Louis David Johnson, Jr. v. Unknown Dellatifa (03-1497/1880)

*The Hono rable Herman J. Weber, United States District Judge for
the Southern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0036P (6th Cir.)
File Name: 04a0036p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
LOUIS DAVID JOHNSON, JR.,
Plaintiff-Appellant,
v.
UNKNOWN DELLATIFA
(03-1497/1880); UNKNOWN
CARLINE (03-1506/1865);
S. POWERS (03-1555/1833);
DAVE STASEWISH
(03-1559/1835),
Defendants-Appellees.
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Nos. 03-1497/
1506/1555/1559/
1833/1835/1865/
1880
Appeal from the United States District Court
for the Western District of Michigan at Marquette.
Nos. 02-00139; 02-00103; 03-00026; 02-00212 —Richard
A. Enslen, David W. McKeague, District Judges.
Submitted: January 29 and 30, 2004
Decided and Filed: February 3, 2004
Before: MARTIN and MOORE, Circuit Judges; WEBER,
District Judge.*
2 Johnson v.
Dellatifa, et al.
Nos. 03-1497/1506/1555/1559/
1833/1835/1865/1880
_________________
COUNSEL
ON BRIEF: Louis David Johnson, Jr., Munising, Michigan,
pro se.
_________________
OPINION
_________________
BOYCE F. MARTIN, JR., Circuit Judge. Louis David
Johnson, Jr., a pro se Michigan prisoner, appeals a collection
of orders entered by the district court in a number of related
cases asserting claims against prison employees pursuant to
42 U.S.C. § 1983. All of Johnson’s pending appeals have
been consolidated and referred to a panel of the court pursuant
to Rule 34(j)(1), Rules of the Sixth Circuit. Upon
examination, this panel unanimously agrees that oral
argument is not needed. FED. R. APP. P. 34(a). For the
reasons set forth below, we affirm.
ANALYSIS
Johnson v. Carline, Case Nos. 03-1506/1865
Case number 03-1506 involves a complaint against
“Unknown Carline,” a medical doctor at the Marquette
Branch Prison where Johnson had been incarcerated. The
complaint alleged that Dr. Carline improperly discontinued
Johnson’s “Caterpress” medication, which is used to treat
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
did not receive his Zovirax medication. Johnson sued Dr.

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

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

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

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

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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.

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