AVERN COHN, District Judge.
This is a prisoner civil rights case under 42 U.S.C. § 1983. Plaintiff Mark White is proceeding
After the magistrate judge certified that the pretrial proceedings were completed, (ECF No. 201), the parties were permitted to file cross motions for summary judgment directed at the merits of plaintiff's claims. The motions are fully briefed and ready for decision.
Plaintiff's claims arise out of a series of events that took place during November and December of 2013.
Sometime in the fall of 2013, plaintiff was placed on the Warden's Forum at the Gus Harrison Correctional Facility, where he was incarcerated. At that time, Klee was the Warden and McRoberts was the Deputy Warden at Gus Harrison. The Warden's Forum is used "to assist the Warden in identifying and resolving problems which exist in the general population of the institution."
According to plaintiff, at the October and November 2013 Warden's Forum meetings, he requested the facility administration consider expanding law library hours. After the November meeting, plaintiff was, allegedly, solicited by Klee for information regarding gang members at the facility.
On November 22, 2013, plaintiff's cell was randomly searched during a mass shakedown as permitted and required by MDOC policy. Officers conducting the search discovered that plaintiff had a contraband television in his cell and confiscated it. In response to having his television confiscated, plaintiff placed a kite in the mailbox of Assistant Resident Unit Supervisor (ARUS) Donaghy that states in relevant part:
(Defendants' Ex. E, Misconduct Report). ARUS Donaghy wrote plaintiff a misconduct for bribery of an employee, stating "[Plaintiff] deliberately offered me a bribe to give/withhold information in an attempt to persuade me to neglect my duties and falsify documents."
On or about December 3, 2013, Condon held a "review" with plaintiff regarding the misconduct written by ARUS Donaghy, per department policy. According to plaintiff, the review took place in a room with walls that did not reach the ceiling and with other inmates "coming in and out all the time." (Defendants' Ex. A, Plaintiff's Deposition at pp. 35-36.)
Plaintiff has varying accounts of what took place at the review. At deposition, plaintiff first testified that Condon did not read the misconduct report aloud and claimed that he did not have to.
Plaintiff's amended complaint features yet another version of the review hearing. He alleges:
(Defendants' Ex. C, Plaintiff's Amended Complaint at p. 9.)
In his affidavit, Condon states that he began reading the misconduct ticket aloud and stopped when plaintiff asked him not to read the ticket aloud due to the potential that other inmates might overhear. (Defendants' Ex. H, Condon Affidavit.) Condon further states he then confirmed plaintiff knew the substance of the misconduct and read the remainder of the ticket in his head.
Plaintiff alleges that, after the review of his bribery misconduct, he was moved into a cell with an inmate who did not bathe regularly. Condon confirms that plaintiff was indeed moved. However, Condon says that the reason plaintiff was moved was due to ARUS Donaghy expressing concern that plaintiff was overly familiar with her, as evidenced by his attempt to bribe her leading to the misconduct ticket. Plaintiff filed a grievance with administration at Gus Harrison regarding his new cell mate on December 5, 2013, the day after he was moved. (Defendants' Ex. I, 12-5-13 Grievance.) On December 12, 2013, plaintiff appealed the denial of that grievance, focusing on the fact that his cell mate did not shower. (Defendants' Ex. J, Prisoner/Parolee Grievance Appeal Form.) On December 26, 2013, McRoberts issued a response to plaintiff's original grievance, noting that it was correctly rejected and that plaintiff "will not be allowed to pick his cell mates." (Defendants' Ex. K, Step I Grievance Response).
