Johnson v. Stasewish

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Johnson v. Nos. 03-1497/1506/1555/1559/ ELECTRONIC CITATION: 2004 FED App. 0036P (6th Cir.) Dellatifa, et al. 1833/1835/1865/1880 File Name: 04a0036p.06 _________________ UNITED STATES COURT OF APPEALS COUNSEL FOR THE SIXTH CIRCUIT ON BRIEF: Louis David Johnson, Jr., Munising, Michigan, _________________ pro se.

LOUIS DAVID JOHNSON, JR., X _________________ Plaintiff-Appellant, - - OPINION - Nos. 03-1497/ _________________ v. - 1506/1555/1559/ > 1833/1835/1865/ BOYCE F. MARTIN, JR., Circuit Judge. Louis David , Johnson, Jr., a pro se Michigan prisoner, appeals a collection UNKNOWN DELLATIFA - 1880 (03-1497/1880); UNKNOWN of orders entered by the district court in a number of related - cases asserting claims against prison employees pursuant to CARLINE (03-1506/1865); - 42 U.S.C. § 1983. All of Johnson’s pending appeals have S. POWERS (03-1555/1833); - been consolidated and referred to a panel of the court pursuant DAVE STASEWISH - to Rule 34(j)(1), Rules of the Sixth Circuit. Upon - examination, this panel unanimously agrees that oral (03-1559/1835), - argument is not needed. FED . R. APP . P. 34(a). For the Defendants-Appellees. N reasons set forth below, we affirm. Appeal from the United States District Court for the Western District of Michigan at Marquette. ANALYSIS Nos. 02-00139; 02-00103; 03-00026; 02-00212 —Richard A. Enslen, David W. McKeague, District Judges. Johnson v. Carline, Case Nos. 03-1506/1865

Submitted: January 29 and 30, 2004 Case number 03-1506 involves a complaint against “Unknown Carline,” a medical doctor at the Marquette Decided and Filed: February 3, 2004 Branch Prison where Johnson had been incarcerated. The complaint alleged that Dr. Carline improperly discontinued Before: MARTIN and MOORE, Circuit Judges; WEBER, Johnson’s “Caterpress” medication, which is used to treat District Judge.* high blood pressure, as well as his “Zovirax” medication, a genital herpes medication that he had been taking for several years. Johnson alleged that he became very sick as a result of the discontinuance of his Caterpress medication and that he suffered outbreaks of genital herpes during the period that he * The Hono rable Herman J. Weber, United States District Judge for did not receive his Zovirax medication. Johnson sued Dr. the Southern District of Ohio, sitting by designation.

1 Nos. 03-1497/1506/1555/1559/ Johnson v. 3 4 Johnson v. Nos. 03-1497/1506/1555/1559/ 1833/1835/1865/1880 Dellatifa, et al. Dellatifa, et al. 1833/1835/1865/1880

