UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CHERUNDA FOX,

Plaintiff, Civil Action No. 08-CV-14410

vs. HON. BERNARD A. FRIEDMAN

STATE OF MICHIGAN, DEPARTMENT

OF CORRECTIONS,

GOPAUL SINGHL and

NURSE RUMMELLA,

Defendants.

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OPINION AND ORDER GRANTING DEFENDANT MDOC’s MOTION TO DISMISS

and

ORDER OF DISMISSAL AS TO DEFENDANTS SINGHL AND RUMMELLA

This matter is presently before the court on the motion of defendant Michigan

Department of Corrections (“MDOC”) to dismiss [docket entry 18]. Plaintiff has filed a response

brief and defendant MDOC has filed a reply. Pursuant to E. D. Mich. LR 7.1(e)(2), the court shall

decide this motion without oral argument.

This is a prisoner civil rights action. Plaintiff Cherunda Fox, a former inmate in the

custody of the MDOC, initially filed suit on June 18, 2007, by filing a complaint in this court (07-

CV-12600) that alleged in its entirety as follows:

The issue in this complaint is inhuman treatment while in prison.

They failed to give me routine annual exams resulting in permanent

liver damage. The dept. of corrections admits to this wrongdoing in

the 3 step grievance answer. This is a violation of ADA § 12132 and

8th Am. Rights because I was disabled when I came to prison. The
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failure to give annual exams violates U.S. v. Georgia 1-5-06 where

they failed to accomodate Goodman and punished him for an existing

disability through failure to treat, isolation, 23 out of 24 hrs, and

keeping him in a chair where he could not turn around. The Supreme

Court found discrimination against an existing disability of a prisoner

as unconstitutional (violating ADA) unconstitutional, inappropriate

and inhuman. Due to the non-treatment I experienced similar travals.

Therefore the plaintiffs should be held liable for 1 billion dollars in

damages.

On July 17, 2007, the court dismissed the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) on the

grounds that it was frivolous and failed to state claim. On January 31, 2008, the court of appeals

affirmed, noting that “Fox’s bare allegation that she had permanent liver damage, and that it was due

to a four-month delay in scheduling her annual physical examination lacked a basis in fact and was

not plausible. If she has some factual basis for her allegation, she is free to submit it with a new

complaint.” Fox v. State of Michigan, No. 07-1911 (6th Cir. Jan. 31, 2008). Plaintiff’s petition for

a writ of certiorari was denied by the Supreme Court on October 6, 2008.

On October 16, 2008, plaintiff commenced the instant action by filing an “Amended

Complaint.” The claims and defendants are the same as in 07-CV-12600. The only substantive

difference between the two complaints is that in the Amended Complaint plaintiff has added the

following allegations:

1. After returning from prison I have had recurring urinary tract

infections every three weeks.

2. Doctor though it was kidney damage until she did a battery of

blood tests.

3. 8 of the 15 things (best recollection) she tested for showed

enzemes that indicated kidney damage.

4. Doctor showed me the tests and went over the reports extensively,

although I’m not a doctor, I tried to understand.

5. She stated it was a direct result of missed blood tests during annual

exams during incarceration. The dept of corrections admits to this

wrongdoing in the Step 3 Grievance answer.

6. When initially incarcerated all tests came back clean.
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As before, plaintiff claims that defendants violated her rights under the Americans with Disabilities

Act (“ADA”) and the Eighth Amendment. And, as before, plaintiff seeks one billion dollars in

damages.

The MDOC, the only served defendant, first seeks dismissal on the grounds that it

is immune from suit. Plaintiff does not oppose dismissal of the Eighth Amendment claim on these

grounds. Plaintiff does oppose dismissal of her ADA claim, arguing that “[t]he State may have

waived its immunity as to [this] claim.” Pl.’s Resp. at 2. Plaintiff quotes from United States v.

Georgia, 546 U.S. 151, 159 (2006), where the Supreme Court held that “insofar as Title II [of the

ADA] creates a private cause of action for damages against the States for conduct that actually

violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity.” (Emphasis

in original.)

