UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MARK A. BOUSSUM, BENJAMIN

PLATT and KENNETH HARRISON,

Plaintiffs, CIVIL ACTION NO. 09-12929

v. DISTRICT JUDGE MARIANNE O. BATTANI

D. SCUTT, K. RYAN, B. GARDON, MAGISTRATE JUDGE MARK A. RANDON

L. McMILLAN, G. JOHNSON, 

F. VAN GOETHEM, H. ELUM, 

JENNIFER GRANHOLM and

PATRICIA L. CARUSO, 

 

Defendants.

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REPORT AND RECOMMENDATION TO DENY PLAINTIFFS’

MOTION FOR A PRELIMINARY INJUNCTION (DKT. NO. 10) AND TO

DENY PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION (DKT. NO. 17)

I. INTRODUCTION

Plaintiffs, Mark Boussum, Ben Platt and Kenneth Harrison (“Plaintiffs”), are inmates

housed at the G. Robert Cotton Correctional Facility in Jackson, Michigan. Plaintiffs bring this

action under 42 U.S.C. § 1983, claiming violations of their rights under the United States

Constitution. Specifically, Plaintiffs challenge a variety of conditions of their confinement, such

as: (a) “double celling” (i.e., placing two inmates in a cell designed to hold one); (b) “cube

settings” or overcrowding; (c) food service health hazards; (d) lack of access to rehabilitative

programs; (e) inadequate medical care; (f) inadequate grievance procedures; (g) disciplinary

proceedings without due process; (h) lack of mental health care; (I) lack of access to the law

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library; (j) personal property destroyed by prison staff; (k) misappropriation of inmate funds; (l)

lack of proper protective custody; (m) misuse of inmate benefit funds; etc. Pending before the

Court is Plaintiffs’ motion for preliminary injunction (Dkt. No. 10) and Plaintiffs’ motion for

class certification (Dkt. No. 17). Since the undersigned finds: (1) that Plaintiffs have failed to

satisfy their burden of entitlement to preliminary injunctive relief, and (2) that none of the named

Plaintiffs are adequate representatives to protect the interests of a class, it is RECOMMENDED

that both motions be DENIED. 

II. DISCUSSION

A. Plaintiffs’ Motion for Preliminary Injunction Should be Denied

At the outset, it should be noted that it is not clear what exactly Plaintiffs’ motion for

preliminary injunction is asking the Court to order. Instead of containing a request for specific

injunctive relief, Plaintiffs’ motion contains a laundry list of generalized complaints about the

conditions of their confinement. Furthermore, Plaintiffs’ motion is filed and signed by Plaintiff

Kenneth Harrison, alone. As Judge Battani has previously noted (see Dkt. No. 22 – Order

Striking Motion for Reconsideration), Mr. Harrison cannot conduct this case on behalf on

Messrs. Boussum and Platt. Specifically, Judge Battani recognized that 28 U.S.C. § 1654

provides “[i]n all courts of the United States the parties may plead and conduct their own cases

personally or by counsel. . . .” Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002). Thus,

the Court will only consider the motion as it relates to Mr. Harrison, since neither Mr. Boussum

nor Mr. Platt signed the motion papers. Plaintiffs’ motion contains additional defects. In

particular, the motion asks for relief against Defendant Jennifer Granholm. See Plaintiffs’

Memorandum of Law in support of Preliminary Injunction, at 2. However, Governor Granholm

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has already been dismissed from this case, with prejudice (Dkt. No. 2). Accordingly, for these –

and other – reasons, Plaintiffs’ motion for a preliminary injunction should be denied.

1. Preliminary Injunction Standard

“A preliminary injunction is an extraordinary remedy which would be granted only

if the movant carries his or her burden of proving that the circumstances clearly demand it.”

Overstreet v. Lexington-Fayette Urban County Gov’t, 305 F.3d 566, 573 (6th Cir. 2002).

In deciding whether to grant or deny a preliminary injunction, the Court must balance

four factors: (1) whether the plaintiff has shown a strong or substantial likelihood of

success on the merits; (2) whether the plaintiff has shown irreparable injury; (3) whether

the issuance of a preliminary injunction would cause substantial harm to others; and (4)

whether the public interest would be served by issuing a preliminary injunction. See Leary v.

Daeschner, 228 F.3d 729, 736 (6th Cir. 2000). The four factors are not prerequisites to be met,

but must be balanced. In re DeLorean Motor Co., 755 F.2d 1223, 1228 (6th Cir. 1992).

Plaintiffs bear the burden of demonstrating their entitlement to a preliminary injunction,

and their burden is a heavy one. “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, 305 F.3d at 573. “[T]he proof required for the plaintiff to obtain

a preliminary injunction is much more stringent than the proof required to survive a summary

judgment motion.” Leary, 228 F.3d at 739. Thus, Plaintiffs may not merely point to genuine

issues of material fact which exist, but must affirmatively demonstrate their entitlement to

injunctive relief.

