August v. Caruso et al
OPINION AND ORDER Following Remand From the United States Court of Appeals for the Sixth Circuit 104 . Signed by District Judge Laurie J. Michelson. (KJac)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
TRACY AUGUST, #714643,
Case No. 12-13775
Honorable Laurie J. Michelson
Magistrate Judge David R. Grand
OPINION AND ORDER FOLLOWING REMAND FROM THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT 
In 2012, Plaintiff Tracy August, a Michigan prisoner, filed this lawsuit based on a
shoulder injury she sustained while in the custody of the Michigan Department of Corrections
(“MDOC”). August alleged that Defendant-officer Felicia Ratliff ordered her to restrain an
inmate having a violent seizure, and when August complied, the inmate slammed her into a
railing where August’s arm got caught and ripped upward as the two fell to the ground, injuring
August’s shoulder. August asserted a “failure-to-protect” claim against Ratliff for giving her the
order. She also asserted that the medical treatment she received after the injury was
constitutionally inadequate. Eventually, the case was dismissed as to all defendants and August
filed a notice of appeal.
The Sixth Circuit largely affirmed the dismissal of August’s claims, but reversed and
remanded for this Court’s consideration of the following issues surrounding Ratliff:
A remand is required . . . with respect to the summary judgment in favor of
Officer Ratliff on August’s failure-to-protect claim. . . . Because it is unclear
based upon the record before this court whether the failure-to-protect claim has
been exhausted and because this claim was not addressed by the district court on
the merits, this claim must be remanded.
(R. 104, PID 1984.)
Following remand, this Court requested that the parties submit supplemental briefing on
these issues in addition to the motion for summary judgment (R. 24) that Ratliff filed earlier in
the case. That briefing is now complete, and the matter is ready for disposition. After careful
consideration of the briefs and thorough review of the pleadings, the Court finds that oral
argument will not aid in resolving the issues the Sixth Circuit asked the Court to resolve on
remand. See E.D. Mich. LR 7.1(f)(2). The Court finds that Ratliff is not entitled to summary
judgment based on non-exhaustion, nor is Ratliff entitled to qualified immunity. Accordingly,
this case will proceed to trial.
August alleged in her Complaint that on August 25, 2009, she was let out of her cell for
an hour of recreation time. (R. 1, PID 10.) At that time, she observed another inmate, “Jenks,”
having “one of her violent seizures.” (Id.) According to the Complaint, Jenks was in “a full
blown seizure swinging her arms violently, snapping her teeth, rolling her eyes into the back of
her head, and spinning around incoherently close to the upstairs railing.” (Id.) Holly Patterson,
another inmate, avers that she witnessed the situation and says that Jenks was “swinging her
arms violently out of control as she was turning in a circular motion” and that other inmates were
yelling for an officer because it looked like Jenks might fall down the stairs. (Id. at PID 51.)
Patterson avers that Jenks has seizures “on a daily basis” and “has hurt herself many, many times
during these seizures.” (Id.) Michelle O’Neil, also an inmate, avers that she too witnessed the
situation. (Id. at 54.) O’Neil says that at the time, Jenks was “swinging her arms violently in all
directions with her head rolling in different directions.” (Id. at 54.)
As August came upon the scene, another inmate was yelling for a guard. (Id. at 10.)
Defendant-officer Felicia Ratliff came up the stairs towards Jenks and ordered August to “come
back and set Jenks down.” (Id.) August hesitated (O’Neil avers that as August approached, Jenks
“began to swing her arms at inmate August and snap her teeth trying to bite August.” (Id. at
54)) but complied with the order. (Id. at 10.) As August attempted to help Jenks to the ground,
Jenks threw her body backwards against the upstairs railing, where August’s arm was caught and
yanked upwards while pinned under Jenks’s body. (Id. at PID 11.) August asked Ratliff for help
but Ratliff did nothing. (Id.) August remained pinned for approximately two minutes. (Id.)
August avers that she had previously witnessed Jenks seizing in Ratliff’s presence, and that
Ratliff had never attempted to assist Jenks. (R. 1, PID 47.) August’s complaint included several
affidavits from other inmates which support her account of what happened that day. These
include notarized affidavits from Michelle O’Neil (R. 1, PID 54) and Holly Patterson (R. 1, PID
51); and non-notarized affidavits from “Rollston,” (R. 1, PID 55), Virginia Helsel (R. 1, PID 57),
“K. Wanna” (R. 1, PID 58), and Jenks (R. 1, PID 48).
