The opinion
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Johnson v. Nos. 03-1497/1506/1555/1559/
ELECTRONIC CITATION: 2004 FED App. 0036P (6th Cir.) Dellatifa, et al. 1833/1835/1865/1880
File Name: 04a0036p.06
_________________
UNITED STATES COURT OF APPEALS COUNSEL
FOR THE SIXTH CIRCUIT ON BRIEF: Louis David Johnson, Jr., Munising, Michigan,
_________________ pro se.
LOUIS DAVID JOHNSON, JR., X _________________
Plaintiff-Appellant, -
- OPINION
- Nos. 03-1497/ _________________
v. - 1506/1555/1559/
> 1833/1835/1865/ BOYCE F. MARTIN, JR., Circuit Judge. Louis David
, Johnson, Jr., a pro se Michigan prisoner, appeals a collection
UNKNOWN DELLATIFA - 1880
(03-1497/1880); UNKNOWN of orders entered by the district court in a number of related
- cases asserting claims against prison employees pursuant to
CARLINE (03-1506/1865); - 42 U.S.C. § 1983. All of Johnson’s pending appeals have
S. POWERS (03-1555/1833); - been consolidated and referred to a panel of the court pursuant
DAVE STASEWISH - to Rule 34(j)(1), Rules of the Sixth Circuit. Upon
- examination, this panel unanimously agrees that oral
(03-1559/1835),
- argument is not needed. FED . R. APP . P. 34(a). For the
Defendants-Appellees. N
reasons set forth below, we affirm.
Appeal from the United States District Court
for the Western District of Michigan at Marquette. ANALYSIS
Nos. 02-00139; 02-00103; 03-00026; 02-00212 —Richard
A. Enslen, David W. McKeague, District Judges. Johnson v. Carline, Case Nos. 03-1506/1865
Submitted: January 29 and 30, 2004 Case number 03-1506 involves a complaint against
“Unknown Carline,” a medical doctor at the Marquette
Decided and Filed: February 3, 2004 Branch Prison where Johnson had been incarcerated. The
complaint alleged that Dr. Carline improperly discontinued
Before: MARTIN and MOORE, Circuit Judges; WEBER, Johnson’s “Caterpress” medication, which is used to treat
District Judge.* high blood pressure, as well as his “Zovirax” medication, a
genital herpes medication that he had been taking for several
years. Johnson alleged that he became very sick as a result of
the discontinuance of his Caterpress medication and that he
suffered outbreaks of genital herpes during the period that he
*
The Hono rable Herman J. Weber, United States District Judge for did not receive his Zovirax medication. Johnson sued Dr.
the Southern District of Ohio, sitting by designation.
1
Nos. 03-1497/1506/1555/1559/ Johnson v. 3 4 Johnson v. Nos. 03-1497/1506/1555/1559/
1833/1835/1865/1880 Dellatifa, et al. Dellatifa, et al. 1833/1835/1865/1880
Carline in his official capacity and sought solely monetary Johnson has timely appealed this decision in what has been
damages. docketed as case number 03-1865.
On September 16, 2002, the district court entered a Thus, in case numbers 03-1506 and 03-1865, we must
judgment dismissing Johnson’s complaint for failure to state review the propriety of the district court’s orders dated
a claim upon which relief can be granted. The court held that February 18 (denying Johnson’s Rule 59(e) motion to alter or
Johnson’s claim was barred by the Eleventh Amendment and, amend the judgment), June 25 (denying Johnson’s Rule 59(e)
in any event, that he had failed to demonstrate that Dr. motion for reconsideration) and March 21 (denying Johnson’s
Carline’s conduct amounted to deliberate indifference to his Rule 60(b) motion for relief from the judgment).
serious medical needs in violation of the Eighth Amendment. Unfortunately for Johnson, he did not file a timely notice of
appeal with respect to the district court’s September 16, 2002,
Johnson did not immediately appeal the dismissal of his dismissal of his complaint. Accordingly, we cannot review
complaint. Instead, on January 22, 2003, he filed a motion the propriety of that dismissal, nor can we consider the merits
seeking “redress,” which the district court construed as a of Johnson’s claim against Dr. Carline.
motion to alter or amend the judgment pursuant to Federal
Rule of Civil Procedure 59(e). On February 18, the district We begin by analyzing the timeliness of the two motions
court denied this motion as untimely and Johnson that the district court construed as Rule 59(e) motions. All
subsequently filed a notice of appeal. Rule 59(e) motions must “be filed no later than 10 days after
entry of the judgment.” FED . R. CIV . P. 59(e). Given that the
On February 26, Johnson filed another motion in the period of time specified in Rule 59(e) is less than eleven days,
district court, which sought relief from the judgment pursuant Saturdays, Sundays and legal holidays are excluded from the
to Rule 60(b). On March 21, the district court denied the computation of time. FED . R. CIV . P. 6(a); GenCorp, Inc. v.
motion, holding that Johnson had failed to demonstrate Am. Int’l Underwriters, 178 F.3d 804, 832 n.25 (6th Cir.
entitlement to relief under any of the grounds enumerated in 1999). The judgment of dismissal was entered on September
Rule 60(b)(1)-(6). On April 14, Johnson filed a notice of 16, 2002, but the Rule 59 motions were not filed until January
appeal. 22 and May 21, respectively. Therefore, the district court
properly denied these motions as untimely.
