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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KEITH CRUCE,

Plaintiff,

CASE NO. 2:09-CV-11523

v. HONORABLE VICTORIA A. ROBERTS

MICHIGAN DEPT. OF CORR, et al.,

Defendants.

____________________________________/

OPINION AND ORDER SUMMARILY DISMISSING COMPLAINT

AND DENYING MOTION FOR APPOINTMENT OF COUNSEL

I. Introduction

Keith Cruce (“Plaintiff”), a state prisoner convicted at the Parnall Correctional Facility in

Jackson, Michigan has filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983, as well

as a motion for appointment of counsel. Plaintiff has been granted leave to proceed in forma

pauperis for this action. In his complaint, Plaintiff states that he slipped and fell on any icy

prison yard walkway and suffered a broken leg in November, 2008. He alleges a violation of his

Eighth Amendment rights and a state law tort claim for criminal negligence. Plaintiff names the

Michigan Department of Corrections (“MDOC”), MDOC Director Patricia Caruso (“MDOC

Director”), and Warden Sherry Burt (“Warden”) as the defendants in this action. He seeks

compensatory and punitive damages, and other appropriate relief.

Having reviewed the complaint, the Court dismisses Plaintiff’s civil rights claim pursuant

to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim upon which relief may

be granted under § 1983 and on the basis of immunity. Given this determination, the Court

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declines to exercise supplemental jurisdiction over his state tort claim and denies his motion for

appointment of counsel. The Court also concludes that an appeal from this decision cannot be

taken in good faith.

II. Discussion

Plaintiff has been granted in forma pauperis status. Under the Prison Litigation Reform

Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (“PLRA”), the Court is required to sua sponte

dismiss an in forma pauperis complaint before service on a defendant if it determines that the

action is frivolous or malicious, fails to state a claim upon which relief can be granted, or seeks

monetary relief against a defendant who is immune from such relief. See 42 U.S.C. § 1997(e)(c);

28 U.S.C. §§ 1915(e)(2)(B). The Court is similarly required to dismiss a complaint seeking

redress against government entities, officers, and employees which it finds to be frivolous or

malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from

a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). A complaint is frivolous if

it lacks an arguable basis either in law or in fact. See Denton v. Hernandez, 504 U.S. 25, 31

(1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989).

This Court is aware that a pro se complaint should be held to a “less stringent standard”

than one drafted by an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). Even a pro se

complaint, however, must plead facts sufficient to show a legal wrong has been committed for

which the plaintiff may be granted relief. To state a claim under 42 U.S.C. § 1983, a plaintiff

must allege that (1) he was deprived of a right, privilege, or immunity secured by the federal

Constitution or laws of the United States, and (2) the deprivation was caused by a person acting

under color of state law. See Flagg Bros. v. Brooks, 436 U.S. 149, 155-57 (1978); Brock v.

McWherter, 94 F.3d 242, 244 (6th Cir. 1996). Despite the liberal pleading standard accorded

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pro se plaintiffs, the Court finds that Plaintiff’s complaint is subject to dismissal.

A. Eighth Amendment Claim

Plaintiff alleges a violation of his Eighth Amendment rights arising from his slip and fall

on an icy prison yard walkway in November, 2008 which resulted in a broken leg injury. 

Plaintiff asserts that he spoke to an unidentified prison yard officer concerning the possibility of

getting the walkway shoveled or salted prior to his accident.

A prisoner raising an Eighth Amendment claim for inhumane conditions of confinement

must meet objective and subjective requirements in order to establish a constitutional violation. 

See Farmer v. Brennan, 511 U.S. 825, 833 (1994). First, the failure to protect from risk of harm

must be objectively “sufficiently serious.” Id. To meet this requirement, the prisoner must show

that “he is incarcerated under conditions posing a substantial risk of serious harm.” Id. Second,

the prisoner must allege “more than ordinary lack of due care” for his safety. Id. at 835. The

prisoner must show that the prison official acted with “deliberate indifference” to a substantial

risk of harm. The prisoner must show that “the official knows of and disregards an excessive

risk to inmate health or safety; the official must both be aware of the facts from which the

inference could be drawn that a substantial risk of harm exists, and he must also draw the

inference.” Id. at 837.

