Greshamn v. Stewart et al

Filing 35

ORDER DENYING PLAINTIFFS MOTION FOR SUMMARY JUDMENT [# 29], AND GRANTING IN PART AND DENYING IN PART DEFENDANTS MOTION FOR SUMMARY JUDGMENT [#25], DENYING MOTION TO AMEND [#33] WITHOUT PREJUDICE AND DISMISSING DEFENDANTS HUDSON, JENKINS AND MCINNIS. Signed by District Judge Gershwin A. Drain. (Bankston, T)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL GRESHAM,
Plaintiff,

Case No. 13-10189
HON. GERSHWIN A. DRAIN

vs.

DARRELL STEWARD, et al.,

Defendant,

__________________________/
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDMENT [# 29], AND
GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT [#25], DENYING MOTION TO AMEND [#33] WITHOUT PREJUDICE AND
DISMISSING DEFENDANTS HUDSON, JENKINS AND MCINNIS

On January 17, 2013, Michael Gresham, an inmate confined by the Michigan Department
of Corrections, filed this civil rights action under 42 U.S.C. § 1983. From October 2012 to
February 2013, while confined at the Macomb Correctional Facility (“MCF”) in New Haven,
Michigan, Plaintiff alleges that three prison officers, a prison nurse, and four administrative staff
violated his First and Eighth Amendment rights.
Presently before the Court are the parties’ cross-motions for summary judgment [# 25; #
29]. Defendants filed a response to Plaintiff’s motion on March 27, 2014 [# 32]; Plaintiff filed a
reply on April 11, 2014 [# 34] and an addendum on March 4, 2013 [# 31].
The parties’ motions present four issues for review: (1) whether default judgment is
appropriate for Defendants’ alleged failure to file timely responsive pleadings; (2) whether any

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party is entitled to summary judgment on Plaintiff’s two First Amendment claims; (3) whether
any party is entitled to summary judgment on Plaintiff’s three Eighth Amendment claims; and
(4) whether Defendants are shielded from civil liability by the doctrine of qualified immunity.
For the reasons that follow, the Defendants’ motion is GRANTED IN PART, DENIED
IN PART, and the Court requests further material to support Defendants’ factual claims as to
Plaintiff’s transfer. Plaintiff’s motion for summary judgment is DENIED.
I. FACTUAL BACKGROUND
A. Plaintiff’s Confinement History
Plaintiff, an inmate, was a member of the Residential Treatment Program (“RTP”) at MCF.
The Michigan Department of Corrections characterizes the RTP as “the recommended level of
care for seriously mentally ill prisoners who continue to demonstrate significant impairments in
social skills as well as a limited ability to participate independently in activities of daily living.”
(http://www.michigan.gov/corrections/0,4551,7-119-68854_68856_9744-23254--,00.html).
Prisoners participating in the RTP are separated from the general population.
Plaintiff was a participant in the RTP at MCF until February 2013. A Security Classification
Screen was completed by Defendant Sgambati on February 6, 2013. Defendants allege that
through this routine evaluation, Plaintiff was revealed to have incurred 35 “management points.”
Consistent with Michigan prison policy directives, Defendants contend that Plaintiff’s 35
“management points” animated Plaintiff’s transfer order from a level-IV to a level-V security
housing unit. Plaintiff was then discharged from RTP and transferred to a level-V prison in
Marquette, Michigan.
B. Circumstances Surrounding Plaintiff’s Physical Altercation with Prisoner Gunn

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Beginning in October 2012 through February 2013, Plaintiff alleges that Defendants Adams,
Hudson, and Jenkins, corrections officers at MCF, approached Plaintiff in his cell with the
purpose of bringing about physical harm to the Plaintiff. Specifically, Plaintiff alleges that each
Defendant referred to Plaintiff during these encounters as a “snitch.” Further, Plaintiff attributes
a deliberative quality to the officers’ locution. He contends that each Defendant employed the
culturally-loaded prison term “snitch” in front of other inmates with the purpose of inducing
other prisoners to commit an assault on Plaintiff. Plaintiff also contends that, in January 2013,
Defendants Adams solicited an assault on Plaintiff by offering other prisoners recreational
paraphernalia (coffee, televisions). Defendants deny these allegations.
Plaintiff argues that Adams’, Hudson’s, and Jenkins’ conduct was motivated by a
sequence of grievances Plaintiff filed, which sought relief from his confinement conditions.
Plaintiff contends Defendant Adams had an additional motive to retaliate against him.
Specifically, that Plaintiff disclosed the alleged circumstances surrounding another prisoner’s
death in November 2012, which implicated Defendant Adams in professional misconduct.
Defendant Adams denies the alleged misconduct. Defendants Adams, Hudson, and Jenkins deny
having been motivated in any way by Plaintiff’s protected actions.
On the morning of January 19, 2013, Defendant Jenkins witnessed Plaintiff and prisoner
Lester Gunn engaged in a violent physical altercation. Defendants Adams, Hudson, and Jenkins
responded to the outbreak. Defendants contend that after Plaintiff failed to comply with orders to
stop fighting Defendant Jenkins deployed his Electronic Control Device (“ECD”), a Taser, which
struck Plaintiff in his lower back and upper hip area. Plaintiff alleges the Taser also struck his
face. Defendants Adams and Hudson assisted Defendant Jenkins in the physical restraint of
prisoner Gunn and Plaintiff.