Carline in his official capacity and sought solely monetary Johnson has timely appealed this decision in what has been damages. docketed as case number 03-1865. On September 16, 2002, the district court entered a Thus, in case numbers 03-1506 and 03-1865, we must judgment dismissing Johnson’s complaint for failure to state review the propriety of the district court’s orders dated a claim upon which relief can be granted. The court held that February 18 (denying Johnson’s Rule 59(e) motion to alter or Johnson’s claim was barred by the Eleventh Amendment and, amend the judgment), June 25 (denying Johnson’s Rule 59(e) in any event, that he had failed to demonstrate that Dr. motion for reconsideration) and March 21 (denying Johnson’s Carline’s conduct amounted to deliberate indifference to his Rule 60(b) motion for relief from the judgment). serious medical needs in violation of the Eighth Amendment. Unfortunately for Johnson, he did not file a timely notice of appeal with respect to the district court’s September 16, 2002, Johnson did not immediately appeal the dismissal of his dismissal of his complaint. Accordingly, we cannot review complaint. Instead, on January 22, 2003, he filed a motion the propriety of that dismissal, nor can we consider the merits seeking “redress,” which the district court construed as a of Johnson’s claim against Dr. Carline. motion to alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e). On February 18, the district We begin by analyzing the timeliness of the two motions court denied this motion as untimely and Johnson that the district court construed as Rule 59(e) motions. All subsequently filed a notice of appeal. Rule 59(e) motions must “be filed no later than 10 days after entry of the judgment.” FED . R. CIV . P. 59(e). Given that the On February 26, Johnson filed another motion in the period of time specified in Rule 59(e) is less than eleven days, district court, which sought relief from the judgment pursuant Saturdays, Sundays and legal holidays are excluded from the to Rule 60(b). On March 21, the district court denied the computation of time. FED . R. CIV . P. 6(a); GenCorp, Inc. v. motion, holding that Johnson had failed to demonstrate Am. Int’l Underwriters, 178 F.3d 804, 832 n.25 (6th Cir. entitlement to relief under any of the grounds enumerated in 1999). The judgment of dismissal was entered on September Rule 60(b)(1)-(6). On April 14, Johnson filed a notice of 16, 2002, but the Rule 59 motions were not filed until January appeal. 22 and May 21, respectively. Therefore, the district court properly denied these motions as untimely. In a prior order, this Court held that Johnson’s notice of appeal as to the dismissal of his complaint was untimely, but Next, we turn to the district court’s denial of Johnson’s that he had timely appealed the February 18 and March 21 Rule 60(b) motion, which we review for abuse of discretion. orders denying his Rule 59(e) and Rule 60(b) motions. Jinks v. AlliedSignal, Inc., 250 F.3d 381, 385 (6th Cir. 2001); Johnson v. Carline, No. 03-1506 (Aug. 11, 2003). Cincinnati Ins. Co. v. Byers, 151 F.3d 574, 578 (6th Cir. 1998). Rule 60(b) permits a district court to grant a motion On May 21, 2003, Johnson filed a third motion in the for relief from the judgment for any of the following reasons: district court, this one seeking a new trial. The district court construed this motion as a motion for reconsideration (1) mistake, inadvertence, surprise, or excusable neglect; pursuant to Rule 59(e) and, on June 25, denied it as untimely. (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a Nos. 03-1497/1506/1555/1559/ Johnson v. 5 6 Johnson v. Nos. 03-1497/1506/1555/1559/ 1833/1835/1865/1880 Dellatifa, et al. Dellatifa, et al. 1833/1835/1865/1880

new trial under Rule 59(b); (3) fraud (whether heretofore exceptional or extraordinary circumstances which are not denominated intrinsic or extrinsic), misrepresentation, or addressed by the first five numbered clauses of [Rule 60(b)].” other misconduct of an adverse party; (4) the judgment Hopper, 867 F.2d at 294. is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based We find that Johnson has failed to demonstrate entitlement has been reversed or otherwise vacated, or it is no longer to relief under subsection (6) – or any other subsection – of equitable that the judgment should have prospective Rule 60(b). Johnson’s motion simply rephrases the application; or (6) any other reason justifying relief from allegations concerning Dr. Carline’s discontinuance of his the operation of the judgment. Caterpress and Zovirax medications that were contained in his complaint. This approach may be appropriate for an appeal FED . R. CIV . P. 60(b). “As a prerequisite to relief under Rule on the merits – which, as discussed, Johnson has not properly 60(b), a party must establish that the facts of its case are pursued – but it fails to “establish that the facts of [Johnson’s] within one of the enumerated reasons contained in Rule 60(b) case are within one of the enumerated reasons contained in that warrant relief from judgment.” Lewis v. Alexander, 987 Rule 60(b).” Lewis, 987 F.2d at 396. Accordingly, the F.2d 392, 396 (6th Cir. 1993). An appeal from an order district court did not abuse its discretion in denying Johnson’s denying a Rule 60(b) motion does not bring up for review the Rule 60(b) motion for relief from judgment. underlying judgment disposing of the complaint. Browder v. Dir., Dep’t of Corr., 434 U.S. 257, 263 n.7 (1978); Jinks, 250 Johnson v. Dellatifa, Case Nos. 03-1497/1880 F.3d at 385. Rather, this Court’s inquiry is limited to “whether one of the specified circumstances exists in which Case number 03-1497 involves a complaint filed against [Johnson] is entitled to reopen the merits of his underlying “Unknown Dellatifa,” a medical doctor at the Alger claims.” Feathers v. Chevron U.S.A., Inc., 141 F.3d 264, 268 Maximum Correctional Facility, the prison to which Johnson (6th Cir. 1998). was transferred from the Marquette Branch Prison. Similar to the complaint against Dr. Carline, this complaint alleged While Johnson’s motion is not explicitly based upon any that Dr. Dellatifa failed to treat Johnson’s genital herpes and particular subsection of Rule 60(b), the district court believed high blood pressure conditions properly. Specifically, that the motion implicated subsection (6). Relief from a Johnson alleged that after he arrived at the Alger prison, Dr. judgment pursuant to Rule 60(b)(6) “is appropriate to Dellatifa discontinued his Zovirax medication and did not accomplish justice in an extraordinary situation . . . .” give him a replacement herpes medication, thereby resulting Overbee v.Van Waters & Rogers, 765 F.2d 578, 580 (6th Cir. in periodic painful outbreaks and scarring. According to 1985). “[A] motion made under Rule 60(b)(6) is addressed to Johnson, he never suffered from any herpes outbreaks while the trial court’s discretion which is ‘especially broad’ given using the Zovirax medication. Johnson also alleged that Dr. the underlying equitable principles involved.” Hopper v. Dellatifa was unsuccessful in controlling his blood pressure Euclid Manor Nursing Home, Inc., 867 F.2d 291, 294 (6th and was unable to determine the appropriate blood pressure Cir. 1989) (citing Overbee, 765 F.2d at 580; Matter of medication to prescribe. Johnson sued Dr. Dellatifa in his Emergency Beacon Corp., 666 F.2d 754, 760 (2d Cir. 1981)). official capacity and sought solely monetary damages. Despite the “broad” discretion that courts enjoy to grant relief under Rule 60(b)(6), such relief is warranted “only in Nos. 03-1497/1506/1555/1559/ Johnson v. 7 8 Johnson v. Nos. 03-1497/1506/1555/1559/ 1833/1835/1865/1880 Dellatifa, et al. Dellatifa, et al. 1833/1835/1865/1880

