UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION ______

ALSAVILLE CHOATE,

Plaintiff, Case No. 2:23-cv-00194

v. Honorable Maarten Vermaat

MICHIGAN DEPARTMENT OF CORRECTIONS et al.,

Defendants. ____________________________/ OPINION This is a civil rights action brought by a state prisoner under

. In a prior order, the Court granted Plaintiff leave to proceed in forma pauperis. (ECF No. 4.) Pursuant to

(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. 1, PageID.8.) This case is presently before the Court for preliminary review under the Prison Litigation Reform Act,

Stat. 1321 (1996) (PLRA), pursuant to

(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,

(6th Cir. 1997); McGore v. Wrigglesworth,

, 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.,

(1999). “Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.”

. “[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.”

(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.”

. 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,

(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

(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 . . . .”

(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,

(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.”).1 Under 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.

(e)(2),

1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiff’s pro se complaint indulgently, see Haines v. Kerner,

(1972), and accept Plaintiff’s allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez,

(1992). Applying these standards, the Court will dismiss Plaintiff’s complaint for failure to state a claim against Defendants Michigan Department of Corrections (MDOC) and Anderson. The Court will also dismiss Plaintiff’s official capacity claims against Defendant Hill. Plaintiff’s First Amendment retaliation claim and his Eighth Amendment excessive force claim against Defendant Hill in Hill’s individual capacity remain in the case. Discussion I. Factual Allegations Plaintiff is presently incarcerated with the MDOC at the Alger Correctional Facility (LMF)

in Munising, Alger County, Michigan. The events about which he complains occurred at that

1 But see Coleman v. Lab. & Indus. Rev. Comm’n of Wis.,

(7th Cir. 2017) (concluding that, when determining which parties are required to consent to proceed before a United States Magistrate Judge under

(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

(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c)); Williams v. King,

, 503–04 (9th Cir. 2017) (relying on Black’s Law Dictionary for the definition of “parties” and not addressing Murphy Bros.); Burton v. Schamp,

, 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”). facility. Plaintiff sues the MDOC and Corrections Officers Kim Hill and Unknown Anderson in their official and personal capacities. (ECF No. 1, PageID.2.). Plaintiff alleges that on November 6, 2022, at 1:08 p.m., his Eighth Amendment rights were violated when he was assaulted and verbally threatened with further assaults by Defendant Hill while Defendant Anderson watched and did nothing to intervene. (Id., PageID.3.) Plaintiff

specifically alleges that Defendants Hill and Anderson were overseeing the passing out of lunch trays when they ran out of trays in the large metal cart they had been using. Plaintiff states that Defendant Hill became enraged and kicked the cart which carried the milk cartons, sending it crashing and knocking over the milk cartons. Defendant Hill then got another large metal cart, which was full of “a fresh stock” of meal trays and aggressively swung open the door so that it struck Plaintiff. (Id., PageID.4.) Plaintiff claims that Defendant Hill made “direct eye contact with [Plaintiff]” before taking this action.” (Id.) Plaintiff asked Defendant Hill why he had hit Plaintiff, and he responded by saying that Plaintiff should have “gotten the f**k out of his way. (Id. (asterisks added).)

Plaintiff states that he had only been at LMF for one and a half weeks and was unaware of the routine. Plaintiff also asserts that camera footage will show that he was not in the way and that Defendant Hill deliberately placed the food cart next to Plaintiff. Plaintiff told Defendant Hill that he was not aware of his intentions and Defendant Hill stated, “What, are you blind?” (Id.) Plaintiff states that he had suffered an injury as a child, which resulted in an obvious deformity to Plaintiff’s right eye. (Id.) Plaintiff asked Defendant Hill not to use that kind of offensive language towards him and Defendant Hill threatened to shut Plaintiff’s other eye. (Id., PageID.5.) Plaintiff states that he kited health care regarding his injuries, although he fails to specify the nature of those injuries in his complaint. Plaintiff also kited the Inspector at LMF and asked him to preserve the video evidence of this incident. Plaintiff filed a grievance regarding the incident and states that following this, Defendant Hill fired him from his prison job in retaliation. Based on the foregoing, Plaintiff asserts that Defendant Hill used excessive force on him, and that Defendant Anderson failed to intervene, which violated Plaintiff’s rights under Eighth Amendment. The Court also construes Plaintiff’s complaint to assert a First Amendment retaliation

claim against Defendant Hill for firing him from his prison job after Plaintiff filed a grievance on him. Plaintiff seeks $50,000 in damages from each Defendant, as well as declaratory relief. (Id., PageID.7–8.) 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,

(2007) (quoting Conley v. Gibson,

(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,

(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,

. “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,

. 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.”

at 678 (quoting Twombly,

). “[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.”

at 679 (quoting Fed. R. Civ. P. 8(a)(2)); see also Hill v. Lappin,

, 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

, 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,

(1988); Street v. Corr.

