Johnson v. Brown

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DARREN JOHNSON,

Plaintiff,

v. Case No. 22-10878

Honorable Victoria A. Roberts

NURSE BROWN, et al.,

Defendants.

____________________________/

ORDER: (1) GRANTING BROWN’S MOTION TO DISMISS [ECF No. 16];

(2) GRANTING MDOC DEFENDANTS’ MOTION TO DISMISS, OR

ALTERNATIVELY FOR SUMMARY JUDGMENT FOR FAILURE TO

EXHAUST [ECF No. 19]; (3) DEEMING MOOT MOTIONS TO STRIKE

[ECF Nos. 27, 28]; and (4) DISMISSING THE CASE WITH PREJUDICE

I. INTRODUCTION

Darren Johnson is a state prisoner at the G. Robert Cotton

Correctional Facility in Jackson, Michigan. He filed a pro se civil rights

complaint under 42 U.S.C. § 1983 against Nurse Cheri Brown and four

Michigan Department of Corrections (“MDOC”) employees: Grievance

Coordinator Tomas Cobb; Deputy Warden Jeffrey White; Warden Noah

Nagy; and Grievance Manager Richard Russell (“MDOC Defendants”).

Johnson alleges deliberate indifference to his medical needs. He also

alleges various First Amendment violations, but the Court summarily

dismissed that claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A.

Before the Court are: (1) Brown’s motion to dismiss [ECF No. 16]; (2)

MDOC Defendants’ motion to dismiss, or alternatively for summary

judgment for failure to exhaust [ECF No. 19]; (3) Brown’s motion to strike

Johnson’s sur-reply to her motion to dismiss [ECF No. 27]; and (4) MDOC

Defendants’ motion to strike Johnson’s sur-reply to their motion to dismiss

[ECF No. 28].

The Court: (1) GRANTS Brown’s and MDOC Defendants’ motions to

dismiss; (2) DEEMS MOOT the motions to strike; and (3) DISMISSES the

case with prejudice.

II. BACKGROUND

Johnson sues Defendants in their individual and official capacities for

declaratory, injunctive, and monetary relief.

Johnson organizes his allegations in support of his deliberate

indifference claim under an “Objective Prong” and “Subjective Prong.”

Under the “Objective Prong” heading, Johnson makes the following

allegations: (1) “[On] February 26, 2022[,] I told defendant Brown to provide

me medical care and treatment for my right arm that is in great pain”; (2)

“Defendant Brown is conscious and aware that my arm is in great pain but

deprived me medical care and treatment for my serious medical need,

which is so obvious that even a lay person would easily recognize the

necessity for a doctor’s attention.” [ECF No. 1, PageID.8].

Under the Subjective Prong heading, Johnson alleges: (1) “The

defendants [knew] of and disregard[ed] an[] excessive risk to my health”;

(2) “Defendant Brown should have examined my arm and see [sic] what

was causing the pain and if she could not determine the cause refer me to

either a physician assistant and/or doctor for medical care and treatment”;

(3) “Defendants Cobb and White willfully rejected my Step I grievance to

protect Nurse Brown unconstitutionally[;] they should have directed the

Step I grievance to Nurse Brown’s supervisor as the MDOC policy directive

for grievances directs”; and (4) Defendants Nagy and Russell willfully

den[ied] the grievance appeals[;] [instead,] they both should have reversed

the decision and compel[led] either Cobb or White to direct the Step I

grievance to the supervisor of defendant Brown and/or directed the Step I

grievance to defendant Brown’s supervisor.” [ECF No. 1, PageID.8].

Johnson alleges that Defendants’ failure to provide him with medical

care resulted in: (1) arm pain; (2) arm swelling; (3) chest pain; and (4)

mental distress.

Nurse Brown and the MDOC Defendants separately move to dismiss

the complaint. The motions are fully briefed.

III. MOTION TO DISMISS STANDARD

A motion to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6) tests a complaint’s legal sufficiency. The federal rules require that

a complaint contain a “short and plain statement of the claim showing that

the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Indeed, “[t]o

survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible where the

facts allow the Court to infer that the defendant is liable for the misconduct

alleged. Id. This requires more than “bare assertions of legal conclusions”;

a plaintiff must provide the “grounds” of his or her “entitlement to relief.”

League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th

Cir. 2007); Twombly, 550 U.S. at 555 (while detailed factual allegations are

not required, a pleading must offer more than “labels and conclusions” or “a

formulaic recitation of the elements of the cause of action”). The question

is “‘not whether [the plaintiff] will ultimately prevail’ . . . but whether [the]

complaint [is] sufficient to cross the federal court’s threshold.” Skinner v.

Switzer, 562 U.S. 521, 529-30 (2011) (citations omitted).