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Finally, in addition to these four factors which govern all preliminary injunctions,

Plaintiffs' suit challenging the conditions of confinement is subject to § 802 of the Prison

Litigation Reform Act, which in relevant part provides:

Preliminary injunctive relief must be narrowly drawn, extend no

further than necessary to correct the harm the court finds requires

preliminary relief, and be the least intrusive means necessary to

correct that harm. The court shall give substantial weight to any

adverse impact on public safety or the operation of a criminal

justice system caused by the preliminary relief and shall respect the

principles of comity set out in paragraph (1)(B) in tailoring any

preliminary relief.

18 U.S.C. § 3626(a)(2).

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2. Plaintiffs Are Not Entitled To A Preliminary Injunction

As noted earlier, Plaintiffs’ motion does not specifically state what they want the Court to

order Defendants to do. Rather, Plaintiffs’ motion contains general complaints about

overcrowding, inadequate medical care and misappropriation of prisoner benefit funds. In an

Affidavit attached to his motion for a preliminary injunction, however, Mr. Harrison asks the

Court to order four things: (1) issue a TRO requiring Defendants to stop the 10 percent surcharge

on inmate benefit funds and place such funds into a “general account;” (2) stop the increase of

“Cube settings” and remove all the extra beds that were added 3 months ago; (3) remove all

mental health inmates from General Population and place them in a secure housing unit; and (4)

remove all medical isolation, protective custody and punitive segregation inmates from “I-Unit.”

 The referenced principles of comity prevent a court from ordering “any prospective relief that requires

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or permits a government official to exceed his or her authority under State or local law or otherwise violates State or

local law, unless-(i) Federal law requires such relief to be ordered in violation of State or local law; (ii) the relief is

necessary to correct the violation of a Federal right; and (iii) no other relief will correct the violation of the Federal

right.” 18 U.S.C. § 3626(a)(1)(B).

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As to Plaintiffs’ claims regarding the 10 percent surcharge placed on inmate benefit

funds, Plaintiffs are not entitled to a preliminary injunction for these claims because Plaintiffs

will have an adequate remedy at law in the form of money damages if they prevail on these

claims. It is improper for the Court to issue a preliminary injunction where Plaintiffs would have

an adequate remedy at law. See Overstreet, 305 F.3d at 578 (“A plaintiff’s harm from the denial

of a preliminary injunction is irreparable if it is not fully compensable by monetary damages.”);

JDC Management, LLC v. Reich, 644 F.Supp.2d 905, 941 (W.D. Mich. 2009). 

With respect to the housing issue (i.e. Plaintiffs’ request that certain beds be removed and

that mental health/medical isolation inmates be reassigned to particular areas of the prison),

Plaintiffs have failed to submit the evidence necessary to substantiate their claims or clear the

high hurdle imposed by Fed. R. Civ. P. 65. While Plaintiffs allege overcrowding, an Eighth

Amendment claim requires more than this mere allegation. To succeed on an Eighth

Amendment claim, Plaintiffs must show that Defendants were deliberately indifferent to the

health or safety of the inmates. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). “For

injunctive relief, the plaintiffs must show that the defendants were, at the time of the suit,

‘knowingly and unreasonably disregarding an objectively intolerable risk of harm and that they

will continue to do so.’” Laube v. Haley, 234 F.Supp.2d 1227, 1242 (M.D. Ala. 2002) (quoting

Farmer, 511 U.S. at 846). Beyond Plaintiffs’ allegations, the record contains absolutely no

evidence regarding the amount of space each inmate is allotted, the amount of time he is required

to spend in that space, and the adverse effects caused by the alleged overcrowding. Without such

evidence, Plaintiffs have failed to carry their burden of demonstrating both a likelihood of

success on their Eighth Amendment claim and irreparable harm. See id. at 1244.

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Likewise, Plaintiffs have failed to show irreparable harm with respect to housing mental

health/medical isolation inmates in “I-Unit.” Mr. Harrison does not allege in his motion for a

preliminary injunction or in his Affidavit that he is a “medical isolation” or “mental health”

inmate. As noted previously, Mr. Harrison cannot represent other inmates in this action. Thus,

Mr. Harrison’s generalized complaints about harm to inmates other than himself are irrelevant to

the present motion.

Furthermore, regardless of whether any past, specific actions of the medical staff entitle

Plaintiffs to relief under § 1983, Plaintiffs have offered absolutely no evidence to show that the

level of medical staffing at the G. Robert Cotton Correctional Facility is likely to cause them

future harm. It is well-established that “[a] preliminary injunction cannot be issued based on past

harm. The purpose of a preliminary injunction is to prevent future irreparable harm.” Fisher v.

