager, Cary Walker, resident unit manager, Raymond Bowerson, classification director, and Louis Duma, corrections officer. Plaintiff sues all defendants in their official capacities for declaratory and injunctive relief and in their individual capacities for damages. The complaint contains six "claims of action," although several of the "claims" include multiple requests for relief based on various legal theories. The defendants and the plaintiff filed motions for summary judgment and the plaintiff has filed various other motions, all of which were referred to Magistrate Judge Charles E. Binder pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), respectively.
Magistrate Judge Binder issued a Report and Recommendation on February 20, 2001 recommending that two of the plaintiffs claims be dismissed without prejudice for failure to exhaust administrative remedies, that the defendants' motion for summary judgment be granted with respect to the remaining claims, and that plaintiffs motion for summary judgment and motion to strike non-defendant Hilbourn's affidavit be denied. Plaintiff filed objections to the Report and Recommendation on March 8, 2001 and this matter is now ready for consideration by this Court. The Court finds that plaintiffs objections lack merit, and therefore the Court will adopt the Magistrate Judge's Report and Recommendation. Further, the plaintiff has filed a subsequent (third) motion to amend his complaint. The Court will deny that motion as well because the proposed amendment would be futile.
I.
Plaintiffs first "claim" alleges that defendant Duma retaliated against him on August 25, 1999 and again on October 29, 1999 for exercising protected rights, and that defendant Birkett failed to properly investigate the retaliation claim against Duma. Magistrate Judge Binder concluded that the August 25, 1999, which alleged that Duma solicited another prisoner to physically harm plaintiff, was not exhausted, and that the defendants were entitled to judgment as a matter of law on the other two items. The plaintiff argues in his objection that he did exhaust the August 25 claim both through the administrative process and by means of a separate complaint.
The plaintiff failed to attach an administrative decision to his complaint that demonstrated he had exhausted the August 25 claim through MDOC internal grievance procedures. A prisoner's failure affirmatively to demonstrate that he has exhausted administrative remedies justifies dismissal of his claim without prejudice. See Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir. 1998). Where a complaint contains both exhausted and unexhausted claims, the district court may address the merits of the exhausted claims and dismiss only those that are unexhausted. Hartsfield v. Vidor, 199 F.3d 305, 309 (6th Cir. 1999). The Magistrate Judge's recommendation is appropriate, and the portion of plaintiffs first claim for retaliation against defendant Duma's for solicitation of physical harm shall be dismissed for failure to exhaust administrative remedies.
The plaintiff contends that he also has the right to challenge prison decisions through the "administrative declaratory judgment" procedures codified in Mich. Comp. Laws § 24.263. That statute provides:
On request of an interested person, an agency may issue a declaratory ruling as to the applicability to an actual state of facts of a statute administered by the agency or of a rule or order of the agency. An agency shall prescribe by rule the form for such a request and procedure for its submission, consideration and disposition. A declaratory ruling is binding on the agency and the person requesting it unless it is altered or set aside by any court. An agency may not retroactively change a declaratory ruling, but nothing in this subsection prevents an agency from prospectively changing a declaratory ruling. A declaratory ruling is subject to judicial review in the same manner as an agency final decision or order in a contested case.
Although Section 24.263 arguably deals with the right of agencies, upon petition, to provide a declaratory ruling as to the applicability of state laws or regulations to a prisoner's circumstances, it does not provide a means to exhaust a grievance prior to federal litigation. None of the case law cited by the plaintiff suggests that an omnibus request to state agencies for opinions on the application of state laws to prison conditions constitutes exhaustion of a prisoner's claims. The plaintiff failed to exhaust his remedies on this particular retaliation claim, and the Magistrate Judge properly recommended that it be dismissed.
The balance of the plaintiffs objections to the dismissal of his first "claim" consists of a restatement of his motion argument. None of these arguments raises genuine issues of material fact about Duma's treatment of the plaintiff. Nor has plaintiff offered any substantive objection concerning the recommendation to grant summary judgment on the claim involving defendant Birkett. The Magistrate Judge's recommendation will be adopted concerning the first "claim."
II.
