White v. Jindal et al
Filing
261
MEMORANDUM AND ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT (ECF No. 239) AND DENYING PLAINTIFFS MOTIONS FOR SUMMARY JUDGMENT (ECF No. 243)AND DISMISSING CASE. Signed by District Judge Avern Cohn. (MVer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARK WHITE,
Plaintiff,
v.
Case No. 13-15073
PAUL KLEE, LEE McROBERT, and
LOUIS CONDON,
HON. AVERN COHN
Defendants.
____________________________________/
MEMORANDUM AND ORDER
GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (ECF No. 239)
AND
DENYING PLAINTIFF’S MOTIONS FOR SUMMARY JUDGMENT (ECF No. 243)
AND DISMISSING CASE1
I. Introduction
This is a prisoner civil rights case under 42 U.S.C. § 1983. Plaintiff Mark White is
proceeding pro se and in forma pauperis.2 The matter was referred to a magistrate
judge for pretrial proceedings. (ECF No. 12). Following motion practice and several
reports and recommendations which were adopted by the Court, plaintiff’s remaining
claims relate to his refusal to “snitch” on fellow inmates and the alleged failure of Paul
1
Upon review of the parties’ papers, the Court deems these matters appropriate
for decision without oral argument. See Fed. R. Civ. P. 78(b); E.D. Mich. LR 7.1(f)(2).
2
Plaintiff is subject to the three strikes rule because of his history of filing frivolous
lawsuits. See ECF No. 166, PageID.1690). However, plaintiff was able to proceed with
this case by alleging he was under threat of imminent danger. Id.
Klee, the Warden at the Gus Harrison Facility, Lee McRobert, the Deputy Warden, and
Louis Condon, a Resident Unit Manager (“defendants”) to properly protect him from
gang members. In essence, plaintiff is asserting an Eighth Amendment failure to
protect claim and a First Amendment retaliation claim.
After the magistrate judge certified that the pretrial proceedings were completed,
(ECF No. 201), the parties were permitted to file cross motions for summary judgment
directed at the merits of plaintiff’s claims. The motions are fully briefed and ready for
decision. See ECF Nos. 239, 243. For the reasons that follow, defendants’ motion will
be granted, plaintiff’s motion will be denied, and the case will be dismissed.
II. Factual Background3
Plaintiff’s claims arise out of a series of events that took place during November
and December of 2013.
Sometime in the fall of 2013, plaintiff was placed on the Warden’s Forum at the
Gus Harrison Correctional Facility, where he was incarcerated. At that time, Klee was
the Warden and McRoberts was the Deputy Warden at Gus Harrison. The Warden’s
Forum is used “to assist the Warden in identifying and resolving problems which exist in
the general population of the institution.”
According to plaintiff, at the October and November 2013 Warden’s Forum
meetings, he requested the facility administration consider expanding law library hours.
After the November meeting, plaintiff was, allegedly, solicited by Klee for information
3
As defendants note, plaintiff has made many allegations in his various filings,
including adding allegations as the case progressed. This factual background
encompasses the fact relevant to the two remaining claims.
2
regarding gang members at the facility.
On November 22, 2013, plaintiff’s cell was randomly searched during a mass
shakedown as permitted and required by MDOC policy. Officers conducting the search
discovered that plaintiff had a contraband television in his cell and confiscated it. In
response to having his television confiscated, plaintiff placed a kite in the mailbox of
Assistant Resident Unit Supervisor (ARUS) Donaghy that states in relevant part:
The T.V. that was taken was purchased from an inmate that went home. My
account is in debt preventing me from ever buying one via my account. I am
serving a life sentence. I must have a T.V. The list of names we discussed is
possible if my items are replaced with [sic] legitimate one, on my property card.
Gotta get something for putting myself in danger. The Gangster Disciples had
staff in their ranks at Macomb.
(Defendants’ Ex. E, Misconduct Report). ARUS Donaghy wrote plaintiff a misconduct
for bribery of an employee, stating “[Plaintiff] deliberately offered me a bribe to
give/withhold information in an attempt to persuade me to neglect my duties and falsify
documents.” See id. See also Defendants’ Ex. F, Hearing Report.
