Cummings v. Heyns et al

Filing 42

ORDER adopting in part 35 Report and Recommendation; granting in part and denying in part 15 Motion for Summary Judgment. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

WALTER CUMMINGS,
Case No. 14-10957
Plaintiff,
SENIOR UNITED STATES DISTRICT
JUDGE ARTHUR J. TARNOW

v.
PAUL KLEE, ET AL.,

MAGISTRATE JUDGE MICHAEL J.
HLUCHANIUK

Defendants.
/
ORDER ADOPTING IN PART REPORT AND RECOMMENDATION [35]; GRANTING IN
PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[15]; AND STAYING CASE PENDING REQUEST FOR PRO BONO COUNSEL
Plaintiff, a prisoner in the custody of the Michigan Department of
Corrections, alleges that Defendants violated Plaintiff’s rights under the United
States Constitution and the Americans with Disabilities Act of 1990 (ADA).
Defendants filed a Motion for Summary Judgment [15] on June 2, 2014. Plaintiff
filed a Response [31] on August 27, 2014. On October 14, 2014, the Magistrate
Judge issued an Order [33] partially staying discovery pending the Court’s
resolution of Defendants’ Motion for Summary Judgment [15]. On December 4,
2014, the Magistrate Judge issued a Report and Recommendation (R&R) [35]
recommending that the Court grant Defendants’ Motion for Summary Judgment
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and dismiss Plaintiff’s claims. On January 7, 2015, Plaintiff filed a Motion to
Compel Discovery [37].

Plaintiff filed Objections to the Report and

Recommendation [40] on February 3, 2015. 1
For the reasons stated below, the Report and Recommendation [35] is
ADOPTED IN PART.

Defendants’ Motion for Summary Judgment [15] is

DENIED with respect to Plaintiff’s deliberate indifference claim, Plaintiff’s
excessive force claim against Defendants Campbell, McRoberts, and McConnell in
their individual capacities, and Plaintiff’s ADA claim against Defendant Klee in
his official capacity. The motion is GRANTED in all other respects. The case is
STAYED pending resolution of the Court’s request for pro bono counsel to
represent Plaintiff.
FACTUAL BACKGROUND
The Court adopts the following summary of the relevant facts, as set forth in
the R&R:
Plaintiff is a prisoner confined by the Michigan
Department of Corrections, currently confined at the
Lakeland Correctional Facility in Coldwater, Michigan.
In September 2013, plaintiff was confined at the Gus
Harrison Correctional Facility. On September 26, 2013,
plaintiff was moved from a “barrier free” cell in Housing
Unit 3 to a “non-barrier free” cell in Housing Unit 1
1