Additionally, Lana McCarthy, the Acting Health Unit Manager, avers that “[P]risoner
August #714643 was seen on August 28, 2009, for left shoulder pain. Prisoner August #714643
stated she was ordered by an officer to help an inmate while having a seizure.” (R. 24-4, PID
423.) McCarty did not say, however, whether August identified any officer in particular. (Id.)
August filed several grievances regarding her injury and subsequent treatment. Relevant
here are Grievance Numbers 09-08-3352-03B, in which August asserted that Ratliff gave her an
“unreasonable direct order” (R. 9, PID 127), and 09-09-3582-03D, in which August asserted that
she had suffered mental distress and physical injury after being ordered to restrain Jenks (R. 9,
PID 133). The parties dispute whether August pursued these grievances to completion under the
applicable MDOC policy.
Ratliff, for her part, avers that she “do[es] not recall this specific incident regarding
prisoner August.” (R. 24-2, PID 416.) She further avers, “I have learned through my training that
you are not to restrain a seizing person. I would not have given a prisoner that order.” (Id.)
At issue on remand are: (1) whether August exhausted her administrative remedies for
her failure-to-protect claim against Ratliff, and (2) if so, whether Ratliff is entitled to qualified
II. LEGAL STANDARD
In addition to their remand briefs, and in spite of the fact that no depositions have been
taken in this case, the parties have incorporated their summary-judgment briefs on the issues
presented. Summary judgment is appropriate “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). “An issue of fact is ‘genuine’ if the evidence is such that a reasonable jury could
return a verdict for the non-moving party.” Hedrick v. Western Reserve Care Sys., 355 F.3d 444,
451 (6th Cir. 2004 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “A fact is
material only if its resolution will affect the outcome of the lawsuit.” Hedrick, 355 F.3d at 451–
52 (citing Anderson, 477 U.S. at 248). In evaluating a motion for summary judgment, this Court
views the evidence, and any reasonable inferences drawn from the evidence, in the light most
favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986).
If the moving party bears the burden of persuasion at trial, her initial showing “must be
sufficient for the court to hold that no reasonable trier of fact could find other than for the
moving party.” Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986) (quotation
omitted). If the moving party does not bear the burden of persuasion at trial, she may discharge
her initial burden either by “submit[ing] affirmative evidence that negates an essential element of
the nonmoving party’s claim. . . . [or] by demonstrat[ing] to the court that the nonmoving party’s
evidence is insufficient to establish an essential element of the nonmoving party’s claim.”
Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986). If this burden is met, the non-moving party
“must come forward with specific facts showing that there is a genuine issue for trial.”
Matsushita, 475 U.S. at 587.
The Court finds that, examining exhaustion under the proper legal standard, Ratliff has
not carried her burden at the summary-judgment phase to show that every reasonable jury would
find that August failed to exhaust her administrative remedies. And in passing on the merits of
August’s failure to protect claim for the first time, the Court finds that Ratliff is not entitled to
qualified immunity on this claim.
The Prison Litigation Reform Act requires a state prisoner to give the state a fair and full
opportunity to remedy her claims before filing suit in federal court. See 42 U.S.C. § 1997e(a)
(“No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any
other Federal law, by a prisoner confined in any . . . correctional facility until such administrative
remedies as are available are exhausted.”); Woodford v. Ngo, 548 U.S. 81, 90 (2006) (“Because
exhaustion requirements are designed to deal with parties who do not want to exhaust,
administrative law creates an incentive for these parties to do what they would otherwise prefer
not to do, namely, to give the agency a fair and full opportunity to adjudicate their claim.”).
Exhaustion is an affirmative defense. Jones v. Bock, 549 U.S. 199, 212 (2007). So to be
granted summary judgment on non-exhaustion grounds, Ratliff must convince the court that no
reasonable jury could find that August exhausted the claim in question. See Surles v. Andison,
678 F.3d 452, 455–56 (6th Cir. 2012).
The Court is mindful that “all prison grievance procedures are not made alike, and what a
prisoner is required to do by one grievance procedure to exhaust his administrative remedies is
not necessarily required by another.” Troche v. Crabtree, 814 F.3d 795, 801 (6th Cir. 2016). In
Michigan’s correctional facilities, the applicable policy is Michigan Department of Corrections
Policy Directive Number 03.02.130. (R. 24-6.) The Policy provides, “Complaints filed by
prisoners regarding grievable issues as defined in this policy serve to exhaust a prisoner’s
administrative remedies only when filed as a grievance through all three steps of the grievance
process in compliance with this policy.” (R. 24-6, PID 434.) Before submitting a written
grievance, the grievant “shall attempt to resolve the issue with the staff member involved . . .
