SMITH v. MICHIGAN DEPARTMENT OF CORRECTIONS, (W.D.Mich. 2001)

RICHARD ALAN ENSLEN, United States District Judge.

In accordance with the Opinion filed this date:

IT IS ORDERED that Plaintiff's action be dismissed for failure to state a claim upon which relief may be granted and because the Michigan Department of Corrections is immune, pursuant to 28 U.S.C. § 1915(e), § 1915A, and 42 U.S.C. § 1997e(c).

For the same reasons that the Court dismisses the action, the Court discerns no good-faith basis for an appeal. 28 U.S.C. § 1915(a)(3);McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997).

This is a dismissal as described by 28 U.S.C. § 1915(g).

OPINION

This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983. The Court has granted Plaintiff leave to proceed in forma pauperis, and Plaintiff has paid the initial partial filing fee. Under the Prison Litigation Reform Act, PUB. L. No. 104-134, 110 STAT. 1321 (1996) ("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. 42 U.S.C. § 1997e(c); 28 U.S.C. § 1915(e)(2), 1915A. 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 and will also dismiss the Michigan Department of Corrections as immune.

Discussion

I. Factual Allegations

Plaintiff is presently incarcerated at the Carson City Correctional Facility, though his complaint concerns events that occurred when he was incarcerated at the Brooks Correctional Facility. In his pro se complaint, he sues the Michigan Department of Corrections, Brooks Warden Mary K. Berghuis (incorrectly spelled as Burgess), Deputy Warden D'Epifano (incorrectly spelled as Depaphano), Corrections Officer Jones, and two "John Doe" defendants. Plaintiff's complaint concerns the failure to protect him from assault.

Plaintiff alleges that on February 21, 2000, he was playing cards when he was suddenly struck in the back of his head numerous times. He was knocked unconscious for one or two minutes. When he regained consciousness, he saw that he was the only person in the room. He left the room and went to the officers' desk, but no one was there. He left for health care. Defendant Jones, who was outside the unit talking with two other corrections officers, stopped him and asked where he was going. Plaintiff was unable speak and he was covered from head to chest in blood. Jones told him to go back to the unit, and Plaintiff went to health care. He was treated and taken to Hackley General Hospital, where a catscan and x-ray were taken. He received seven staples and was prescribed medication. Upon his return to the prison, he was placed in administrative segregation. He was not provided with the medication prescribed by the hospital, and the medication provided by health care staff did not adequately relieve his pain. Plaintiff was also made to stay awake for forty-eight hours. Plaintiff attaches a document to his complaint which shows that after the attack, it was discovered through a confidential informant that Inmate Jackson was the assailant. Plaintiff was transferred to another facility.

Plaintiff alleges that since the attack he suffers from headaches and loss of short-term memory, and that he requires various painkillers. He asserts that Defendants Berghuis and D'Epifano failed to have an officer monitoring the various video cameras in the unit to the prevent the assault. He also alleges that the John Doe corrections officers failed to maintain their station at the unit desk. For relief, he seeks an order that he be examined by a physician, that Warden Berghuis take action to curb the negligence, and that he be awarded $600,000 compensatory and $150,000 punitive damages.

II. Failure to state a claim

At the outset, Plaintiff has failed to present any allegations regarding exhaustion of available administrative remedies. See 42 U.S.C. § 1997e; Booth v. Chumer, 121 S.Ct. 1819, 182-324 (2001) (to be reported at 531 U.S. 956); Brown v. Toombs. 139 F.3d 1102, 1104 (6th Cir.), cert. denied, 525 U.S. 833 (1998). Nonetheless, the Court may dismiss the action for failure to state a claim. See 42 U.S.C. § 1997e(c)(2).

A complaint fails to state a claim upon which relief can be granted when it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations of the complaint.Jones v. City of Carlisle, 3 F.3d 945, 947 (6th Cir. 1993), cert. denied. 510 U.S. 1177 (1994). 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. Corrections Corp. of America, 102 F.3d 810, 814 (6th Cir. 1996). Because § 1983 is a method for vindicating federal rights, not a source of substantive rights itself, the first step in an action under § 1983 is to identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994).