In a prior order, this Court held that Johnson’s notice of
appeal as to the dismissal of his complaint was untimely, but Next, we turn to the district court’s denial of Johnson’s
that he had timely appealed the February 18 and March 21 Rule 60(b) motion, which we review for abuse of discretion.
orders denying his Rule 59(e) and Rule 60(b) motions. Jinks v. AlliedSignal, Inc., 250 F.3d 381, 385 (6th Cir. 2001);
Johnson v. Carline, No. 03-1506 (Aug. 11, 2003). Cincinnati Ins. Co. v. Byers, 151 F.3d 574, 578 (6th Cir.
1998). Rule 60(b) permits a district court to grant a motion
On May 21, 2003, Johnson filed a third motion in the for relief from the judgment for any of the following reasons:
district court, this one seeking a new trial. The district court
construed this motion as a motion for reconsideration (1) mistake, inadvertence, surprise, or excusable neglect;
pursuant to Rule 59(e) and, on June 25, denied it as untimely. (2) newly discovered evidence which by due diligence
could not have been discovered in time to move for a
Nos. 03-1497/1506/1555/1559/ Johnson v. 5 6 Johnson v. Nos. 03-1497/1506/1555/1559/
1833/1835/1865/1880 Dellatifa, et al. Dellatifa, et al. 1833/1835/1865/1880
new trial under Rule 59(b); (3) fraud (whether heretofore exceptional or extraordinary circumstances which are not
denominated intrinsic or extrinsic), misrepresentation, or addressed by the first five numbered clauses of [Rule 60(b)].”
other misconduct of an adverse party; (4) the judgment Hopper, 867 F.2d at 294.
is void; (5) the judgment has been satisfied, released, or
discharged, or a prior judgment upon which it is based We find that Johnson has failed to demonstrate entitlement
has been reversed or otherwise vacated, or it is no longer to relief under subsection (6) – or any other subsection – of
equitable that the judgment should have prospective Rule 60(b). Johnson’s motion simply rephrases the
application; or (6) any other reason justifying relief from allegations concerning Dr. Carline’s discontinuance of his
the operation of the judgment. Caterpress and Zovirax medications that were contained in his
complaint. This approach may be appropriate for an appeal
FED . R. CIV . P. 60(b). “As a prerequisite to relief under Rule on the merits – which, as discussed, Johnson has not properly
60(b), a party must establish that the facts of its case are pursued – but it fails to “establish that the facts of [Johnson’s]
within one of the enumerated reasons contained in Rule 60(b) case are within one of the enumerated reasons contained in
that warrant relief from judgment.” Lewis v. Alexander, 987 Rule 60(b).” Lewis, 987 F.2d at 396. Accordingly, the
F.2d 392, 396 (6th Cir. 1993). An appeal from an order district court did not abuse its discretion in denying Johnson’s
denying a Rule 60(b) motion does not bring up for review the Rule 60(b) motion for relief from judgment.
underlying judgment disposing of the complaint. Browder v.
Dir., Dep’t of Corr., 434 U.S. 257, 263 n.7 (1978); Jinks, 250 Johnson v. Dellatifa, Case Nos. 03-1497/1880
F.3d at 385. Rather, this Court’s inquiry is limited to
“whether one of the specified circumstances exists in which Case number 03-1497 involves a complaint filed against
[Johnson] is entitled to reopen the merits of his underlying “Unknown Dellatifa,” a medical doctor at the Alger
claims.” Feathers v. Chevron U.S.A., Inc., 141 F.3d 264, 268 Maximum Correctional Facility, the prison to which Johnson
(6th Cir. 1998). was transferred from the Marquette Branch Prison. Similar
to the complaint against Dr. Carline, this complaint alleged
While Johnson’s motion is not explicitly based upon any that Dr. Dellatifa failed to treat Johnson’s genital herpes and
particular subsection of Rule 60(b), the district court believed high blood pressure conditions properly. Specifically,
that the motion implicated subsection (6). Relief from a Johnson alleged that after he arrived at the Alger prison, Dr.
