Butts v. Eyke

• Decision Date: 22 August 2012
• Docket Number: Case No. 2:11-cv-330
• Parties: SERELL BUTTS, Plaintiff, v. PAUL EYKE, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

SERELL BUTTS, Plaintiff,
v.
PAUL EYKE, et al., Defendants.

Case No. 2:11-cv-330

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION

Dated: August 22, 2012

HON. ROBERT HOLMES BELL
REPORT AND RECOMMENDATION

Plaintiff Serell Butts filed this 42 U.S.C. § 1983 civil rights complaint against defendants Psychologist Paul Eyke, Psychologist Senta Rose, RN Danielle S. Carlson, Psychologist Fred Pascoe, Psychologist M. Mickalonis, Case Worker Kristi Kangas, Psychologist Tonia M. Wolak, and Case Worker A. Lanala. Plaintiff complains that defendants failed to properly diagnose him with a mental health problem and failed to provide him proper mental health treatment. Plaintiff asserts that he has a problem masturbating in front of female guards and has received 36 sexual misconduct tickets. Plaintiff asserts that he cut his left vein with a razor in 2006, and overdosed on "non-aspirin" on other unknown dates. Plaintiff asserts that he tried to hang himself on April 22, 2011, from the prison cell water pipe. Plaintiff complains that he went on a hunger strike for four days and urinated on himself daily. Plaintiff states that on August 28, 2011, he informed defendant Kangas of his desire to end his life.

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Plaintiff argues that defendants failed to properly diagnose his mental illness for his masturbation problem and that defendants failed to diagnose his mental illness problem for his suicide attempts. Plaintiff requests injunctive relief and $160,000 in damages.

Defendants move for summary judgment. Summary judgment is appropriate only if the moving party establishes that there is no genuine issue of material fact for trial and that he is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). If the movant carries the burden of showing there is an absence of evidence to support a claim or defense, then the party opposing the motion must demonstrate by affidavits, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue of material fact for trial. Id. at 324-25. The nonmoving party cannot rest on its pleadings but must present "specific facts showing that there is a genuine issue for trial." Id. at 324 (quoting Fed. R. Civ. P. 56(e)). The evidence must be viewed in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Thus, any direct evidence offered by the plaintiff in response to a summary judgment motion must be accepted as true. Muhammad v. Close, 379 F.3d 413, 416 (6th Cir. 2004) (citing Adams v. Metiva, 31 F.3d 375, 382 (6th Cir. 1994)). However, a mere scintilla of evidence in support of the nonmovant's position will be insufficient. Anderson, 477 U.S. at 251-52. Ultimately, the court must determine whether there is sufficient "evidence on which the jury could reasonably find for the plaintiff." Id. at 252. See also Leahy v. Trans Jones, Inc., 996 F.2d 136, 139 (6th Cir. 1993) (single affidavit, in presence of other evidence to the contrary, failed to present genuine issue of fact); cf. Moore, Owen, Thomas & Co. v. Coffey, 992 F.2d 1439, 1448 (6th Cir. 1993) (single affidavit concerning state of mind created factual issue).

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Defendants argue that any claims plaintiff is asserting that arose prior to November 7, 2008, are time barred by the three year statute of limitations period since plaintiff signed his complaint on November 7, 2011. The court must apply the appropriate statute of limitations for § 1983 actions from the law of the state where the cause of action occurred. Wilson v. Garcia, 471 U.S. 261, 266-67 (1985); Collard v. Kentucky Bd. of Nursing, 896 F.2d 179, 180-181 (6th Cir. 1990). Michigan's three-year statute of limitations for personal injury claims applies in this case. McCune v. City of Grand Rapids, 842 F.2d 903, 905 (6th Cir. 1988); MICH. COMP. LAWS § 600.5805(8). State tolling provisions must be applied to § 1983 suits brought by prisoners, Hardin, 490 U.S. at 544; Jones v. City of Hamtrack, 905 F.2d 908, 909 (6th Cir. 1990), cert. denied, 498 U.S. 903 (1990). Accordingly, it is recommended that any claim that plaintiff might be asserting that arose outside the three year limitation period should be denied. Nevertheless, plaintiff is free to use that conduct as evidentiary support or background for his claims that are inside the statute of limitations period.

Defendants Wolak, Mickalonis, Kangas and Pascoe argue that plaintiff failed to exhaust his administrative grievances against them. Plaintiff filed a grievance against defendants Michalonis and Pascoe through Step III. Plaintiff's grievance was rejected on the merits at Step I and Step II and at Step III the grievance was rejected as untimely filed at Step I. Plaintiff appears to have never filed a grievance against defendant Kangas and never completed exhausting his grievance against defendant Wolak until after this complaint was filed. Plaintiff has filed a motion to amend his complaint to show that he has now exhausted his grievances against defendant Wolak.

Pursuant to the applicable portion of the Prison Litigation Reform Act (PRLA), 42 U.S.C. § 1997e(a), a prisoner bringing an action with respect to prison conditions under 42 U.S.C. § 1983 must exhaust his available administrative remedies. See Porter v. Nussle, 534 U.S. 516, 532

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(2002); Booth v. Churner, 532 U.S. 731, 733 (2001). A prisoner must first exhaust available administrative remedies, even if the prisoner may not be able to obtain the specific type of relief he seeks in the state administrative process. See Porter, 534 U.S. at 520; Booth, 532 U.S. at 741; Knuckles El v. Toombs, 215 F.3d 640, 642 (6th Cir. 2000); Freeman v. Francis, 196 F.3d 641, 643 (6th Cir. 1999). In order to properly exhaust administrative remedies, prisoners must complete the administrative review process in accordance with the deadlines and other applicable procedural rules. Jones v. Bock, 127 S. Ct. 910, 922-23 (2007); Woodford v. Ngo, 126 S. Ct. 2378, 2386 (2006). "Compliance with prison grievance procedures, therefore, is all that is required by the PLRA to 'properly exhaust.'" Jones, 127 S. Ct. at 922-23.

In the opinion of the undersigned, plaintiff failed to exhaust his grievance remedies against defendants Kangas and Wolak prior to filing this action. Therefore, defendants Kangas and Wolak should be dismissed from this action without prejudice. However, it appears that plaintiff did exhaust his grievances against defendants Mickalonis and Pascoe.

Plaintiff has asserted that his Eighth Amendment rights were violated by defendants because of their failure to treat him for his mental illness. The Eighth Amendment prohibits the infliction of cruel and unusual punishment against those convicted of crimes. U.S. Const. amend. VIII. The Eighth Amendment obligates prison authorities to provide medical care to incarcerated individuals, as a failure to provide such care would be inconsistent with contemporary standards of decency. Estelle v. Gamble, 429 U.S. 102, 103-04 (1976). The Eighth Amendment is violated when a prison official is deliberately indifferent to the serious medical needs of a prisoner. Id. at 104-05; Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001). The Eighth Amendment requires prison officials to provide medically...