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MDOC, Dr. Clark and Dr. Gartland filed a joint motion for summary judgment on

March 24, 2009. (Doc. No. 21). At that time, Dr. Maher had not yet been served with a

summons and complaint. Dr. Maher was served on March 24, 2009, and thereafter filed a

motion joining the other Defendants’ motion for summary judgment. (Doc. No. 25).

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TYROSH BROWN,

Plaintiff,

v.

MICHIGAN DEPARTMENT OF

CORRECTIONS, ROBERT J. CLARK, Ph.D.,

DARCY L. MAHER, Ph.D., and DIANE

GARTLAND, Psy.D., 

Defendant.

___________________________________ /

Case Number: 08-14981

DENISE PAGE HOOD

UNITED STATES DISTRICT COURT

VIRGINIA M. MORGAN

UNITED STATES MAGISTRATE JUDGE 

REPORT AND RECOMMENDATION

This is a pro se 42 U.S.C. § 1983 action in which a former inmate accuses the Michigan

Department of Corrections of violating his First Amendment right to practice his religion by forcing

him into a therapy program for assaultive offenders. This matter comes before the court on

Defendants Michigan Department of Corrections (“MDOC”), Robert J. Clark, Ph.D., Darcy L.

Maher, Ph.D. and Diane Gartland’s, Psy.D.motions for summary judgment. (Doc. Nos. 21 and 25).1

Plaintiff filed a response in opposition to Dr. Maher’s motion for summary judgment. (Doc. No.

27). For the reasons discussed below, this court recommends that defendants’ motions be

GRANTED and that summary judgment be entered in their favor. 

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I. Background

Plaintiff filed the instant civil rights action on December 1, 2008. (Doc. No. 1). Plaintiff

alleges that the Defendants violated his civil rights while he was a MDOC prisoner housed at the

Cooper Street Correctional Facility and the Parnall Correctional Facility, which are both located in

Jackson, Michigan. (Compl. ¶ 5). Specifically, Plaintiff alleges that Defendants forced him to

participate in Assaultive Offender’s Programming (“AOP”), which violated his First Amendment

right to free exercise of religion. (Compl. p. 14). Plaintiff does not identify the religion his ascribes

to, nor does he explain how his alleged forced participation AOP violated his right to free exercise.

Plaintiff also alleges that Dr. Clark, Dr. Maher, and Dr. Gartland “negligently misdiagnosed him.”

(Compl. p. 17).

Since filing his complaint, Plaintiff was paroled, and he is presently under parole supervision

of the MDOC.

MDOC, Dr. Clark and Dr. Gartland filed their motion for summary judgment on March 24,

2009. (Doc. No. 21). In the motion, they argue that summary judgment should be entered in their

favor for any or all of the following reasons: 1) Plaintiff’s claim is barred by the statute of

limitations; 2) medical malpractice claims are not actionable under 42 U.S.C. § 1983; 3) Plaintiff

did not plead an actionable First Amendment free exercise claim; 4) Plaintiff’s claims against the

MDOC are barred by sovereign immunity; and 5) Plaintiff’s claims against state employees in their

individual capacities are barred by qualified immunity. After properly being served, Defendant Dr.

Maher filed a motion for summary judgment in which she joined Defendants previously filed

motion for summary judgment. (Doc. No. 25).

Plaintiff responded to Dr. Maher’s motion for summary judgment. (Doc. No. 27). In his

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response, Plaintiff argues that his lawsuit is not barred by the statute of limitations because “this

claim was filed 6 months after descovering [sic] that the parole board punished the plaintiff

repeatedly with flop after flop for not participating in AOP like they wanted him to.” (Pl.’s Resp.

1). Plaintiff also refutes Defendants statements that he could have chosen not to participate in AOP,

and that he was free to talk about his religion during AOP sessions. (Pl.’s Resp. 2). Plaintiff asserts

that he had to participate in AOP, and say certain things at the therapy sessions, in order to be

paroled. (Pl.’s Resp. 2).

II. Standard of Review

The United States Court of Appeals for the Sixth Circuit has summarized the standard for

summary judgment as follows:

Summary judgment is appropriate if the evidence, when viewed in the light most

favorable to the nonmoving party, shows that there is no genuine issue of material

fact such that the moving party is entitled to judgment as a matter of law. “The judge

is not to weigh the evidence and determine the truth of the matter, but rather

determine whether there is a genuine issue for trial.”

Totes Isotoner Corp. v. Int’l Chemical Workers Union Council/UFCW Local 664C, 532 F.3d 405,

411-12 (6th Cir. 2008) (internal citations omitted).

III. Analysis

A. Statute of Limitations 

Defendants first argue that Plaintiff’s claims are barred by the applicable statute of

limitations, which they assert is three years. (Defs.’ Mot. 3). Plaintiff responds that his claim is not

barred by the statute of limitations because he filed his lawsuit six months after discovering that the

parole board retaliated against him for “not participating in AOP like they wanted him to.” (Pl.’s

Resp. 1).