judgment pursuant to Rule 60(b)(6) “is appropriate to Dellatifa discontinued his Zovirax medication and did not
accomplish justice in an extraordinary situation . . . .” give him a replacement herpes medication, thereby resulting
Overbee v.Van Waters & Rogers, 765 F.2d 578, 580 (6th Cir. in periodic painful outbreaks and scarring. According to
1985). “[A] motion made under Rule 60(b)(6) is addressed to Johnson, he never suffered from any herpes outbreaks while
the trial court’s discretion which is ‘especially broad’ given using the Zovirax medication. Johnson also alleged that Dr.
the underlying equitable principles involved.” Hopper v. Dellatifa was unsuccessful in controlling his blood pressure
Euclid Manor Nursing Home, Inc., 867 F.2d 291, 294 (6th and was unable to determine the appropriate blood pressure
Cir. 1989) (citing Overbee, 765 F.2d at 580; Matter of medication to prescribe. Johnson sued Dr. Dellatifa in his
Emergency Beacon Corp., 666 F.2d 754, 760 (2d Cir. 1981)). official capacity and sought solely monetary damages.
Despite the “broad” discretion that courts enjoy to grant relief
under Rule 60(b)(6), such relief is warranted “only in
Nos. 03-1497/1506/1555/1559/ Johnson v. 7 8 Johnson v. Nos. 03-1497/1506/1555/1559/
1833/1835/1865/1880 Dellatifa, et al. Dellatifa, et al. 1833/1835/1865/1880
On January 17, 2003, the district court entered a judgment Applying the standards set forth above, we conclude that
dismissing Johnson’s complaint for failure to state a claim the district court did not abuse its discretion in denying
upon which relief can be granted. Like Johnson’s claim Johnson’s Rule 60(b) motion. Like the motion that Johnson
against Dr. Carline, his claim against Dr. Dellatifa was held filed in connection with his suit against Dr. Carline, this
to be barred by the Eleventh Amendment. Additionally, the motion merely rephrases the allegations contained in the
district court opined that Johnson failed to demonstrate that complaint and presents no new arguments. Because neither
Dr. Dellatifa’s conduct amounted to deliberate indifference to Johnson’s motion nor the record in this case reveals any
his serious medical needs in violation of the Eighth ground for granting the requested relief, the district court did
Amendment. not abuse its discretion in denying the motion.
Again, Johnson did not immediately appeal the district We also find that the district court properly denied
court’s dismissal of his complaint. Instead, on February 24, Johnson’s Rule 59(e) motion as untimely. As set forth above,
2003, he filed a motion for relief from the judgment pursuant the judgment was entered on January 17, 2003, but the motion
to Rule 60(b). On March 21, the district court denied this was not filed until May 21.
motion, holding that Johnson had failed to demonstrate
entitlement to relief under any of the enumerated grounds. Johnson v. Powers, Case Nos. 03-1555/1833
Johnson filed a notice of appeal on April 14.
In case number 03-1555, Johnson appeals the district
This Court has already issued an order holding that court’s dismissal of his complaint against “S. Powers,” a
Johnson’s appeal from the district court’s March 21 order librarian at the Alger prison, for failure to state a claim upon
denying his Rule 60(b) motion was timely, but that his appeal which relief can be granted. Johnson alleged that Powers
from the January 17 dismissal of his complaint was untimely. refused to copy one hundred eighty-two pages of documents
Johnson v. Dellatifa, No. 03-1497 (Sept. 23, 2003). that he submitted to the prison law library to be copied for
one of his pending court cases. As a result of Powers’s
On May 21, Johnson filed a motion in the district court for alleged inaction, Johnson was forced to send the documents
a new trial, which was construed as a motion to alter or in question to the court “uncopied.” Johnson alleged that he
amend the judgment pursuant to Rule 59(e) and denied as requested that the court clerk copy the documents and return
untimely on June 24. Johnson filed a timely notice of appeal the originals to him, but the clerk did not do so. Johnson sued
on June 27, in what has been docketed as case number 03- Powers in her official capacity and sought solely monetary
1880. relief.
Thus, in case numbers 03-1497 and 03-1880, we must The district court held that the claim was barred by the
determine the propriety of the district court’s determinations Eleventh Amendment and that, in any event, Johnson had
that Johnson was not entitled to relief from the district court’s failed to demonstrate that he had suffered a deprivation of a
judgment of dismissal pursuant to Rule 60(b) and that his constitutional right. Accordingly, on April 7, 2003, the
Rule 59(e) motion was untimely. district court dismissed the complaint. Johnson filed a timely
notice of appeal.