unless prevented by circumstances beyond his/her control . . . .” (Id. at PID 435.) If the issue is
not resolved, the grievant has five days to file a Step I grievance. (Id.) If the grievant is
dissatisfied with the response received at Step I, or if the grievant did not receive a timely
response, she may file a Step II grievance within ten business days of receipt or within ten
business days of the response due date. (Id. at PID 437.) If the grievant is dissatisfied with the
Step II response or does not receive a timely response, she may file a Step III grievance within
ten business days of receiving the response or within ten business days after the response was
due. (Id. at PID 438.) The opening sections of the Policy emphasize that a lack of response is not
a bar to continuing through the grievance process:
If a grievant chooses to pursue a grievance which has not been responded to by
staff within required time frames, including any extensions granted, the grievant
may forward the grievance to the next step of the grievance process within ten
business days after the response deadline expired, including any extensions which
have been granted.
(Id. at PID 436.) With these standards in mind, the Court finds that Ratliff has not carried her
burden to show that no reasonable jury could find proper exhaustion.
As to Step I, it is undisputed that MDOC received Grievance 09-08-3352-03B on August
28, 2009 (R. 9, PID 128), and received Grievance 09-09-3582-03D on September 14, 2009 (Id.
at PID 135). Therefore, MDOC’s responses were due on September 18, 2009, and October 5,
2009, respectively. (Id. at PID 131, 137.)
According to the response reviewer L. Williams, “Because [the] two grievance[s] were
closely related, [the responding officer, Sergeant Godfrey] combined them into one grievance
and responded to the two of them” together in one response at Step II. (R. 9, PID 129.)
Apparently there was an extension to the due date for the response, as August’s appeal was due
on March 11, 2010. (R. 9, PID 130.) August filed a Step II appeal from that response, which the
Grievance Coordinator received on March 12, 2010. (R. 9, PID 131.) Therefore, the Step II
response was due by April 2, 2010. (Id.)
At this point, the parties’ accounts diverge. Ratliff argued, and the Magistrate Judge and
District Judge formerly assigned to the matter agreed (or declined to address) (R. 45, PID 739; R.
53, PID 859), that because the grievances are not listed on the Step III Grievance Report for
Tracy August (R. 24-7, PID 441), August must not have pursued the grievances past Step II. But
the Step III Grievance Report is not the end of the record evidence.
August argues that she proceeded to Step III, yet her attempt to file a Step III appeal was
rebuffed because she failed to attach the Step II response to her form—a response that she never
received. Record evidence supports this assertion. August attached a letter she received from
Richard Russell, the Acting Manager of the Grievance and Appeals Section, regarding
“GRIEVANCE I.D. #WHV-09-09-3582-03d” (the identifier for the first grievance). (R. 49, PID
792.) The letter reads, “Your correspondence(es) is returned to you for the following
reason(s): . . . You must include a readable/completed Step II Grievance Appeal Form . . . You
must include the step II response(s) . . . You must complete all of the above step I and step II
grievance processes before appealing to Step III.” (Id.) August also included multiple letters she
sent to Russell and other prison officials stating that she was still waiting for a Step II response.
(R. 49, PID 794–803; R. 109, PID 2029.) Ratliff makes no argument that these letters were not
received. (R. 110, PID 2046.)
“When pro se inmates are required to follow agency procedures to the letter in order to
preserve their federal claims, we see no reason to exempt the agency from similar compliance
with its own rules.” Risher v. Lappin, 639 F.3d 236, 241 (6th Cir. 2011). Based on August’s
submissions, a reasonable jury could find that August made “affirmative efforts,” id., to comply
with the grievance policy when, having failed to receive a Step II response, consistent with the
Policy, she filed a Step III grievance. See Troche, 814 F.3d at 799 (“[W]e must examine
[plaintiff’s] declaration—because it was the only ‘evidence’ submitted with his Response to
[defendant’s] summary judgment motion—and determine adequately if it creates a genuine issue
of material fact as to whether [plaintiff] adequately complied with Ohio’s three-step grievance
procedure.”). Furthermore, Ratliff does not explain why August’s attempt to file a Step III
grievance was not logged in the system when the Policy clearly states that “[e]ach grievance
received at Step III, including those which may be rejected, shall be logged on a computerized
grievance tracking system.” (R. 24-6, PID 438 (emphasis added).) This discrepancy further raises
a genuine issue of material fact concerning whether August exhausted her claim.
Accordingly, Ratliff is not entitled to summary judgment based on August’s alleged
failure to exhaust her claims. The Court will proceed to the merits of the failure-to-protect claim.
