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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

KENNETH WILLIAMS, 

Plaintiff, CIVIL ACTION NO. 14-12755 

vs. DISTRICT JUDGE MARIANNE O. BATTANI 

MAGISTRATE JUDGE MONA K. MAJZOUB 

THOMAS BIRKETT, et al., 

Defendants. 

___________________________________________/ 

REPORT AND RECOMMENDATION 

Plaintiff Kenneth Williams, currently a prisoner at the Carson City Correctional Facility 

(CCF) in Carson City, Michigan, filed this action under 42 U.S.C. §§ 1983 against Defendants 

Thomas Birkett (Warden of the Central Michigan Correctional Facility (STF)), Patricia Caruso 

(former director of the MDOC), E. Balcarcel (Deputy Warden at STF), Valsicol Chemical 

Corporation (owner of a chemical plant located in St. Louis, MI), Jennifer Granholm (former 

Governor of the State of Michigan), R. Pung (a Resident Unit Manager at STF), the Michigan 

Department of Corrections, Dr. Scott Holmes (a physician at CCF), Victoria Merren (a PA at 

CCF), and Corizon Health.1

 (Docket no. 1.) Plaintiff alleges through his Count I that while he 

was incarcerated at STF, Defendants Birkett, Balcarcel, and Pung violated his Eighth Amendment 

rights when he was forced to drink water exposed to contamination caused by former Defendant 

Valsicol. Plaintiff alleges through his Count II that Defendants Holmes, Merren, and Corizon 

delayed in providing him adequate medical care related to a tumor on his leg, also in violation of 

 

1 On October 15, 2014, the Court dismissed Defendants MDOC, Valsicol Chemical 

Corporation, Patricia Caruso, and Jennifer Granholm under 28 U.S.C. § 1915(e)(2).

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the Eighth Amendment. 

Before the Court are Plaintiff’s Motion for Immediate Consideration of Plaintiff’s 

Requested Injunctive Relief (docket no. 8) and Defendants Balcarcel and Pung’s Motion for 

Summary Judgment (docket no. 24). 2,3 Plaintiff filed a Response to Defendants’ Motion. 

(Docket no. 25.) All pretrial matters have been referred to the undersigned for consideration. 

(Docket no. 11.) The undersigned has reviewed the pleadings, dispenses with a hearing pursuant 

to E.D. Mich. L.R. 7.1(f)(2), and issues this Report and Recommendation. 

I. Recommendation 

For the reasons discussed herein, the Court should grant Defendants’ Motion for Summary 

Judgment [24]. Defendants Balcarcel and Pung should be dismissed from this matter. 

Additionally, Plaintiff’s request for a preliminary injunction should be denied, and his instant 

Motion for Immediate Consideration of the same [8] should be denied as moot. 

II. Report 

A. Background 

With regard to his first claim, Plaintiff alleges that while he was confined at STF from 

November of 2004 through June of 2009, he began to notice that his “health was deteriorating due 

to the foul drinking water.” (Docket no. 1 at 7.) He claims that he was informed by other 

prisoners that the water was contaminated, so he started researching the issue in 2010. Plaintiff 

 

2 Defendant Birkett has not yet been served in this matter, and Defendants Holmes, 

Merren, and Corizon are represented by separate counsel.

3

 Also pending in this matter are Plaintiff’s Motions to Amend his Complaint (docket no. 

26), for Recusal of Defense Counsel (docket no. 28), and to Amend his Response to Defendants’ 

instant Motion for Summary Judgment (docket no. 31.) The Court will grant Plaintiff’s Motion to 

Amend his Complaint, deny his Motion for Recusal of Defense Counsel, and grant his Motion to 

Amend his Response in a separate Opinion and Order entered concurrently with this Report and 

Recommendation.

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asserts that he discovered through his research that the land on which the prison now sits used to be 

farm land, but the livestock on the land all became sick due to contaminated soil caused by 

Velsicol’s use of the land from 1936 through 1978. Plaintiff refers to a series of chemicals and 

other contaminants that are allegedly “known” to be in the local water supply, including the local 

Pine River. (Id. at 7-8.) 