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Plaintiff alleges his altercation with prisoner Gunn was intentionally induced by
Defendants, who deliberately called Plaintiff a “snitch” in Gunn’s presence, and that following
the fisticuffs Defendant Adams remarked, “[t]hat’s payback,” in reference to grievances filed
against fellow officers. Plaintiff also contends that Defendants removed coffee and a color
television from his cell following the altercation and redistributed them to prisoner Gunn.
Defendants maintain the coffee was contraband and was confiscated from Plaintiff’s cell. They
also deny distributing the coffee or television to prisoner Gunn as recompense for Gunn’s
altercation with Plaintiff.
Following the physical exchange between prisoners, Plaintiff was seen by a prison nurse,
Defendant McInnis, who examined Plaintiff’s medical condition. Plaintiff contends that, as a
result of the Taser’s contact with his face, he sustained a chipped tooth and bleeding lip.
Defendant McInnis denies finding Plaintiff with any dental or oral afflictions. Plaintiff maintains
that the medical care he received from Defendant McInnis was inadequate and that she
deliberately refused proper care in order to conceal the amount of force used by Defendant
Jenkins.
C. Circumstances Surrounding Plaintiff’s Transfer to Level-V Security Prison
During his time in the RTP at MCF, Plaintiff filed grievances relating to his relationship
with MCF staff, his conditions of confinement, and his status as an indigent. All of his
complaints were rejected and then denied upon appeal. Plaintiff alleges that administrators at
MCF transferred Plaintiff to a level-V security prison as a result of Plaintiff lodging voluminous
complaints.
On February 6, 2013, Defendant Sgambati, Assistant Resident Unit Supervisor at MCF,
completed a Security Classification Screen of Plaintiff. Defendants allege this routine procedure

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revealed Plaintiff’s accumulation of 35 “management points,” which justifies Plaintiff’s transfer
to a level-V security facility pursuant to Michigan prison policy directives. An order for transfer
was furnished. Defendant Grant, a Resident Unit Manager at MCF, is Defendant Sgambati’s
supervisor and oversees Defendant Sgambati’s compliance with the policies and procedures of
the Michigan Department of Corrections. Defendant Grant maintains Defendant Sgambati’s
conformity with prison transfer procedure. Both Defendant Grant and Sgambati deny Plaintiff’s
transfer was initiated by anything other than his “management points” and the consequent
custody level (level-V) as defined by Michigan prison policy directives.
Plaintiff responds that his 35 “management points” pre-existed his transfer; in fact, Plaintiff
contends that he had 35 points when he was initially sent to participate in the RTP at MCF. The
“management points,” Plaintiff argues, were inconsequential to his transfer; his transfer was
instead retaliatory, motivated by the series of grievances he filed while at MCF.
Defendant Plummer, also a Resident Unit Manager at MCF, performs a final review of
paperwork relating to prisoner transfers from MCF. Defendant Plummer signed Plaintiff’s
transfer order. Defendant maintains this was consistent with Michigan Department of
Corrections policy directives and was not related to Plaintiff’s grievances or other protected
actions.
Plaintiff also maintains that he spoke with Defendants Grant, Plummer, Sgambati, and
Steward1 about officers referring to Plaintiff as a “snitch” in front of other inmates. Plaintiff
contends that he conveyed a fear of physical retribution from fellow prisoners during these
conversations. Defendants Grant and Steward acknowledge speaking with Plaintiff, but deny
having understood Plaintiff’s message to be implicating officers or other staff in the physical

1

Defendant Steward is the Deputy Warden at MCF, supervising the department of custody and
overseeing the safety of prisoners and prison staff.
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endangerment of Plaintiff. Defendant Plummer denies having any personal knowledge of
Plaintiff. After allegedly disclosing the actions of corrections officers that put his safety at risk,
Plaintiff contends that Grant, Plummer, Sgambati and Steward “conspir[ed] together to transfer
[Plaintiff] out of RTP and to a higher custody [level]” to “deter him [from] such protected
conduct [i.e., making complaints about MCF officers].” (Pl. Mot. Summ. J. at 20-1).
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(a) empowers the Court to render summary judgment
“if the pleadings, depositions, answers to interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” See Redding v. St. Eward, 241 F.3d 530, 532
(6th Cir. 2001). The Supreme Court has affirmed the courts’ use of summary judgment as an
integral part of the fair and efficient administration of justice. Celotex Corp. v. Catrett, 477 U.S.
317, 327 (1986).
The standard for determining whether summary judgment is appropriate is “‘whether the
evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.’” Amway Distribs. Benefits Ass'n v.
Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251–52 (1986)). The evidence and all reasonable inferences must be construed in
the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986); Redding, 241 F.3d at 532 (6th Cir. 2001). “[T]he mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be no genuine

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issue of material fact.” Anderson, 477 U.S. at 247–48 (emphasis in original); see also Nat’l
Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001).
If the movant establishes by use of the material specified in Rule 56(c) that there is no
genuine issue of material fact and that it is entitled to judgment as a matter of law, the opposing
party must come forward with “specific facts showing that there is a genuine issue for trial.”
First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 270 (1968); see also McLean v. 988011
Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Mere allegations or denials in the non-movant's
pleadings will not meet this burden, nor will a mere scintilla of evidence supporting the nonmoving party. Anderson, 477 U.S. at 248, 252. Rather, there must be evidence on which a jury
could reasonably find for the non-movant. McLean, 224 F.3d at 800 (citing Anderson, 477 U.S.
at 252).
III. LAW AND ANALYSIS
A. Default Judgment
Plaintiff contends that default judgment should be granted because Defendants did not
answer or defend within 20 days after being summoned. The Court has considered and rejected
Plaintiff’s argument once before. See Dkt. No. 27. Plaintiff’s claim is DENIED.
B. Claims arising under the First Amendment
Title 42 U.S.C. § 1983 outlines the remedy for constitutional violations committed by
state actors. In the instant case, Plaintiff alleges that government officials retaliated against him
for exercising his First Amendment constitutional rights, actions that would form the basis of a
constitutional violation. “It is well established that government actions, which standing alone do
not violate the Constitution, may nonetheless be constitutional torts if motivated in substantial

