Moore v. Palmer et al

Filing 114

ORDER Granting in Part and Denying in Part the Portions of Defendants' 107 Motion for Summary Judgment Previously Taken Under Advisement. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MAURICE MOORE,
Plaintiff,

Case No. 12-cv-14783
Hon. Matthew F. Leitman

v.
CARMEN PALMER et al.,
Defendants.
_________________________________/

ORDER GRANTING IN PART AND DENYING IN PART THE PORTIONS
OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
PREVIOUSLY TAKEN UNDER ADVISEMENT (ECF #107)
Plaintiff Maurice Moore (“Moore”) is a former inmate of the Michigan
Department of Corrections (“MDOC”). Moore has asserted that several MDOC
employees and officials violated his Eighth Amendment rights while he was
incarcerated.1 (See Compl. at ¶¶ 116-27, ECF #1 at 20-22, Pg. ID 20-22.) On
March 15, 2016, several MDOC defendants filed a motion for summary judgment
(the “Motion”). (See ECF #107.) On June 3, 2016, the Court held a hearing on the
Motion. The Court announced its ruling with respect to the claims against certain
defendants and took three claims under advisement: Moore’s Eighth Amendment

On June 6, 2016, the Court entered an Order granting summary judgment in favor
of all defendants with respect to Moore’s First Amendment claims and his claims
of gross negligence and intentional infliction of emotional distress. (See ECF
#113.)
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claims against Defendants Matthew Macauley (“Macauley”), Ken Niemisto
(“Niemisto”), and Shane Place (“Place”) (collectively, the “Defendants”). (See
ECF #113.) This Order addresses only those claims. For the reasons provided
below, the Motion is GRANTED with respect to Defendant Macauley and
DENIED with respect to Defendant Niemisto and Defendant Place.
ESSENTIAL FACTS AND BACKGROUND
The factual background of Moore’s claims against Defendants was discussed
in detail at the Court’s June 3, 2016, hearing on the Motion. Accordingly, the
Court provides here only those facts essential to resolving the Motion.
All of Moore’s claims against Defendants relate to his allegation that he was
repeatedly and viciously assaulted by members of the Latin Counts gang (or at the
behest of the Latin Counts gang) while he was in MDOC custody. (See generally
Compl., ECF #1.) Moore alleges that during a prison riot in 1995, he helped save a
corrections officer from an attack by members of the Latin Counts gang, and he
claims that his actions “marked [him] as a target among the inmates” for the
remainder of the time he was in MDOC custody – particularly among the Latin
Counts gang. (Pl.’s Resp. Br. at 2, ECF #109 at 10, Pg. ID 923.) The parties do
not dispute that Moore was attacked several times by other inmates while he served
his sentence. Three of those attacks are relevant to claims addressed in this Order:

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one attack at the Michigan Reformatory (“RMI”) and two attacks at Marquette
Branch Prison (“MBP”).
A.

The Attack at Michigan Reformatory and Moore’s Eighth Amendment
Claim Against Defendant Macauley
In 2010, Moore was housed at RMI. Moore says that he told Defendant

Macauley, a deputy warden at RMI, that he was “starting to hear that the Latin
Counts is going to get me. . . . I’m serious about this.” (Moore Dep. at 121, ECF
#73-2 at 32, Pg. ID 421.) On June 12, 2010, Moore was slashed with a shank from
“inside [his] right ear down the right side of his neck toward the throat area.”
(Critical Incident Report at 3, ECF #70-8 at 4, Pg. ID 322.) Moore says that
Defendant Macauley violated the Eighth Amendment by ignoring the substantial
risk to Moore’s well-being. (See id.)
B.

The Attacks at Marquette Branch Prison and Moore’s Eighth
Amendment Claims Against Defendants Niemisto and Place
On June 25, 2010, Moore was transferred from RMI to MBP. (See Moore

Dep. at 123, ECF #73-2 at 32, Pg. ID 421.) Upon his arrival to MBP, Moore spoke
with Defendant Niemisto (a resident unit manager at MBP) and Defendant Place
(an assistant deputy warden at MBP) about how he feared for his safety. (See id. at
123-26, ECF #73-2 at 32-33, Pg. ID 421-22.)

.