Plaintiff's claim that his medical needs were not met is properly categorized under the Eighth Amendment, which 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. 102, [ 429 U.S. 97] 103-04 (1976). For a medical claim, the Eighth Amendment is violated when a prison official is deliberately indifferent to the serious medical needs of a prisoner. Id. at 104-05; Sanderfer v. Nichols, 62 F.3d 151, 154 (6th Cir. 1995).

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.

Estelle, 429 U.S. at 105-06 (quotations omitted). The deliberate indifference standard "describes a state of mind more blameworthy than negligence." Farmer v. Brennan, 511 U.S. 825, 835 (1994). 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 be both 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. The reason for focusing on the official's mental attitude is to isolate those defendants who inflict punishment. Id. at 839.

In this case, Plaintiff has not connected the denial of his medication prescribed by the hospital and the lack of follow-up care to any of the named Defendants. Thus, he cannot demonstrate that any of the named Defendants were deliberately indifferent to a serious medical need. Moreover, his claim that he was given different pain medication than prescribed by the hospital cannot possibly demonstrate deliberate indifference. 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.Sanderfer, 62 F.3d at 154-55; Ward v. Smith, No. 95-6666, 1996 WL 627724, at *1 (6th Cir. Oct. 29, 1996). This is so even if the misdiagnosis results in an inadequate course of treatment and considerable suffering. See Gabehart v. Chapleau, No. 96-5050, 1997 WL 160322, at *2 (6th Cir. April 4, 1997).

Plaintiff's claim that Defendants failed to protect him from assault is also considered under the Eighth Amendment. Similarly, Plaintiff must show that Defendants acted with deliberate indifference to conditions posing a substantial risk of serious harm. Farmer. 511 U.S. at 834; Curry v. Scott, 249 F.3d 493, 506 (6th Cir. 2001). It is not enough to use the "magic words" of "deliberate indifference" to state a claim. See Arnold v. South Carolina Dept of Corr., 843 F. Supp. 110, 113 (D.S.C. 1994) (despite use of phrase "deliberate indifference" in his pleadings, inmate failed to show that defendants possessed the requisite mental state).

Plaintiff presents no allegations regarding the possibility that he might be attacked. For example, he does not contend that any of the Defendants knew that Inmate Jackson wanted to attack him, nor does Plaintiff contend that he informed any of the Defendants that he might be attacked by Inmate Jackson. Rather, Plaintiff alleges that Defendants failed to properly monitor video cameras and to continuously staff a station outside the recreation room where Plaintiff was playing cards. He generally asserts that there have been past attacks when guards have not been at their stations. However, Plaintiff does not allege that a previous attack occurred when Defendant Jones was not at his station. He also does not allege that Defendants Berghuis and D'Epifano were aware that attacks had occurred when guards had left their stations or when cameras were not being monitored.

The Sixth Circuit has indicated that "if an Eighth Amendment plaintiff presents evidence showing that a substantial risk of inmate attacks was `longstanding, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk and thus `must have known' about it, then such evidence could be sufficient to permit a trier of fact to find that the defendant-official had actual knowledge of the risk." Curry, 249 F.3d at 506 (citingFarmer. 511 U.S. at 842). Plaintiff's speculative allegation regarding past attacks fails to show that any of named Defendants were actually aware of a substantial risk of harm to Plaintiff. At most, Plaintiff's allegation show that Defendant Jones may have been negligent by temporarily leaving his station, not that he acted with deliberate indifference to a risk of harm.

In addition, Plaintiff's claims against Warden Berghuis and Deputy Warden D'Epifano also fail. Plaintiff sues these two Defendants on the basis of their positions of authority at the prison. (See Compl., ¶¶ 9-10.) However, 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 v. Department of Social Services, 436 U.S. 658 (1978)). As the Sixth Circuit has repeatedly emphasized:

Section 1983 liability will not be imposed solely upon the basis of respondeat superior. There must be a showing that the supervisor encouraged the specific incident of misconduct or in some other way directly participated in it. At a minimum, a § 1983 plaintiff must show that a supervisory official at least implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending subordinate.