Finally, plaintiff alleges that on December 8, 2013, he was assaulted by two other inmates whom told him they were members of the Gangster Disciples and that they had overhead Condon reading the misconduct ticket identifying Plaintiff as a "snitch." (Defendants' Ex. C, p. 9.) Plaintiff went to healthcare the next day and was treated for a "very superficial abrasion" above his left eyebrow. (Defendants' Ex. L, 12-09-13 Medical Report, partially redacted.) The report from his healthcare visit notes that plaintiff "states he does not want to speak to custody regarding assault." (Ex. L, p. 2.) Plaintiff also saw an institutional psychologist on December 9, 2013 and told the psychologist that he was assaulted but "did not provide any names or numbers of those involved and
Plaintiff did not mention this alleged assault in his grievance appeals nor did he file any requests for protection pursuant to MDOC Policy Directive 05.01.140(T). At deposition, plaintiff testified that he never sent a written request for protection to any of the defendants other than Klee, and that he never asked McRoberts for protection in any form. (Defendants' Ex. A, p. 63.)
In his motion for summary judgment, plaintiff attached what he says is a letter he sent to Klee as proof that he was seeking protection (attached as Ex. O to Defendants' motion). Plaintiff also submitted a letter he allegedly sent to Klee where he, again, tries to negotiate providing names of inmate gang members for his television. (Defendants' Ex. P, Letter to Warden Klee.) Klee, however, says that he never received these letters. Indeed, they were returned to plaintiff by Klee's administrative assistant Virgil Webb—as evidenced by the handwritten markings on the sides of the letters because they were attempts at improper communication with the warden of the facility. (Defendants' Ex. Q, Affidavit of Virgil Webb.)
From the above, plaintiff alleges that defendants retaliated against him for filing lawsuits and speaking out at the Warden's Forum by purposefully placing him in a cell with a dangerous and unhygienic inmate and by writing him misconducts. Plaintiff also alleges that defendants failed to protect him from gang members at Gus Harrison leading to the alleged December 8, 2013 assault.
Notably, plaintiff was moved by the MDOC to a different facility because of the danger alleged in this case.
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A moving party may meet that burden "by `showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case."
Fed. R. Civ. P. 56(c)(1).
The Court must decide "whether the evidence presents a sufficient disagreement to require submission to a [trier of fact] or whether it is so one-sided that one party must prevail as a matter of law."
Defendants contend that summary judgment is warranted on plaintiff's failure to protect claim because he cannot show that defendants knew of and disregarded an excessive risk to Plaintiff's safety. The Court agrees.
The Eighth Amendment prohibits MDOC officials from wantonly inflicting pain on incarcerated persons.
The subjective component—which is "deliberate indifference"—requires a plaintiff to demonstrate that a prison "official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference."
Here, plaintiff cannot establish that defendants violated his Eighth Amendment rights because he cannot show that he was in objective, physical danger or that defendants were deliberately indifferent to a substantial risk to his safety. Plaintiff's claims are supported solely by his own statements, which are, as explained above, contradicted by the record.
As to the objective component, "[p]risons are inherently dangerous institutions,"
Viewed in a light most favorable to plaintiff, his allegations that he was in danger from gang members is insufficiently vague—and normalized in the prison setting—to establish objective physical danger.
As to the subjective component, plaintiff cannot show that defendants were deliberately indifferent to a substantial risk to his safety. Plaintiff admits he did not seek protection from McRoberts. To the extent plaintiff alleges he told Klee and Condon he was in danger, his concern of being in danger from gang members is not specific enough to establish a substantial threat to his safety. Condon never drew "the conclusion in [his] own mind that [Plaintiff] needed protection" because he was never put on notice that Plaintiff was in any sort of danger. Indeed, Condon took steps at plaintiff's misconduct review hearing to ensure he did not read aloud any potentially endangering information about plaintiff. Finally, plaintiff's letters never made it to Klee's desk, and he never completed an official request for protection form, which are made readily available to inmates.
Overall, a review of the record shows that plaintiff did not request protection; rather, he made multiple offers to MDOC officials to provide names of gang members in exchange for a television set. Thus, his failure to protect claims are unsupported. No reasonable juror could conclude otherwise. Defendants are therefore entitled to summary judgment on plaintiff's Eighth Amendment claim.
Defendants also contend that plaintiff's retaliation claim is appropriate for summary judgment. The Court again agrees.
The First Amendment, among other things, guarantees a person's right "to petition the Government for a redress of grievances."
