Middlebrook v. Perttu
| Docket Number | 2:23-cv-215 |
| Decision Date | 28 November 2023 |
| Parties | MARCUS DONTE MIDDLEBROOK, Plaintiff, v. THOMAS PERTTU et al., Defendants. |
| Court | U.S. District Court — Western District of Michigan |
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. The Court has granted Plaintiff leave to proceed in forma pauperis in a separate order. 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.)
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 Fed.Appx. 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) ().[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.
Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Baraga Correctional Facility (AMF) in Baraga, Baraga County, Michigan. The events about which he complains occurred at that facility. Plaintiff sues Resident Unit Manager Thomas Perttu, Prison Counselor Susan Kowalski, and Unknown Parties #1 and #2, referred to as AMF Housing Unit 3 Correctional Officers First and Second Shift Staff Members.
Plaintiff alleges that on April 25, 2023, he was placed in segregation at AMF. (ECF No. 1, PageID.4.) According to Plaintiff, he was placed in segregation for a false misconduct that alleged that he assaulted non-party Officer Christoff. (Id., PageID.4-5.)
The next day, Plaintiff asked both the first and second shift officers if he could use the telephone. (Id., PageID.5.) Plaintiff was told that he had to be at Stage 4 of the Incentive in Segregation Program (IISP) to use the phone. (Id.) Plaintiff references MDOC Policy Directive 04.05.120, which provides that prisoners in segregation must receive one 15-minute phone call per week unless he or she is subject to a telephone restriction or disciplinary sanctions. (Id.)
On April 27, 2023, Plaintiff asked officers on both shifts if he could use the telephone and was again told that he needed to be at Stage 4. (Id.) Plaintiff was told the same on April 28, 2023. (Id.)
On May 1, 2023, Plaintiff was found guilty of the assault misconduct. (Id.) He alleges that this guilty finding “hindered his abilit[y] . . . to stay in touch with his family members and friends.” (Id.) On June 1, 2023, Plaintiff was off sanctions, and he was able to go to the yard and use the telephone to contact his family. (Id., PageID.6.)
Plaintiff alleges that he constantly asked officers on both shifts if he could use the telephone because his calls had been decreased to one call per week. (Id.) According to Plaintiff, Policy Directive 04.05.120 provides that inmates on a 7-day sanction break shall receive one 15-minute phone call during that break. (Id.) Plaintiff argues that officers did not follow this policy and did not provide “once a week telephone call or calls to segregation prisoners.” (Id.) Instead, they “only provided verified serious family emergency calls, attorney calls[,] and the legislative corrections ombudsman call.” (Id.)
On June 5, 2023, Plaintiff sent a letter to the AMF Warden's office to address the issue. (Id., PageID.7.) In the letter, Plaintiff mentioned that all Defendants were curtailing Plaintiff's telephone usage. (Id.) Plaintiff did not receive a response to his letter. (Id.) The next day, officers on both shifts again told Plaintiff that he needed to be on Stage 4 to use the telephone. (Id.)
Plaintiff wrote letters to non-parties Deputy Wardens Rebecca Horrocks and Nate Hoffman to complain about the telephone issue. (Id., PageID.7-8.) He received no response from either. (Id.) On July 3, 2023, Plaintiff sent a kite concerning telephone usage to Defendants Perttu and Kowalski. (Id.) Plaintiff argued that there was “no such thing as a phone call while in this program unless [you are] a Stage 4, 5, or 6 which means if you stage without writing a ticket.” (Id.) Plaintiff did not receive a response. (Id., PageID.9.) Plaintiff also did not receive a response to his kites sent to the first and second shift officers. (Id.) Plaintiff filed a Step I grievance against all Defendants on July 7, 2023. (Id.)
On August 12, 2023, Plaintiff “was allowed to use the telephone after waiting four months to communicate with his family.” (Id.)
On September 2, 2023, Plaintiff received a response to his grievance, which advised him that Policy Directive 04.05.120 also stated that “[p]risoners participating in a segregation incentive program shall receive telephone calls in accordance with the program's rules.” (Id.)
Plaintiff alleges that he was able to use the telephone on September 21 and 30, 2023. (Id., PageID.10.) Plaintiff argues, however, that he did not receive his 15-minute calls. (Id., PageID.12.) Instead, Plaintiff used his free 10-minute phone calls that Global Tel Link (GTL) had been providing every Monday to MDOC inmates. (Id.)
Plaintiff contends that the “severe restrictions” on telephone usage have “placed a substantial burden on Plaintiff's ability to maintain relationships with his family and friends.” (Id., PageID.13.) He argues that Defendants “know or should know[] that telephone calls are extremely important to rehabilitation, morals, and the maintenance of family integrity.” (Id., PageID.14.) Plaintiff avers that the telephone restrictions have “caused him emotional and psychological injury.” (Id.) He states that he does not receive mail or visits from his family and friends. (Id., PageID.14-15). Plaintiff experiences “symptoms of anxiety and depression, including] increased heart rate, obsessive thoughts, impatience, and feeling[s] of isolation, pessimism, and being trapped.” (Id., PageID.16.)
Based on the foregoing, Plaintiff asserts violations of his First, Fifth, Eighth, and Fourteenth Amendment rights. The Court also construes Plaintiff's complaint to assert violations of MDOC Policy Directive 04.05.120. Plaintiff seeks declaratory relief, as well as compensatory and punitive damages. (Id., PageID.22.)
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...
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