Russell v. Tribley, CASE NO. 2:10-CV-14824

KENNETH ALLEN RUSSELL, Plaintiff, v. LINDA TRIBLEY, et al., Defendants.

CASE NO. 2:10-CV-14824

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

August 10, 2011

JUDGE PAUL D. BORMAN

MAGISTRATE JUDGE PAUL KOMIVES

REPORT AND RECOMMENDATION: (1) THE MDOC DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (docket #20); (2) PLAINTIFF'S PETITION FOR A STAY (docket #22); (3) THE PHS DEFENDANTS' MOTION TO DISMISS (docket #24); (4) PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT (docket #34); (5) PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION (docket #39); and (6) PLAINTIFF'S MOTION FOR JURY TRIAL (docket #40)

I. RECOMMENDATION ................................................................ 1

II. REPORT ........................................................................... 2

A. Procedural Background ......................................................... 2

B. Defendants' Motions to Dismiss and Plaintiff's Petition to Stay Ruling .................... 2

1. Legal Standard ........................................................ 3

2. Exhaustion ............................................................ 5

3. Stay of Ruling Pending Discovery .......................................... 8

C. Plaintiff's Motion for Default Judgment ........................................... 11

D. Plaintiff's Motion for Preliminary Injunction ....................................... 14

1. Legal Standard ....................................................... 15

2. Analysis ............................................................. 18

E. Plaintiff's Motion to Proceed to Jury Trial ......................................... 20

F. Conclusion .................................................................. 21

III. NOTICE TO PARTIES REGARDING OBJECTIONS ...................................... 21

I. RECOMMENDATION: The Court should deny plaintiff's petition to stay (docket #22), and should grant the MDOC defendants' motion for summary judgment and the PHS defendants' motion to dismiss (docket #20 and #24). The Court should also deny plaintiff's motions for default judgment and preliminary injunction (docket #34 and #39). Finally, the Court should note plaintiff's jury trial demand and direct the Clerk to designate this matter as a jury action on the docket in accordance with Rule 39, but should deny in all other respects plaintiff's motion for jury trial (docket #40).

II. REPORT:

A. Procedural Background

Plaintiff Kenneth Allen Russell, a state prisoner, filed a pro se civil rights complaint on December 6, 2010, alleging that he has been denied proper medical care while incarcerated in several Michigan Department of Corrections facilities. Principally, plaintiff alleges that defendants have failed to provide him required treatment for chronic back pain in the form of orthopedic shoes and epidural shots. Plaintiff also alleges several other claims that he was denied or provided inadequate medical care. Plaintiff names as defendants numerous MDOC and Prison Health Service employees, as well as various Jane/John Doe defendants. The parties have filed numerous motions which are currently pending before the Court. This Report addresses: (1) the motion of defendants Tribley, Hunter, Royner-Thompson, Scutt, and Creger (the "MDOC defendants") for summary judgment, filed on February 23, 2011 (docket #20); (2) the motion of defendants Hallworth, Jackson, and Prokosch-Graves (the "PHS defendants") to dismiss, filed on March 15, 2011 (docket #24); (3) plaintiff's petition to stay ruling on defendants' summary judgment motion, filed on March 4, 2011 (docket #22); (4) plaintiff's motion for default judgment, filed on April 19, 2011 (docket #34); (5) plaintiff's motion for preliminary injunction, filed on May 18, 2011 (docket #39); and (6) plaintiff's motion to proceed to jury trial, filed on May 18, 2011 (docket #40).

B. Defendants' Motions to Dismiss and Plaintiff's Petition to Stay Ruling

The MDOC defendants who have been served and have appeared in this action-defendants Tribley, Hunter, Royner-Thompson, Scutt, and Creger-move for summary judgment on the groundsthat plaintiff has failed to properly exhaust his administrative remedies and has failed to properly allege that they were personally involved in the alleged deprivation of his rights. The PHS defendants likewise move to dismiss plaintiff's claims on the grounds that plaintiff has failed to properly exhaust his administrative remedies and has failed to allege that they deprived him of his constitutional rights. For the reasons that follow, the Court should grant defendants' motions.

1. Legal Standard

A motion to dismiss for failure to state a claim upon which relief can be granted is provided for in FED. R. CIV. P. 12(b)(6). In order for a court to dismiss a complaint for failure to state a claim, it must appear beyond doubt that the party asserting the claim can prove no set of facts supporting his claim that would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The party asserting the claim is not required to specifically set out the facts upon which he or she bases his claim. Id. at 47. Rather, "a short and plain statement of the claim" pursuant to FED. R. CIV. P. 8(a)(2) gives the opposing party fair notice of the claim and the grounds upon which it rests. See Conley, 355 U.S. at 47. However, as the Supreme Court has recently explained, bare legal conclusions need not be accepted by the Court, and a pleading must contain sufficient factual allegations to show that the allegations are plausible:

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." As the Court held in [Bell Atlantic Corp. v.] Twombly , 550 U.S. 544 [(2007)], the pleading standard Rule 8 announces does not require "detailed factual allegations," but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. Id., at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." 550 U.S., at 555. Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement." Id., at 557.

To 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." Id.,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. Id., at 556. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.' " Id., at 557 (brackets omitted).

Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id., at 555 (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we "are not bound to accept as true a legal conclusion couched as a factual allegation" (internal quotation marks omitted)). Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id., at 556. Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where 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." Fed. Rule Civ. Proc. 8(a)(2).

In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009) (parallel citations omitted).

A court can only decide a Rule 12(b)(6) motion on the basis of the pleadings; if the court considers matters outside the pleadings, the court must convert the motion into one for summary judgment under Rule 56. See Kostrzewa v. City of Troy, 247 F.3d 633, 643-44 (6th Cir. 2001); Weiner v. Klais & Co., 108 F.3d 86, 88 (6th Cir. 1997). Although the parties have submitted some materials outside the pleadings, this does not require the Court to treat the motions as ones seeking summary judgment. The records attached by the parties consist solely of plaintiff's administrativegrievances. It is well established that a court may consider public records and facts susceptible to judicial notice without converting a motion to dismiss into one for summary judgment. See Grynberg v. Koch Gateway Pipeline Co., 390 F.3d 1276, 1278 n.1 (10th Cir. 2004); New England Health Care Employees Pension Fund v. Ernst & Young, LLP, 336 F.3d 495, 501 (6th Cir. 2003); Menominee Indian Tribe of Wis. v. Thompson, 161 F.3d 449, 456 (7th Cir. 1998). The Court may take judicial notice of the...