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part by a desire to punish an individual for exercise of a constitutional right.” Thaddeus-X v.
Blatter, 175 F.3d 378, 386 (6th Cir. 1999); accord Crawford–El v. Britton, 523 U.S. 574 (1998).
Plaintiff alleges two claims of retaliation that stem from the exercise of his First
Amendment rights. First, that his transfer to another prison, executed by the Defendants
Sgambati, Grant, Plummer, and Steward, was motivated by grievances Plaintiff filed against
prison staff. His second claim alleges that his encounter with prisoner Gunn was “set up” by
Defendants Adams, Hudson, and Jenkins, who were motivated by grievances Plaintiff filed.
The Sixth Circuit has outlined a three-part framework to establish a First Amendment
retaliation claim.
(1) The plaintiff engaged in protected conduct; (2) an adverse action was taken
against the plaintiff that would deter a person of ordinary firmness from
continuing to engage in that conduct; and (3) there is a causal connection between
elements one and two—that is, the adverse action was motivated at least in part
by the plaintiff's protected conduct.
Thaddeus-X, 175 F.3d at 394.
1. Protected Conduct
The first step in Plaintiff’s retaliation claims is to determine whether the grievances he
filed against prison officials are properly considered ‘protected conduct.’ In Pell v. Procunier,
417 U.S. 817, 822, 94 (1974), the Supreme Court held that “a prison inmate retains those First
Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate
penological objectives of the corrections system.” Sixth Circuit case law has made clear that,
included in a prisoner’s otherwise more limited bundle of First Amendment rights, is the
constitutionally protected right to file grievances against prison staff. In Herron v. Harrison, the
court held that the plaintiff had an “undisputed First Amendment right to file grievances against

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prison officials on his own behalf.” 203 F.3d 410, 415 (6th Cir. 2000); see also Hill v. Lappin,
630 F.3d 468 (6th Cir. 2010).
If the grievances are frivolous, however, this right is not protected. Herron, 203 F.3d at
415; see also Lewis v. Casey, 518 U.S. 343, 353 (1996) (“Depriving someone of a frivolous
claim ... deprives him of nothing at all, except perhaps the punishment of Federal Rule of Civil
Procedure 11 sanctions.”). Despite the Michigan Department of Correction’s grievance and
grievance appeals processes, which rejected Plaintiff’s complaints for failing to state issues
concisely or otherwise according to procedure, this Court finds that Plaintiff’s grievances are
protected conduct. This Court cannot say that the grievances, although scattered, are prima facie
frivolous. Plaintiff has met the first requirement of establishing protected conduct.
2. Adverse Action
The Plaintiff must also establish that the Defendants took an adverse action against him.
An adverse action “is one that would ‘deter a person of ordinary firmness’ from the exercise of
the right at stake.” Thaddeus-X, 175 F.3d at 396 (citing Bart v. Telford, 677 F.2d 622, 625 (7th
Cir. 1982)). In the Sixth Circuit, a transfer is an action that can be adverse as a matter of law.
Thaddeus-X, 175 F.3d at 396. Therefore, the Court finds that Plaintiff has met his burden to
preclude summary judgment for Defendants Sgambati, Grant, Plummer, and Steward, who
oversaw his transfer, on the issue of an adverse action.
The second retaliation claim, which arises out of Plaintiff’s encounter with prisoner Gunn
and alleges that Defendants Adams, Hudson, and Jenkins “set up” the confrontation, requires a
more fine-grained application of the “ordinary firmness” standard. The Sixth Circuit has
emphasized the context-specific nature of adverse action inquiries, stating that “[p]risoners may

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be required to tolerate more than public employees, who may be required to tolerate more than
average citizens, before an action taken against them is considered adverse.” Id at 398.
“While certain threats or deprivations are so de minimis that they do not rise to the level
of being constitutional violations,” the adverse action threshold is only intended to “weed out
inconsequential actions, and is not a means whereby solely egregious retaliatory acts are allowed
to proceed past summary judgment.” Id. The question before this Court is whether there is a
genuine issue of material fact regarding the deterrent effect on Plaintiff’s constitutional right to
file grievances engendered by the alleged action (“setting up” the assault). The Court need not
pause for long. The deterrent effect of physical harm as claimed by Plaintiff is sufficient, even in
the context of prison, to establish an adverse action by Defendants.
3. Causal Connection
The third element of a First Amendment retaliation claim resides in the subjective
motivation of the defendant. A plaintiff must establish a “causal connection between the
protected conduct and the adverse action.” Thaddeus-X, 175 F.3d at 399. Specifically, a plaintiff
“must show that the [action] was motivated, at least in part, by the plaintiff’s protected activity.”
Smith v. Campbell, 250 F.3d 1032, 1038 (6th Cir. 2001).
A robust body of case law governs the analysis of “motive” in retaliation claims. First, a
plaintiff holds the burden of establishing that her protected conduct was a motivating factor
behind any harm. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977).
Once established, the burden of production shifts to the defendant, who is entitled to summary
judgment if she can show that the same action would have been taken in the absence of the
protected activity. Thaddeus-X, 175 F.3d at 399.