Goord, 981 F.Supp. 140, 168 (W.D. N.Y. 1997). Mr. Harrison has not provided any evidence

that he will require future medical attention, or that the staffing levels alone will make it

impossible for him to receive adequate medical care. In the absence of such evidence, Plaintiffs

are not entitled to injunctive relief based on the allegedly inadequate medical attention other

inmates received in the past.

Finally, the Supreme Court has held that as long as prison administrators rationally

pursue a legitimate penological objective, their decisions based upon their informed discretion

should be given wide ranging deference. See, e.g., Jones v. North Carolina Prisoners’ Union,

433 U.S. 119 (1977). As the Supreme Court has also noted,

[T]he problems that arise in the day-to-day operation of a

corrections facility are not susceptible of easy solutions. Prison

administrators therefore should be accorded wide ranging

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deference in the adoption and execution of policies and practices

that in their judgment are needed to preserve internal order and

discipline and to maintain institutional security.

Bell v. Wolfish, 441 U.S. 520, 547 (1979). The preliminary injunction requested by Plaintiffs

would be an unnecessary intrusion into the daily operation of the MDOC. For all these reasons,

Plaintiffs’ motion for a preliminary injunction should be DENIED.

B. Plaintiffs Are Not Entitled To Class Certification

Federal Rule of Civil Procedure 23(a) provides:

(a) Prerequisites to a Class Action. One or more members of a

class may sue or be sued as representative parties on behalf of all

only if (1) the class is so numerous that joinder of all members is

impracticable, (2) there are questions of law or fact common to the

class, (3) the claims or defenses of the representative parties are

typical of the claims or defenses of the class, and (4) the

representative parties will fairly and adequately protect the interests

of the class.

Fed. R. Civ. P 23. Plaintiffs are unrepresented and incarcerated and, therefore, not adequate

representatives to protect the interests of a class. Courts have consistently held that pro se

prisoners are not adequate class representatives able to fairly represent a class. See Oxendine v.

Williams, 509 F.2d 1405 (4th Cir. 1975); Hummer v. Dalton, 657 F.2d 621 (4th Cir. 1981);

Ethnic Awareness Organization v. Gagnon, 568 F. Supp. 1186 (E.D. Wis. 1983); Inmates,

Washington County Jail v. England, 516 F.Supp. 132 (E.D. Tenn. 1980), affirmed, 659 F.2d

1081 (6th Cir. 1981). See also, Howard v. Dougan, No. 99-2232, 2000 WL 876770, at *1 (6th

Cir. June 23, 2000); Ballard v. Campbell, No. 98-6156, 1999 WL 777435, at *1 (6th Cir. Sept.

21, 1999); Giorgio v. Tennessee, No. 95-6327, 1996 WL 447656, at *1 (6th Cir. Aug. 7, 1996);

Marr v. Michigan, No. 95-1794, 1996 WL 205582, at * 1 (6th Cir. Apr. 25, 1996); Barnes v.

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Dunn, No. 91-5889, 1991 WL 243553, at *1 (6th Cir. Nov. 21, 1991); Stanko v. Story, No. 90-

6549, 1991 WL 73257, at *1 (6th Cir. May 7, 1991).2

In addition, Plaintiffs’ claims regarding deliberate indifference to their medical care will

be embedded in specific sets of factual claims that are largely unique to each of them. These and

other claims do not involve common facts with those of other inmates who may seek to complain

about deliberate indifference to their different serious medical needs. Different defendants and

factual scenarios will surely be involved so that the individual facts of the class members will

predominate over the common facts, even if the constitutional legal framework is the same. 

Thus, this does not appear to be an appropriate case for class certification, even if Plaintiffs were

suitable class representatives.

Accordingly, Plaintiffs have failed to meet the prerequisites for class certification and this

motion should also be DENIED.

II. CONCLUSION

IT IS RECOMMENDED that Plaintiffs’ “Motion for Preliminary Injunction” (Dkt. No.

4) be DENIED; and

IT IS RECOMMENDED that Plaintiffs’ “Motion for Class Certification” (Dkt. No. 17)

also be DENIED.

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

provided for in 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). Failure to file specific

Plaintiffs may argue that they have requested counsel in this matter. Yet, this motion was denied (Dkt.

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No. 18) because Plaintiffs did not show that exceptional circumstances exist to warrant an appointment.

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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 fourteen (14) 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/Mark A. Randon 

MARK A. RANDON

UNITED STATES MAGISTRATE JUDGE

Dated: February 16, 2010

Certificate of Service

I hereby certify that a copy of the foregoing document was mailed to the parties of record on this date,

February 16, 2010, by electronic and/or ordinary mail.

s/Melody R. Miles 

Case Manager to Magistrate Judge Mark A. Randon

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