Terry v. Calhoun Cnty. Corr. Facility

• Decision Date: 19 October 2012
• Docket Number: Case No. 1:12-cv-347
• Parties: JAMIRR TERRY, Plaintiff, v. CALHOUN COUNTY CORRECTIONAL FACILITY et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

JAMIRR TERRY, Plaintiff,

v.CALHOUN COUNTY CORRECTIONAL FACILITY et al., Defendants.

Case No. 1:12-cv-347

UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: October 19, 2012

Honorable Paul L. Maloney

OPINION

This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983. The Court has granted Plaintiff leave to proceed in forma pauperis. Under the Prison Litigation Reform Act, PUB. L. NO. 104-134, 110 STAT. 1321 (1996), 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©. 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 against all of the named and unnamed Defendants, except Defendants Byam and Vergin. The Court will serve Defendant Byam with Plaintiff's First Amendment claim regarding the inability to access to state and local newspapers and newspaper reporters, and Defendant Vergin will be served with Plaintiff's First Amendment claims regarding the improper handling of his legal mail and retaliation.

Factual Allegations

Plaintiff is incarcerated at the Charles Egeler Reception and Guidance Center, but the events giving rise to Plaintiff's complaint occurred while he was incarcerated at the Calhoun County Correctional Facility (CCCF). In his pro se complaint, Plaintiff sues CCCF and the following county employees: Calhoun County Sheriff Allen L. Byam; Doctor (Unknown) Mintack; Sergeant (Unknown) Watson; Second Shift D-Pod Deputy Sally Jenkins; First Shift D-Pod Deputy Roody Vergin; Deputy Steve Frierson; Sherri Mason; Chief Deputy Marshall Weeks; Captain Lee R. Zick; Compliance Officer Niechelle Hunt; Dentist (unknown) Julie; and Vicki Litima. Plaintiff also names numerous unknown parties, including Unknown Party #1 (Commissary Deputy), Unknown Party #2 (Accountant), Unknown Party #3 (Mailroom Deputy), Unknown Party #4 (AM 1st Shift Lt.), Unknown Party #5 (PM 2d shift Lt.).

Plaintiff raises numerous claims regarding the conditions of his confinement at CCCF. Additional facts will be provided below as necessary to resolve Plaintiff's claims. He seeks injunctive relief, as well as monetary damages.

Discussion

I. 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, 45-46 (1957)). While a complaint need not contain detailed factual allegations, a plaintiff's allegations must include more than labels and conclusions. Twombly, 550 U.S. at 555; 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 "enoughfacts 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." Iqbal, 556 U.S. 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." Iqbal, 556 U.S. 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)(I)).

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); Dominguez v. Corr. Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009). 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).

As an initial matter, the Calhoun County Correctional Facility is neither a "person" nor an entity capable of being sued under § 1983. However, construing Plaintiff's pro se complaint with all required liberality, Haines, 404 U.S. at 520, the Court assumes that Plaintiff intended to sue Calhoun County. Calhoun County may not be held vicariously liable for the actions of its employees under § 1983. See Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011); City of Cantonv. Harris, 489 U.S. 378, 392 (1989); Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). Instead, a county is liable only when its official policy or custom causes the injury. Id. In a municipal liability claim, the finding of a policy or custom is the initial determination to be made. Doe v. Claiborne County, 103 F.3d 495, 509 (6th Cir. 1996). The policy or custom must be the moving force behind the constitutional injury, and a plaintiff must identify the policy, connect the policy to the governmental entity and show that the particular injury was incurred because of the execution of that policy. Turner v. City of Taylor, 412 F.3d 629, 639 (6th Cir. 2005); Alkire v. Irving, 330 F.3d 802, 815 (6th Cir. 2003); Doe, 103 F.3d at 508-509. It is the court's task to identify the officials or governmental bodies which speak with final policymaking authority for the local government in a particular area or on a particular issue. McMillian v. Monroe County, 520 U.S. 781, 784-85 (1997). In matters pertaining to the conditions of the jail and to the operation of the deputies, the sheriff is the policymaker for the county. MICH. COMP. LAWS § 51.75 (sheriff has the "charge and custody" of the jails in his county); MICH. COMP. LAWS § 51.281 (sheriff prescribes rules and regulations for conduct of prisoners); MICH. COMP. LAWS § 51.70 (sheriff may appoint deputies and revoke appointments at any time); Kroes v. Smith, 540 F. Supp. 1295, 1298 (E.D. Mich. 1982) (the sheriff of "a given county is the only official with direct control over the duties, responsibilities, and methods of operation of deputy sheriffs" and thus, the sheriff "establishes the policies and customs described in Monell"). Thus, the Court will look to the allegations in Plaintiff's complaint to determine whether Plaintiff has alleged that Sheriff Byam has established a policy or custom which caused Plaintiff to be deprived of a constitutional right.

A. Telephone charges

Plaintiff claims that he was charged excessive fees to make telephone calls from the jail. Plaintiff alleges that the jail, which has a phone contract with Evercom, charges a $4.00 to$5.00 connection fee per call plus $.70 to $1.00 per minute. Plaintiff maintains that prisoners incarcerated at facilities operated by the Michigan Department of Corrections (MDOC), which also has a contract with Evercom, pay only $.18 per minute for phone calls and are not charged a connection fee. Plaintiff alleges that issues with the phones at CCCF were referred to Defendants Frierson, Mason and Watson.

Construing the complaint generously, see Haines, 404 U.S. at 520, the Court will assume that Plaintiff intends to raise a First Amendment challenge. Federal courts, including this Court, have consistently rejected First Amendment claims challenging high telephone rates on grounds that prisoners are not entitled to a specific rate for telephone calls and that prisoners failed to allege that the rates were so exorbitant as to deprive them of telephone access altogether. See, e.g., Johnson v. California, 207 F.3d 650, 656 (9th Cir. 2000) ("There is no authority for the proposition that prisoners are entitled to a specific rate for their telephone calls and the complaint alleges no facts from which one could conclude that the rate charged is so exorbitant as to deprive prisoners of phone access altogether."); Semler v. Ludeman, No. 09-0732, 2010 WL 145275, at *15 (D. Minn. Jan. 8, 2010) (dismissing a claim that telephone rates were expensive because involuntarily committed sex offenders "do not have a First Amendment right to a specific rate for their telephone calls," and the plaintiffs "made no allegation that they are precluded from making telephone calls given the rate charged"); Jayne v. Bosenko, No. 2:08-cv-02767-MSB, 2009 WL 4281995, at *9-10 (E.D. Cal. Nov. 23, 2009) (same); Beaulieu v. Ludeman, No. 07-CV-1535, 2008 WL 2498241, at *19 (D. Minn. June 18, 2008) (same); Bowcut v. Idaho State Bd. of Corr., No. CV06-208-S-BLW, 2008 WL 2445279, at *4 (D. Idaho June 16, 2008) (same); Thomas v. King, No. CV F 06 0649, 2008 WL 802475, at *3 (E.D. Cal. Mar. 24, 2008) (same); Dotson v. Calhoun Cnty. Sheriff's Dep't, No. 1:07-CV-1037, 2008 WL 160622, at *3 (W.D. Mich. Jan. 15, 2008);Boyer v. Taylor, No. 06-694-GMS, 2007 WL 2049905, at *9 (D. Del. Jul. 16, 2007); Riley v. Doyle, No. 06-C-574-C, 2006 WL 2947453, at *4 (W.D. Wis. Oct. 16, 2006) ("[T]elephone rates charged to institutionalized persons do not implicate the First Amendment no matter...