Corp. of Am.,

(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,

(1994). A. Defendant MDOC and Official Capacity Claims Against Defendants Hill and Anderson Initially, the Court notes that Plaintiff may not maintain a § 1983 action against the MDOC. Regardless of the form of relief requested, the states and their departments are immune under the Eleventh Amendment from suit in the federal courts, unless the state has waived immunity or Congress has expressly abrogated Eleventh Amendment immunity by statute. See Pennhurst State Sch. & Hosp. v. Halderman,

, 98–101 (1984); Alabama v. Pugh,

(1978); O’Hara v. Wigginton,

(6th Cir. 1994). Congress has not expressly abrogated Eleventh Amendment immunity by statute, Quern v. Jordan,

(1979), and the State of Michigan has not consented to civil rights suits in federal court. Abick v. Michigan,

(6th Cir. 1986). In numerous opinions, the Sixth Circuit has specifically held

that the MDOC is absolutely immune from a § 1983 suit under the Eleventh Amendment. See, e.g., Harrison v. Michigan,

(6th Cir. 2013); Diaz v. Mich. Dep’t of Corr.,

(6th Cir. 2013); McCoy v. Michigan,

, 653–54 (6th Cir. 2010). Therefore, Plaintiff’s claim against the MDOC is subject to dismissal on grounds of immunity. In addition, the State of Michigan (acting through the MDOC) is not a “person” who may be sued under § 1983 for money damages. See Lapides v. Bd. of Regents,

(2002) (citing Will v. Mich. Dep’t of State Police,

(1989)); Harrison,

. Therefore, Plaintiff’s claim against the MDOC is also subject to dismissal for failure to state a claim under

(e)(2)(B)(iii), 1915A(b), and 42 U.S.C. § 1997e(c).

Furthermore, a suit against an individual in his or her official capacity is equivalent to a suit against the governmental entity; in this case, the MDOC. See Will,

; Matthews v. Jones,

(6th Cir. 1994). And, an official capacity defendant is absolutely immune from monetary damages. See Will,

; Turker v. Ohio Dep’t of Rehab. & Corr.,

(6th Cir. 1998). Here, Plaintiff seeks declaratory relief and monetary damages. Defendants Hill and Anderson are entitled to immunity with respect to Plaintiff’s official capacity claims for damages. Although damages claims against official capacity defendants are properly dismissed, an official capacity action seeking injunctive or declaratory relief constitutes an exception to

sovereign immunity. See Ex Parte Young,

, 159–60 (1908) (holding that the Eleventh Amendment immunity does not bar prospective injunctive relief against a state official). The United States Supreme Court has determined that a suit under Ex Parte Young for prospective injunctive relief should not be treated as an action against the state. Kentucky v. Graham,

, 167 n.14 (1985). Instead, the doctrine is a fiction recognizing that unconstitutional acts cannot have been authorized by the state and therefore cannot be considered done under the state’s authority.

Nonetheless, the Supreme Court has cautioned that, “Ex parte Young can only be used to avoid a state’s sovereign immunity when a ‘complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.’” Ladd v. Marchbanks,

, 581 (6th Cir. 2020) (quoting Verizon Md. v. Pub. Serv. Comm’n of Md.,

(2002)). Past exposure to an isolated incident of illegal conduct does not, by itself, sufficiently prove that the plaintiff will be subjected to the illegal conduct again. See, e.g., Los Angeles v. Lyons,

(1983) (addressing injunctive relief); MedImmune, Inc. v. Genentech, Inc.,

(2007) (addressing declaratory relief). A court should assume that, absent an official policy or practice urging unconstitutional behavior, individual government officials will act constitutionally. Lyons,

; O’Shea, 414 U.S. at 495–96. In the present action, Plaintiff does not allege the existence of an official policy or practice, or suggest that the activities alleged in the complaint are likely to occur to him again. Instead, Plaintiff’s allegations relate solely to past harm, not future risk of harm. Therefore, Plaintiff does not seek relief properly characterized as prospective. See Ladd, 971 F.3d at 581. Accordingly, for the reasons set forth above, Plaintiff’s claims against the MDOC and his

official capacity claims against Defendants Hill and Anderson will be dismissed. B. Eighth Amendment 1. Failure to protect claim against Defendant Anderson Plaintiff claims that Defendant Anderson failed to protect him from being assaulted by Defendant Hill in violation of the Eighth Amendment. In its prohibition of “cruel and unusual punishments,” the Eighth Amendment places restraints on prison officials, directing that they may not use excessive physical force against prisoners and must also “‘take reasonable measures to guarantee the safety of the inmates.’” Farmer v. Brennan,