Moore’s fears came to fruition when he was attacked on two separate
occasions. First, on March 11, 2011, Moore was attacked while he was in the
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prison kitchen. (See Assault Investigation Report, ECF #109-4 at 2, Pg. ID 960.)
During that assault, an inmate ran up to Moore and “started striking him with a
closed fist.” (Id.) Following the assault, both Defendant Niemisto and Defendant
Place received a copy of the “Assault Investigation Report” related to the attack.
(See id.) Among other things, the report said that Moore may have been attacked
because he had previously provided information to prison officials about a
“possible hit” on an officer. (Id.)
Second, on April 24, 2011, Moore was attacked while he was in the prison
auditorium. During that attack, Moore was stabbed in the eye with a pencil,
causing a puncture wound. (See Critical Incident Report, ECF #70-9 at 4, Pg. ID
326.) As a result, Moore required surgery to remove the pencil lead that was
“lodged in the bone at the back of his eye.” (Id.)
Moore now claims that Defendant Niemisto and Defendant Place violated
the Eighth Amendment by failing to protect him from these attacks.
GOVERNING LEGAL STANDARD
A movant is entitled to summary judgment when it “shows that there is no
genuine dispute as to any material fact . . . .” SEC v. Sierra Brokerage Servs., Inc.,
712 F.3d 321, 326–27 (6th Cir. 2013) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251–52 (1986)) (quotations omitted). When reviewing the record, “the
court must view the evidence in the light most favorable to the non-moving party
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and draw all reasonable inferences in its favor.” Id. “The mere existence of a
scintilla of evidence in support of the [non-moving party’s] position will be
insufficient; there must be evidence on which the jury could reasonably find for
[that party].” Anderson, 477 U.S. at 252. Summary judgment is not appropriate
when “the evidence presents a sufficient disagreement to require submission to a
jury.” Id. at 251-252. Indeed, “[c]redibility determinations, the weighing of the
evidence, and the drafting of legitimate inferences from the facts are jury
functions, not those of a judge . . . .” Id. at 255.
THE LEGAL FRAMEWORK
A.

The Court’s Two-Pronged Qualified Immunity Analysis
When a “defendant raises qualified immunity as a defense, the plaintiff bears

the burden of demonstrating that the defendant is not entitled to qualified
immunity.” Baker v. City of Hamilton, 471 F.3d 601, 605 (6th Cir. 2006). “In
resolving questions of qualified immunity at summary judgment, courts engage in
a two-part inquiry.” Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014). “The first
[prong] asks whether the facts taken in the light most favorable to the party
asserting injury show the officer’s conduct violated a federal right.” Tolan, 134 S.
Ct. at 1865. “The second prong of the qualified-immunity analysis asks whether
the right in question was ‘clearly established’ at the time of the violation.” Id. at
1867. “[B]oth [parts] must be answered in the affirmative for the case to go to a
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factfinder . . . . If either one is not satisfied, qualified immunity will shield the
officer from civil damages.” Martin v. City of Broadview Heights, 712 F.3d 951,
957 (6th Cir. 2013). “[U]nder either prong [of this inquiry], courts may not resolve
genuine disputes of fact in favor of the party seeking summary judgment.” Tolan,
134 S. Ct. at 1866. The Court is “permitted to exercise [its] 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 v. Callahan, 555 U.S. 223, 236 (2009).
B.

The Eighth Amendment Framework
Prison officials have a duty under the Eighth Amendment to provide inmates

with “humane conditions of confinement; prison officials must . . . ‘take reasonable
measures to guarantee the safety of the inmates.’” Farmer v. Brennan, 511 U.S.
825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). “A
prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an
inmate violates the Eighth Amendment.” Id. at 828. “A subjective approach must
be used to determine whether the defendants had the state of mind . . . of deliberate
indifference to inmate health or safety.” Street v. Corrections Corp. of America,
102 F.3d 810, 815 (6th Cir. 1996) (quotations and citation omitted). Under this
subjective approach,
a prison official cannot be found liable under the Eighth
Amendment . . . unless the official knows of and
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disregards an excessive risk to inmate health and 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.
Id. (quoting Farmer, 511 U.S. at 837).
ANALYSIS
A.

Defendant Macauley Is Entitled to Summary Judgment
The evidence, taken in the light most favorable to Moore, is not sufficient to

create a material factual dispute with respect to whether Defendant Macauley was
deliberately indifferent to a substantial risk of serious harm to Moore.
Moore’s deliberate indifference claim against Macauley rests entirely upon
one line from Moore’s deposition testimony.