Pursuant to the Court’s Order Granting Plaintiff’s Motion for Extension of Time
to File Objections [41], Plaintiff’s Objections [40] are timely.
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because he did not qualify for placement in a “barrier
free” cell as he did not have a permanent wheelchair
accommodation which would require access to a “barrier
free” cell. Rather, plaintiff’s accommodation was for a
distance only wheelchair, which does not require special
housing. (Dkt. 1, Complaint ¶¶ 11, 15; Dkt. 15-4,
McRoberts Aff. ¶ 3). Plaintiff fell down some stairs in
Housing Unit 1 that same day. (Dkt. 1, Complaint, ¶ 19).
A video recording shows plaintiff attempting to climb the
stairs, then straightening up and falling backwards.
Plaintiff was transported on a gurney to Health Care to be
examined, complaining of pain in his lower back and
head. (Dkt. 1, Complaint, ¶ 19) According to plaintiff’s
medical records, there was no edema or sign of injury on
plaintiff’s head or lower back, although plaintiff
complained of pain in his lower back on movement. (Dkt.
15-5). Plaintiff was given Tylenol and ice for his back
and head and allowed to rest in Health Care for one hour.
(Id.)
Although plaintiff alleges that the medical staff did
not instruct plaintiff to leave, the medical records indicate
that he was treated and released with activity restrictions
for two days, and that when custody officers arrived to
escort plaintiff back to his cell, he refused to get up off
the gurney or make any attempt to leave. (Dkt. 1, ¶ 24;
Dkt. 15-5). Defendants Campbell, McRoberts and
McConnell ordered plaintiff to get into his wheelchair
and return to his unit but plaintiff refused to do so, stating
that he could not get up because of the injuries he
sustained from the fall. (Dkt. 1, Complaint ¶¶ 21-22; Dkt.
15-3, Campbell Aff. ¶ 5; Dkt. 15-4, McRoberts Aff. ¶ 4).
Defendants again ordered plaintiff to return to his cell or
he would be placed in segregation for refusing to follow
orders. (Dkt. 15-3, Campbell Aff. ¶ 5). Plaintiff alleges
that defendants and other correctional officers physically
removed him from the emergency room to segregation.
(Id. ¶¶ 25-29). Plaintiff alleges that when he could not sit
in his wheelchair because of pain, he was thrown to the
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floor and defendants placed their knees on his head and
neck area and lower back before handcuffing him and
dragging him to the hold. (Id. ¶¶ 29-32). Defendants,
however, assert that Health Care indicated that plaintiff
did not have any injuries that prevented him from
returning to his assigned cell and that custody staff were
instructed to assist in placing plaintiff in his wheelchair
so he could be removed from Health Care. (Dkt. 15-3,
Campbell Aff. ¶¶ 6,7; Dkt. 15-4, McRoberts Aff. ¶ 4).
Plaintiff refused to allow staff to assist him to his
wheelchair by stiffening his body and scooting onto the
floor from the wheelchair. (Dkt. 15-3, Campbell Aff. ¶
11; Dkt. 15-5, McConnell Aff. ¶ 7). Defendants allege
that plaintiff was using profanities and swinging his arms
back and forth, and that restraints were applied for the
safety of the staff and plaintiff. (Dkt. 15-5, McConnell
Aff. ¶ 8). Then, because plaintiff refused to allow staff to
transport him to segregation in the wheelchair, it became
necessary to physically carry plaintiff to segregation. (Id.
¶ 9). Plaintiff continued resisting staff by stiffening and
hanging his body, becoming “dead weight.” (Id.)
Once in segregation, plaintiff was placed in a cage
on the floor, with no toilet or bed. (Dkt. 1, Complaint, ¶
33). A shield was placed over plaintiff as a safety
precaution and plaintiff’s clothing was cut off and his
restraints were removed. (Id. ¶ 34; Dkt. 15-5, McConnell
Aff. ¶ 10). Plaintiff states he was left in the hold for five
hours, unable to move and that he urinated on himself
three times. (Dkt. 1, Complaint ¶¶ 34-37). Plaintiff later
was able to return to his cell via his wheelchair and had
to crawl up the stairs to get there. (Id. ¶¶ 40-41). Plaintiff
alleges that defendants used excessive force, they
conspired to cause him harm and retaliated against him,
and that defendants’ conduct constituted cruel and
unusual punishment toward plaintiff, all in violation of
his rights under the First and Eighth Amendments to the
United States Constitution. Plaintiff also alleges that
defendants’ actions violated the Americans with
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Disabilities Act (“ADA”). Plaintiff seeks damages and
injunctive relief.
LEGAL STANDARDS
The Court reviews objections to an R&R on a dispositive motion de novo.
28 U.S.C. § 636(b)(1)(C). “A judge of the court may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate judge.”
Id.
Summary judgment is appropriate “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 a judgment as a matter of law.” FED. R. CIV. P. 56(c). The moving
party has the burden of establishing that there are no genuine issues of material
fact, which may be accomplished by demonstrating that the nonmoving party lacks
evidence to support an essential element of its case. Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). The Court must construe the evidence and all reasonable
inferences drawn therefrom in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
A genuine issue for trial exists if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
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ANALYSIS
Plaintiff brings claims for First Amendment retaliation, conspiracy,
deliberate indifference in violation of the Eighth Amendment, excessive force in
violation of the Eighth Amendment, and violation of Title II of the ADA. He
brings these claims against all Defendants in both their individual and official
capacities. He seeks damages against each Defendant, as well as injunctive relief
prohibiting Defendants and the MDOC “from placing Plaintiff in a non-accessible
facility” while Plaintiff is “disabled” within the meaning of the ADA.
I.