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As to the claim of retaliatory transfer, Defendants contend that Plaintiff has failed to meet
his initial burden. The Court finds that Plaintiff’s affidavits and supporting materials establish his
initial burden as to Defendants Sgambati, Grant, Plummer, and Steward to preclude summary
judgment in favor of Defendants. It is not this Court’s “function … to weigh the evidence and
determine the truth of the matter but [rather] to determine whether there is a genuine issue for
trial.” Anderson, 477 U.S. at 251. Plaintiff’s materials cite with specificity the dates and nature
of conversations with these Defendants that support a motive for retaliatory transfer.2
The burden shifts to the Defendants to demonstrate that the transfer would have been
executed even in the absence of Plaintiff’s protected activity. Defendants contend that their
collective affidavits establish that Plaintiff was transferred because he was no longer part of the
RTP and that his 35 “management points” “screened him at a higher security level.” (Def. Mot.
Summ. J. at 17). Thus, Defendants contend that Plaintiff’s transfer was effectuated by
circumstances wholly independent of his engagement in protected actions. To support their claim
that Plaintiff’s 35 “management points” engendered his transfer, Defendants refer to a series of
Michigan Department of Corrections Policy Directives. Defendants argue these directives guided
their decision to transfer Plaintiff to a higher security level, not Plaintiff’s grievances. The Court
has reviewed the policy directives and found them to be, by themselves, insufficient grounds to
warrant summary judgment in favor of the Defendants.
The policy directives outline the basic framework for determining an inmate’s proper
facility security level. The Department of Corrections P.D. 05.01.130 calls for a Security
Classification Committee, which is “responsible for ensuring proper prisoner placement at the

2

Specifically, Plaintiff identifies February 6, 2013 as the date Defendant Sgambati told Plaintiff
he would “be transferred for filing too many complaints.” (Pl. Mot. Summ. J. at 18). Also, that
during a conversation in Defendant Grant’s office, Grant “said she would transfer [Plaintiff] for
his complaining.”Id. Plaintiff raises similar allegations as to Plummer and Steward.
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institution.” P.D. 05.01.130. The committee is appointed by the prison warden and must “include
at least two command staff supervisors…one of whom must be of the rank of Assistant Deputy
Warden or above.” Id. The committee may, at its discretion, “initiate a review of a prisoner’s
security level if the committee believes the level may have changed.” Id. From the Defendants’
collective affidavits, these procedures appear to have been followed.
Decisions made by the committee vis-à-vis a prisoner’s placement must “be in
accordance with PD 05.01.140 ‘Prisoner Placement and Transfer.’” Id. This section mandates
that prisoner placement be consistent with another set of standards set forth in Administrative
Rule 791.4401. See P.D. 05.01.140. Here, “a prisoner’s security classification is a determination,
based on the experience of correctional administrators, as to the level of confinement required
for public safety and the safety of security of the facility.” Admin. Rule 791.4401(1). A set of
factors are put forth as the criteria upon which a classification determination can be made,
including, inter alia, “[t]he safety of others; [t]he protection of the general public; [m]aintenance
of control and order.” Id.
Further, P.D. 05.01.135, Statistical Risk Screening, mandates that,
[A] Transfer Order shall be used … except if the transfer is to a different security level
within the institution at which the prisoner is currently housed. Transfer Orders shall
include the purpose of transfer…Security Threat Group (STG) designation, assaultive
and property risk designations, current security screening designations, and any pertinent
information as to special precautions which should be taken with that prisoner.
P.D. 05.01.135.
The policy directives as described do not, in any way, indicate a relationship between
“management points” and “prisoner security levels.” Instead, to determine a prisoner’s security
level, the directives explicitly outline basic criteria and procedure that factor into the
determination, none of which were addressed by the Defendants. Nor have Defendants

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established a factual basis upon which this Court can conclude that 35 “management points”
effectuated Plaintiff’s transfer. Given the lack of materials, the Court is unable to determine the
significance of a 35 “management points” or how such a score would affect a prisoner’s security
level and the need to be transferred.
The facts presently before the Court preclude a determination that Plaintiff’s
“management points” effectuated his transfer and not his protected conduct. Defendants are not
entitled to judgment in their favor on this claim. As to Plaintiff’s motion for summary judgment
on this claim, it is DENIED. The Defendants’ contention that Plaintiff’s “management points”
animated his transfer creates a genuine dispute of material fact as to the issue of motive.
As to the second First Amendment retaliation claim, which arises out of Plaintiff’s
encounter with prisoner Gunn, the Court concludes that Defendants Hudson and Jenkins are
entitled to summary judgment. These Defendants deny “setting up” an attack on Plaintiff, and
deny that Plaintiff’s grievances would motivate them to do so. Plaintiff’s affidavits and other
supporting materials fail to present anything more than the mere allegations found in his
pleadings. Plaintiff has not come forward with “specific facts showing that there is a genuine
issue for trial” on the issue of a causal connection. First Nat'l Bank v. Cities Serv. Co., 391 U.S.
253, 270 (1968). Summary judgment is GRANTED in favor of Defendants Hudson and Jenkins
on Plaintiff’s second retaliation claim.
Plaintiff does, however, present sufficient evidence of a causal connection to preclude
summary judgment in favor of Defendant Adams. Plaintiff’s affidavit raises specific dates and
motivations as to Defendant Adams’ role in conducting a retaliatory assault on Plaintiff by Gunn.
Specifically, Plaintiff alleges that on January 18, 2013, Defendant Adams called Plaintiff a
“snitch” in front of prisoner Gunn while also offering to compensate Gunn for assaulting