Plaintiff was transferred from STF to CCF in May of 2011. He alleges that in November 

of 2012, he discovered a large mass on the back of his thigh. After an X-ray, ultrasound, and 

MRI, doctors determined that he had a tumor “the size of a small football,” which Plaintiff 

contends “had obviously been growing for a while” due to the size. (Id. at 8.) He further alleges 

that the tumor, his surgery to remove it, and the resulting recovery were all very painful. (Id.) 

Additionally, Plaintiff claims, some of the St. Louis citizens (and some rodents on which the water 

was tested) also had tumors, and because of the contamination, the city provides bottled water for 

schools. (Id. at 8-9.) And he asserts that his family saw a sign posted in the visiting area of STF 

notifying the public “to consume the St. Louis water at their own risk.” (Id. at 9.) 

Plaintiff alleges that he “suffered mentally” because he was forced to consume the 

contaminated water, which he knew could lead to cancer. He adds that he will also have to take 

pain medication for the rest of his life due to the pain in his leg. And he asserts that Defendants 

Birkett, Balcarcel, and Pung, along with several of the previously dismissed defendants, were 

aware of the problems with the water. (Id.) 

 With regard to his second claim, Plaintiff alleges that his leg began to swell up in 

November of 2012 and that he notified the CCF health-care department in February of 2013. He 

claims that he first met with two nurses who referred him to see Defendant Merren. Plaintiff 

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alleges that he told Defendant Merren that his family had a history of cancer, but she told him that 

the swelling on his leg was due to a pulled muscle. Plaintiff maintains that he continued to 

complain about the swelling for six months until a grievance resulted in an X-ray ordered by 

Defendant Holmes on July 30, 2013. (Docket no. 1 at 11.) 

 Plaintiff alleges that a month later, he was called out by Defendant Holmes who told him 

that he was unable to provide a diagnosis, so he was sending Plaintiff out for an ultrasound. 

Plaintiff had the ultrasound on or about October 3, 2013, which revealed a tumor in his leg. 

Plaintiff had a consultation with a surgeon on December 4, 2013, at which time he was informed 

that some of his pain was likely caused by the tumor pressing on nerves in his leg. Plaintiff 

alleges that between the time of his consultation and when he ultimately had the tumor removed on 

January 23, 2014, Defendants Merren and Holmes would only give him 400mg Ibuprofen and 

325mg Asprin for his pain. He contends that the failure to properly diagnose his tumor and the 

resulting pain amounts to deliberate indifference in violation of the Eighth Amendment. (Id. at 

12.) 

B. Governing Law 

1. Summary Judgment Standard 

“The court shall grant summary judgment if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 

Civ. P. 56(a). A moving party may meet that burden “by ‘showing’–that is, pointing out to the 

district court–that there is an absence of evidence to support the nonmoving party’s case.” 

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Rule 56 expressly provides that: 

A party asserting that a fact cannot be or is genuinely disputed must support the 

assertion by: 

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(A) citing to particular parts of materials in the record, including 

depositions, documents, electronically stored information, affidavits or 

declarations, stipulations (including those made for purposes of the motion 

only), admissions, interrogatory answers, or other materials; or 

(B) showing that the materials cited do not establish the absence or presence 

of a genuine dispute, or that an adverse party cannot produce admissible 

evidence to support the fact. 

Fed. R. Civ. P. 56(c)(1). The Rule also provides the consequences of failing to properly support 

or address a fact: 

If a party fails to properly support an assertion of fact or fails to properly address 

another party’s assertion of fact as required by Rule 56(c), the court may: 

 (1) give an opportunity to properly support or address the fact; 

 (2) consider the fact undisputed for purposes of the motion; 

(3) grant summary judgment if the motion and supporting materials – 

including the facts considered undisputed – show that the movant is entitled 

to it; or 

 (4) issue any other appropriate order. 

Fed. R. Civ. P. 56(e). “The court need consider only the cited materials, but it may consider other 

materials in the record.” Fed. R. Civ. P. 56(c)(3). 

When the moving party has met its burden under rule 56, “its opponent must do more than 

simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric 

Industries Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Ultimately a district court must 

determine whether the record as a whole presents a genuine issue of material fact, id. at 587, 

drawing “all justifiable inferences in the light most favorable to the non-moving party,” Hager v. 

Pike County Bd. Of Education, 286 F.3d 366, 370 (6th Cir. 2002). 