In his second "claim," the plaintiff alleges a violation of his rights under the Equal Protection, Due Process, and Cruel and Unusual Punishments Clauses of the United States Constitution in an incident that occurred on December 2, 1999 in which the plaintiff was restrained during a suicide threat. The magistrate judge recommended granting summary judgment against the plaintiff. The plaintiff objects, alleging only that the defendants failed to follow the precise guidelines of MDOC policy in restraining him that evening. Pl.'s Objs. at 8-11. Even if this were true, however, the fact that MDOC officers violated their own policies does not mean that they violated the Constitution. Cf. Paul v. Davis, 424 U.S. 693, 700 (1976) (holding that a municipality's failure to follow statutory procedures does not automatically constitute a violation of due process) Due process is flexible and calls only for such procedural protections as the situation at hand demands. See Morrissey v. Brewer, 408 U.S. 471, 481 (1972). The plaintiffs conduct created an emergency situation to which prison officials responded promptly and reasonably, and the Magistrate Judge correctly determined that there was no evidence upon which reasonable minds might differ as to the absence of a constitutional violation.
III.
Plaintiffs third "claim of action" is that defendants Birkett, Suiter, Bowerson, Meagher, and Ball discriminated against him by falsely classifying him as "00 Status: Unemployable," and therefore depriving him of significant rights and privileges in violation of his procedural due process rights. The plaintiff asserts that under this classification, he was not allowed to go outside for "yard time," to make telephone calls, or to attend religious services. He also contends in his initial complaint and in his objections that there is no "00 Status" classification code under MDOC policies.
The Magistrate Judge found that the employment classification system used by MDOC is rationally related to the legitimate purpose of encouraging employment and seeking constructive outlets for prisoner energy and effort. Under MDOC policy, all inmates are classified by various codes describing the level of work they are permitted to perform. "Class 00" describes those who are medically unable to work, refuse to work, or are prohibited from employment due to disciplinary infractions. MDOC PD 05.01.100(II)(Y).
The defendants demonstrated that plaintiff in fact refused work on November 16, 1999, was classified as Class 00, and signed the form classifying him as such. There is no genuine dispute that on December 27, 1999, the plaintiff requested that he be excused from employment for medical reasons. He was immediately evaluated and was exempted from employment, at which time his privileges to leave his cell during the day were restored. On February 15, 2000, the mental health team removed the plaintiffs restrictions and plaintiff requested a job on the yard crew.
It is true, as plaintiff asserts, that he was denied the privilege of attending yard, using the telephone, and attending religious services during weekdays during the period between his refusal to work and the implementation of his medical exemption. Although these activities do receive some level of constitutional protection, a prison regulation can override those protections if "reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89 (1987). The Court agrees with the Magistrate Judge's conclusion that MDOC's employment classification policies have a sound rational basis, namely the promotion of constructive life habits, and therefore finds that the plaintiff has failed to state an actionable claim.
The plaintiff also contends that the policy, as applied, violates his equal protection and due process rights. The Magistrate Judge erroneously rejected plaintiffs equal protection claim on the basis that he was not a member of a "protected class." Persons may now establish an equal protection claim by alleging that they are a "class of one." Village of Willowbrook v. Olech, 528 U.S. 562, 565 (2000). This development does not help the plaintiff in this case, however, because "class of one" claims will only lie where there is no rational basis for the action taken by the governmental entity. Id. As noted above, there is a sufficient rational basis advanced for MDOC's employment classification system.
Further, the plaintiffs procedural due process claim must fail. There cannot be a deprivation of procedural due process when the life, liberty, or property right being asserted was not violated. Mertik v. Blalock, 983 F.2d 1353, 1359 (6th Cir. 1993).
In his objections, plaintiff also contends that the Magistrate Judge failed to analyze his claim under the Americans with Disabilities Act ("ADA") and the Michigan Persons with Disabilities Civil Rights Act ("MPDCRA"). After carefully reviewing the complaint, the Court detects that the plaintiff did in fact allege in passing that the MDOC employment classification system violated federal and Michigan state disability discrimination statutes. The defendant did not move for summary judgment on this ground. However, when there are no material facts in dispute, as in this case, the Court has the discretion to grant summary judgment sua sponte. Employers Ins. of Wausau v. Petroleum Specialties, Inc., 69 F.3d 98, 104 (6th Cir. 1995). As a general rule, the Court is discouraged from doing so without giving advance notice to the parties. Hayes v. Equitable Energy Res. Co., 266 F.3d 560, ___, 2001 WL 1130822, at *10 (6th Cir. Sept. 26, 2001). However, when one party moves for summary judgment, that party is considered to have sufficient notice of the imminence of summary judgment in some form. Wright, Miller Kane, Federal Practice Procedure § 2720, at 346 (1998). Thus, when a party has moved for summary judgment, and the Court agrees that there is no genuine dispute of material fact, but believes that judgment as a matter of law is appropriate for the non-moving party' the Court is free to so declare. Id. at 347; Eckford-El v. Toombs, 760 F. Supp. 1267, 1272 (W.D. Mich. 1991).
