-TPG Colvin #192744 v. Capello et al, No. 2:2010cv00297 - Document 5 (W.D. Mich. 2010)

Court Description: OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

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-TPG Colvin #192744 v. Capello et al Doc. 5 UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION KENNETH COLVIN JR. #192744, Plaintiff, v. Case No. 2:10-cv-297 Honorable Gordon J. Quist GARY CAPELLO, et al., Defendants. _______________________________/ 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. Under the Prison Litigation Reform Act, PUB. L. NO . 104-134, 110 STAT . 1321 (1996), 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 Caruso, Straub, LaPlante, and Hietikko. The Court will serve the complaint against Defendants Capello, Tribley, Hill, Sweeney, Sacklett, Obiden, Linder, Majurin, Saari, Jurva, Charles, Barry, Patel, Napel, Steve, Martin, and Engelsgjerd. Dockets.Justia.com Discussion I. Factual allegations Plaintiff Kenneth Colvin Jr., an inmate at the Ionia Maximum Correctional Facility, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against Defendants Warden Gary Capello, Deputy Warden Linda Tribley, Prison Guard Timothy Hill, Assistant Resident Unit Supervisor B. Sweeney, Resident Unit Manager R. Sacklett, Sergeant M. Obiden, Prison Guard Joseph D. Linder, Prison Guard Robert J. Majurin, Prison Guard M. S. Saari, Prison Guard LeLand K. Jurva, II, Prison Guard Chad A. Charles, Food Service Director Herbert Barry, Doctor Patel, Warden Robert Napel, MDOC Director Patricia L. Caruso, MDOC Deputy Director Dennis Straub, Doctor Geoffrey Steve, Grievance Coordinator T. LaPlante, Grievance Coordinator D. Hietikko, MDOC Special Activities Coordinator Michael Martin, and Doctor M. Engelsgjerd. Plaintiff alleges that Defendants retaliated against him for engaging in a religious fast by transferring him to segregation and denying him privileges. In addition, Plaintiff claims that Defendants forced him to accept medical treatment and subjected him to excessive force, thereby injuring him. Plaintiff seeks damages, as well as declaratory and injunctive relief. II. Failure to state a claim 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). 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 § 1983 is a method for vindicating federal rights, not a source -2- 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). Liability under Section 1983 must be based on more than merely the right to control employees. Polk Co. v. Dodson, 454 U.S. 312, 325-26 (1981); Monell v. New York City Department of Social Services, 436 U.S. 658 (1978). Thus, Section 1983 liability cannot be premised upon mere allegations of respondeat superior. Monell, 436 U.S. at 691; Polk, 454 U.S. at 325. A party cannot be held liable under Section 1983 absent a showing that the party personally participated in, or otherwise authorized, approved or knowingly acquiesced in, the allegedly unconstitutional conduct. See e.g. Leach v. Shelby Co. Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989), cert. denied, 495 U.S. 932 (1990); Hays v. Jefferson, 668 F.2d 869, 874 (6th Cir.), cert. denied, 459 U.S. 833 (1982). See also Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.), cert. denied 469 U.S. 845 (1984). Supervisory officials can be held liable for the acts of their subordinates only if plaintiff establishes that the supervisor failed to appropriately discharge his supervisory duties, and that this failure resulted in a denial or deprivation of plaintiff s federal rights. See e.g. Leach, 891 F.2d at 1246; Hayes v. Vessey, 777 F.2d 1149, 1154 (6th Cir. 1985). However, the failure of a supervisor to supervise, control or train the offending employee is not actionable absent a showing that the official implicitly encouraged, authorized, approved or knowingly acquiesced in, or in some other way directly participated in, the offensive conduct. Leach, 891 F.2d at 1246. Such a claim requires, at a minimum, that the official had knowledge of the offending employee s conduct at a time when the conduct could be prevented, or that such conduct was otherwise foreseeable or predictable. See e.g. Gibson v. Foltz, 963 F.2d 851, 854 (6th Cir. 1992). In addition, plaintiff must show that defendant had some duty or authority to act. See e.g. Birrell v. Brown, 867 F.2d 956, 959 (6th Cir. 1989) (lower level official not liable for shortcomings of building); Ghandi v. Police Dept. of City of Detroit, 747 F.2d 338, 351 (6th Cir. 1984) (mere presence at the scene is insufficient -3- grounds to impose Section 1983 liability in the absence of a duty to act); accord Hall v. Shipley, 932 F.2d 1147 (6th Cir. 1991). In addition, merely bringing a problem to the attention of a supervisory official is not sufficient to impose such liability. See Shelly v. Johnson, 684 F. Supp. 941, 946 (W.D. Mich. 1987) (Hillman, C.J.), aff d 849 F.2d 228 (6th Cir. 1988). Finally, supervisory liability claims cannot be based on simple negligence. Leach, 891 F.2d at 1246; Weaver v. Toombs, 756 F. Supp. 335, 337 (W.D. Mich. 1989), aff d 915 F.2d 1574 (6th Cir. 1990). Plaintiff has not alleged facts establishing that Defendants Caruso, Straub, LaPlante, and Hietikko were personally involved in the activity which forms the basis of his claim. The only roles that Defendants Caruso, Straub, LaPlante, and Hietikko had in this action involve the denial of administrative grievances or the failure to act. Defendants Caruso, Straub, LaPlante, Hietikko cannot be liable for such conduct under § 1983. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999), cert. denied, 530 U.S. 1264 (2000). Accordingly, the Court concludes that Plaintiff s claims against Defendants Caruso, Straub, LaPlante, and Hietikko are properly dismissed for lack of personal involvement. Conclusion Having conducted the review now required by the Prison Litigation Reform Act, the Court determines that Defendants Caruso, Straub, LaPlante, and Hietikko will be dismissed for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c). The Court will serve the complaint against Defendants Capello, Tribley, Hill, Sweeney, Sacklett, Obiden, Linder, Majurin, Saari, Jurva, Charles, Barry, Patel, Napel, Steve, Martin, and Engelsgjerd. An Order consistent with this Opinion will be entered. Dated: December 21, 2010 /s/ Gordon J. Quist GORDON J. QUIST UNITED STATES DISTRICT JUDGE -4-

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