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Plaintiff. During this conversation, Plaintiff also alleges that Adams disclosed to Gunn that
Plaintiff was a “snitch” because Plaintiff had filed legal actions against Adams’ friends and coworkers. (Pl. Am. Compl. At 7). One day later, on January 19, 2013, Plaintiff alleges that
prisoner Gunn stated “this is for Adams,” and proceeded with the assault of Plaintiff that was
soon broken up with a Taser. Defendant Adams denies that he induced Gunn to assault Plaintiff,
or that he was motivated in any way by Plaintiff’s protected conduct. The disputed nature of
these facts puts the causal relationship between Plaintiff’s protected actions and Adams’ alleged
conduct at issue and precludes summary judgment for either party.
C. Claims arising under the Eighth Amendment
It is well settled that although the Constitution does not “mandate comfortable prisons,”
Rhodes v. Chapman, 452 U.S. 337, 349 (1981), “the treatment a prisoner receives in prison and
the conditions under which he is confined are subject to scrutiny under the Eighth
Amendment[.]” Helling v. Mckinney, 509 U.S. 25, 31 (1993). By prohibiting “cruel and unusual
punishments,” the Eighth Amendment traces the outer limits of the constitutionality of prison
officials’ activities. See Hudson v. McMillian, 503 U.S. 1 (1992). In this way, the Amendment is
a source of restriction on prison officials’ conduct.
But the Amendment has a second important function. In addition to circumscribing
constitutional conduct, the Amendment has been found to impose affirmative constitutional
duties on officials, including the provisions of humane confinement conditions, adequate medical
care, and the pursuit of “reasonable measure[s] to guarantee the safety of the inmates[.]” Hudson
v. Palmer, 468 U.S. 517, 526-27 (1984); see also Helling, 509 U.S. at 31–32; Washington v.
Harper, 494 U.S. 210, 225 (1990); Estelle v. Gamble, 429 U.S 97 (1976).

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This case presents issues relating to both the negative and affirmative Eighth Amendment
duties on MCF correctional officers. In the former, Plaintiff brings an excessive force claim,
contending that Defendant Jenkins’s use of a Taser was in violation of Plaintiff’s freedom from
excessive force under the Eighth Amendment. In the latter, Plaintiff brings two claims: a
conditions of confinement claim, contending that Defendants Adams’, Hudson’s, and Jenkins’
use of the word “snitch” violated Plaintiff’s right to humane conditions of confinement under the
Eighth Amendment, and an inadequate medical care claim, contending that medical treatment
rendered by Defendant McInnis was in violation of Plaintiff’s right to medical care under the
Eighth Amendment.
1. Excessive Force
Plaintiff alleges that Defendant Jenkins’ use of a Taser to break up the altercation
between Plaintiff and prisoner Gunn rises to the level of excessive physical force, violative of the
Cruel and Unusual Punishments Clause. The question before this Court is whether or not a
genuine issue of material fact exists so as to preclude summary judgment for either Plaintiff or
Defendant on the claim of excessive force.
The settled rule that “the unnecessary and wanton infliction of pain … constitutes cruel
and unusual punishment forbidden by the Eighth Amendment” governs this issue. Ingraham v.
Wright, 430 U.S. 651, 670 (1977) (quoting Estelle, 429 U.S. at 103). However, the “unnecessary
and wanton” standard varies “according to the nature of the alleged constitutional violation.”
Whitley v. Albers, 475 U.S. 312, 1085 (1986). In Hudson v. McMillian, the Supreme Court
outlined a framework for analyzing claims where “prison officials stand accused of using
excessive physical force in violation of the Cruel and Unusual Punishments Clause.” 503 U.S. at
6-7. Under this framework, the “core judicial inquiry” is “whether force was applied in a good-

15 

faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Id at
7.
Although “force” remains the key inquiry, the seriousness of injury may also factor into a
court’s excessive force analysis. In defining the legal framework, the Hudson court rejected a
“significant injury” threshold requirement for stating an excessive force claim. However, Wilkins
v. Gaddy, fleshed out a place for “injury seriousness” in excessive force analysis by holding that
the “extent of injury may … provide some indication of the amount of force applied.” 559 U.S.
34, 37 (2010). The Wilkins court was careful to note, however, that the absence of a certain
quantum of injury cannot be dispositive on its own terms, and the “injury” analysis should not
bypass the “core judicial inquiry” into force. Id at 39. “Injury and force … are only imperfectly
correlated, and it is the latter that ultimately counts.” Id at 38.
In his affidavit and supporting materials, Plaintiff relies on three main facts to establish a
genuine dispute of material fact, or, alternatively, to entitle him to summary judgment on this
issue. First, that he was struck with the Taser not once, as claimed by Defendants, but twice (and
that the second shot hit his face, chipping his tooth and causing his lip to bleed, and also
triggering him to “urinate and defecate upon himself.”) (Ex. C Pl. Mot. Summ. J.). Second, that
Defendant Jenkins ran electrical current through the Taser, periodically, during a 30 second to
two minute span. Third, that MCF has a Taser policy that promotes “systematic excessive force.”
(Ex. K. Pl. Add.).
The totality of Plaintiff’s evidence does not adequately raise a factual issue relating to the
application of force used by Defendant Jenkins. The thrust of Plaintiff’s factual claims are
fundamentally “injury” related, and do not illuminate a factual dispute as to the “good-faith” or
“malicious and sadistic” nature of the use of force. Although the amount of time Defendant ran

