Orso 374067 v. Washington

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ______ CHRISTOPHER MICHAEL ORSO, Plaintiff, Case No. 1:24-cv-1051 v. Honorable Maarten Vermaat HEIDI WASHINGTON et al., Defendants. ____________________________/ OPINION This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983 . The Court will grant Plaintiff leave to proceed in forma pauperis. Pursuant to 28 U.S.C. § 636 (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. 7, PageID.5.) This case is presently before the Court for preliminary review under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), pursuant to 28 U.S.C. §§ 1915 (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, 105 F.3d 1131, 1131, 1134 (6th Cir. 1997); McGore v. Wrigglesworth, 114 F.3d 601 , 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., 526 U.S. 344, 347 (1999). “Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.” Id. at 350 . “[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.” Id. (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.” Id. at 351 . 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, 212 F. App’x 418 (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 28 U.S.C. § 636 (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 . . . .” 28 U.S.C. § 636 (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, 59 F.3d 530, 532 (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 the 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. 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. The Court will also deny Plaintiff’s motion to appoint counsel (ECF No. 7, PageID.5). Discussion I. Motion to Appoint Counsel On his completed form titled, “Plaintiff’s Statement Regarding Consent,” Plaintiff states, “I also humbly request representation in this matter.” (ECF No. 7, PageID.5.) Indigent parties in civil cases have no constitutional right to a court-appointed attorney. Abdur-Rahman v. Mich. Dep’t of Corr., 65 F.3d 489, 492 (6th Cir. 1995); Lavado v. Keohane, 992 F.2d 601 , 604–05 (6th Cir. 1993). The Court may, however, request an attorney to serve as counsel, in the Court’s 1 But see Coleman v. Lab. & Indus. Rev. Comm’n of Wis., 860 F.3d 461, 471 (7th Cir. 2017) (concluding that, when determining which parties are required to consent to proceed before a United States Magistrate Judge under 28 U.S.C. § 636 (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 28 U.S.C. §§ 1915 (e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c)); Williams v. King, 875 F.3d 500 , 503–04 (9th Cir. 2017) (relying on Black’s Law Dictionary for the definition of “parties” and not addressing Murphy Bros.); Burton v. Schamp, 25 F.4th 198 , 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”). discretion. Abdur-Rahman, 65 F.3d at 492 ; Lavado, 992 F.2d at 604–05; see Mallard v. U.S. Dist. Ct., 490 U.S. 296 (1989). Appointment of counsel is a privilege that is justified only in exceptional circumstances. In determining whether to exercise its discretion, the Court should consider the complexity of the issues, the procedural posture of the case, and Plaintiff’s apparent ability to prosecute the action without the help of counsel. See Lavado, 992 F.2d at 606 . The Court determines that the assistance of counsel does not appear necessary to the proper presentation of Plaintiff’s position. Plaintiff’s request for appointment of counsel (ECF No. 7, PageID.5) will be denied. II. Factual Allegations Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Central Michigan Correctional Facility (STF) in St. Louis, Gratiot County, Michigan. The events about which he complains, however, occurred at the Carson City Correctional Facility (DRF) in Carson City, Montcalm County, Michigan. Plaintiff sues MDOC Director Heidi Washington and the following DRF staff: Carson City Administration Shift Command, named as “Sgts/Lts/Cts/ADA/RUM/HUM;” Warden Randee Rewerts; and Corrections Officers Unknown Hoffman, Unknown Bayshore, Unknown Cups, and Unknown “Yard C/Os.” Defendants are named in their individual and official capacities. (Compl., ECF No. 1, PageID.2–3.) Plaintiff alleges that, on December 31, 2019, “C/Os” restrained Plaintiff and deployed their Tasers, striking Plaintiff 16 times. (Id., PageID.4.) “They” then placed Plaintiff in segregation where Plaintiff was denied medical care for two weeks. (Id.) On January 25, 2020, “they” sent another prisoner into Plaintiff’s cell to stab him. (Id.) Plaintiff alleges