On or about December 3, 2013, Condon held a “review” with plaintiff regarding
the misconduct written by ARUS Donaghy, per department policy. According to plaintiff,
the review took place in a room with walls that did not reach the ceiling and with other
inmates “coming in and out all the time.” (Defendants’ Ex. A, Plaintiff’s Deposition at pp.
35-36.)
Plaintiff has varying accounts of what took place at the review. At deposition,
plaintiff first testified that Condon did not read the misconduct report aloud and claimed
that he did not have to. Id. at pp. 36-37. Plaintiff went on to testify that “[w]hen I showed
him policy and told him that under the employee discipline policy it’s an automatic
3
termination for admission to not following policy he changed his tune and said, ‘okay,
yeah, I did read it out loud.’” Id. at pp. 36-37. However, later in his deposition, plaintiff
testified as follows:
Q. So originally [Condon] would not read the ticket but then you told him he had
to, right?
A. No. He read the ticket. Originally he stated to me later on in a confrontation in
the unit, he said, ‘look me in the eye and tell me I read the ticket out loud to you.’
I said ‘okay, you’re saying you didn’t, then here’s the policy that required you to
under command word shall. Here’s the policy that says that you get fired if you
deliberately refuse to follow policy, so what are you saying?’ He said, ‘oh, well,
yeah, I read the ticket out loud.’
Id. at p. 40.
Plaintiff’s amended complaint features yet another version of the review hearing.
He alleges:
. . . Condon read the misconduct of bribery of an officer written by Mngr.
Donaghy. Very loudly RUM Condon read the words informant and gangsters
disciples and plaintiff had to ask RUM Condon three (3) times to keep his voice
down and stated “Are you trying to get me killed?” RUM Condon stated policy
required him to read the ticket out loud . . .
(Defendants’ Ex. C, Plaintiff’s Amended Complaint at p. 9.)
In his affidavit, Condon states that he began reading the misconduct ticket aloud
and stopped when plaintiff asked him not to read the ticket aloud due to the potential
that other inmates might overhear. (Defendants’ Ex. H, Condon Affidavit.) Condon
further states he then confirmed plaintiff knew the substance of the misconduct and
read the remainder of the ticket in his head. Id. Condon also says that he did not say
the words “snitch” or “Gangsters Disciples” out loud. Id. At the review hearing, plaintiff
admitted to attempting to bribe an officer. (Ex. F.)
4
Plaintiff alleges that, after the review of his bribery misconduct, he was moved
into a cell with an inmate who did not bathe regularly. Condon confirms that plaintiff
was indeed moved. However, Condon says that the reason plaintiff was moved was
due to ARUS Donaghy expressing concern that plaintiff was overly familiar with her, as
evidenced by his attempt to bribe her leading to the misconduct ticket. Plaintiff filed a
grievance with administration at Gus Harrison regarding his new cell mate on December
5, 2013, the day after he was moved. (Defendants’ Ex. I, 12-5-13 Grievance.) On
December 12, 2013, plaintiff appealed the denial of that grievance, focusing on the fact
that his cell mate did not shower. (Defendants’ Ex. J, Prisoner/Parolee Grievance
Appeal Form.) On December 26, 2013, McRoberts issued a response to plaintiff’s
original grievance, noting that it was correctly rejected and that plaintiff “will not be
allowed to pick his cell mates.” (Defendants’ Ex. K, Step I Grievance Response).
Finally, plaintiff alleges that on December 8, 2013, he was assaulted by two other
inmates whom told him they were members of the Gangster Disciples and that they had
overhead Condon reading the misconduct ticket identifying Plaintiff as a “snitch.”
(Defendants’ Ex. C, p. 9.) Plaintiff went to healthcare the next day and was treated for a
“very superficial abrasion” above his left eyebrow. (Defendants’ Ex. L, 12-09-13
Medical Report, partially redacted.) The report from his healthcare visit notes that
plaintiff “states he does not want to speak to custody regarding assault.” (Ex. L, p. 2.)
Plaintiff also saw an institutional psychologist on December 9, 2013 and told the
psychologist that he was assaulted but “did not provide any names or numbers of those
involved and maintains that he does not want protection.” (Defendants’ Ex. L, p. 1)
(emphasis added).
5
Plaintiff did not mention this alleged assault in his grievance appeals nor did he
file any requests for protection pursuant to MDOC Policy Directive 05.01.140(T). At
deposition, plaintiff testified that he never sent a written request for protection to any of
the defendants other than Klee, and that he never asked McRoberts for protection in
any form. (Defendants’ Ex. A, p. 63.)