16 

electrical current through the Taser might otherwise inch toward such a dispute, even Plaintiff is
unsure whether the current was periodically deployed over a 30 second or 120 second duration.
Lastly, the “MI-CURE News” article provided by Plaintiff falls woefully short of establishing
evidence of a policy of “systematic excessive force” at MCF.
A proper inquiry into “force” asks how the force was applied; whether its application was
in a “good-faith effort to restore discipline” or if it was used “maliciously and sadistically to
cause harm.” Whitley, 475 U.S. at 320-21. In the instant case, the immediate circumstances
surrounding the application of Defendant’s use of force are not in dispute. Plaintiff does not deny
that there was a disturbance and, therefore, a need to restore discipline; Plaintiff admits that he
was engaged in a physical altercation with prisoner Gunn. Moreover, Plaintiff does not deny, as
asserted by Defendants, that Plaintiff was seen “deliver[ing] closed hand punches to [the] upper
and lower body of Gunn.” (Ex. 2 Def. Mot. Summ. J.). Nor does Plaintiff deny Defendant’s
claim that it was only after “[Plaintiff] did not comply with orders to stop fighting” that
Defendant Jenkins struck Plaintiff with a Taser. Id.
The Court also notes that the use of a Taser is not a per se violation of a prisoner’s Eighth
Amendment rights. See Caldwell v. Moore, 968 F.2d 595, 600 (6th Cir. 1992). Defendant
Jenkins’ use of the Taser to break up the altercation between Plaintiff and prisoner Gunn was not
“excessive,” given Defendant’s interest in the threat posed by the altercation to other inmates,
prison workers, administrators, and visitors. See Hudson, 503 U.S. at 6 (discussing the factors
courts consider when deliberating a prison official’s use of force). Moreover, the unsubstantiated
allegation that Defendant Jenkins, at unspecified times between October 2012 and February
2013, called Plaintiff a “snitch” does not create a factual basis to dispute that Jenkins’ use of the
Taser was “malicious and sadistic.”

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Plaintiff’s allegations of fact penetrate the issue of “injury,” which is not central to the
Court’s analysis, and do not raise material factual issues relating to the application of
Defendant’s use of force. Given the undisputed facts surrounding the circumstances in which
force was applied, in which two prisoners were fighting and each resisted calls to stop, and the
Defendant’s competing interests in maintaining order, it is clear that Defendant Jenkins did not
use the Taser “maliciously and sadistically to cause harm.” Summary judgment for Plaintiff is
DENIED, and summary judgment in favor of Defendant Jenkins is GRANTED.
2. Conditions of Confinement
In his second Eighth Amendment claim, Plaintiff alleges that Defendants Adams,
Hudson, and Jenkins violated his right to humane conditions of confinement by labeling him a
“snitch” in front of other inmates, encouraging these inmates to commit an assault on Plaintiff.
The question before the Court is whether a genuine issue of material fact exists to preclude
summary judgment for any party on this matter.
Like the excessive force analysis, the “unnecessary and wanton” standard also applies to
a conditions-of-confinement claim arising under the Eighth Amendment. “Wanton” applies
differently, however, to a prison officer’s conduct in a conditions-of-confinement claim than in
an excessive force claim. Unlike the clash in interests between the State’s responsibility to use
minimal physical force and other important governmental responsibilities (like the safety of other
inmates, officers, administrators, visitors), courts have recognized that the State’s responsibility
to attend a conditions-of-confinement claim does not ordinarily clash with other equally
important governmental responsibilities. Wilson v. Seiter, 501 U.S. 294, 300-03 (1991).
Addressing this asymmetry, the Supreme Court has attached a mental element to claims that
assert a prison officer has acted “wantonly” in a conditions-of-confinement claim. Id at 300. The

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mental element that must attach is “deliberate indifference.” Id.; see also Farmer v. Brennan,
511 U.S. 825, 834 (1998).
Deliberate indifference is a standard that draws heavily from the conceptual construction
of “subjective recklessness” in the criminal law. Under the Supreme Court’s enunciation of the
standard,
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.
Id at 837; see also Cooper v. Cnty. of Washtenaw, 222 Fed.Appx. 459, 466 (6th Cir.2007);
Brooks v. Celeste, 39 F.3d 125, 128 (6th Cir.1994).
“Thus, the subjective component actually has three prongs embedded within it.” Cooper,
222 Fed.Appx. at 466. First, Plaintiff “must show that the official subjectively perceived the facts
that gave rise to the inference of the risk.” Id. Next, Plaintiff “must show that the official actually
drew the inference, and, importantly, not just that he or she should have done so.” Id (citing
Farmer, 511 U.S. at 839; Brooks, 39 F.3d at 128). Last, Plaintiff “must show that the official
consciously disregarded the perceived risk.” Id.
Whether or not the three Defendants ever called Plaintiff a “snitch” is undoubtedly in
dispute. To be successful on a motion for summary judgment, however, Defendants must only
point out that Plaintff “has failed to make a sufficient showing on an essential element of her
case with respect to which she has the burden of proof.” Celotex, 477 U.S. at 323. Here,
Defendants have argued that, even if he was called a “snitch,” Plaintiff has not established
evidence sufficient for a reasonable jury to find that Defendants had the requisite mental state
vis-à-vis the risk of physical harm to Plaintiff posed by other prisoners. As to Defendants