In deciding a motion under Rule 12(b)(6), the Court must construe the

complaint in the light most favorable to the plaintiff, accept as true all well-

pled factual allegations, and draw all reasonable inferences in favor of the

plaintiff. Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th

Cir. 2008). However, the Court need not “‘accept as true a legal conclusion

couched as a factual allegation.’” Twombly, 550 U.S. at 555 (citation

omitted). The Court “may consider the Complaint and any exhibits

attached thereto, public records, items appearing in the record of the case

and exhibits attached to defendant’s motion to dismiss so long as they are

referred to in the Complaint and are central to the claims contained

therein.” Bassett, 528 F.3d at 430.

IV. ANALYSIS

A. MDOC Defendants’ Motion to Dismiss

MDOC Defendants say the Court should dismiss the claims against

them because Johnson: (1) fails to state a claim against them; and (2)

failed to exhaust administrative remedies on any claims against them.

i. Failure to State a Claim

MDOC Defendants say the Court should dismiss Johnson’s

deliberate indifference claim because he fails to state how they were

personally involved in any unconstitutional conduct and does not make any

specific allegations as to how they “either encouraged the specific incident

of misconduct or in some other way directly participated in it.” See Shehee

v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999).

In response, Johnson re-states the allegations in the complaint and

summarily states that he sufficiently alleges the MDOC Defendants’

personal involvement. However, he fails to demonstrate that he states a

plausible claim against MDOC Defendants.

“Because § 1983 liability cannot be imposed under a theory of

respondeat superior, proof of personal involvement is required for a

supervisor to incur personal liability.” Grinter v. Knight, 532 F.3d 567, 575

(6th Cir. 2008) (citation omitted). “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.” Id. Merely being aware of a prisoner’s complaint and failing

to take corrective action is insufficient to impose liability on supervisory

personnel under § 1983. Poe v. Haydon, 853 F.2d 418, 429 (6th Cir. 1988);

Shehee, 199 F.3d at 300 (Liability under § 1983 must be based on active

unconstitutional behavior and cannot be based upon “a mere failure to

act.”).

Johnson fails to show how MDOC Defendants were personally

involved in any unconstitutional conduct related to his failure to provide

medical care claim. His allegations are limited to their involvement in the

grievance process against Nurse Brown. This is insufficient because a

defendant cannot be held liable under § 1983 if his or her only role in the

action involved the denial of administrative grievances. See Shehee, 199

F.3d at 300 (holding that plaintiff failed to state a claim against defendants

where “[his] only allegations against [them] involve their denial of his

administrative grievances and their failure to remedy the [complained of]

behavior”); Grinter, 532 F.3d at 576 (affirming dismissal of the warden,

state penitentiary commissioner, state penitentiary head of internal affairs,

and state penitentiary internal affairs employee because prisoner failed to

state a claim against them in their roles as supervisors or their involvement

in the grievance process).

Johnson fails to state a plausible claim against MDOC Defendants for

violation of his Eighth Amendment rights.

ii. Failure to Exhaust Administrative Remedies

Even if Johnson stated a plausible deliberate indifference claim

against MDOC Defendants, the Court would still dismiss it because

Johnson failed to properly exhaust administrative remedies before filing

suit.

Exhaustion of administrative remedies is a prerequisite to filing a

prisoner lawsuit challenging prison conditions. 42 U.S.C. § 1997e(a); Porter

v. Nussle, 534 U.S. 516, 524 (2002). The Supreme Court held that

exhaustion requires “proper exhaustion.” Woodford v. Ngo, 548 U.S. 81,

90 (2006) (emphasis added). “[P]roper exhaustion of administrative

remedies . . . ‘means using all steps that the agency holds out, and doing

so properly (so that the agency addresses the issues on the merits).’” Id.

(citation omitted).

An untimely grievance, or otherwise improperly filed grievance, even

though appealed through all steps of a grievance procedure, does not fulfill

the exhaustion requirement of 42 U.S.C. § 1997e(a). Indeed, permitting an

untimely or otherwise improperly filed grievance – even though appealed

through all steps – to satisfy § 1997e(a)’s requirement “would permit a

prisoner to bypass deliberately and flagrantly administrative review without

any risk of sanction.” Ngo, 548 U.S. at 97.

The administrative process applicable to Johnson’s grievable claims

is governed by MDOC Policy Directive 03.02.130, “Prisoner/Parolee

Grievances” (eff. date Mar. 18, 2019).

“Under [MDOC’s] procedural rules, inmates must include the ‘. . .

names of all those involved in the issue being grieved’ in their initial

grievance.” Reed-Bey v. Pramstaller, 603 F.3d 322, 324 (6th Cir. 2010).

The Policy Directive also requires a prisoner to attempt to resolve the issue

with the staff member involved” before submitting a written grievance. [See

ECF No. 19-2, PageID.167, ¶ Q].

