Mikko v. Smock et al

Filing 55

ORDER accepting in part and denying in part 50 Report and Recommendation. Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
STEVEN MIKKO #164406,
Plaintiff,

Case No. 2:10-cv-12845
HONORABLE DENISE PAGE HOOD

VS.

TED SMOCK, et al.,
Defendants.
_______________________________________/
ORDER ACCEPTING IN PART AND REJECTING IN PART
REPORT AND RECOMMENDATION
This matter is before the Court on Magistrate Judge David R. Grand’s Report and
Recommendation filed March 7, 2012 [Doc. No. 50] on Defendants Ted M. Smock and Antoine
S. Fair’s Motion for Summary Judgment [Doc. No. 21] and Defendant Darwin Berthiaume’s
Motion for Summary Judgment [Doc. No. 44]. Timely Objections have been filed by Plaintiff
[Doc. No. 54] and Defendants [Doc. No. 52].
The standard of review by the district court when examining a Report and
Recommendation is set forth in 28 U.S.C. § 636(b)(1)(C). The Court “may accept, reject or
modify, in whole or in part, the findings or recommendations made by the Magistrate.” Id.
After review of the Magistrate Judge’s Report and Recommendation, the Court finds that
his findings and conclusions are correct in part and incorrect in part. The Court agrees with the
Magistrate Judge that summary judgment be granted for all Defendants with respect to the
October 1, 2008 incident because Plaintiff has failed to show that Defendants were personally
involved.

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As to the September 23, 2008 incident, the Court agrees with Magistrate Judge Grand
that Defendants Smock and Fair’s motion for summary judgment be denied as to Plaintiff’s
deliberate indifference claim. The Magistrate Judge correctly notes the two-prong test required
to sustain a deliberate indifference claim which Plaintiff and Defendants have argued to the
Court. Despite Defendants’ objections that Plaintiff has no evidentiary support for his claims on
the subjective prong of this test, the facts provided do establish a material question of fact. The
Court agrees that summary judgment be denied.
The Court also agrees with the Magistrate Judge that Defendants Smock and Fair’s
motion for summary judgment be denied on the grounds of qualified immunity. Plaintiff’s
Eighth Amendment right is the heart of this matter and the Court agrees that a material of
question of fact exists. Plaintiff’s claim falls within the constitutional rights exception to
defendants’ qualified immunity.
As to Defendant Berthiaume, the Court agrees with the Magistrate Judge that his motion
for summary judgment on failure to exhaust administrative remedies be denied since Plaintiff’s
Step I Prison Grievance adequately provided notice to Defendant even without listing his name.
However, the Court disagrees with the Magistrate Judge that Defendant Berthiaume is entitled to
summary judgment on Plaintiff’s cruel and unusual punishment claim. Under a conditions of
confinement claim, plaintiff must satisfy an objective and subjective component. To satisfy the
objective component, plaintiff must show that “the deprivation alleged is, objectively,
‘sufficiently serious.’” Flint v. Kentucky Dep’t of Corr. 270 F.3d 340, 352 (6th Cir. 2001) (citing
Farmer v. Brennan, 511 U.S. 825, 837 (1994)). While parties disagree over the seriousness of
Plaintiff’s ailments, a question of material fact does exist on this issue.

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To satisfy the subjective component, plaintiff must show “the prison official had a
sufficiently culpable state of mind.” Id. The Magistrate Judge recommends that Plaintiff cannot
meet this prong because Plaintiff cannot show that Defendant Berthiaume had the requisite
culpable state of mind. The Magistrate Judge points out that Plaintiff was unaware of Defendant
Berthiaume’s identity at the time he filed his initial grievance, but rather alleged that the person
who used the chemicals without turning off the ventilation system did so “deliberately”. The
Magistrate Judge reasons that without knowing the identity of this person at that time, Plaintiff’s
claim is nothing more than speculative theory as to Berthiaume’s intent. The Magistrate Judge
further reports that no evidence suggests that Berthiaume acted with the intention of harming
Plaintiff.
This Court disagrees with this analysis. First, Plaintiff, not knowing Berthiaume’s
identity at the time the chemical agent was dispersed, does not speak to Berthiaume’s state of
mind. Secondly, Berthiaume’s act of failing to power down the ventilation system and spraying a
chemical agent coupled with his experience in this practice infers that he may have possessed a
culpable state of mind. The Sixth Circuit provides, “A sufficiently culpable state of mind is one
of ‘deliberate indifference’ to inmate health and safety.” Flint, 270 F.3d at 352. “[A] prison
official cannot be found liable under the Eighth Amendment for denying an inmate humane
conditions of confinement unless the official knows of and disregards an excessive risk to inmate
health and safety.” Farmer, 511 U.S. at 825. The facts centering on his experience and the
practice itself are enough to create a material question of fact as to whether there was an
excessive risk to Plaintiff’s health and safety and whether Berthiaume disregarded the risk.
Plaintiff asserts in his Objections to the Report and Recommendation that he alleged a
failure to protect claim, not a conditions of confinement claim as it was analyzed by the

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Magistrate Judge. This Court agrees. Plaintiff’s Complaint reads, “Defendant Berthiaume’s
failure to protect plaintiff violated the ban on cruel and unusual punishment in the Eighth
Amendment to the U.S. constitution.” (emphasis added). “Officials are liable for a failure to
protect when 1) it is shown the inmate is incarcerated under conditions posing an objectively
substantial risk of harm and 2) there is a subjective showing of deliberate indifference to the
inmate’s health or safety.” Lawrence v. Bowersox, 297 F.3d 727, 731 (8th Cir. 2002) (citing
Farmer, 511 U.S. at 834). The analysis regarding the objective risk of harm remains the same as
in the conditions of confinement analysis where a material issue of fact exists on the seriousness
of Plaintiff’s injuries. Because the Sixth Circuit has enumerated deliberate indifference as
satisfying the culpable state of mind requirement in conditions of confinement cases, the analysis
remains the same for the subjective component as well and this Court finds a material question
of fact exists on Defendant Berthiaume’s subjective intent.
Accordingly,
IT IS ORDERED that Magistrate Judge David R. Grand’s March 7, 2012 Report and
Recommendation [Doc. No. 50] is ACCEPTED IN PART and REJECTED IN PART as more
fully set forth above.
IT IS FURTHER ORDERED that Defendants Smock and Fair’s Motion for Summary
Judgment [Doc. No. 21] is GRANTED as to any claims arising out of the October 1, 2008
incident alleged in Plaintiff’s Amended Complaint, but DENIED as to the Eighth Amendment
claim relating to the September 23, 2008 incident.

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IT IS FURTHER ORDERED that Defendant Berthiaume’s Motion for Summary
Judgment [Doc. No. 44] is DENIED.

S/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: March 30, 2012
I hereby certify that a copy of the foregoing document was served upon Steven Mikko #164406,
Lakeland Correctional Facility, 141 First Street, Coldwater, MI 49036 and counsel of record on March
30, 2012, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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