(1994) (quoting Hudson v. Palmer,

, 526–27 (1984)). To establish liability under the Eighth Amendment for a claim based on a failure to prevent harm to a prisoner, a plaintiff must show that the prison official acted with “deliberate indifference” to a substantial risk of serious harm facing the plaintiff. Farmer,

; Helling v. McKinney,

(1993); Bishop v. Hackel,

, 766–67 (6th Cir. 2011); Curry v. Scott,

(6th Cir. 2001); Woods v. Lecureux,

(6th Cir. 1997); Street v. Corr. Corp. of Am.,

(6th Cir. 1996); Taylor v. Mich. Dep’t of Corr.

(6th Cir. 1995). Deliberate

indifference is a higher standard than negligence and requires that “the official knows of and disregards an excessive risk to inmate health or safety; the 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.” Farmer,

; see also Bishop, 636 F.3d at 766–67. An officer is liable for another officer’s use of excessive force where the defendant “‘observed or had reason to know that excessive force would be or was being used’ and ‘had both the opportunity and the means to prevent the harm from occurring.’” Burgess v. Fischer,

(6th Cir. 2013) (emphasis in original) (quoting Turner v. Scott,

(6th Cir. 1997)); accord Alexander v. Carter ex. rel. Byrd,

, 265 (6th Cir. 2018);

Partin v. Parris, No. 17-6172,

, at *3 (6th Cir. Mar. 20, 2018). In this case, Plaintiff alleges that Defendant Hill lost his temper and struck him with the door on the food cart as he violently opened it. However, Plaintiff fails to allege any facts showing that Defendant Anderson knew that Defendant Hill was going to take such an action, or that he could have stopped Defendant Hill from doing so. Because Plaintiff fails to allege facts which could support a finding that Defendant Anderson was deliberately indifferent to a known risk of harm, Plaintiff’s Eighth Amendment claim against Defendant Anderson is properly dismissed. 2. Excessive force claim against Defendant Hill As noted above, Plaintiff claims that Defendant Hill subjected him to excessive force in violation of the Eighth Amendment when he deliberately struck him with the metal door of the food cart, causing him to become injured. Punishment may not be “barbarous”, nor may it contravene society’s “evolving standards of decency.” See Rhodes v. Chapman,

, 345–46 (1981); see also Trop v. Dulles,

(1958). The Eighth Amendment also prohibits conditions of confinement which, although not physically barbarous, “involve the unnecessary and wanton infliction of pain.” Rhodes,

. Among unnecessary and

wanton inflictions of pain are those that are “totally without penological justification.”

Although largely conclusory, Plaintiff’s allegations that Defendant Hill deliberately hit him with a metal door causing an injury to Plaintiff are sufficient to support an Eighth Amendment claim against Defendant Hill at this point in the litigation. C. Retaliation Plaintiff claims that Defendant Hill retaliated against him in violation of the First Amendment. Retaliation based upon a prisoner’s exercise of his or her constitutional rights violates the Constitution. See Thaddeus-X v. Blatter,

(6th Cir. 1999) (en banc). In order 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.

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,

(6th Cir. 2001) (citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

(1977)). Plaintiff alleges that he engaged in protected conduct when he filed a grievance, and that Defendant Hill took an adverse action against him when he subsequently fired him from his prison job. Smith v. Campbell,

(6th Cir. 2001); Herron v. Harrison,

(6th Cir. 2000); Thaddeus-X v. Blatter,

(6th Cir. 1999) (en banc). Temporal proximity “may be ‘significant enough to constitute indirect evidence of a causal connection so as to create an inference of retaliatory motive.’” Muhammad v. Close,

, 417–18 (6th Cir. 2004) (quoting DiCarlo v. Potter,

(6th Cir. 2004)). Therefore, although Plaintiff’s retaliation claim is somewhat conclusory, the Court concludes that Plaintiff has set forth sufficient factual allegations to avoid dismissal at this stage in the case.

Conclusion Having conducted the review required by the Prison Litigation Reform Act, the Court determines that Defendants MDOC and Unknown Anderson will be dismissed for failure to state a claim, under

(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c). The Court will also dismiss Plaintiff’s official capacity claims against Defendant Hill. Plaintiff’s First Amendment retaliation claim and his Eighth Amendment excessive force claim against Defendant Hill in Hill’s individual capacity remain in the case. An order consistent with this opinion will be entered.

Dated: July 12, 2024 /s/Maarten Vermaat Maarten Vermaat United States Magistrate Judge