In his motion for summary judgment, plaintiff attached what he says is a letter he
sent to Klee as proof that he was seeking protection (attached as Ex. O to Defendants’
motion). Plaintiff also submitted a letter he allegedly sent to Klee where he, again, tries
to negotiate providing names of inmate gang members for his television. (Defendants’
Ex. P, Letter to Warden Klee.) Klee, however, says that he never received these letters.
Indeed, they were returned to plaintiff by Klee’s administrative assistant Virgil Webb—as
evidenced by the handwritten markings on the sides of the letters because they were
attempts at improper communication with the warden of the facility. (Defendants’ Ex. Q,
Affidavit of Virgil Webb.)
From the above, plaintiff alleges that defendants retaliated against him for filing
lawsuits and speaking out at the Warden’s Forum by purposefully placing him in a cell
with a dangerous and unhygienic inmate and by writing him misconducts. Plaintiff also
alleges that defendants failed to protect him from gang members at Gus Harrison
leading to the alleged December 8, 2013 assault.
Notably, plaintiff was moved by the MDOC to a different facility because of the
danger alleged in this case.
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III. Summary Judgment
"The court shall grant summary judgment 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). A moving party may meet that burden "by
'showing'-that is, pointing out to the district court-that there is an absence of evidence to
support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). Rule 56 provides that:
A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by:
(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits, or declarations,
stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of
a genuine dispute, or that an adverse party cannot produce admissible evidence
to support a fact.
Fed. R. Civ. P. 56(c)(1).
The Court must decide “whether the evidence presents a sufficient disagreement
to require submission to a [trier of fact] or whether it is so one-sided that one party must
prevail as a matter of law.” In re Dollar Corp., 25 F.3d 1320, 1323 (6th Cir. 1994)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). In so doing, the
Court “must view the evidence in the light most favorable to the non-moving party.”
Employers Ins. of Wausau v. Petroleum Specialties, Inc., 69 F.3d 98, 101 (6th Cir.
1995).
IV. Defendants’ Motion for Summary Judgment
A. Eighth Amendment Failure to Protect Claim
7
Defendants contend that summary judgment is warranted on plaintiff’s failure to
protect claim because he cannot show that defendants knew of and disregarded an
excessive risk to Plaintiff’s safety. The Court agrees.
The Eighth Amendment prohibits MDOC officials from wantonly inflicting pain on
incarcerated persons. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Mere negligence
is not sufficient to violate the Eighth Amendment, Davidson v. Cannon, 474 U.S. 344,
347 (1986); rather, “[t]o violate the Cruel and Unusual Punishments Clause, a prison
official must have a ‘sufficiently culpable state of mind,’” Farmer, 511 U.S. at 834. An
Eighth Amendment claim against a prison official alleging a failure to protect has both
an objective and a subjective component. Bishop v. Hackel, 636 F.3d 757, 766 (6th Cir.
2011). The objective component requires a showing that “the failure to protect from risk
of harm is objectively ‘sufficiently serious.’” Id., citing Farmer, 511 U.S. at 833.
The subjective component—which is “deliberate indifference”—requires a plaintiff
to demonstrate that a prison “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. In other words, “a prison official who was unaware of a
substantial risk of harm to an inmate may not be held liable under the Eighth
Amendment even if the risk was obvious and a reasonable prison official would have
noticed it.” Bishop, 636 F.3d at 767, citing Farmer, 511 U.S. at 841–842. In order to
succeed against multiple defendants, the “subjective component must be addressed for
each officer individually.” Garretson v. City of Madison Heights, 407 F.3d 789, 797 (6th
Cir. 2005).
8
Here, plaintiff cannot establish that defendants violated his Eighth Amendment
rights because he cannot show that he was in objective, physical danger or that
defendants were deliberately indifferent to a substantial risk to his safety. Plaintiff’s
claims are supported solely by his own statements, which are, as explained above,
contradicted by the record.
As to the objective component, “[p]risons are inherently dangerous institutions,”
Lewis v. Casey, 518 U.S. 343, 391 (1996), which “house persons convicted of serious
crimes,” Rhodes v. Chapman, 452 U.S. 337, 349 (1981), and “idle threats [between
prisoners] are a common occurrence,” Marsh v. Arn, 937 F.2d 1056, 1069 (6th Cir.