In this case, plaintiff moved for summary judgment on May 30, 2000 [dkt #20] on various claims, including his ADA and MPDCRA allegations. Because the plaintiff filed his own motion for summary judgment, he is deemed to have notice of the possibility that this Court will find material facts not in dispute. There is no material fact in dispute on this claim. The plaintiffs disability claims stem from his conclusory allegation that the defendants' actions with regard to his employment classification violated the ADA and the MPDCRA. As previously discussed, however, the defendants have provided documentation establishing that the plaintiff was only denied access to employment during two periods of time: first, when he refused to work and signed the classification form to confirm this decision, and second, when he requested a disability exemption, and his request was granted. When plaintiff sought a return to work in February, he was reevaluated and assigned to the yard crew.
These facts do not state a prima facie claim under the ADA. When asserting an ADA claim, a plaintiff must establish a prima facie case of unlawful discrimination by demonstrating
(1) that he is a disabled individual within the meaning of the ADA; (2) that he is otherwise qualified to perform the essential functions of the job with or without reasonable accommodation; and (3) that the employer either refused to make a reasonable accommodation for the plaintiffs disability or made an adverse employment decision against the plaintiff only because of his disability.Smith v. Ameritech, 129 F.3d 857, 866 (6th Cir. 1997).
Even assuming that the first two prongs of this test were met, the plaintiff has not demonstrated that he asked for reasonable accommodations which were not granted. The plaintiff does not refute the defendants' evidence that plaintiff at first refused employment, and only later sought an exemption and/or accommodation, which was promptly investigated and granted.
Under Sixth Circuit precedent, a count that fails to state a claim under the ADA also fails under the MPDCRA. See Monette v. Elec. Data Sys., Inc., 90 F.3d 1173, 1178 n. 3 (6th Cir. 1996). The plaintiffs disability discrimination claims under both state and federal legislation shall be dismissed.
IV.
Plaintiffs fourth "claim of action" alleges property deprivation arising from the confiscation of a radio and an extension cord from him in December 1999 on the grounds that they were contraband. The Magistrate Judge recommends dismissal for failure to exhaust administrative remedies. The plaintiff went though Steps I and II of the MDOC grievance process, but filed this suit before completing Step III. The Magistrate Judge correctly found that Sixth Circuit precedent requires dismissal of unexhausted complaints without prejudice, even if the grievance process is subsequently completed after filing suit. See Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999).
Plaintiffs objections consist of complaints that the events alleged in this suit made it difficult to comply with the exhaustion procedures, and that he properly filed for declaratory relief under Mich. Comp. Laws § 24.263. This Court has already addressed the inadequacy of the plaintiffs cited statutory procedure to comply with the exhaustion requirement. In the absence of imminent, physical injury, this Court has no discretion to waive the statutorily imposed exhaustion requirement. 42 U.S.C. § 1915(g).
At the conclusion of the plaintiffs fourth "claim of action," he alleges that defendant Martin, the MDOC director, and defendant Bolden, the security director, are liable under § 1983 for their reckless indifference to plaintiffs constitutional rights because these "superior" defendants "knew or should have known" from plaintiffs letters and grievances about the "subordinate Defendants [sic] violations."
The Magistrate Judge suggested that these allegations do not state an actionable claim. The Court agrees. Supervisory liability is imposed only when a supervisor either participated directly in the violation or "at least implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending subordinate." Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). Section 1983 liability cannot be grounded solely on respondeat superior. Taylor v. Michigan Dep't. of Corr., 69 F.3d 76, 80-81 (6th Cir. 1995). Nor can a supervisor be held liable solely for a failure to act despite being aware of the misconduct. Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999). Active unconstitutional behavior is required. Id.
The essence of the plaintiffs allegations is that defendants Martin and Bolden knew of their subordinates' wrongdoing but did not intervene. The plaintiff does not allege any active participation in the said wrongdoing. The allegations against defendants Martin and Bolden will be dismisses with prejudice. The plaintiffs fourth cause of action shall otherwise be dismissed without prejudice.
V.
The plaintiffs fifth "claim of action" consists of conspiracy allegations based on the events set forth in the first four "claims." The Magistrate Judge generously construed these allegations as an attempt to state a claim under 42 U.S.C. § 1985, and found it wanting for lack of an allegation that the plaintiff was a member in any recognized class, or that there were overt acts in furtherance of a conspiracy. The plaintiffs objections simply restate his motion arguments.