According to Moore, he told

Defendant Macauley “I’m starting to hear that the Latin Counts is going to get me.
. . . I’m serious about this.” (Moore Dep. at 121, ECF #73-2 at 32, Pg. ID 421.)
That sole statement to Macauley – a report of rumors that Moore heard – was not
sufficient to put Macauley on notice that Moore faced a substantial risk of serious
harm. Notably, Moore has not presented any evidence that Macauley was aware of
Moore’s relevant history (i.e., his effort to protect a guard from the Latin Counts
during the 1995 riot), nor has Moore presented any evidence that Macauley was
aware of any previous attack upon, or threat against, Moore. Indeed, Moore has
not presented any evidence that Macauley knew anything (other than Moore’s selfreported rumor) about Moore or his situation. Under these circumstances, no
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reasonable juror could find that Macauley was actually aware of a substantial risk
of serious harm to Moore and that Macauley disregarded the risk. Accordingly,
Macauley is entitled to summary judgment.
B.

Defendants Niemisto and Place Are Not Entitled to Summary Judgment
The evidence, taken in the light most favorable to Moore, is sufficient to

create a material factual dispute as to whether Defendants Niemisto and Place (1)
were aware of a substantial risk of serious harm to Moore, and (2) disregarded that
risk.
1.

Defendant Niemisto

It is undisputed that Moore discussed his security concerns with Defendant
Niemisto. Moore testified at his deposition that he “talked to [Niemisto] about
[his] placement” at MBP and informed Defendant Niemisto that he kept seeing
“these faces [i.e, members of the Latin Counts] down there.” (Moore Dep. at 12526, ECF #73-2 at 33, Pg. ID 422.) And Defendant Niemisto acknowledged that
Moore raised issues with prison gangs at MBP (although Niemisto claimed Moore
downplayed the seriousness of the issues). (See Niemisto Dep. at 15, ECF #109-7
at 5, Pg. ID 988.) Moreover, Niemisto received the Assault Investigation Report
for the March 11, 2011 attack on Moore. (See ECF #109-4 at 2, Pg. ID 960
(document trailer indicates Assault Investigation Report was distributed to all
resident unit managers).) As described above, that report described an assault on
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Moore and stated that Moore may have been attacked because he provided
information to prison staff that “there was a possible hit on an officer.” Id.
Once Niemisto received and reviewed the report, he knew (1) that Moore
had raised concerns about being attacked, and (2) that Moore had actually been the
victim of a serious attack. These circumstances were sufficient to put Niemisto on
notice that Moore faced a substantial risk of serious harm. Yet, Niemisto neither
worked to transfer Moore to another prison nor to place Moore in protective
custody. Viewing these facts in Moore’s favor, a jury could find that Defendant
Niemisto was deliberately indifferent to a substantial risk of serious harm to
Moore. Accordingly, Niemisto is not entitled to summary judgment.
2.

Defendant Place

As with Defendant Niemisto, it is undisputed that Moore raised concerns
about his security with Defendant Place. Moore testified that, when he arrived at
MBP in 2010, he told Defendant Place “I’m not going to feel safe knowing that I
just got stabbed” at RMI. (Moore Dep. at 123-24, ECF #73-2 at 32-33, Pg. ID
421-22.) And according to Moore, Defendant Place responded by telling him “quit
your whining. You can handle this stuff.” (Id.) Defendant Place does not dispute
that Moore expressed concerns for his safety at MBP. (See Place Dep. at 21, ECF
#109-8 at 7, Pg. ID 1001.)

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And like Defendant Niemisto, Defendant Place – an assistant deputy warden
at MBP – also received the Assault Investigation Report for the March 11, 2011,
attack on Moore. (See ECF #109-4 at 2, Pg. ID 960 (document trailer indicates
Assault Investigation Report was distributed to assistant deputy wardens).) But
Defendant Place also took no action to transfer Moore or place him in protective
segregation even though he (Place) (1) knew that Moore had expressed fear of
being attacked, (2) knew that Moore had been attacked at his prior facility, and (3)
knew that Moore had actually been attacked in March of 2011 in MBP (the very
facility in which Place worked). Viewing these facts in the light most favorable to
Moore, a jury could find that Defendant Place was deliberately indifferent to a
substantial risk of serious harm to Moore. Accordingly, Place is not entitled to
summary judgment.
CONCLUSION
For the reasons explained above and for the reasons stated on the record
during the June 3, 2016 hearing on the Motion, IT IS HEREBY ORDERED that
the Motion (ECF #107) is GRANTED with respect to Defendant Macauley and
DENIED with respect to Defendants Niemisto and Place.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: June 13, 2016
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I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on June 13, 2016, by electronic means and/or ordinary
mail.
s/Holly A. Monda
Case Manager
[phone]

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