2. Injunctive Relief Standard 

Federal Rule of Civil Procedure Rule 65 authorizes the issuance of preliminary injunctions 

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and temporary restraining orders. The Court may issue a temporary restraining order to preserve 

the status quo until it has had an opportunity to determine whether a preliminary injunction should 

issue. First Tech. Safety Sys, Inc. v. Depinet, 11 F.3d 641, 650 (6th Cir. 1993). “A preliminary 

injunction is an extraordinary remedy which should be granted only if the movant carries his or her 

burden of proving that the circumstances clearly demand it.” Overstreet v. Lexington-Fayette 

Urban Cnty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002) (citation omitted). In deciding a motion for 

a preliminary injunction, the court should consider whether (1) the movant has shown a strong or 

substantial likelihood of success on the merits; (2) the movant will suffer irreparable injury 

without the injunction; (3) the preliminary injunction will cause substantial harm to others; and (4) 

the public interest will be served if the injunction issues. Id. (citation omitted). While these 

factors are to be balanced, the failure to show a likelihood of success on the merits is generally 

fatal. Id. See also Gonzales v. Nat’l Bd. of Med. Exam’rs, 225 F.3d 620, 625 (6th Cir. 2000). 

Notably, “where a prison inmate seeks an order enjoining state prison officials, [courts must] 

proceed with the utmost care and must recognize the unique nature of the prison setting.” Schuh 

v. MDOC, No. 09-982. 2011 WL 7139457, *3 (W.D. Mich. Nov. 10, 2011) (citing Kendrick v. 

Bland, 740 F.2d 432, 438, n.3 (6th Cir.1984)). 

C. Analysis

1. Defendants’ Motion for Summary Judgment 

Through their Motion for Summary Judgment, Defendants Balcarcel and Pung assert that 

(1) Plaintiff has failed to state a claim because he does not allege the they are personally involved 

in any of the alleged wrongful conduct; and (2) they are entitled to qualified immunity because 

even if Plaintiff has alleged sufficient personal involvement, they did not violate clearly 

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established law, and Plaintiff has failed to sufficiently allege a constitutional violation. 

 It is a well-established principle that Section 1983 liability cannot be based on a mere 

failure to act or on a theory of respondeat superior. Salehpour v. Univ. of Tenn., 159 F.3d 199, 

206-07 (6th Cir. 1998). Rather, a supervisor must have “‘either encouraged the specific incident 

of misconduct or in some other way directly participated in it. At a minimum a plaintiff must 

allege that the official at least implicitly authorized, approved, or knowingly acquiesced in the 

unconstitutional conduct.’” Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (quoting Hays v. 

Jefferson Cnty., Ky., 668 F.2d 869, 874 (6th Cir. 1982)). Thus, to state a plausible claim for relief, 

a plaintiff must allege that each defendant was personally involved in, or otherwise condoned, 

encouraged, or knowingly acquiesced in the alleged misconduct. Id. 

In his Complaint, Plaintiff alleges that “[a]t all times, [Defendants were] aware of this 

situation whereas prisoners are being forced to consume this contaminated water under the care of 

the [MDOC].” (Docket no. 1 at 9.) This statement is the extent of the factual allegations related 

to Defendants Balcarcel and Pung. Nowhere in Plaintiff’s Complaint does he allege that either 

Defendant took any action or that they implicitly authorized, approved, or knowingly acquiesced 

in any wrongful conduct. As Defendants acknowledge, Defendant Pung took part in the 

grievance process related to Plaintiff’s claims, but involvement in the grievance process does not 

impose liability under Section 1983. See Skinner v. Govorchin, 463 F.3d 518, 525 (6th Cir. 

2006). Therefore, Defendants’ Motion should be granted.4

 

4 Because Plaintiff’s claims against Defendants Balcarcel and Pung should be dismissed 

for lack of personal involvement, the Court need not address Defendants’ assertion of qualified 

immunity. Qualified immunity is best addressed after determining whether a plaintiff has stated a 

constitutional claim upon which relief can be granted. See County of Sacramento v. Lewis, 523 

U.S. 833, 842 n.5 (citing Siegert v. Gilley, 500 U.S. 226, 232 (1991)) (“[T]he better approach to 

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2. Plaintiff’s Motions for a Preliminary Injunction 

Insert. Plaintiff’s Motion for Immediate Consideration of Plaintiff’s Requested Injunctive 

Relief asks that the Court consider his request for injunctive relief first set forth in his Complaint. 