B. Failure to Protect
August asserts that Ratliff violated her constitutional rights when, though “fully aware of
the dangers and risk,” she ordered August to restrain an inmate who was having a seizure. (R.
109, PID 2005). Ratliff asserts that she is entitled to qualified immunity for this claim.
In order to defeat a qualified-immunity defense, a plaintiff must establish (1) that the
defendant violated a constitutional right; and (2) that the right was “clearly established” at the
time of the violation. Leary v. Livingston Cty., 528 F.3d 438, 441 (6th Cir. 2008) (quoting
Saucier v. Katz, 533 U.S. 194, 201 (2001)). District courts may “exercise their sound discretion
in deciding which of the two prongs of the qualified immunity analysis should be addressed first
in light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at 232. “In
assessing . . . immunity at the summary judgment phase of the case, [courts] give the plaintiff the
benefit of all reasonable factual inferences from the record, asking only whether the officers are
entitled to judgment as a matter of law.” Krause v. Jones, 765 F.3d 675, 679 (6th Cir. 2014).
In this case, the Court will address the “clearly established” prong first. Ratliff argued in
her initial remand brief that she “could not find any case law suggesting that her actions in this
case violated clearly established law.” (R. 107, PID 1993.) August responds that the “clearly
established” right she relies on has its basis in Farmer v. Brennan, 511 U.S. 825 (1994). That
case affirmed that “prison officials have a duty . . . to protect prisoners from violence at the
hands of other prisoners.” Id. at 833; see also Knight v. Gill, 999 F.2d 1020, 1022 (6th Cir. 1993)
(“The deliberate indifference standard, first articulated in [Estelle v. Gamble, 429 U.S. 97
(1976)] has since been extended to impose upon both federal and state correctional officers and
officials the obligation to take reasonable steps to protect inmates from violence at the hands of
other inmates.” (citations and internal marks omitted)).
The Sixth Circuit recently reiterated that “the constitutional right . . . to be free from
violence at the hands of other inmates” was clearly established in Farmer. Richko v. Wayne Cty.,
819 F.3d 907, 915 (6th Cir. 2016). However, “the Supreme Court has ‘repeatedly’ warned lower
courts not to define the [constitutional] right at ‘a high level of generality.’” Hagans v. Franklin
Cty. Sheriff’s Office, 695 F.3d 505, 508 (6th Cir. 2012) (quoting Ashcroft v. al-Kidd, 131 S. Ct.
2074, 2084 (2011). As the Sixth Circuit has explained, “If a court does not carefully define the
right, it risks collapsing the two qualified-immunity inquiries into one, permitting the
constitutional-violation inquiry always to answer the clearly established inquiry.” Id. The Court
believes that a “reasonably particularized” definition of the right at issue here would be an
inmate’s right not to be needlessly ordered to restrain another prisoner engaged in violent
For this right to be “clearly established,”
[t]he contours of the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right. This is not to say that
an official action is protected by qualified immunity unless the very action in
question has previously been held unlawful, but it is to say that in the light of
preexisting law the unlawfulness must be apparent.
Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987). “Without
question, prison officials have an affirmative duty to protect inmates from violence perpetrated
by other prisoners.” Richko, 819 F.3d at 915 (quoting Wilson v. Yaklich, 148 F.3d 596, 600 (6th
Numerous cases from before the incident in question in this case establish that exposing
an inmate to “gratuitous” violence at the hands of other prisoners serves “no legitimate
penological objective” and is “simply not ‘part of the penalty that criminal offenders pay for
their offenses against society.’” Farmer, 511 U.S. at 834 (quoting Rhodes v. Chapman, 452 U.S.
337, 349 (1981)). Cases in this realm often discuss the affirmative duty to protect inmates from
premeditated assaults by other inmates. See, e.g., Leary, 528 F.3d at 442 (assault after other
inmates learned that the plaintiff was convicted of a sexual offense involving a child; Doe v.
Bowles, 254 F.3d 617, 620 (6th Cir. 2001) (assault after a female-presenting male prisoner was
threatened by an inmate with a history of violent attacks); Walker v. Norris, 917 F.2d 1449, 1453
(6th Cir. 1990) (failure to intervene after plaintiff’s decedent was chased through the prison unit
with a knife by another prisoner and had begged to be let into the yard to get away). They have
also discussed a duty to refrain from confining vulnerable inmates in close quarters with a
sexually violent offender. Bishop v. Hackel, 636 F.3d 757, 766 (6th Cir. 2011) (sexual assault of
a young prisoner confined with an inmate who had a history of sexually inappropriate behavior).