The elements of a First Amendment retaliation claim are:
As to the element of causal connection, the Supreme Court has explained that a plaintiff must show "but for" causation to sustain a retaliation claim:
Here, plaintiff alleges various types of protected conduct under the First Amendment—participation on the Warden's forum and refusing to "snitch"—and three adverse actions—misconduct tickets, moving plaintiff to a different cell with an unhygienic and allegedly dangerous cellmate, and failing to protect plaintiff. Plaintiff however has not offered any facts to support a causal connection between these things. Rather, the gravamen of plaintiff's allegations are that he believes he was retaliated against because he refused to "snitch." But the record in this case shows that it was plaintiff who was offering up information to defendants and other corrections officers in exchange for favors. Plaintiff was not "refusing to snitch," he was offering to. Thus, plaintiff has not alleged cognizable protected conduct and cannot maintain a claim for retaliation against defendants.
Regarding plaintiff's allegations of adverse action, plaintiff alleges that he was moved to a new cell with a dangerous cellmate and was not protected from harm by defendants. However, "prisoners may be required to tolerate more than average citizens before an action taken against them is considered adverse."
Further, plaintiff says that defendants failed to protect him from harm and such a failure constitutes an adverse action. As explained above, defendants did not fail to protect Plaintiff because they did not know of and disregard an excessive risk to his safety.
Finally, plaintiff cannot show a causal connection between his alleged protected conduct and the adverse actions he claimed he suffered. Plaintiff assumes that he was moved to a new cell and was assaulted because he participated on the Warden's forum and refused to "snitch." However, plaintiff provides no evidence that those things were connected. It is easy to connect two events and make self-serving assumptions about that connection, which is why the law requires more. Moreover, the record evidence in this case is contrary to plaintiff's assumption of causation, particularly with regard to the misconduct tickets he received. Plaintiff received a misconduct ticket for possessing contraband and another one for attempting to bribe an officer to suppress the first ticket. The first misconduct was the result of a mass shakedown; plaintiff was not targeted. The second misconduct ticket arose out of plaintiff's own actions in attempting to regain possession of his television set. Thus, plaintiff's allegation that he received misconducts in retaliation to protected conduct is not supported by the record.
Overall, the protected conduct and adverse actions plaintiff identifies are either not cognizable under the law, or they are not supported by record evidence. In addition, plaintiff cannot show a causal connection between the legitimate protected conduct and adverse actions he identifies, specifically regarding misconducts. Therefore, defendants are entitled to summary judgment on plaintiff's First Amendment claim.
Finally, defendants argue that they are entitled to qualified immunity because they did not violate any of plaintiff's clearly established constitutional rights. "A government official sued under section 1983 is entitled to qualified immunity unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct."
"Once [an] official[ ] raise[s] the qualified immunity defense, the plaintiff bears the burden to `demonstrate that the official [is] not entitled to qualified immunity.'"
Additionally, liability in a § 1983 action cannot be based on a theory of respondeat superior.
Here, even assuming plaintiff could make out a constitutional violation, defendants are entitled to qualified immunity. As to Plaintiff's failure to protect claims, defendants did not have knowledge of any excessive risk to plaintiff's safety because he did not make them personally aware of any such risk. Vague warnings of danger, even if an officer receives those warnings, do not attach liability to that officer without more.
A substantial portion of plaintiff's motion seeks to add new allegations and relitigate several previous discovery issues already ruled upon by the Court. Regarding his evidence to support his retaliation and failure to protect claims, plaintiff presents: (1) his own self-serving statements; (2) his allegations of what defendants told him personally; and (3) theories of conspiracy based on isolated instances with no supported connection to one another. None of this amounts to plaintiff carrying his burden of proving that he is entitled to summary judgment on his claims. Rather, as set forth in detail above, the evidence in this case fails to create a genuine issue of material fact which would require a trial.
For the reasons stated above, defendants' motion for summary judgment is GRANTED. Plaintiff's motion for summary judgment is DENIED. This case is DISMISSED.
SO ORDERED.