Plaintiff has failed to allege facts sufficient to state such an Eighth Amendment claim. 

While an icy prison yard walkway presents the possibility for an inmate to slip and fall, it does

not pose a substantial or excessive risk of serious harm. See Brown v. Lafler, No. 07-14955,

2008 WL 4937951, *2 (E.D. Mich. Nov. 13, 2008) (Cohn, J. adopting magistrate judge’s report

finding that prisoner’s complaint of injury arising from failure to clear icy prison walkway did

not state an Eighth Amendment claim). Federal courts have consistently held that icy walkways

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and slippery prison floors do not give rise to a constitutional violation. See White v. Tyszkiewicz,

27 Fed. Appx. 314, 315 (6th Cir. 1994) (affirming dismissal of prisoner’s civil rights complaint

arising from slip and fall on ice); accord Atkins v. Sheriff’s Jail Avoyelles Parish, 278 Fed.

Appx. 438, 439 (5th Cir. 2008) (upholding dismissal of slip and fall complaint as frivolous and

for failure to state a claim); Reynolds v. Powell, 370 F.3d 1028, 1031 (10th Cir. 2004) (ruling

that plaintiff failed to show that standing water problem known to prison officials posed

substantial risk of serious harm); Bell v. Ward, 88 Fed. Appx. 125, 127 (7th Cir. 2004) (wet

floors do not pose a substantial risk of serious harm); LeMaire v. Maass, 12 F.3d 1444, 1457 (9th

Cir. 1993) (“slippery prison floors...do not even state an arguable claim for cruel and unusual

punishment”). As explained by another court, “[s]imply put, a slip and fall, without more, does

not amount to cruel and unusual punishment....Remedy for this type of injury, if any, must be

sought in state court under traditional state tort law principles.” Reynolds, 370 F.3d at 1031

(quoting Mitchell v. West Virginia, 554 F. Supp. 1215, 1217 (N.D. W.Va. 1983)).

Furthermore, while Plaintiff states that he asked an unidentified prison yard officer about

shoveling or salting the walkway, he has not shown that the officer acted with deliberate

indifference in failing to respond to his request. At best, he has shown that the officer was

negligent, which fails to state a claim under § 1983. See Collins v. City of Harker Hgts., 503 U.S.

115, 127-28 (1992); see also White, 27 Fed. Appx. at 315 (affirming dismissal of prisoner’s civil

rights complaint arising from slip and fall on ice where complaint at most alleged that defendants

were negligent); Swartz v. Hurt, 954 F.2d 725, 1992 WL 21557, *1 (6th Cir. 1992) (prisoner

failed to state a claim for deliberate indifference based upon slip and fall injury arising from wet

floor even though defendants knew about leaky heater). Plaintiff’s Eighth Amendment claim

must therefore be dismissed.

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B. Respondeat Superior Liability

Additionally, and alternatively, Plaintiff’s civil rights claim must be dismissed because

he has failed to allege facts showing the personal involvement of the MDOC, the MDOC

Director, and the Warden – the only named defendants – in the events giving rise to his

complaint. It is well-established that a civil rights plaintiff must allege the personal involvement

of a defendant to state a claim under § 1983 and that liability cannot be based upon a theory of

respondeat superior liability. See Monell v. Department of Social Svs., 436 U.S. 658, 691-92

(1978); see also Turner v. City of Taylor, 412 F.3d 629, 643) (6th Cir. 2005) (plaintiff must

allege facts showing that defendant participated, condoned, encouraged, or knowingly

acquiesced in alleged misconduct to establish liability). Plaintiff has not done so. He has not

alleged facts which indicate that the MDOC, the MDOC Director, or the Warden violated his

constitutional rights. Any claim that the defendants failed to properly supervise a corrections

employee, should be vicariously liable for the employee’s action or inaction, or did not respond

to the situation is insufficient to state a claim under § 1983. Plaintiff has also not alleged facts

showing that his injury was the result of any MDOC or prison custom, policy, or regulation, or

that any improper conduct arose from the MDOC’s deliberate failure to adequately investigate,

train, or supervise its employees. See Ellis v. Cleveland Mun. Sch. Dist., 455 F.3d 690, 700 (6th

Cir. 2006) (setting forth three-part test for such claims). Conclusory allegations are insufficient

to state a civil rights claim under § 1983. See, e.g., Lanier v. Bryant, 332 F.3d 999, 1007 (6th

Cir. 2003). Plaintiff has thus failed to state a claim against the MDOC, the MDOC Director, and

the Warden such that his complaint must be dismissed.