(Docket no. 8; see docket no. 1 at 5.) In his original request, Plaintiff stated that his life was in 

danger due to the contaminated water at STF and that it “may cause cancer in the near future.” 

(Docket no. 1 at 5.) Plaintiff further asserted that MDOC officials had taken action that amounted 

to “attempted murder and/or conspiracy to commit murder.” (Id.) Plaintiff, therefore, asked that 

he be released from prison or transferred to a jail outside of MDOC jurisdiction. (Id.) In his 

instant Motion, Plaintiff refers to his original request and the relief sought therein, but he adds that 

his “life is in serious danger which makes it impossible to litigate this court proceedings (sic)” and 

that CCF staff have assaulted him and confiscated his legal mail. (Docket no. 8.) The 

undersigned has considered these filings together as a Motion for Preliminary Injunction. 

i. Likelihood of Success 

Plaintiff’s has not met his heavy burden of showing a likelihood of success on the merits in 

this matter. With regard to his claims in Count I related to the allegedly contaminated drinking 

water, the Court has already dismissed or recommended dismissal of all but one Defendant: 

Warden Birkett. Defendant Birkett has not yet been served, but it is likely that Plaintiff’s claims 

against him will be dismissed for the same reason the Court should dismiss Plaintiff’s claims 

against Defendants Balcarcel and Pung. 

With regard to Plaintiff’s claims in Count II for deliberate indifference to Plaintiff’s 

 

resolving cases in which the defense of qualified immunity is raised is to determine first whether 

the plaintiff has alleged a deprivation of a constitutional right at all. Normally, it is only then that 

a court should ask whether the right allegedly implicated was clearly established at the time of the 

events in question.”). 

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medical needs against Defendants Holmes, Merren, and Corizon, Plaintiff must satisfy two 

components–an objective component, and a subjective component. Id. (citing Harrison v. Ash, 

538 F.3d 510, 518 (6th Cir. 2008)). “Satisfying the objective component ensures that the alleged 

deprivation is sufficiently severe, while satisfying the subjective component ‘ensures that the 

defendant prison official acted with a sufficiently culpable state of mind.’” Quigley v. Toung Vinh 

Thai, 707 F.3d 675, 681 (6th Cir. 2013) (quoting Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 

2003)). To satisfy the objective component, “‘the plaintiff must allege that the medical need at 

issue is “sufficiently serious.”’” Id. (quoting Comstock v. McCrary, 273 F.3d 693, 703 (quoting 

Farmer v. Brennan, 511 U.S. 825, 834 (1994))). To satisfy the subjective component, a plaintiff 

must show that “‘the official knows of and disregards’ the substantial risk of serious harm.” 

Villegas, 709 F.3d at 569 (quoting Harrison, 539 F.3d at 518). Even assuming, arguendo, that 

Plaintiff’s tumor satisfies the objective component of his claim, it is unlikely that he will be able to 

satisfy the subjective component. Nothing in Plaintiff’s Complaint suggests that any of the Count 

II Defendants disregarded a risk of serious harm. To the contrary, it appears that they ultimately 

diagnosed him properly and had his tumor removed. While Plaintiff may allege that the delay in 

treatment was unreasonable, he has not shown a likelihood of success through his request for 

injunctive relief. 

 ii. Irreparable Harm 

The “key word” in determining the harm caused by failure to issue a plaintiff’s requested 

injunction is “irreparable.” Michigan Coalition of Radioactive Material Users, Inc. v. 

Griepentrog, 945 F.2d 150, 154 (6th Cir.1991). A claim that a plaintiff will be injured, however 

serious, is not enough. Id. Instead, “the harm alleged must be both certain and immediate, rather 

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than speculative or theoretical.” Id. “[T]o substantiate a claim that irreparable injury is likely to 

occur, a movant must provide some evidence that the harm has occurred in the past and is likely to 

occur again.” Id. (internal citations omitted). Plaintiff alleges, without any evidentiary support, 

that he has been threatened by MDOC staff. He also alleges that his prior contact with the water 

at STF “may” cause cancer sometime in the future. To date, it appears that Plaintiff has been able 

to proceed appropriately in this matter. It does not appear that MDOC staff members have 

prohibited him from filing pleadings in any way. And he is no longer incarcerated at STF where 

he may be forced to drink the allegedly contaminated water. Thus, any harm alleged by Plaintiff 

is merely speculatory or theoretical. 