Nos. 03-1497/1506/1555/1559/ Johnson v. 9 10 Johnson v. Nos. 03-1497/1506/1555/1559/
1833/1835/1865/1880 Dellatifa, et al. Dellatifa, et al. 1833/1835/1865/1880
Additionally, on May 19, Johnson filed a motion for a new the merits of Johnson’s allegations of wrongdoing on the part
trial, which the district court construed as a motion to alter or of Powers.
amend the judgment pursuant to Rule 59(e). On June 24, the
district court denied this motion as untimely. Johnson filed Johnson v. Stasewish, Case Nos. 03-1559/1835
a timely notice of appeal of this order in what has been
docketed as case number 1833. Case number 03-1559 involves a claim against Dave
Stasewish, a correctional officer at the Alger prison, alleging
Thus, in case numbers 03-1555 and 03-1833, we must various acts of harassment. For example, the complaint
review two decisions by the district court: its April 7 alleges that Stasewish continuously bangs and kicks
dismissal of Johnson’s complaint and its June 24 denial of his Johnson’s cell door, throws his food trays through the bottom
Rule 59(e) motion. slot of his cell door so hard that the top flies off, makes
aggravating remarks to him, makes insulting remarks about
We review de novo the district court’s dismissal of his hair being too long, growls and snarls through his
Johnson’s complaint. Brown v. Bargery, 207 F.3d 863, 867 window, smears his window to prevent him from seeing out
(6th Cir. 2000). The district court determined that Johnson’s of it, behaves in a racially prejudicial manner toward him and
claim against Powers in her official capacity was barred by jerks and pulls him unnecessarily hard when escorting him
the Eleventh Amendment. That determination is correct. In from his cell. Johnson contends that Stasewish knows that he
Doe v. Wigginton, 21 F.3d 733, 736-37 (6th Cir. 1994), we suffers from hypertension and intentionally harasses him in an
held that a suit for monetary damages against an individual in attempt to cause him to suffer a heart attack, stroke or nervous
his or her official capacity is deemed to be an action against breakdown. Unlike the other section 1983 suits that Johnson
the state whose officers are nominal defendants. Such a suit, has filed, Johnson sued Stasewish in his individual capacity,
we held, is barred by the Eleventh Amendment unless the seeking solely monetary relief.
state expressly consents to being sued and therefore waives its
sovereign immunity. Id. The state of Michigan, however, has On March 31, 2003, the district court dismissed Johnson’s
not consented to being sued in civil rights actions in the complaint for failure to state a claim upon which relief can be
federal courts. See Abick v. Michigan, 803 F.2d 874, 877 (6th granted. The dismissal was based not on sovereign immunity
Cir. 1986). Therefore, because Johnson’s claim is barred by grounds, but rather on the district court’s conclusion that
the Eleventh Amendment, the complaint was properly Johnson had failed to prove a constitutional violation.
dismissed.1 In light of that conclusion, we need not address Johnson subsequently filed a motion for a new trial, which the
district court construed as a Rule 59(e) motion to alter or
amend the judgment and, on June 23, denied as untimely.
1 Johnson timely appealed the district court’s dismissal of his
A similar defect plagued the lawsuits that Johnson filed against Dr.
Carline and Dr. Dellatifa – though, as discussed above, the judgments of complaint and its denial of his Rule 59(e) motion, the latter of
dismissal in those cases we re not timely appealed. W e note that Johnson which has been docketed as case number 1835.
could have avo ided this sovereign immunity bar by suing for injunctive
or declaratory relief, rather than monetary relief, see W ill v. Mich. Dep’t
of State Police, 491 U .S. 58 , 71 n.10 (1 989 ), or by suing the defendants
in their individual, rather than official, ca pacities (subject, of course, to
qualified immunity defenses), see Rodgers v. Banks, 344 F.3d 587, 594 (6th C ir. 200 3).
Nos. 03-1497/1506/1555/1559/ Johnson v. 11
1833/1835/1865/1880 Dellatifa, et al.
Our de novo review of the dismissal of Johnson’s
complaint leads us to conclude that while the allegations, if
true, demonstrate shameful and utterly unprofessional
behavior by Stasewish, they are insufficient to establish an
Eighth Amendment violation. “Not every unpleasant
experience a prisoner might endure while incarcerated
constitutes cruel and unusual punishment within the meaning
of the Eighth Amendment.” Ivey v. Wilson, 832 F.2d 950,
954 (6th Cir. 1987). We have held that harassment and verbal
abuse, such as Johnson has described, do not constitute the
type of infliction of pain that the Eighth Amendment
prohibits. Id. at 954-55. Therefore, Johnson’s section 1983
claim was properly dismissed.
We must also affirm the district court’s conclusion that
Johnson’s Rule 59(e) motion was untimely because it was
filed nearly two months after the judgment of dismissal was
entered.
CONCLUSION
For these reasons, the district courts’ orders in this
consolidated case are AFFIRMED.