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42 U.S.C. § 1983 does not contain a statute of limitations; thus, courts must look to state law

to determine the relevant limitations period. Roberson v. Tennessee, 399 F.3d 792, 794 (6th Cir.

2005). Plaintiff’s § 1983 claim is governed by the three-year Michigan personal injury statute of

limitations. See Banks v. City of Whitehall, 344 F.3d 550, 553 (6th Cir. 2003); Wolfe v. Perry, 412

F.3d 707 (6th Cir. 2005). In determining when the limitations period began, courts must refer to

federal law. Roberson, 399 F.3d at 794. The Sixth Circuit has held that the statute of limitations

begins to run “‘when the plaintiff knows or has reason to know of the injury which is the basis of

his action. A plaintiff has reason to know of his injury when he should have discovered it through

the exercise of reasonable diligence.’” Sevier v. Turner, 742 F.2d 262, 273 (6th Cir.1984).

Plaintiff filed his complaint on December 1, 2008. (Doc. No. 1). The statute of limitations,

therefore, bars any claim that accrued before December 1, 2005. See Banks, 344 F.3d at 553.

Plaintiff entered AOP on October 26, 2004 and completed the program on October 25, 2005. (Defs.’

Mot. Ex. B, Dr. Gartland Aff. ¶ 3). In his complaint, Plaintiff asserts that his placement and alleged

forced participation in AOP violated his right to free exercise of religion. Accordingly, any injury

Plaintiff suffered due to the alleged constitutional violation occurred during his time in the program,

October 26, 2004 to October 25, 2005, and Plaintiff would have been aware of the injury when it

happened. Plaintiff’s claim, thus, accrued before December 1, 2005, and is barred by the statute of

limitations.

Plaintiff’s argument that he did not discover that he had been injured until his parole board

hearing in July 2008 is unavailing. Plaintiff’s assertion that he was denied parole because he did not

participate in AOP, as expected by the parole board, is an injury unrelated to the alleged

constitutional violation. In his complaint, Plaintiff alleges that Defendants injured him by denying

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him constitutional right to practice his religion by forcing him to participate in AOP. Thus,

Defendants allegedly denied Plaintiff his right to free exercise to Plaintiff was when he was in AOP.

Whether or not the parole board held Plaintiff’s lackluster participation in AOP against him during

parole hearings is, therefore, unrelated to Defendants conduct in placing Plaintiff in the AOP

program and having him participate in the therapy sessions.

The court recommends that Plaintiff’s complaint be dismissed as it is barred by the statute

of limitations. In the event that the district court disagrees, this court has analyzed Defendants’

remaining arguments for dismissal.

B. Medical Malpractice Claim 

Defendants next argue that they are entitled to summary judgment because Plaintiff’s

medical malpractice claim is not actionable under 42 U.S.C. § 1983 and Plaintiff has not stated a

claim under the Eighth Amendment for medical mistreatment. (Defs.’ Mot. 5).

In his complaint, Plaintiff states “[t]his is a claim of medical malpractice and the case of

victoms [sic] 1st Amendment right being violated . . . .” (Compl. p. 14). Plaintiff alleges that Dr.

Clark, Dr. Garltand, and Dr. Maher “negligently misdiagnosed” him, “negligently forc[ed]” Plaintiff

to participate in AOP, and “untruthfully and negligently put in his file that he seems hostile and

antagonistic when help is offered, but help was never offered.” (Compl. p. 16-17).

Medical malpractice claims are not cognizable under 42 U.S.C. § 1983. Estelle v. Gamble,

429 U.S. 97, 106 (1976). To state a viable claim under 42 U.S.C. § 1983, Plaintiff must allege that

he was deprived of a right, privilege or immunity secured by the Federal Constitution or the laws

of the United States and the deprivation was caused by a person acting under color of state law. See

Doe v. Wigginton, 21 F.3d 733, 738 (6th Cir.1994). Deprivation of medical treatment claims are

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typically made under the Eighth Amendment. Although Plaintiff does not cite the Eighth

Amendment as a basis for his claim, this court will liberally construe his pro per complaint as

containing an Eighth Amendment claim. In order to prevail on a Eighth Amendment claim for

medical mistreatment, Plaintiff must show that “acts or omissions sufficiently harmful to evidence

deliberate indifference to serious medical needs.” Estelle, 429 U.S. at 106. Mere negligence or

malpractice is insufficient to establish an Eighth Amendment violation. Id.

 Plaintiff has not alleged or shown that Defendants’ acts or omissions “evidence deliberate

indifference to serious medical needs.” Id. Plaintiff did not allege that he had a serious medical

need or that Defendants ignored Plaintiff’s requests for medical treatment. Rather, Plaintiff alleges

that Defendants “negligently misdiagnosed” him in placing him in AOP, “negligently forc[ed]” him

to participate in AOP and negligently misreported his behavior during AOP in his medical file.

Allegations of negligence are not sufficient to state a claim for an Eight Amendment violation. See

id. Accordingly, the court recommends that summary judgment be entered in favor of Defendants

on Plaintiff’s medical malpractice/Eight Amendment claim. 