 iii. Substantial Harm to Others and the Public Interest 

“[T]he administration of state prisons is a matter consigned to the states as part of their 

sovereign power to enforce the criminal law. In the exercise of this authority, the state has the 

power to adopt policies it believes are best suited for managing its prisons and assuring the safety 

and security of those institutions.” In re Wilkinson, 137 F.3d 911, 914 (6th Cir.1998). Thus, 

“problems of prison administration are peculiarly for resolution by prison authorities and their 

resolution should be accorded deference by the courts.” Bazzetta v. McGinnis, 124 F.3d 774, 779 

(6th Cir.1997). 

[J]udicial deference is accorded not merely because the administrator ordinarily 

will, as a matter of fact in a particular case, have a better grasp of his domain than 

the reviewing judge, but also because the operation of our correctional facilities is 

peculiarly the province of the Legislative and Executive Branches of our 

Government, not the Judicial. 

Bell v. Wolfish, 441 U.S. 520, 548 (1979). Plaintiff’s request that the Court order Defendants to 

release him or transfer him outside of MDOC custody, by its very nature, intrudes on the MDOC’s 

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ability to make decisions regarding the care of its prisoners. Such a request affects not only the 

safety of the plaintiff but also the safety of MDOC staff, other prisoners, and the general public. 

Moreover, a prisoner has no Constitutional right to choose his place of confinement; to the 

contrary, the placement of prisoners within the state correctional system is a basic administrative 

endeavor in which the courts should not intervene. See Olim v. Wakinekona, 461 U.S. 238, 

245-46, (1983); Meachum v. Fano, 427 U.S. 215, 225 (1976); Beard v. Livesay, 798 F.2d 874, 876 

(6th Cir.1986). Plaintiff does not request that the Court maintain the status quo and prohibit 

Defendants from transferring him to another facility. Instead, he asks that the Court order 

Defendants to transfer him or release him, which would require the Court to squarely interject 

itself into the MDOC’s administration. Such an intervention is not in the public interest. 

 iv. Balancing the Factors 

As discussed herein, all of the preliminary injunction factors weigh in favor of denying 

Plaintiff’s Motion. Therefore, Plaintiff’s request for a preliminary injunction should be denied, 

and his instant Motion for Immediate Consideration of the same should be denied as moot. 

D. Conclusion 

For the reasons stated above, the Court should grant Defendants’ Motion for Summary 

Judgment [24]. Defendants Balcarcel and Pung should be dismissed from this matter. 

Additionally, Plaintiff’s request for a preliminary injunction should be denied, and his instant 

Motion for Immediate Consideration of the same [8] should be denied as moot. 

III. Notice to Parties Regarding Objections 

The parties to this action may object to and seek review of this Report and 

Recommendation, but are required to act within fourteen (14) days of service of a copy hereof as 

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provided for in 28 U.S.C. ' 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific 

objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 

(1985); Howard v. Sec=y of Health & Human Servs., 932 F.2d 505 (6th Cir. 1991); United States 

v. Walters, 638 F.2d 947 (6th Cir. 1981). Filing of objections which raise some issues but fail to 

raise others with specificity, will not preserve all the objections a party might have to this Report 

and Recommendation. Willis v. Sec=y of Health & Human Servs., 931 F.2d 390, 401 (6th Cir. 

1991); Smith v. Detroit Fed=n Of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). 

Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this 

Magistrate Judge. 

Any objections must be labeled as AObjection #1,@ AObjection #2,@ etc. Any objection 

must recite precisely the provision of this Report and Recommendation to which it pertains. 

Not later than fourteen days after service of an objection, the opposing party must file a concise 

response proportionate to the objections in length and complexity. The response must 

specifically address each issue raised in the objections, in the same order and labeled as 

AResponse to Objection #1,@ AResponse to Objection #2,@ etc. 

Dated: May 12, 2015 s/ Mona K. Majzoub 

 MONA K. MAJZOUB 

UNITED STATES MAGISTRATE JUDGE 

PROOF OF SERVICE 

I hereby certify that a copy of this Report and Recommendation was served on counsel of 

record and on Plaintiff Kenneth Williams on this date. 

Dated: May 12, 2015 s/ Lisa C. Bartlett 

Case Manager 

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