Plaintiff’s reliance on Georgia is inapposite. In that case the Court held that

Congress, in authorizing damages suits against states as a remedy for violations of Title II, abrogated

states’ sovereign immunity only to the extent that the violations at issue also implicate substantive

constitutional rights. The plaintiff in Georgia, who was confined to a wheelchair, alleged he was

unable to turn around in his three-foot–wide cell, was denied accessible shower and toilet facilities,

was “forced to sit in his own feces and urine while prison officials refused to assist him in cleaning

up the waste,” and was denied access to various prison programs because of his disability. Id. at

155. Defendants’ effort in that case to defeat plaintiff’s ADA claim on grounds of sovereign

immunity failed because plaintiff’s allegations were deemed sufficient to make out an Eighth

Amendment claim. See id. at 157.

In the present case, plaintiff has failed to state a claim under either the ADA or the
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Eighth Amendment. The essence of plaintiff’s complaint is that she did not receive her “annual

check-up, mammogram and pap-smear” in November 2003 and, as a result, has suffered kidney

damage. These allegations do not begin to make out an Eighth Amendment claim, which requires

a showing that defendants were deliberately indifferent to plaintiff’s serious medical needs. See

Wilson v. Seiter, 501 U.S. 294 (1991); Estelle v. Gamble, 429 U.S. 97 (1976); Dodson v. Wilkinson,

304 Fed.Appx. 434 (6th Cir. 2008). On its face, the need for an annual check-up, mammogram and

pap-smear is not so serious, and the consequences of missing them so obviously dire, to require

prison officials to ensure they are carried out on a regular basis. Further, plaintiff does not allege

that defendants were deliberately indifferent to her request. To the contrary, the response to

plaintiff’s grievance was to schedule her for “annual health screening on 3-5-04,” just three to four

months later than plaintiff had requested. See Grievance Response dated 2-13-04, attached to the

Amended Complaint. As plaintiff’s allegations fail to make out an Eighth Amendment claim,

defendant MDOC has sovereign immunity as to the ADA claim.

The Amended Complaint also fails to state a claim under the ADA. That statute

states that “no qualified individual with a disability shall, by reason of such disability, be excluded

from participation in or be denied the benefits of the services, programs, or activities of a public

entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Plaintiff alleges

only that her annual exam did not take place during the month she requested, not that the exam was

denied or delayed “by reason of” any disability she may have had while incarcerated.

In sum, the Amended Complaint is subject to dismissal both because it fails to state

a claim under the ADA or the Eighth Amendment and because defendant MDOC, as a state

department, is immune from suit.
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Defendant also correctly argues that plaintiff’s claims are time-barred. Both of

plaintiff’s claims are subject to a three-year limitations period. See Carroll v. Wilkerson, 782 F.2d

44 (6th Cir. 1986) (concluding, under Wilson v. Garcia, 471 U.S. 261 (1985), that Michigan’s threeyear statute of limitations governing general personal injury actions applies to § 1983 claims); Lewis

v. Fayette County Det. Ctr., 2000 WL 556132, at *2 (6th Cir. Apr. 28, 2000) (“Under the same

Wilson analysis, courts faced with ADA or Rehabilitation Act claims have also looked to the state’s

statute of limitations for personal injury actions”). Plaintiff alleged in her grievance, dated January

9, 2004, that her Eighth Amendment rights had already been violated as of that date due to

defendants’ failure to provide her with the requested “annual check-up, mammogram and papsmear” and that this failure allegedly was “sufficiently serious enough to affect my future health in

a very detrimental manner.” Plaintiff exhausted her remedies under the prison grievance system on

May 10, 2005, the date of the Step III Response, a copy of which is attached to plaintiff’s response

brief. Plaintiff did not commence the instant action until more than three years later, on October 16,

2008.

For these reasons,

IT IS ORDERED that defendant MDOC’s motion to dismiss is granted.

IT IS FURTHER ORDERED that the complaint is dismissed as to defendants Singhl

and Rummella pursuant to Fed. R. Civ. P. 4(m), as these defendants have never been served with

process. Additionally, the complaint must be dismissed as to these defendants pursuant to 28 U.S.C.

§ 1915(e)(2)(B) because it is frivolous and fails to state a claim.
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S/Bernard A. Friedman 

Bernard A. Friedman

United States District Judge

Dated: February 24, 2010

I hereby certify that a copy of the foregoing document was served upon counsel of record on

February 24, 2010, by electronic and/or ordinary mail.

S/Felicia Moses for Carol Mullins 

Case Manager