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Hudson and Jenkins, the Court agrees. Plaintiff has not established any factual evidence going to
the mental state of these Defendants during the times he alleges they called him a “snitch.” His
dates are vague, his assertions are conclusory, and, at times, his allegations are inconsistent.
Plaintiff’s affidavit does, however, make factual claims specific enough to put Defendant
Adams’ mental state sufficiently in dispute to preclude summary judgment. First, Plaintiff
specifies a particular date upon which Adams called him a “snitch” (January 18, 2013, the day
before the altercation with prisoner Gunn). Second, he claims that this label was used in the
company of prisoner Gunn. Third, he alleges that Defendant Adams, during the same encounter
on the same date, offered to “pay any prisoner who assaulted [Plaintiff].” (Ex. C Pl. Mot. Summ
J.). Defendant Adams denies this series of allegations.
At the summary judgment stage, the Court must only determine if Plaintiff “allege[d]
facts which, if true, would show that the official being sued perceived facts from which to infer
substantial risk to the prisoner, that he [or she] did in fact draw the inference, and that he [or she]
then disregarded that risk.” Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001). This
“satisfies our twin goals of keeping the standard high enough so that it does not amount to mere
negligence and low enough that it is possible for a plaintiff to survive summary judgment
without proving his or her entire case.” Cooper, 222 Fed.Appx. at 467-68. The combination of
facts alleged by Plaintiff, that Adams called Plaintiff a “snitch” while offering to pay Gunn for
an assault on Plaintiff, produces a sufficient factual dispute as to Defendant Adams’ mental state
vis-à-vis prisoner Gunn’s assault on Plaintiff to survive a motion for summary judgment.
On the issue of Plaintiff’s Eighth Amendment conditions of confinement claim, the Court
will GRANT summary judgment for Defendants Hudson and Jenkins, and DENY summary
judgment for Plaintiff and Defendant Adams.

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3. Medical Care
In his final request for relief under the Eighth Amendment, Plaintiff claims that
Defendant McInnis, a nurse at MCF, violated his right to medical care when she failed to
document Plaintiff’s injuries, denied Plaintiff the provision of medication, and failed to transfer
Plaintiff to a hospital for further treatment after the use of a Taser by Defendant Jenkins. Plaintiff
claims that Defendant McInnis knew Plaintiff needed medical treatment and “aided in [the]
cover up of excessive force and [denial of] medical treatment.” (Pl. Mot. Summ. Judg. at 16).
The question before the Court is whether or not sufficient evidence exists to preclude summary
judgment for either Plaintiff or Defendant McInnis.
Plaintiff’s claim is governed by Estelle v. Gamble, 429 U.S. 97, 104 (1976), which held
that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary
and wanton infliction of pain’” proscribed by the Eighth Amendment. (quoting Gregg v. Georgia
428 U.S. 153, 173 (1976)). The inquiry demands a two-pronged analysis. First, the “deliberate
indifference” standard requires a subjective query into the mental state of the Defendant. This
“deliberate indifference” standard is the same as outlined in the conditions of confinement claim,
supra. Second, an objective inquiry is made into whether the deprivation was “sufficiently
serious.” This prong was identified in Wilson, 501 U.S. at 300, as deriving from Rhodes, 452
U.S. 337 (1981), where the Supreme Court considered whether housing two inmates in one cell
constituted “cruel and unusual” punishment violative of the Eighth Amendment. The Rhodes
decision turned on the objective component and held that,
conditions that cannot be said to be cruel and unusual under contemporary standards are
not unconstitutional. To the extent that such conditions are restrictive and even harsh,
they are part of the penalty that criminal offenders pay for their offenses against society.

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Rhodes, 452 U.S. at 347.
Here, Plaintiff has failed to put forward evidence demonstrating a dispute of material fact
as to the elements of his claim against Defendant McInnis. As to the subjective element, “a
prisoner advancing such a claim must, at a minimum, allege ‘deliberate indifference’ to his
‘serious’ medical needs.” Wilson, 501 U.S. at 297 (quoting Estelle, 429 U.S. at 106). “‘It is only
such indifference’ that can violate the Eighth Amendment.” Id (quoting Estelle, 429 U.S. at 1056). Alleging an “‘inadvertent failure to provide adequate medical care,’ or a ‘negligent ...
diagnos[is],’ simply fail[s] to establish the requisite culpable state of mind.” Id (quoting Estelle,
429 U.S. at 105).
Under the subjective “deliberate indifference” standard, Plaintiff has not produced facts
to dispute the requisite mental state of Defendant McInnis vis-à-vis Plaintiff’s alleged medical
needs. Plaintiff attempts to establish this element with an Electronic Control Device usage report,
generated by prison officials, which summarizes the circumstances surrounding the Taser’s
deployment. Plaintiff contends that, because the usage report states Plaintiff was only shot once
in the right hip, it “covers up” the fact that a second shot hit Plaintiff in his face, causing him
facial injuries that went untreated by Defendant McInnis. Plaintiff argues that Defendant
McInnis denied him medical treatment as part of a conspiracy with other prison officials to make
it appear that Plaintiff was not shot in the face. By failing to render treatment or document
evidence of a bloody lip and chipped tooth, Plaintiff alleges that Defendant McInnis knew of
(and disregarded) an excessive risk to Plaintiff’s health in order to effectuate the conspiracy.
However, Plaintiff cannot establish Defendant McInnis’ mental state using the absence of
evidence (i.e., the lack of documentation of medical treatment) as evidence of a conspiracy.
Plaintiff has failed to put the subjective element of his claim in dispute.