First Amendment Retaliation and Conspiracy
Plaintiff objects to the R&R’s conclusion that he did not exhaust

administrative remedies for his First Amendment retaliation and conspiracy claims.
Plaintiff quotes the following excerpt from one of his grievances:
Grievant is in severe pain from his injurys and the excessive and
unnecessary force by the C/O’s, Deputy Warden Campbell and
McRobert and Capt. McConnel. Grievant is afraid for his health and
safety and of retaliation for writing this grievance.
The Court agrees with the R&R’s conclusion that because this grievance spoke
only of Plaintiff’s fear of future retaliation, rather than seeking redress for
retaliation he had already suffered, it did not exhaust his retaliation claim. Further,
the grievance makes no conspiracy charge, and Plaintiff has not produced any
other grievance in which he sought redress for the alleged conspiracy. The Court
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therefore agrees with the R&R’s conclusion that Plaintiff has failed to exhaust his
conspiracy charge as well.
II.

Deliberate Indifference
The R&R concluded that Plaintiff failed to exhaust his deliberate

indifference claim, though it acknowledged that Plaintiff’s grievance concerning
the incident can be read to allege deliberate indifference.

Specifically, the

grievance complained that the segregation cage Plaintiff was placed in had no
toilet or bed and that Plaintiff was left there without assistance for five hours, even
though he urinated on himself. The R&R added that a deliberate indifference
claim premised on these facts would fail as a matter of law, reasoning as follows:
The Sixth Circuit has previously held that “deprivations of fresh water
and access to the toilet for a 20-hour period, while harsh, were not cruel
and unusual punishment.” Hartsfield v. Vidor, 199 F.3d 305, 310 (6th
Cir. 1999) (citing Stephens v. Carter Cnty. Jail, 816 F.2d 682 (6th Cir.
1987)). Further, as in Hartsfield, “the record provides sworn testimony
and documentation, not refuted by plaintiff beyond the allegations in
his complaint, that adequate toilet breaks and opportunities to drink
were provided to plaintiff.” Id.; (Dkt. 15-8, Pg ID 138-42).
Plaintiff objects to the R&R’s conclusion that he did not exhaust his deliberate
indifference claim. Plaintiff does not, however, address the R&R’s conclusion that
the claim must fail on the merits.
The Court agrees with Plaintiff: his grievance was sufficient to exhaust his
claim that the conditions of his confinement in the segregation cell amounted to
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deliberate indifference in violation of the Eighth Amendment. Defendants have
failed to move for summary judgment on this claim on any grounds other than
Plaintiff’s alleged failure to exhaust, and have therefore failed to meet their burden
as summary judgment movants. The Court disagrees with the R&R’s suggestion
that it is appropriate at this stage to decide the claim against Plaintiff on the merits,
since the parties have not briefed the merits of the claim and Plaintiff has not been
afforded a full opportunity for discovery.

Accordingly, the Court will deny

Defendants’ Motion for Summary Judgment with respect to Plaintiff’s deliberate
indifference claim.
III.

Excessive Force
The R&R concluded that Plaintiff had exhausted his Eighth Amendment

excessive force claim. However, the R&R concluded that the claim is barred by
the Eleventh Amendment to the extent it is brought against Defendants in their
official capacities. Plaintiff does not address this conclusion in his Objections, and
the Court adopts it. As further explained below, the R&R also concluded that
Defendants were entitled to qualified immunity on Plaintiff’s excessive force claim
against them in their individual capacities. Plaintiff objects to the R&R’s analysis
of qualified immunity.
A.

Defendant Klee
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The R&R concluded that Plaintiff’s excessive force claim must fail with
respect to Defendant Klee because Defendant Klee had no connection to the
incident aside from denying Plaintiff’s resulting grievance. In his Objections,
Plaintiff argues that if Defendant Klee had not assigned him to a cell on the second
floor, then Plaintiff would not have fallen while trying to climb the stairs and
therefore would not have been forcefully removed from the healthcare unit, since
he would not have been there. Plaintiff appears to be suggesting that Defendant
Klee may be held liable as a “but for” cause of the excessive force. Plaintiff cites
no authority for such a theory of liability, and the Court is not persuaded by it. The
Court agrees with the R&R’s conclusion that Defendant Klee is entitled to
summary judgment on Plaintiff’s excessive force claim.

See, e.g., Grinter v.