On January 17, 2003, the district court entered a judgment Applying the standards set forth above, we conclude that dismissing Johnson’s complaint for failure to state a claim the district court did not abuse its discretion in denying upon which relief can be granted. Like Johnson’s claim Johnson’s Rule 60(b) motion. Like the motion that Johnson against Dr. Carline, his claim against Dr. Dellatifa was held filed in connection with his suit against Dr. Carline, this to be barred by the Eleventh Amendment. Additionally, the motion merely rephrases the allegations contained in the district court opined that Johnson failed to demonstrate that complaint and presents no new arguments. Because neither Dr. Dellatifa’s conduct amounted to deliberate indifference to Johnson’s motion nor the record in this case reveals any his serious medical needs in violation of the Eighth ground for granting the requested relief, the district court did Amendment. not abuse its discretion in denying the motion. Again, Johnson did not immediately appeal the district We also find that the district court properly denied court’s dismissal of his complaint. Instead, on February 24, Johnson’s Rule 59(e) motion as untimely. As set forth above, 2003, he filed a motion for relief from the judgment pursuant the judgment was entered on January 17, 2003, but the motion to Rule 60(b). On March 21, the district court denied this was not filed until May 21. motion, holding that Johnson had failed to demonstrate entitlement to relief under any of the enumerated grounds. Johnson v. Powers, Case Nos. 03-1555/1833 Johnson filed a notice of appeal on April 14. In case number 03-1555, Johnson appeals the district This Court has already issued an order holding that court’s dismissal of his complaint against “S. Powers,” a Johnson’s appeal from the district court’s March 21 order librarian at the Alger prison, for failure to state a claim upon denying his Rule 60(b) motion was timely, but that his appeal which relief can be granted. Johnson alleged that Powers from the January 17 dismissal of his complaint was untimely. refused to copy one hundred eighty-two pages of documents Johnson v. Dellatifa, No. 03-1497 (Sept. 23, 2003). that he submitted to the prison law library to be copied for one of his pending court cases. As a result of Powers’s On May 21, Johnson filed a motion in the district court for alleged inaction, Johnson was forced to send the documents a new trial, which was construed as a motion to alter or in question to the court “uncopied.” Johnson alleged that he amend the judgment pursuant to Rule 59(e) and denied as requested that the court clerk copy the documents and return untimely on June 24. Johnson filed a timely notice of appeal the originals to him, but the clerk did not do so. Johnson sued on June 27, in what has been docketed as case number 03- Powers in her official capacity and sought solely monetary 1880. relief. Thus, in case numbers 03-1497 and 03-1880, we must The district court held that the claim was barred by the determine the propriety of the district court’s determinations Eleventh Amendment and that, in any event, Johnson had that Johnson was not entitled to relief from the district court’s failed to demonstrate that he had suffered a deprivation of a judgment of dismissal pursuant to Rule 60(b) and that his constitutional right. Accordingly, on April 7, 2003, the Rule 59(e) motion was untimely. district court dismissed the complaint. Johnson filed a timely notice of appeal. Nos. 03-1497/1506/1555/1559/ Johnson v. 9 10 Johnson v. Nos. 03-1497/1506/1555/1559/ 1833/1835/1865/1880 Dellatifa, et al. Dellatifa, et al. 1833/1835/1865/1880