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As to the second element, Plaintiff has also failed to demonstrate that he suffered a
serious medical need. Seriousness is measured objectively, in response to “contemporary
standards of decency.” Hudson, 503 U.S. at 8 (citing Estelle, 429 U.S. at 103). In the Sixth
Circuit, a medical need of this type has been defined as one “that has been diagnosed by a
physician as mandating treatment or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor's attention.” Harrison v. Ash, 539 F.3d 510, 518 (6th Cir.
2008) (citations omitted); see also Jones v. Muskegon Cnty,, 625 F.3d 935, 941 (6th Cir. 2010).
Plaintiff’s documentation, affidavits, and other materials do not support the seriousness
of his alleged injury. An objectively serious risk has been found where an inmate had colorectal
cancer and died as the result of his illness (Jones, 625 F.3d 935 (6th Cir. 2010)), where an inmate
had suicidal tendencies (Horn by Parks v. Madison Cnty. Fiscal Ct., 22 F.3d 653 (6th Cir.
1994)), and where an inmate died after a severe asthma attack, showing symptoms including
wheezing, difficulty breathing, and tightness in the chest (Harrison, 539 F.3d 510). The injuries
Plaintiff claims to have sustained, a chipped tooth and bleeding lip, do not rise to the level of an
objectively serious medical need “that has been diagnosed by a physician as mandating
treatment” or “is so obvious that even a lay person would easily recognize the necessity for a
doctor's attention.” Harrison, 539 F.3d at 518. It is significant that Plaintiff has not claimed to
have sought medical or dental treatment following the Taser’s deployment, nor did he complain
of any lasting effects of the alleged Taser prong to the face. Plaintiff has failed to put the
objective seriousness of his medical needs in dispute.
Plaintiff’s motion is DENIED and Defendant’s motion is GRANTED.

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D. Qualified Immunity
Each Defendant contends that, even if Plaintiff has established any claim, they are
shielded from civil liability by the doctrine of qualified immunity. The Court will address this
issue as it relates to each of the three claims in which Defendants’ motion for summary judgment
has not been granted.
The doctrine of qualified immunity protects government officials insofar as they are not
“plainly incompetent or … knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341
(1986). More precisely, “[g]overnment officials performing discretionary functions generally are
shielded from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The Sixth Circuit has established a tripartite
analysis for evaluating claims of qualified immunity.
First, we determine whether a constitutional violation occurred; second, we determine
whether the right that was violated was a clearly established right of which a reasonable
person would have known; finally, we determine whether the plaintiff has alleged
sufficient facts, and supported the allegations by sufficient evidence, to indicate that what
the official allegedly did was objectively unreasonable in light of the clearly established
constitutional rights.
Williams v. Mehra, 186 F.3d 685, 691 (6th Cir. 1999); Dickerson v. McClellan, 101 F.3d 1151,
1157–58 (6th Cir. 1996).
As to the First Amendment retaliatory transfer claim against Defendants Sgambati, Grant,
Plummer, and Steward, the Court finds they are not immune from civil liability. As to the first
element, determining whether a constitutional violation has occurred, the Court finds that the
right at issue is Plaintiff’s right to file grievances without facing retaliation. Government actions,
“which standing alone do not violate the Constitution, may nonetheless be constitutional torts if
motivated in substantial part by a desire to punish an individual for exercise of a constitutional
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right.” Thaddeus-X, 175 F.3d at 386; accord Crawford–El v. Britton, 523 U.S. 574, 118 (2008).
It is “undisputed [that an inmate has a] First Amendment right to file grievances against prison
officials on his own behalf.” Herron, 203 F.3d 415; accord Hill, 630 F.3d 468. This informs the
second prong of the analysis, whether the right was clearly established and a reasonable person
would know. The undisputed nature of the right to file grievances and the right to be free from
retaliation are clear; any reasonable person would know that transferring an inmate on the basis
that he exercised this right will amount to a constitutional violation.
As to the third element, whether the officials’ alleged conduct was objectively
unreasonable in light of the constitutional right, “it would be clear to a reasonable official that his
conduct was unlawful in the situation he confronted.” Quigley v. Tuong Vinh Thai, 707 F.3d 675,
684 (6th Cir. 2013) (internal brackets omitted). Plaintiff has alleged that each Defendant told him
they would transfer him if he kept filing complaints, and, at this time, Defendants have failed to
adequately present evidence demonstrating that Plaintiff was transferred for another reason.
As to the First and Eighth Amendment claims involving Defendant Adams, each of
which arise out of Adams’ alleged reference to Plaintiff as a “snitch,” Defendant Adams is not
entitled to qualified immunity. In determining whether a constitutional right was violated, the
right at issue in the First Amendment claim is the same outlined above: Plaintiff’s right to file
grievances without facing retaliation. The right at issue in the Eighth Amendment claim is
Plaintiff’s right to humane conditions of confinement. Second, the Court must determine if these
rights are clearly established and a reasonable person would have known. As determined in the
analysis of these claims, supra, both rights are clearly established by controlling authority in the
Sixth Circuit or the Supreme Court, and a reasonable person would have known of their
establishment.

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Lastly, the Court must consider whether the Plaintiff has alleged facts sufficient to
indicate that the officials conduct was objectively unreasonable in light of the established
constitutional rights. The facts alleged by Plaintiff, which this Court has found to be sufficient to
survive summary judgment, contend that Adams had the purpose of inducing an attack on
Plaintiff. As Plaintiff has framed his claims, at issue is whether or not Adams purposely violated
Plaintiff’s constitutional rights. Sufficiently alleged, Adams’ actions, if purposefully calculated,
would be “objectively unreasonable in light of the clearly established constitutional rights.”
Williams, 186 F.3d at 691.
IV. CONCLUSION
For the reasons outlined above, Plaintiff’s Motion for Summary Judgment [#29] is
DENIED and Defendants’ Motion for Summary Judgment [#25] is GRANTED IN PART AND
DENIED IN PART. Plaintiff’s Motion to Amend Complaint [#33] is DENIED WITHOUT
PREJUDICE.
Defendants Hudson, Jenkins, and McInnis are dismissed from this cause of action.
SO ORDERED.

Dated: August 27, 2014

/s/Gershwin A Drain
GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE

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