Knight, 532 F.3d 567, 576 (6th Cir. 2008) (“The denial of administrative
grievances or the failure to act by prison officials does not subject supervisors to
liability under 42 U.S.C. § 1983.”) (quoting Shehee v. Luttrell, 199 F.3d 295, 300
(6th Cir. 1999)).
B. Defendants Campbell, McRoberts, and McConnell
The R&R concluded that Defendants Campbell, McRoberts, and McConnell
are entitled to qualified immunity on Plaintiff’s excessive force claim. Relying on
MDOC video of the incident, the R&R reasoned that no reasonable jury could
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conclude that Defendants acted “maliciously and sadistically to cause harm.”
Hudson v. McMillian, 503 U.S. 1, 6 (1992). The R&R alternatively reasoned that
no reasonable jury could find that Defendants employed more than a de minimis
level of force. Id. at 9-10 (“The Eighth Amendment’s Prohibition of ‘cruel and
unusual’ punishments necessarily excludes from constitutional recognition de
minimis uses of physical force, provided that the use of force is not of a sort
‘repugnant to the conscience of mankind.’”) (quoting Whitley v. Albers, 475 U.S.
312, 327 (1986)).
Plaintiff objects that the parties’ declarations “are squarely contradictory as
to what force was used,” creating a genuine issue of material fact. However, this
argument does not contradict the R&R, which acknowledged that the parties
advance conflicting accounts of the incident.

In concluding that there is no

genuine issue of material fact, the R&R relied on binding precedent holding that
where video evidence substantiates one party’s account of the facts and contradicts
the other party’s, a court ruling on a summary judgment motion may accept the
facts as substantiated by the video evidence. Scott v. Harris, 550 U.S. 372, 378-81
(2007).
Plaintiff objects that the Court should not rely on Defendants’ video
evidence because Defendants have altered the videos and failed to produce other
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videos that support Plaintiff’s claim. As recounted in the R&R, Plaintiff made
similar allegations in his June 26, 2014 Motion to Compel [27]. On October 14,
2014, the Magistrate Judge issued an Order [33] denying Plaintiff’s motion to
compel and holding that Plaintiff had failed to show that the videos are unsuitable
for consideration at the summary judgment stage.

The Magistrate Judge

nevertheless directed Defendants to produce all video evidence of the incident or
respond that no additional video evidence exists. In response, Defendants
submitted an affidavit executed by the Administrative Assistant of ARF, who
stated that no additional video evidence exists. Plaintiff did not file an objection to
the Magistrate Judge’s Order [33] within fourteen days of service, despite the
Order’s explanation of the fourteen-day deadline. Plaintiff therefore waived his
right to seek review of the order. See FED. R. CIV. P. 72; Mattox v. City of Forest
Park, 183 F.3d 515, 519-20 (6th Cir. 1999).
In any case, Plaintiff’s challenge to the video evidence is unconvincing. In
his Objections [40], Plaintiff asks the Court to compare the videos with MDOC
reports concerning the incident, attached as exhibits to his recent Motion to
Compel Discovery [37]. Plaintiff claims that the authors of the incident reports
admitted to “excessive force issues” that are not shown in Defendants’ videos.
However, the Court has reviewed the incident reports and finds them consistent
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with Defendants’ video evidence. Plaintiff draws attention to Officer McIntire’s
statement in his incident report that he applied leg restraints to Plaintiff—but this is
not inconsistent with the videos, which show an officer (likely Officer McIntire)
doing so. Plaintiff also suggests that there must be an additional video of the
incident, since the reports show that Officer Starrs used the camera in his
“electronic control device” (taser) to record the incident. Defendants, however,
have submitted two distinct videos of the incident, one of which is likely the video
recorded by Officer Starrs. Plaintiff has not demonstrated that it was error for the
R&R to rely on Defendants’ video evidence in evaluating Defendants’ Motion for
Summary Judgment.
However, the Court has reviewed Defendants’ video evidence and disagrees
with the R&R’s assessment of it as conclusive.2

2

The Court has embedded portions of the video evidence in this opinion.
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Though a reasonable jury could believe that Plaintiff’s cries and other signs of pain
were feigned or exaggerated, the jury could instead believe that they were genuine.
Force causing the level of pain that Plaintiff expressed is not de minimis. Further,
video cannot depict state of mind. Video is therefore rarely, if ever, conclusive on
questions of intent, such as whether Defendants acted with the intent to cause
Plaintiff harm. Here, the video evidence also fails to depict events probative of
Defendants’ state of mind, including the events in the healthcare unit that led to
Defendants’ decision to forcibly remove Plaintiff. In sum, Defendants have failed
to establish that no reasonable jury could find that they acted objectively
unreasonably in light of Plaintiff’s clearly established right to be spared excessive
force. The Court must therefore deny Defendants’ Motion for Summary Judgment
on Plaintiff’s excessive force claim.
IV.