1991), overruled on other grounds by Farmer, 511 U.S. at 825; see also Prater v.
Dahm, 89 F.3d 538, 541 (8th Cir. 1996) (noting that “threats between inmates are
common and do not, under all circumstances, serve to impute actual knowledge of a
substantial risk of harm”). The Eighth Amendment ultimately requires of prison officials
is that they “take reasonable measures to guarantee the safety of the inmates
themselves.” Hudson v. Palmer, 468 U.S. 517, 526–27 (1984).
Viewed in a light most favorable to plaintiff, his allegations that he was in danger
from gang members is insufficiently vague—and normalized in the prison setting—to
establish objective physical danger. See, e.g., Shaw v. Texas Dep’t of Criminal Justice,
46 F. App’x 225 (5th Cir. 2002) (dismissing a complaint when a prisoner did not
demonstrate a “particularized threat” of harm); Beasley v. Stephens, No. CIV.
10-895-GPM, 2011 WL 2670189, at *3 (S.D. Ill. July 7, 2011) (explaining that “[a] vague,
general fear of harm that is not based on a specific threat is not enough to state a cause
of action for deliberate indifference or failure to protect”); Johnson v. Payton, No.
9
13-11437, 2013 WL 1843979, at *4 (E.D. Mich. Apr. 10, 2013), report and
recommendation adopted, No. 13-CV-11437, 2013 WL 1843971 (E.D. Mich. May 1,
2013) (dismissing a failure to protect claim when a prisoner’s allegations against prison
officials were “very general and lack[ed] any specific detail about their knowledge that
[the prisoner’s attacker] was a threat to [the prisoner]”).
As to the subjective component, plaintiff cannot show that defendants were
deliberately indifferent to a substantial risk to his safety. Plaintiff admits he did not seek
protection from McRoberts. To the extent plaintiff alleges he told Klee and Condon he
was in danger, his concern of being in danger from gang members is not specific
enough to establish a substantial threat to his safety. Condon never drew “the
conclusion in [his] own mind that [Plaintiff] needed protection” because he was never
put on notice that Plaintiff was in any sort of danger. Indeed, Condon took steps at
plaintiff’s misconduct review hearing to ensure he did not read aloud any potentially
endangering information about plaintiff. Finally, plaintiff’s letters never made it to Klee’s
desk, and he never completed an official request for protection form, which are made
readily available to inmates.
Overall, a review of the record shows that plaintiff did not request protection;
rather, he made multiple offers to MDOC officials to provide names of gang members in
exchange for a television set. Thus, his failure to protect claims are unsupported. No
reasonable juror could conclude otherwise. Defendants are therefore entitled to
summary judgment on plaintiff’s Eighth Amendment claim.
B. First Amendment Retaliation Claim
Defendants also contend that plaintiff’s retaliation claim is appropriate for
10
summary judgment. The Court again agrees.
The First Amendment, among other things, guarantees a person’s right “to
petition the Government for a redress of grievances.” McDonald v. Smith, 472 U.S.
479, 482 (1985). I n a prison setting, an 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.” Pell v. Procunier, 417 U.S. 817, 822 (1974). It is
well-established that “retaliation for the exercise of constitutional rights is itself a
violation of the Constitution.” Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999).
The elements of a First Amendment retaliation claim are:
(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.
Id. As to what constitutes protected conduct, courts in this district “have consistently
held that participation on the Warden’s Forum is not activity protected under the First
Amendment.” Griffin v. Klee, No. 14-CV-14290, 2015 WL 2124998, at *5 (E.D. Mich.
May 6, 2015) (citing several decisions). As to the second element, the Sixth Circuit has
defined an “adverse action” as “one that would deter a person of ordinary firmness from
the exercise of the right at stake.” LaFountain v. Harry, 716 F.3d 944, 948 (6th Cir.
2013) (internal citations and quotations omitted). The court of appeals further stated
that “[w]hether an act is sufficiently adverse varies based on context. The context here
is a prison; and prisoners may be required to tolerate more than average citizens before
an action taken against them is considered adverse.” Id.