But the general consensus is this: an officer “may be held to be deliberately indifferent to a
substantial risk to inmate safety if he is aware that an inmate is vulnerable to assault and fails to
protect him.” Id. at 767.
It is similarly clear that “[i]nmates cannot be permitted to decide which orders they will
obey, and when they will obey them.” Caldwell v. Moore, 968 F.2d 595, 601 (6th Cir. 1992)
(citing Soto v. Dickey, 744 F.2d 1260, 1267 (7th Cir. 1984)). But this principle has its basis in
protecting prison security, which the Supreme Court has repeatedly stated is “central to all other
corrections goals.” Thornburgh v. Abbott, 490 U.S. 401, 415 (1989) (citing Pell v. Procunier,
417 U.S. 817, 823 (1974)). Thus, the Court is not convinced that an order for an inmate to
needlessly intervene in violent behavior by another prisoner would fall within this law.
The Court believes that based on the Farmer line of cases as well as the Supreme Court
case law regarding prison safety and inmates’ obligations to obey direct orders, any reasonable
officer, see Groh v. Ramirez, 540 U.S. 551, 563 (2004); Folks v. Petitt, No. 16-3596, — F.
App’x —, 2017 U.S. App. LEXIS 1348, at *11 (6th Cir. Jan. 23, 2017), would have perceived
that an inmate’s right to be free of unnecessary orders to restrain a violent prisoner was clearly
established at the time of the present incident.
Thus, turning to the violation prong, a failure-to-protect claim pursuant to Farmer
contains both a subjective and an objective component:
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 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.
Farmer, 511 U.S. at 837.
First, the Court asks whether, from an objective standpoint, the risk was “sufficiently
serious.” Leary v. Livingston Cty., 528 F.3d 438, 442 (6th Cir. 2008); Brooks v. Celeste, 39 F.3d
125, 127–28 (6th Cir. 1994). Taking the facts in the light most favorable to August, a reasonable
jury could so find. Ratliff herself states, “I have learned through my training that you are not to
restrain a seizing person.” (R. 24-2, PID 417.) And the inmate in question, Jenks, had a history of
violent seizures. On the date in question, by witness accounts, Jenks was in fact having a violent
seizure, “swinging her arms violently out of control” (R. 1, PID 51 (Patterson Aff.)) while
“snapping her jaws” with “her head rolling in different directions.” (R. 1, PID 54 (O’Neill Aff.))
A jury could find that an order to restrain such an inmate would pose a sufficiently serious risk of
Second, the Court asks whether Ratliff “kn[ew] that [August] face[d] a substantial risk of
serious harm and disregard[ed] that risk by failing to take reasonable measures to abate it.”
Farmer, 511 U.S. at 847. Again, the most telling piece of evidence here is Ratliff’s own
affidavit: “I have learned through my training that you are not to restrain a seizing person. I
would not have given a prisoner that order.” (R. 24-2, PID 417.) Thus, Ratliff admits that it
would not be reasonable to order an inmate to restrain another inmate having a seizure. And in
addition to this, taking the situation from Ratliff’s perspective at the time, see Jackson v. Everett,
140 F.3d 1149, 1152 (8th Cir. 1998), record evidence reflects that (1) Ratliff had witnessed Jenks
having violent seizures in the past; (2) Ratliff had already observed Jenks seizing for some time
before ordering August to intervene; (3) Jenks was swinging her arms, rolling her head, and
snapping her teeth; (4) August did not intervene of her own accord; (5) Ratliff gave an
affirmative command for August to insert herself into the situation and restrain Jenks; and (6)
Ratliff did nothing to assist.
Based on these facts, the Court concludes that a reasonable jury could find that the risk
Jenks posed was sufficiently serious, and given the knowledge and training Ratliff had at the
time, by ordering August to restrain Jenks, Ratliff acted with deliberate indifference to August’s
Accordingly, the Court finds that Ratliff is not entitled to qualified immunity for the
For the foregoing reasons, in consideration of the issues remanded, the Court finds that as
to August’s failure-to-protect claim, Ratliff did not meet her burden to prove non-exhaustion,
and that Ratliff is not entitled to qualified immunity.
Accordingly, IT IS ORDERED that this case is REOPENED and trial dates will be set.
The Court will entertain a Renewed Motion to Appoint Counsel from August, should she choose
to file one at this stage.
Dated: February 3, 2017
s/Laurie J. Michelson
LAURIE J. MICHELSON
U.S. DISTRICT JUDGE
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record
and any unrepresented parties via the Court=s ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on February 3, 2017.
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