Short v. Kelly et al

Filing 26

OPINION AND ORDER Sustaining in Part and Overruling in Part Plaintiff's 25 Objections; Adopting in Part and Rejecting in Part 22 Report and Recommendation and Granting In Part and Denying in Part 13 Motion for Summary Judgment, filed by John Kelly, Val Hull, Signed by District Judge Matthew F. Leitman. (LWag)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RICHARD SHORT,
Plaintiff,

Case No. 13-cv-13246
Hon. Matthew F. Leitman

v.
JOHN KELLY, et al.,
Defendants.
_________________________________/
OPINION AND ORDER SUSTAINING IN PART AND OVERRULING IN
PART PLAINTIFF’S OBJECTIONS TO THE REPORT AND
RECOMMENDATION (ECF #25); ADOPTING IN PART AND
REJECTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION (ECF #22); AND GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT (ECF #13)
Plaintiff Richard Short (“Short”) is an inmate in the custody of the Michigan
Department of Corrections (the “MDOC”).

On July 30, 2013, Short filed a

Complaint against numerous MDOC employees – in their individual and official
capacities – who worked at the Central Michigan Correctional Facility (the
“CMCF”), where Short was once incarcerated. (See Compl., ECF #1.) Among
other things, Short alleges that John Kelly (“Kelly”), an Assistant Resident Unit
Supervisor at the CMCF retaliated against him by (1) issuing a misconduct ticket
on July 20, 2012 (the “July 20 Misconduct Ticket”) “based solely on [Short]
having written [a previous] grievance” against Kelly (see Compl. at 1, Pg. ID 4),
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and (2) subjecting him to a “transfer screen,” leading to his transfer from the
CMCF. (Id. at 2, Pg. ID 5). Short also asserts that Val Hull (“Hull”), a corrections
officer at the CMCF, “solicited several other prisoners … to assault [him] in
retaliation for having written [a] grievance against Kelly.” (Id. at 1, Pg. ID 4.)
On February 12, 2014, Defendants Hull and Kelly jointly moved for
summary judgment. (See ECF #13.)1 On July 23, 2014, the Magistrate Judge
issued a Report and Recommendation (the “R&R”) recommending that the Court
grant in part and deny in part Defendants’ motion. (See ECF #22.)
In the R&R, the Magistrate Judge first recommended that the Court dismiss
Short’s claims brought against Kelly and Hull in their official capacities. (See id.
at 8, Pg. ID 187.) Next, the Magistrate Judge recommended that the Court grant
Defendants’ motion as to Hull’s alleged solicitation of inmates to attack Short and
as to Kelly’s writing of the July 20 Misconduct Ticket. (See id. at 9-10, Pg. ID
188-189.)

Finally, the Magistrate Judge recommended that the Court deny

Defendants’ motion with respect to Kelly’s alleged participation in Short’s transfer
from the CMCF. (See id. at 10-16, Pg. ID 189-195.)
On August 14, 2014, Short filed objections to the R&R. (See ECF #25.)
Short objects to the R&R on two grounds. First, Short argues that the Magistrate
Judge erred when he recommended dismissing Short’s claim against Hull for

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The Court had previously dismissed Short’s claims against each of the other
Defendants to this action. (See December 12, 2013, order, ECF #4.)
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allegedly plotting to have Short attacked by other inmates. (See id. at 2-3, Pg. ID
204-205.) According to Short, “various courts have held that prison officials who
identify an inmate in a manner intended to provoke assault, or the fear of assault,
may be held liable for an Eighth Amendment violation.” (Id. at 3, Pg. ID 205.)
As the Magistrate Judge aptly pointed out, however, Short has failed to
present evidence that he experienced any harm – physical, psychological, or
otherwise – due to Hull’s alleged solicitation plan. Indeed, Short has not alleged
nor presented evidence that he had any prior knowledge of Hull’s alleged scheme
or that he ever feared such a plot. See, e.g., Thompson v. County of Medina, Ohio,
29 F.3d 238, 242 (6th Cir. 1994) (“This Court has held that while a prisoner does
not need to demonstrate that he has been the victim of an actual attack to bring a
personal safety claim, he must establish that he reasonably feared such an attack”)
(emphasis added). Short is therefore in a vastly different posture than the inmates
in the cases Short cites whose knowledge of a prison official’s threats and/or
actions caused them direct harm or fear. The Court therefore overrules Short’s
first objection and will adopt the R&R to the extent it recommends granting Hull
summary judgment.
In his second objection, Short argues that the Magistrate Judge erred when
he recommended that the Court dismiss Short’s claim against Kelly for writing the
July 20 Misconduct Ticket. (See id. at 4-6, Pg. ID 206-208.) The Court sustains

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this objection.

In the R&R, the Magistrate Judge found that the July 20

Misconduct Ticket “was pulled shortly after its issuance, and Short does not allege
that he suffered any consequences as a result.”

(R&R at 10, Pg. ID 189.)

However, as Short correctly argues in his objections, his Complaint does identify
consequences that he claims to have suffered as a result of the July 20 Misconduct
Ticket. Specifically, Short alleges that on July 21, 2012, Lt. Childs, a CMCF
employee, reviewed the July 20 Misconduct Ticket and, as a result, “seized
[Short’s] Gate Pass Detail which authorized [Short] to work in [his] assigned
position as a Front House Porter.” (Compl. at 1, Pg. ID 4.) Short says that he did
not receive his Gate Pass Detail back until July 25, after the CMCF warden
determined the misconduct ticket was inappropriate and pulled the ticket. (See id.)
Thus, at this early stage, before any discovery has taken place, the Court will allow
this claim to proceed. The Court therefore sustains Short’s second objection and
will not adopt the R&R to the extent it recommends granting Kelly summary
judgment with respect to the July 20 Misconduct Ticket.
Defendants have not filed any objections to the R&R.

Failure to file

objections to the R&R waives any further right to appeal. See Howard v. Sec'y of
Health and Human Servs., 932 F.2d 505 (6th Cir. 1991); Smith v. Detroit Fed'n of
Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Likewise, the failure to
object to the R&R releases the Court from its duty to independently review the

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matter. See Thomas v. Arn, 474 U.S. 140, 149 (1985). The Court has nevertheless
reviewed the R&R and agrees with the Magistrate Judge’s recommendation to
deny Defendants’ motion with respect to Kelly’s alleged participation in Short’s
transfer from the CMCF.
Therefore, for all the reasons stated above, IT IS HEREBY ORDERED
THAT (1) Short’s Objections to the R&R (ECF #25) are sustained in part and
overruled in part; (2) the Magistrate Judge’s R&R (ECF #22) is adopted in part and
rejected in part; (3) Defendant’s Motion for Summary Judgment (ECF #13) is
granted as to Short’s claims against Defendants in their official capacity and as to
Defendant Hull; and (4) Defendant’s Motion for Summary Judgment (ECF #13) is
denied as to Short’s claims against Defendant Kelly in his individual capacity.

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE

Dated: September 24, 2014

I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on September 24, 2014, by electronic means
and/or ordinary mail.
s/Lisa Wagner
Case Manager
[phone]

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