As to the element of causal connection, the Supreme Court has explained that a
11
plaintiff must show “but for” causation to sustain a retaliation claim:
It is clear, moreover, that the causation is understood to be but-for causation,
without which the adverse action would not have been taken; we say that upon a
prima facie showing of retaliatory harm, the burden shifts to the defendant official
to demonstrate that even without the impetus to retaliate he would have taken
the action complained of (such as firing the employee). If there is a finding that
retaliation was not the but-for cause of the discharge, the claim fails for lack of
causal connection between unconstitutional motive and resulting harm, despite
proof of some retaliatory animus in the official’s mind. It may be dishonorable to
act with an unconstitutional motive and perhaps in some instances be unlawful,
but action colored by some degree of bad motive does not amount to a
constitutional tort if that action would have been taken anyway.
Hartman v. Moore, 547 U.S. 250, 260 (2006) (internal citations removed) “[B]are
allegations of malice” are insufficient to establish a constitutional claim. Thaddeus-X,
175 F.3d at 399.
Here, plaintiff alleges various types of protected conduct under the First
Amendment—participation on the Warden’s forum and refusing to “snitch”—and three
adverse actions—misconduct tickets, moving plaintiff to a different cell with an
unhygienic and allegedly dangerous cellmate, and failing to protect plaintiff. Plaintiff
however has not offered any facts to support a causal connection between these things.
Rather, the gravamen of plaintiff’s allegations are that he believes he was retaliated
against because he refused to “snitch.” But the record in this case shows that it was
plaintiff who was offering up information to defendants and other corrections officers in
exchange for favors. Plaintiff was not “refusing to snitch,” he was offering to. Thus,
plaintiff has not alleged cognizable protected conduct and cannot maintain a claim for
retaliation against defendants.
Regarding plaintiff’s allegations of adverse action, plaintiff alleges that he was
moved to a new cell with a dangerous cellmate and was not protected from harm by
12
defendants. However, “prisoners may be required to tolerate more than average
citizens before an action taken against them is considered adverse.” LaFountain, 716
F.3d at 948. Moving prisoners is a common occurrence in prisons and was so too in
this case. Condon stated that plaintiff was moved because ARUS Donaghy expressed
concern that Plaintiff was overfamiliar with her, evidenced by his sanctionable attempt to
bribe ARUS Donaghy. In addition, although plaintiff says his new cellmate was
“dangerous,” he does not support that allegation with any evidence. Rather, the
documentary evidence in this case suggests plaintiff was actually concerned with how
poorly his new cellmate smelled. Perhaps unpleasant, a transfer to a new cell with a
cellmate who does not bathe cannot be considered an adverse action, particularly in the
prison setting.
Further, plaintiff says that defendants failed to protect him from harm and such a
failure constitutes an adverse action. As explained above, defendants did not fail to
protect Plaintiff because they did not know of and disregard an excessive risk to his
safety.
Finally, plaintiff cannot show a causal connection between his alleged protected
conduct and the adverse actions he claimed he suffered. Plaintiff assumes that he was
moved to a new cell and was assaulted because he participated on the Warden’s forum
and refused to “snitch.” However, plaintiff provides no evidence that those things were
connected. It is easy to connect two events and make self-serving assumptions about
that connection, which is why the law requires more. Moreover, the record evidence in
this case is contrary to plaintiff’s assumption of causation, particularly with regard to the
misconduct tickets he received. Plaintiff received a misconduct ticket for possessing
13
contraband and another one for attempting to bribe an officer to suppress the first ticket.
The first misconduct was the result of a mass shakedown; plaintiff was not targeted.
The second misconduct ticket arose out of plaintiff’s own actions in attempting to regain
possession of his television set. Thus, plaintiff’s allegation that he received
misconducts in retaliation to protected conduct is not supported by the record.
Overall, the protected conduct and adverse actions plaintiff identifies are either
not cognizable under the law, or they are not supported by record evidence. In addition,
plaintiff cannot show a causal connection between the legitimate protected conduct and
adverse actions he identifies, specifically regarding misconducts. Therefore, defendants
are entitled to summary judgment on plaintiff’s First Amendment claim.