Whether proceeding under 42 U.S.C. § 1985 or for civil conspiracy under § 1983, a plaintiff must show some evidence of coordinated actions between the alleged conspirators. See Bass v. Robinson, 167 F.3d 1041, 1050 (6th Cir. 1999); Collyer v. Darling, 98 F.3d 211, 229 (6th Cir. 1996). He has failed to do so here. Conclusory, vague accusations that do not describe some "meeting of the minds" cannot state a claim for relief under 42 U.S.C. § 1983 or 1985. See Naguib v. Ill. Dep't of Prof'l Regulation, 986 F. Supp. 1082, 1092 (N.D. Ill. 1997); Pollack v. Nash, 58 F. Supp.2d 294, 299-300 (S.D.N.Y. 1999). The Court will grant the defendants summary judgment of dismissal on the plaintiffs fifth "claim of action."
VI.
The plaintiffs sixth "claim of action" consists of a prayer for injunctive relief. The plaintiff also has filed various requests for preliminary injunctions. A preliminary injunction will only be issued where the plaintiff has a reasonable likelihood of prevailing on the merits. See Rock and Roll Hall of Fame and Museum, Inc. v. Gentile Prods., 134 F.3d 749, 753 (6th Cir. 1998). Because the Court has concluded that the plaintiff cannot prevail on any of his claims, the preliminary injunction must likewise be denied. See Gonzales v. Nat'l Bd. of Med. Exam'rs, 225 F.3d 620, 625 (6th Cir. 2000) ("Although no one factor is controlling, a finding that there is simply no likelihood of success on the merits is usually fatal.").
VII.
The plaintiff has filed a third motion to amend his complaint, or more precisely to present "additional supplemental evidence for/with pending claims." The motion does not properly seek to amend the complaint to add additional theories of liability or additional claims arising from the same transactions or occurrences described in the present pleadings. Rather, the motion alleges that the plaintiff has new grievances which arose after the present suit was filed. For instance, the plaintiff contends that some of the defendants violated the MDOC's suicide watch and prevention rules when the plaintiff was held in isolation in April and May 2001. He also contends he was deprived of certain mail deliveries in violation of MDOC rules.
Under Fed.R.Civ.P. 15(a), amendments shall be "freely given." Wade v. Knoxville Utils. Bd, 259 F.3d 452, 458 (6th Cir. 2001). Further, the Court construes pro se litigants' papers liberally. Dekoven v. Bell, 140 F. Supp.2d 748, 754 (E.D. Mich. 2001). However, the filing of a single lawsuit does not open a channel for the purpose of transmitting all of a prisoner's complaints concerning his confinement that may arise during the term of his incarceration. As previously noted, the mere violation of MDOC policies does not give rise to a federal cause of action. The Court is under no obligation to permit the addition of futile claims to the plaintiffs complaint. See Keewenaw Bay Indian Cmty'y v. Mich., 11 F.3d 1341, 1348 (6th Cir. 1993).
VIII.
With the exception of one issue relating to the plaintiffs equal protection claim noted above, the Court finds that the Magistrate Judge's Report and Recommendation accurately states applicable law and that the correct result was reached on the pending motions. The plaintiffs objections to the Report and Recommendation lack merit.
Accordingly, it is ORDERED that the Magistrate Judge's Report and Recommendation is ADOPTED and the plaintiffs objections are OVERRULED.
It is further ORDERED that defendants' Motion for Summary Judgment [dkt #17] is GRANTED in part; the plaintiffs Motion for Summary Judgment [dkt #20] is DENIED; the plaintiffs Motion to Supplement the Record and for Ex Parte Injunction [dkt #25] is DENIED; the defendant's Motion to Stay Discovery [dkt #33] is DENIED AS MOOT; the plaintiffs second Motion to Supplement the Record and Amend Complaint [dkt #34] is DENIED; the plaintiffs Motion to Strike the Affidavit of Non-Defendant Hilbourn [dkt #35] is DENIED AS MOOT; and the plaintiffs Third Motion to Amend Complaint [dkt #45] is DENIED.
It is further ORDERED that the plaintiffs retaliation claim arising from the August 25, 1999 incident, and the plaintiffs property deprivation claim arising from the confiscation of a radio and an extension cord in December 1999, are DISMISSED WITHOUT PREJUDICE. It is further ORDERED that the balance of the complaint is DISMISSED WITH PREJUDICE.