C. Eleventh Amendment Immunity

The Court further finds that Plaintiff’s claims against the MDOC, and the MDOC

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Director and the Warden in their official capacities, are also subject to dismissal based upon

Eleventh Amendment immunity. The Eleventh Amendment provides immunity to a state and its

agencies from suit in federal court unless the state expressly waives immunity or Congress

clearly abrogates the Eleventh Amendment in legislation designed to enforce the Fourteenth

Amendment. See Welch v. Texas Dep't. of Highways and Public Transp., 483 U.S. 468, 472-74

(1987). As Congress did not abrogate the Eleventh Amendment when enacting § 1983, neither a

state, a state agency, nor a state official sued in his official capacity is a “person” subject to suit

under § 1983. See Will v. Michigan Dep't. of State Police, 491 U.S. 58, 66-71 (1989). Unless

immunity is expressly waived, a state and its agencies are immune from an action for damages

and injunctive relief. See Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100-01

(1984); Thiokol Corp. v. Dep't. of Treasury, State of Mich., Revenue Div., 987 F.2d 376, 381 (6th

Cir. 1993). The United States Court of Appeals for the Sixth Circuit has expressly held that the

MDOC is immune from suit under the Eleventh Amendment. See Turnboe v. Stegall, No. 00-

1182, 2000 WL 1679478, *2 (6th Cir. Nov. 1, 2000) (unpublished); Ritchie v. Michigan Dept. of

Corr., 826 F.2d 1065, 1987 WL 38524, *1 (6th Cir. 1987) (unpublished). Plaintiff’s claims

against the MDOC, and the MDOC Director and the Warden in their official capacities, must

therefore be dismissed on this basis as well.

D. State Law Tort Claim

Plaintiff also raises a state law claim for criminal negligence in his complaint. The

Court, in its discretion, may agree or decline to hear pendent state claims when all federal claims

are dismissed. See, e.g., United Mine Workers v. Gibb, 383 U.S. 715, 725-26 (1966); Province v.

Cleveland Press, 787 F.2d 1047, 1055 (6th Cir. 1986). However, such discretion has been

characterized as minimal. Province, 787 F.2d at 1055. Only when there exists “overwhelming

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interests in judicial economy” that outweigh the interest in avoiding needless state law decisions

may a district court exercise its discretion to decide pendent state claims. Id. No such interests

exist in this case. Because the Court now dismisses Plaintiff’s federal claims, the Court declines

to retain jurisdiction over any state law claims.

III. Conclusion

Based upon the foregoing analysis, the Court concludes that Plaintiff has failed to state a

claim upon which relief may be granted under 42 U.S.C. § 1983 and that the MDOC, and the

MDOC Director and the Warden in their official capacities, are entitled to Eleventh Amendment

immunity. Accordingly, the Court DISMISSES WITH PREJUDICE Plaintiff’s federal civil

rights claims. This dismissal is without prejudice as to Plaintiff’s state law tort claim and the

Court makes no determination as to the merits of that claim. Given this determination, the Court

DENIES Plaintiff’s motion for appointment of counsel.

Lastly, the Court concludes that an appeal from this order would be frivolous and

therefore cannot be taken in good faith. See 28 U.S.C. § 1915(a)(3); Coppedge v. United States,

369 U.S. 438, 445 (1962); McGore v. Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir. 1997).

IT IS ORDERED.

S/Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: May 15, 2009

The undersigned certifies that a copy of this

document was served on the attorneys of record

and Keith Cruce by electronic means or U.S. Mail

on May 15, 2009.

s/Carol A. Pinegar 

Deputy Clerk

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