Johnson failed to comply with these requirements. The only

grievance Johnson completed through Step III before filing his complaint

was Grievance JCF-22-03-0393-28i. However, that grievance does not

name any of the MDOC Defendants at Step I of the process. Additionally,

that grievance could not have exhausted any claims because it was

rejected at Step I and the rejection was affirmed through Step III. Thus,

Johnson failed to properly exhaust any grievance through Step III of

MDOC’s administrative process. Johnson failed to exhaust administrative

remedies with respect to his claims in the complaint.

B. Nurse Brown’s Motion to Dismiss

Nurse Brown says Johnson’s deliberate indifference claim fails under

the Twombly/Iqbal standards because, “[w]hile [Johnson’s] allegations

[against her] track very nicely on the elements and key phrases that

comprise the case law on deliberate indifference, they are nothing more

than hollow recitations of the elements without any factual allegations to

back them up.” [ECF No. 16, PageID.132 (citing Iqbal, 556 U.S. at 678-

79)].

For example, Nurse Brown says that while Johnson summarily states

that his serious medical need was so obvious that a lay person would

easily recognize the necessity of a doctor’s attention, he “never actually

describes his injury. What part of his arm is injured? When was it injured?

How was it injured? Was Plaintiff bleeding? Did Plaintiff have a broken

bone? Plaintiff gives no detail on how a lay person would readily know he

needed medical treatment.” [Id., PageID.133].

Nurse Brown also points out that while Johnson states he “told

defendant [B]rown to provide [him] medical care and treatment for [his] right

arm that is in great pain,” he does not provide any details on how she was

allegedly aware of his serious medical needs. Johnson fails to allege what

information he provided Nurse Brown; how he told her his arm was injured;

or what he informed her his symptoms were. Johnson does not even say

how he communicated with Brown – whether he had a nursing appointment

or submitted a healthcare request and got a response. Johnson likewise

offers no details on Nurse Brown’s actions; he merely conclusorily states

she deprived him of treatment.

Johnson “objects” to Nurse Brown’s motion. Without pointing to any

specific allegations, Johnson summarily states that he alleged facts with

particularity and specificity, and that his allegations tend to show the

objective and subjective components of the deliberate indifference analysis.

An Eighth Amendment claim for denial of medical care has objective

and subjective components. Blackmore v. Kalamazoo Cnty., 390 F.3d 890,

895 (6th Cir. 2004). The objective component requires the existence of a

“sufficiently serious” medical need. Id. The subjective component requires

an inmate to show that prison officials had “a sufficiently culpable state of

mind in denying medical care.” Id. That is, a prisoner must show that

defendant knew of the serious medical need and acted with deliberate

indifference to that need. Id. at 895-96 (“[T]he 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.” (citation

omitted)).

To satisfy the objective component, a plaintiff must show that “he is

incarcerated under conditions posing a substantial risk of serious harm.”

Farmer v. Brennan, 511 U.S. 825, 834 (1994). A medical need is

sufficiently serious if it “has been diagnosed by a physician as mandating

treatment” or if it “is so obvious that even a lay person would easily

recognize the necessity for a doctor's attention.” Blackmore, 390 F.3d at

897, 899-900.

Regarding the subjective component, “the [prison] 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, 511 U.S. at 837.

Reviewing the complaint liberally, the Court finds that Johnson fails to

allege sufficient facts to “state a claim to relief that is plausible on its face.”

Twombly, 550 U.S. at 570. As Brown says, Johnson presents only hollow

assertions that his rights were violated without any factual allegations

supporting those claims, such that we know next to nothing about the

incident that forms the basis of Johnson’s claim. Indeed, the complaint

offers nothing more than labels and conclusions” and “a formulaic recitation

of the elements of the cause of action” – down to Johnson providing

headings for the objective and subjective components and quoting the “so

obvious that even a lay person . . .” language. This does not satisfy Fed.

R. Civ. P. 8(a) or the requirements of Twombly and Iqbal.

The complaint fails to state a plausible claim and must be dismissed.

Moreover, although Brown does not raise the argument, the Court

would also dismiss the claim against Brown for failure to properly exhaust

administrative remedies – for the same reasons set forth above – because

Johnson is a prisoner proceeding in forma pauperis, and 28 U.S.C. §§

1915(e)(2)(B) and 1915A require the Court to screen the case and dismiss

the complaint or any portion of it that is frivolous or malicious, fails to state

a claim for which relief can be granted, or seeks monetary relief from a

defendant who is immune from suit.

V. CONCLUSION

The Court GRANTS Brown’s [ECF No. 16] and MDOC Defendants’

[ECF No. 19] motions to dismiss and DISMISSES the case with prejudice.

Defendants’ motions to strike Johnson’s sur-replies [ECF Nos. 27, 28]

are MOOT.

IT IS ORDERED.

s/ Victoria A. Roberts

Victoria A. Roberts

United States District Judge

Dated: January 25, 2023