Fredrick Fisher v. WILLIAM OVERTON, Warden

1Section 1997e(a) states that “no action shall be brought with respect to prison conditions under section 1983
. . . by a prisoner . . . until such administrative remedies as are available are exhausted.” A prisoner’s § 1983 complaint
“must allege and show” that he has exhausted such remedies, Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir. 1998).
NOT RECOMMENDED FOR PUBLICATION
File Name: 05a0104n.06
Filed: February 10, 2005
No. 04-1081
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FREDRICK FISHER,
Plaintiff-Appellant
v.
WILLIAM OVERTON, Warden, et al.,
Defendants-Appellees
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN
BEFORE: MERRITT, MOORE and GILMAN, Circuit Judges
MERRITT, Circuit Judge. In this pro se prisoner case brought under 42 U.S.C. § 1983,
and subject to the limitations of 42 U.S.C. § 1997e(a) (requiring that a prisoner must exhaust all of
his available administrative remedies),1 the plaintiff, Fisher, sued William Overton, Director of the
Michigan Department of Corrections (“MDOC”) and nine other defendants employed by MDOC
for damages and injunctive relief. The basic claim is that plaintiff’s health has been seriously
harmed by second-hand smoke caused by MDOC’s failure to enforce federal and state anti-smoking
laws. The action is brought against the defendants both in their personal and official capacities.

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No. 04-1081
Fisher v. Overton
-2-
The Magistrate’s Report and Recommendation, accepted by the District Court, concludes
that the case against the nine defendants, other than Overton, should be dismissed because Fisher
did not name them in his grievance filed under § 1997e or describe their conduct for which he claims
damages. The Magistrate stated his reasons as follows:
[I]n Burton v. Jones, 321 F.3d 569, 574 (6th Cir. 2003) the Sixth Circuit held that for
a district court to find that a prisoner had administratively exhausted a claim against
a particular defendant, the prisoner must have alleged mistreatment or misconduct
on the part of the defendant at Step One of the grievance process. The court
determined that the prisoner does not exhaust his administrative remedies if the first
allegation of mistreatment or misconduct occurs at Step Two or Three of the
grievance process. The court also held that to exhaust, the prisoner must name each
particular defendant associated with the particular claim at Step One of the grievance
process. Plaintiff has not met that requirement in this case. He failed to name the
listed Defendants in Step One of his grievances, with the exception of William
Overton, and Overton is only named in a general manner without alleging any
misconduct on his part. Furthermore, the grievances fail to raise the issue of
retaliation at all. I conclude, therefore, that Plaintiff has failed to exhaust his
administrative remedies in regard to the named Defendants.
At Step I, Fisher stated only that he had “sent letters to William Overton” with copies “to all
Department of Corrections Employees” complaining that MDOC “has forced me to endure second-
hand smoke spread through-out my living quarters” causing “serious health problems, that has
affected my breathing” and resulted in “acute pain in my right lung,” all in violation of federal and
state environmental laws. Fisher’s Step II and Step III grievances do not name a particular person
or defendant. After reviewing the grievance documents referred to by the Magistrate above, we
agree that Overton, as Director of MDOC, is the person named in the grievance papers as
responsible for Fisher’s second-hand smoke injury. Fisher has not specifically named and alleged

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No. 04-1081
Fisher v. Overton
-3-
mistreatment or misconduct by the other defendants, and we must therefore affirm the judgment
below as to these other nine defendants.
Fisher did request the District Court to permit him to amend his complaint to correct the
deficiencies found by the Magistrate. Assuming that he were allowed to do so, an amendment would
not correct the problem of exhaustion against the nine defendants other than Overton because the
deficiencies are in the grievances filed with MDOC rather than the complaint in the District Court.
These are § 1997e exhaustion deficiencies that cannot be overcome by amending the District Court
complaint.
The claim against Overton in his personal capacity is that as Director of MDOC he failed to
ensure that no-smoking laws were observed in Michigan prisons. Fisher does not otherwise specify
the conduct that would render Overton personally liable. The Magistrate dismissed the personal
liability action against Overton on the following grounds:
It appears that Plaintiff has named Overton as a defendant simply because he
was the Director of the Michigan Department of Corrections. Plaintiff does not
allege, nor does he present any evidence that the Defendant had any personal
involvement in the alleged misconduct.
Section 1983 liability will not be imposed solely upon the basis of respondeat
superior. The doctrine of respondeat superior does not apply in a Section 1983
lawsuit to impute liability on the supervisory personnel unless it is shown “that the
supervisor encouraged the specific incident of misconduct or in some other way
directly participated in it.” See Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.
1984); Monell v. Dep’t of Social Servs. of the City of New York, 436 U.S. 658, 691-
695, 98 S. Ct. 2018 (1978). Plaintiff has not met that requirement in this case.
We find no error in this reasoning and hence affirm the dismissal of the action for damages against
Overton in his personal capacity.

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No. 04-1081
Fisher v. Overton
-4-
We must reverse and remand for further proceedings, however, the claim for injunctive relief
against Overton in his official capacity. Under the doctrine of Ex Parte Young, 209 U.S. 123, 155-
56 (1908), a state actor like Overton may be sued in his official capacity for prospective, injunctive
relief. See Will v. Michigan Department of State Police, 491 U.S. 58, 71 n. 10 (1989), observing that
for purposes of injunctive relief state officials may continue to be sued in their official capacities
even though they may be sued for damages only in their personal capacity. The District Court did
not address this question of Overton’s liability as an official for injunctive relief for his alleged
deliberate failure to enforce laws against smoking in prison buildings. Our remand should therefore
not be considered as ruling one way or the other on the question of whether Fisher has stated a cause
of action for injunctive relief based on the theory of deliberate indifference to his serious medical
needs as outlined in Estelle v. Gamble, 429 U.S. 97 (1976), and subsequent cases. We reserve any
judgment on that question because the District Court has not addressed it. We note that in another
context a judgment against state prison employees for allowing injurious smoking has been upheld
by this Court. See Reilly v. Grayson, 310 F.3d 519 (6th Cir. 2002). After considering the federal
§ 1983 claim, the District Court should consider Fisher’s state law claims under normal principles
of supplemental jurisdiction and sovereign immunity. We, therefore, reverse the judgment of the
District Court dismissing without discussion the claim against Overton in his official capacity and
remand for further consideration. In all other respects, we affirm the judgment of the District Court.

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