Taylor v. Michigan Dep't of Corrections, 69 F.3d 76, 81 (6th Cir. 1998) (citing Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.), cert. denied, 469 U.S. 845 (1984)). Liability under § 1983 must be based on active unconstitutional behavior and cannot be based upon "a mere failure to act." Shehee v. Luttrell. 199 F.3d 295, 300 (6th Cir. 1999) (quotingSalehpour v. University of Tenn. 159 F.3d 199, 206 (6th Cir. 1998),cert. denied, 526 U.S. 1115 (1999)), cert. denied 120 S.Ct. 2724 (2000). Because Plaintiff has presented no allegations showing that Warden Berghuis or Deputy Warden D'Epifano did anything except fail to act, he has not stated a claim against them.

Finally, to the extent that Plaintiff claims that Defendants were negligent by failing to protect him from harm, he presents only a state law tort claim. Because Plaintiff otherwise fails to state an Eighth Amendment claim, this Court will decline to exercise supplemental jurisdiction over his state law claim. See Landefeld v. Marion General Hosp. 994 F.2d 1178, 1182 (6th Cir. 1993); Coleman v. Huff No. 97-1916, 1998 WL 476226, at *1 (6th Cir. Aug. 3, 1998).

III. Immunity

In addition, Plaintiff may not maintain a § 1983 action against the Michigan Department of Corrections. Regardless of the form of relief requested, the states and their departments are immune under the Eleventh Amendment from suit in the federal courts, if the state has not waived immunity and Congress has not expressly abrogated Eleventh Amendment immunity by statute. See Pennhurst State School Hosp. v. Halderman, 465 U.S. 89, 98-101(1984); Alabama v. Push, 438 U.S. 781, 782 (1978);O'Hara v. Wigginton 24 F.3d 823, 826 (6th Cir. 1993). Congress has not expressly abrogated Eleventh Amendment immunity by statute, Quern v. Jordan, 440 U.S. 332, 341 (1979), and the State of Michigan has not consented to civil rights suits in federal court. Abick v. Michigan, 803 F.2d 874, 877 (6th Cir. 1986). In numerous unpublished opinions, the Sixth Circuit has specifically held that the MDOC is absolutely immune from suit under the Eleventh Amendment. See, e.g., Turnboe v. Stegall, No. 00-1182, 2000 WL 1679478, at *2 (6th Cir. Nov. 1, 2000); Erdman v. Michigan Dep't of Corr., No. 94-2109, 1995 WL 150341, at *1 (6th Cir. April 5, 1995); Cullens v. Bemis, No. 9201582, 1992 WL 337688, at *1 (6th Cir. Nov. 18, 1992); Adams v. Michigan Dep't of Corr., No. 86-1803, 1987 WL 36006, at *1 (6th Cir. May 7, 1987). Therefore, for this reason too, the Court dismisses the Michigan Department of Corrections.

Conclusion

Having conducted the review now required by the Prison Litigation Reform Act, the Court determines that Plaintiff's action fails to state a claim and the Michigan Department of Corrections is also immune. Therefore, the Court will dismiss the action pursuant to 28 U.S.C. § 1915(e)(2), 1915A(b); 42 U.S.C. § 1997e(c).

The Court must next decide whether an appeal of this action would be in good faith within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth. 114 F.3d 601, 611 (6th Cir. 1997). For the same reasons that the Court dismisses the action, the Court discerns no good-faith basis for an appeal. Should Plaintiff appeal this decision, the Court will assess the $105 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless Plaintiff is barred from proceeding in forma pauperis, e.g., by the "three-strikes" rule of § 1915(g). If he is barred, he will be required to pay the $105 appellate filing fee in one lump sum.

This is a dismissal as described by 28 U.S.C. § 1915(g).

A Judgment consistent with this Opinion will be entered.