Additionally, on May 19, Johnson filed a motion for a new the merits of Johnson’s allegations of wrongdoing on the part trial, which the district court construed as a motion to alter or of Powers. amend the judgment pursuant to Rule 59(e). On June 24, the district court denied this motion as untimely. Johnson filed Johnson v. Stasewish, Case Nos. 03-1559/1835 a timely notice of appeal of this order in what has been docketed as case number 1833. Case number 03-1559 involves a claim against Dave Stasewish, a correctional officer at the Alger prison, alleging Thus, in case numbers 03-1555 and 03-1833, we must various acts of harassment. For example, the complaint review two decisions by the district court: its April 7 alleges that Stasewish continuously bangs and kicks dismissal of Johnson’s complaint and its June 24 denial of his Johnson’s cell door, throws his food trays through the bottom Rule 59(e) motion. slot of his cell door so hard that the top flies off, makes aggravating remarks to him, makes insulting remarks about We review de novo the district court’s dismissal of his hair being too long, growls and snarls through his Johnson’s complaint. Brown v. Bargery, 207 F.3d 863, 867 window, smears his window to prevent him from seeing out (6th Cir. 2000). The district court determined that Johnson’s of it, behaves in a racially prejudicial manner toward him and claim against Powers in her official capacity was barred by jerks and pulls him unnecessarily hard when escorting him the Eleventh Amendment. That determination is correct. In from his cell. Johnson contends that Stasewish knows that he Doe v. Wigginton, 21 F.3d 733, 736-37 (6th Cir. 1994), we suffers from hypertension and intentionally harasses him in an held that a suit for monetary damages against an individual in attempt to cause him to suffer a heart attack, stroke or nervous his or her official capacity is deemed to be an action against breakdown. Unlike the other section 1983 suits that Johnson the state whose officers are nominal defendants. Such a suit, has filed, Johnson sued Stasewish in his individual capacity, we held, is barred by the Eleventh Amendment unless the seeking solely monetary relief. state expressly consents to being sued and therefore waives its sovereign immunity. Id. The state of Michigan, however, has On March 31, 2003, the district court dismissed Johnson’s not consented to being sued in civil rights actions in the complaint for failure to state a claim upon which relief can be federal courts. See Abick v. Michigan, 803 F.2d 874, 877 (6th granted. The dismissal was based not on sovereign immunity Cir. 1986). Therefore, because Johnson’s claim is barred by grounds, but rather on the district court’s conclusion that the Eleventh Amendment, the complaint was properly Johnson had failed to prove a constitutional violation. dismissed.1 In light of that conclusion, we need not address Johnson subsequently filed a motion for a new trial, which the district court construed as a Rule 59(e) motion to alter or amend the judgment and, on June 23, denied as untimely. 1 Johnson timely appealed the district court’s dismissal of his A similar defect plagued the lawsuits that Johnson filed against Dr. Carline and Dr. Dellatifa – though, as discussed above, the judgments of complaint and its denial of his Rule 59(e) motion, the latter of dismissal in those cases we re not timely appealed. W e note that Johnson which has been docketed as case number 1835. could have avo ided this sovereign immunity bar by suing for injunctive or declaratory relief, rather than monetary relief, see W ill v. Mich. Dep’t of State Police, 491 U .S. 58 , 71 n.10 (1 989 ), or by suing the defendants in their individual, rather than official, ca pacities (subject, of course, to qualified immunity defenses), see Rodgers v. Banks, 344 F.3d 587, 594 (6th C ir. 200 3). Nos. 03-1497/1506/1555/1559/ Johnson v. 11 1833/1835/1865/1880 Dellatifa, et al.

Our de novo review of the dismissal of Johnson’s complaint leads us to conclude that while the allegations, if true, demonstrate shameful and utterly unprofessional behavior by Stasewish, they are insufficient to establish an Eighth Amendment violation. “Not every unpleasant experience a prisoner might endure while incarcerated constitutes cruel and unusual punishment within the meaning of the Eighth Amendment.” Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987). We have held that harassment and verbal abuse, such as Johnson has described, do not constitute the type of infliction of pain that the Eighth Amendment prohibits. Id. at 954-55. Therefore, Johnson’s section 1983 claim was properly dismissed. We must also affirm the district court’s conclusion that Johnson’s Rule 59(e) motion was untimely because it was filed nearly two months after the judgment of dismissal was entered. CONCLUSION For these reasons, the district courts’ orders in this consolidated case are AFFIRMED.