that, “over the next 2 ½ years, [Plaintiff] was retaliated against for filing grievances.” (Id.) Plaintiff was eventually transferred from Level IV for good behavior. (Id., PageID.4.) However, he was transferred back to Level IV on April 12, 2021, “for no reason.” (Id.) On April 16, 2021, Plaintiff was sent to segregation “for no reason” and removed from a class Plaintiff needed before he could be released. (Id.) Plaintiff alleges that he was also placed on sanctions, denied parole, and had his property taken. (Id., PageID.5.) “Staff” continued to retaliate against Plaintiff until Plaintiff sought and obtained protective custody on October 2, 2023. (Id., PageID.4–5.) Plaintiff seeks declaratory, injunctive, and monetary relief. (Id., PageID.5.) III. 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, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (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, 556 U.S. 662, 678 (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, 550 U.S. at 570 . “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, 556 U.S. at 679 . 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.” Id. at 678 (quoting Twombly, 550 U.S. at 556 ). “[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.” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)); see also Hill v. Lappin, 630 F.3d 468 , 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 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 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). A. Failure to Name Individual Defendants in the Body of the Complaint Plaintiff names several Defendants in his list of parties but fails to allege sufficient facts to show how any of the named Defendants were personally involved in the alleged violations of his constitutional rights. It is a basic pleading essential that a plaintiff attribute factual allegations to particular defendants. See Twombly, 550 U.S. at 555–61 (holding that, in order to state a claim, a plaintiff must make sufficient allegations to give a defendant fair notice of the claim). Where a person is named as a defendant without an allegation of specific conduct, the complaint is subject to dismissal, even under the liberal construction afforded to pro se complaints. See Gilmore v. Corr. Corp. of Am., 92 F. App’x 188, 190 (6th Cir. 2004) (dismissing complaint where plaintiff failed to allege how any named defendant was involved in the violation of his rights); Frazier v. Michigan, 41 F. App’x 762, 764 (6th Cir. 2002) (dismissing plaintiff’s claims where the complaint did not allege with any degree of specificity which of the named defendants were personally involved in or responsible for each alleged violation of rights). Here, Plaintiff does not name any individuals in the body of his complaint. The United States Court of Appeals for the Sixth Circuit “has consistently held that damage claims against government officials arising from alleged violations of constitutional rights must allege, with particularity, facts that demonstrate what each defendant did to violate the asserted constitutional right.” Heyne v. Metro. Nashville Pub. Sch., 655 F.3d 556, 564 (6th Cir. 2011) (quoting Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008)). “Summary reference to a single, five-headed ‘Defendants’ [or officers or staff] does not support a reasonable inference that each Defendant is liable . . . .” Boxill v. O’Grady, 935 F.3d 510, 518 (6th Cir. 2019) (citation omitted). Plaintiff refers to Plaintiff refers to “staff,” “C/Os” and “they,” throughout his complaint. These references are insufficient to show that any of the individual Defendants were personally involved in the alleged violations of Plaintiff’s constitutional rights. And Plaintiff’s claims against Defendants fall far short of the minimal pleading standards under Rule 8 of the Federal Rules of Civil Procedure and are subject to dismissal. Fed. R. Civ. P. 8(a)(2) (requiring “a short and plain statement of the claim showing that the pleader is entitled to relief”). To extent that Plaintiff seeks to bring claims against any named Defendant solely because of his or her supervisory responsibilities, Plaintiff again fails to state a claim. Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior or vicarious liability. Iqbal, 556 U.S. at 676 ; Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978); Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009). A claimed constitutional violation must be based upon active unconstitutional behavior. Grinter v. Knight, 532 F.3d 567 , 575–76 (6th Cir. 2008); Greene v. Barber, 310 F.3d 889, 899 (6th Cir. 2002). The acts of one’s subordinates are not enough, nor can supervisory liability be based upon the mere failure to act. Grinter, 532 F.3d at 576 ; Greene, 310 F.3d at 899 ; Summers v. Leis, 368 F.3d 881, 888 (6th Cir. 2004). Moreover, § 1983 liability may not be imposed simply because a supervisor denied an administrative grievance or failed to act based upon information contained in a grievance. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). “[A] plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676 . Plaintiff has failed to allege that any named Defendant engaged in any active unconstitutional behavior Accordingly, for these reasons alone, Plaintiff’s complaint is subject to dismissal for failure to state a claim. B. Claims Arising Prior to September 2021 Are Untimely Plaintiff brings several § 1983 claims (see ECF No. 1, PageID No. 3) arising out of events that occurred from December 31, 2019, when “C/Os” restrained Plaintiff and deployed their Tasers, striking Plaintiff 16 times, to April 16, 2021, when Plaintiff was transferred back to Level IV and transferred to segregation “for no reason” and, as a result, was removed from a class Plaintiff needed before he could be released, placed on sanctions, denied parole, and had his property confiscated. (Id., PageID.4–5.) Any claims arising during this time period, and prior to September 2021, are untimely under the applicable three-year statute of limitations. State statutes of limitations and tolling principles apply to determine the timeliness of claims asserted under 42 U.S.C. § 1983 . Wilson v. Garcia, 471 U.S. 261, 268-69 (1985). For civil rights suits filed in Michigan under § 1983, the statute of limitations is three years. See Mich. Comp. Laws § 600.5805 (10); Carroll v. Wilkerson, 782 F.2d 44, 44 (6th Cir. 1986) (per curiam); Stafford v. Vaughn, No. 97-2239, 1999 WL 96990 , at *1 (6th Cir. Feb. 2, 1999). Accrual of the claim for relief, however, is a question of federal law. Collyer v. Darling, 98 F.3d 211, 220 (6th Cir. 1996); Sevier v. Turner, 742 F.2d 262, 272 (6th Cir. 1984). The statute of limitations begins to run when the aggrieved party knows or has reason to know of the injury that is the basis of his action. Collyer, 98 F.3d at 220 . Here, Plaintiff had reason to know of any “harms” done to him at the time they occurred. Hence, his claims arising from the December, 31, 2019, use of force and subsequent denial of medical care, January 25, 2020, efforts to have another prisoner stab Plaintiff, subsequent retaliation, April 12, 2021, transfer to Level IV, and April 16, 2021, transfer to segregation, removal from the class needed for parole and denial of parole, sanctions, and confiscation of property accrued in or before April 2021. However, Plaintiff did not file his complaint until approximately September 7, 2024 (ECF No. 1, PageID.13)2, well past Michigan’s three-year limit. Michigan law no longer tolls the running of the statute of limitations when a plaintiff is incarcerated. See Mich. Comp. Laws § 600.5851 (9). Further, it is well established that ignorance of the law does not warrant equitable tolling of a statute of limitations. See Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991); Jones v. Gen. Motors Corp., 939 F.2d 380, 385 (6th Cir. 1991); Mason v. Dep’t of Justice, No. 01-5701, 2002 WL 1334756 , at *2 (6th Cir. June 17, 2002). Accordingly, based on Plaintiff’s allegations, the Court concludes that Plaintiff’s complaint is untimely. A complaint may be dismissed as frivolous if it is time-barred by the appropriate statute of limitations. See Dellis v. Corr. Corp. of Am., 257 F.3d 508 , 511 (6th Cir. 2001). The Sixth Circuit has repeatedly held that when a meritorious affirmative defense based upon the applicable statute of limitations is obvious from the face of the complaint, sua sponte dismissal of 2 Under the prison mailbox rule, an incarcerated plaintiff's complaint is deemed filed on the date that it is handed to a prison official for mailing to the court. Richard v. Ray, 290 F.3d 810, 812-13 (6th Cir. 2002) (extending the rule of Houston v. Lack, 487 U.S. 266 (1988), to civil matters). “[A]bsent contrary evidence,” courts presume that this occurs on the date the complaint is signed by the plaintiff. Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008) (emphasis added). “A petitioner's signature need not be blindly credited where ‘contrary evidence’ indicates untimely filing. . .” United States v. Buck, No. 1: 09-CR-432, 2011 WL 4073878 , at *1-2 (N.D. Ohio Sept. 13, 2011)). The prisoner bears the burden to show that he delivered his filing in compliance with the prison mailbox rule. See Leavy v. Hutchison, 952 F.3d 830, 832 (6th Cir. 2020). Here, Plaintiff lists the “[d]ate of signing” as September 7, 2021. (ECF No. 1, PageID.11.) However, that is plainly impossible as Plaintiff’s complaint contains allegations of retaliation through October 2, 2023. Therefore, it appears that Plaintiff’s complaint was in fact signed on September 7, 2024, days before Plaintiff’s complaint was postmarked on September 20, 2024, (ECF No. 1, PageID.13). the complaint is appropriate. See id.; Beach v. Ohio, No. 03-3187, 2003 WL 22416912 , at *1 (6th Cir. Oct. 21, 2003); Castillo v. Grogan, No. 02-5294, 2002 WL 31780936 , at *1 (6th Cir. Dec. 11, 2002); Duff v. Yount, No. 02-5250, 2002 WL 31388756 , at *1-2 (6th Cir. Oct. 22, 2002); Paige v. Pandya, No. 00-1325, 2000 WL 1828653 (6th Cir. Dec. 5, 2000). Accordingly, the Court will dismiss Plaintiff’s claims regarding the use of force, denial of medical care, transfer, segregation, removal from class, sanctions, denial of property, and denial of parole as untimely and, therefore, frivolous. C. Failure to State a Claim for First Amendment Retaliation In addition to his aforementioned time-barred claims, Plaintiff alleges in a conclusory manner, “Staff continued to retaliate until I sought protection on October 2, 2023” (ECF No. 1, PageID.4) and states, “Retaliation continued at various dates until 10/2/23” (id., PageID.5). Retaliation based upon a prisoner’s exercise of his or her constitutional rights violates the Constitution. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (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. Id. 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, 250 F.3d 1032, 1037 (6th Cir. 2001) (citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). Here, Plaintiff fails to allege facts that would support even a single element of a claim of retaliation. Instead, Plaintiff does nothing more than use the word retaliation in his complaint. Plaintiff alleges no facts indicating that he engaged in protected conduct, that any of the named Defendants were aware of any protected conduct, or that any of the named Defendants took adverse action against Plaintiff as a result of Plaintiff’s protected conduct. “[C]onclusory allegations of retaliatory motive ‘unsupported by material facts will not be sufficient to state . . . a claim under § 1983.’” Harbin-Bey, 420 F.3d at 580 (quoting Gutierrez v. Lynch, 826 F.2d 1534 , 1538–39 (6th Cir. 1987)); see also Murray v. Unknown Evert, 84 F. App’x 553, 556 (6th Cir. 2003) (holding that in complaints screened pursuant to 28 U.S.C. § 1915A, “[c]onclusory allegations of retaliatory motive with no concrete and relevant particulars fail to raise a genuine issue of fact for trial” (internal quotation marks omitted)); Lewis v. Jarvie, 20 F. App’x 457, 459 (6th Cir. 2001) (“[B]are allegations of malice on the defendants’ parts are not enough to establish retaliation claims [that will survive § 1915A screening].” (citing Crawford-El v. Britton, 523 U.S. 574, 588 (1998))). Because Plaintiff’s complaint falls far short of the requirements to state a valid retaliation claim, any such claim will be dismissed. Conclusion Having conducted the review required by the PLRA, the Court determines that Plaintiff’s complaint will be dismissed for failure to state a claim, under 28 U.S.C. §§ 1915 (e)(2) and 1915A(b), and 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, 114 F.3d at 611 . For the same reasons the Court concludes that Plaintiff’s claims are properly dismissed, the Court also concludes that any issue Plaintiff might raise on appeal would be frivolous. Coppedge v. United States, 369 U.S. 438, 445 (1962). Accordingly, the Court certifies that an appeal would not be taken in good faith. Should Plaintiff appeal this decision, the Court will assess the full appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11 . This is a dismissal as described by 28 U.S.C. § 1915 (g). A judgment consistent with this opinion will be entered. Dated: April 14, 2025 /s/Maarten Vermaat Maarten Vermaat United States Magistrate Judge