C. First Amendment Claim

Defendants argue that Plaintiff has not stated a claim for a First Amendment violation

because he has not alleged or shown that he was not afforded a reasonable opportunity to exercise

his religion. (Defs.’ Mot. 7). Plaintiff responds that he was not allowed to talk about his religious

beliefs during AOP and “they dident [sic] want him to talk about anything but, saying you admit to

a crime and that you have remorse for a victim.” (Pl.’s Resp. 2).

Plaintiff’s complaint is deficient because he did not identify the religion to which he ascribes,

nor did he plead or show that his religious beliefs are “sincerely held.” Flagner v. Wilkinson, 241

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F.3d 475, 481 (6th Cir. 2001) (quoting Kent v. Johnson, 821 F.2d 1220, 1224 (6th Cir. 1987). (“A

prisoner alleging that the actions of prison officials violate his religious beliefs must show that ‘the

belief or practice asserted is religious in the person’s own scheme of things’ and is ‘sincerely

held.’”). For this reason alone, Plaintiff failed to state a § 1983 claim based on the First

Amendment.

Further, Plaintiff has not shown that Defendants forced him to participate in AOP, thereby

violating Plaintiff’s First Amendment right to free exercise. Indeed, Defendants have provided a

sworn statement that AOP is a voluntary program, in which prisoners must elect to participate.

(Defs.’ Mot. Ex. A, Dr. Clark Aff. ¶ 6). Also, one of the MDOC documents Plaintiff attached to his

complaint evidences Plaintiff’s willingness to participate in AOP: “[Plaintiff] acknowledges that he

has a problem with anger and aggression and wants to participate.” (Compl. p. 36, 9/27/04 MDOC

Mental Health Progress Note). 

Accordingly, the court concludes that Plaintiff has not stated a claim for a First Amendment

violation and recommends that summary judgment be entered in favor of Defendants on Plaintiff’s

42 U.S.C. § 1983 claim. 

D. Sovereign and Qualified Immunity

Alternatively, summary judgment may be entered in favor of Defendants on the basis of

sovereign and qualified immunity.

Defendants contend that Plaintiff’s claims against the MDOC are barred by sovereign

immunity, which precludes lawsuits against states and their departments in federal court. (Defs.’

Mot. 10). Plaintiff responds that the state is often sued and is not immune to suit. (Pl.’s Resp. 3).

The Eleventh Amendment bars a suit brought in federal court against a state and its

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departments or agencies unless the state has waived its sovereign immunity or unequivocally

consented to be sued. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 (1984);

Abick v. Michigan, 803 F.2d 874, 876-77 (6th Cir. 1986). The MDOC is a state agency and the state

of Michigan has not consented to civil rights suits in the federal courts; thus, the MDOC is entitled

to Eleventh Amendment immunity. See Pennhurst, 465 U.S. at 100; Abick, 803 F.2d at 877.

Accordingly, Defendant MDOC is entitled to summary judgment based on sovereign immunity.

The individual defendants, Dr. Clark, Dr. Gartland, and Dr. Maher are also immune from

suit. Plaintiff sued the prison psychologists in their individual capacities. (Compl. p. 7-8). State

employees who are sued in their individual capacities are not liable for civil damages if “their

conduct does not violate clearly established statutory or constitutional rights of which a reasonable

person would have known.” Causey v. Bay City, 442 F.3d 524, 528 (6th Cir.2006) (internal

quotation marks omitted). In considering an assertion of qualified immunity, the court must decide:

“(1) whether, considering the allegations in a light most favorable to the party injured, a

constitutional right has been violated, and (2) whether that right was clearly established.” Estate of

Carter v. Detroit, 408 F.3d 305, 310-11 (6th Cir. 2005) (citing Saucier v. Katz, 533 U.S. 194, 201

(2001)). As discussed above, Plaintiff has not established that a constitutional violation occurred.

Thus, the first prong of the Saucier test is not satisfied, and the individual Defendants are entitled

to qualified immunity.

The court concludes that Defendants are immune from suit and Plaintiff’s claims are,

therefore, barred.

IV. Conclusion

For the reasons discussed above, the court recommends that Defendants’ motion be

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GRANTED and that summary judgment in favor of Defendants be entered on all of plaintiff’s

claims.

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

but are required to act within ten (10) days of service of a copy hereof as 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. Secretary of HHS,

932 F.2d 505, 508 (6th Cir. 1991); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).

The 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.

Secretary of HHS, 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.

Within ten (10) days of service of any objecting party's timely filed objections, the opposing

party may file a response. The response shall be no more than 20 pages in length unless, by motion

and order, the page limit is extended by the court. The response shall address each issue contained

within the objections specifically and in the same order raised.

S/Virginia M. Morgan 

Virginia M. Morgan

United States Magistrate Judge

Dated: October 28, 2009 

 

PROOF OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record and plaintiff via the Court’s

ECF System and/or U. S. Mail on October 28, 2009.

s/Jane Johnson 

Case Manager to

Magistrate Judge Virginia M. Morgan

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