C. Qualified Immunity
Finally, defendants argue that they are entitled to qualified immunity because
they did not violate any of plaintiff’s clearly established constitutional rights. “A
government official sued under section 1983 is entitled to qualified immunity unless the
official violated a statutory or constitutional right that was clearly established at the time
of the challenged conduct.” Carroll v. Carman, 135 S. Ct. 348, 350 (2014). The first
prong of qualified immunity analysis is whether the plaintiff has alleged facts showing
that defendant’s conduct violated a constitutional or statutory right. See Saucier v. Katz,
533 U.S. 194, 201 (2001). As to this first prong, the Sixth Circuit “assume[s] the truth of
all record-supported allegations by the non-movant.” Bays v. Montmorency Cty., 874
F.3d 264, 268 (6th Cir. 2017). The second prong is whether the right was “clearly
established” at the time of the defendant’s alleged misconduct. Saucier, 533 U.S. at
201.
14
“Once [an] official[ ] raise[s] the qualified immunity defense, the plaintiff bears the
burden to ‘demonstrate that the official [is] not entitled to qualified immunity.’” LeFever
v. Ferguson, 645 F. Appx. 438, 442 (6th Cir. 2016) (quoting Silberstein v. City of
Dayton, 440 F.3d 306, 311 (6th Cir. 2006)). A qualified immunity defense can be
asserted at various stages of the litigation, including the summary judgment stage. See
English v. Dyke, 23 F.3d 1086, 1089 (6th Cir. 1994). At the summary judgment stage,
“the plaintiff must, at a minimum, offer sufficient evidence to create a ‘genuine issue of
fact,’ that is, ‘evidence on which a jury could reasonably find for the plaintiff.’” Thompson
v. City of Lebanon, Tenn., 831 F.3d 366, 370 (6th Cir. 2016).
Additionally, liability in a § 1983 action cannot be based on a theory of
respondeat superior. See Monell v. Dep’t of Social Services of City of New York, 436
U.S. 658, 691 (1978). Regarding supervisors in prison settings, the Sixth Circuit has
said:
Section 1983 liability will not be imposed solely upon the basis of respondeat
superior. There must be a showing that the supervisor encouraged the specific
incident of misconduct or in some other way directly participated in it. At a
minimum, a § 1983 plaintiff must show that a supervisory official at least implicitly
authorized, approved or knowingly acquiesced in the unconstitutional conduct of
the offending subordinate.
Taylor v. Michigan Dep’t of Corrections, 69 F.3d 76, 81 (6th Cir. 1995) (internal quotes
omitted).
Here, even assuming plaintiff could make out a constitutional violation,
defendants are entitled to qualified immunity. As to Plaintiff’s failure to protect claims,
defendants did not have knowledge of any excessive risk to plaintiff’s safety because he
did not make them personally aware of any such risk. Vague warnings of danger, even
15
if an officer receives those warnings, do not attach liability to that officer without more.
Lewis, 518 U.S. at 391; Rhodes, 452 U.S. at 349; Marsh, 937 F.2d at 1069; Hudson,
468 U.S. at 526–27. As to the retaliation claim, plaintiff does not allege direct retaliation
against any of the defendants individually. There is no evidence that either Klee or
McRoberts directly participated in or implicitly authorized the actions plaintiff considers
adverse. As to Condon, a reasonable officer in Condon’s shoes would not have
suspected that conducting a review hearing on plaintiff’s misconduct ticket for bribery
was retaliatory when Condon had no prior knowledge of the ticket and when plaintiff
himself admitted to the infraction. In addition, a reasonable officer would have similarly
moved plaintiff from ARUS Donaghy’s unit based on her concerns of overfamiliarity, and
plaintiff’s admission that he attempted to bribe ARUS Donaghy.
V. Plaintiff’s Motion for Summary Judgment
A substantial portion of plaintiff’s motion seeks to add new allegations and
relitigate several previous discovery issues already ruled upon by the Court. Regarding
his evidence to support his retaliation and failure to protect claims, plaintiff presents: (1)
his own self-serving statements; (2) his allegations of what defendants told him
personally; and (3) theories of conspiracy based on isolated instances with no
supported connection to one another. None of this amounts to plaintiff carrying his
burden of proving that he is entitled to summary judgment on his claims. Rather, as set
forth in detail above, the evidence in this case fails to create a genuine issue of material
fact which would require a trial.
VI. Conclusion
16
For the reasons stated above, defendants’ motion for summary judgment is
GRANTED. Plaintiff’s motion for summary judgment is DENIED. This case is
DISMISSED.
SO ORDERED.
S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: 9/18/2019
Detroit, Michigan
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