The Americans with Disabilities Act
Plaintiff claims that Defendants violated Title II of the ADA by moving him

from a “barrier free” cell to a “non-barrier free” cell. Defendants have moved for
summary judgment on Plaintiff’s ADA claim only on the grounds that Plaintiff
failed to exhaust his administrative remedies. The R&R agreed that Plaintiff had
failed to exhaust his ADA claim, since the only grievance Plaintiff had produced
did not mention the ADA and included no allegations consistent with his ADA
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claim. In his Objections, Plaintiff argues that he did, in fact, exhaust the ADA
claim. He attaches a grievance alleging that Defendant Klee violated the ADA by
placing him in a non-accessible unit, along with MDOC responses at each step of
the grievance process. On the basis of this new evidence, the Court concludes that
Plaintiff has exhausted his ADA claim against Defendant Klee.
The R&R suggested that Plaintiff’s ADA claim could not proceed even if it
had been properly exhausted.

The R&R correctly noted that Plaintiff cannot

maintain his Title II ADA claim against Defendants in their individual capacities.
Everson v. Leis, 556 F.3d 484, 501 n.7 (6th Cir. 2009) (“Title II of the ADA does
not … provide for suit against a public official acting in his individual capacity.”).
However, Plaintiff has sued Defendant Klee in his official capacity as well. A
state official sued in his official capacity is a proper defendant for a Title II claim.
Id. (“[T]he proper defendant under a Title II claim is the public entity or an official
acting in his official capacity.”) (citing Carten v. Kent State Univ., 282 F.3d 391,
396–97 (6th Cir. 2002)).3 Though the R&R suggested that all of Plaintiff’s claims
against Defendants in their official capacities should be dismissed on their merits

3

In fact, Plaintiff’s suit against Defendant Klee in his official capacity is
essentially a suit against the state of Michigan. Mingus v. Butler, 591 F.3d 474,
482 (6th Cir. 2010) (citing Brotherton v. Cleveland, 173 F.3d 552, 560-61 (6th Cir.
1999)).
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or on the grounds of Eleventh Amendment immunity, its analysis did not address
Plaintiff’s ADA claim. 4
In sum, the Court agrees with the R&R that Plaintiff has not exhausted his
ADA claim with respect to Defendants Campbell, McRoberts, and McConnell.
The Court will therefore grant these three defendants summary judgment on
Plaintiff’s ADA claim. However, Plaintiff has exhausted his ADA claim against
Defendant Klee, which may be brought against him in his official capacity. Since
Defendants have failed to identify any shortcoming in this claim aside from the
alleged failure to exhaust, they have failed to meet their burden as summary
judgment movants at this stage. The Court will therefore deny Defendant Klee
summary judgment on Plaintiff’s official-capacity ADA claim.
CONCLUSION
The Court holds that Defendants are entitled to summary judgment on
Plaintiff’s claims, with the following exceptions: (1) Plaintiff’s deliberate
4

The R&R concluded that Plaintiff’s official-capacity claims for injunctive relief
cannot proceed because Plaintiff has not established a constitutional violation. The
R&R did not address, however, whether Plaintiff has established a violation of the
ADA. The R&R further concluded that Plaintiff’s official-capacity claims for
damages are barred by Eleventh Amendment immunity. However, Title II of the
ADA has abrogated Eleventh Amendment immunity with respect to certain
claims; courts must apply a three-part test to determine if a Title II suit for
damages is barred by the Eleventh Amendment. Mingus, 591 F.3d at 482. The
R&R did not engage in this analysis.
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indifference claim; (2) Plaintiff’s excessive force claim against Defendants
Campbell, McRoberts, and McConnell in their individual capacities; and (3)
Plaintiff’s ADA claim against Defendant Klee in his official capacity. Further
proceedings, including any renewed motions for summary judgment following
discovery on the merits, remain subject to the Court’s referral of all pretrial matters
to the Magistrate Judge. The Court concludes that these further proceedings will
be sufficiently complex, in light of limitations on Plaintiff’s ability to litigate, to
warrant the Court’s request for pro bono counsel for Plaintiff. See 28 U.S.C. §
1915(e)(1); Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993).
Accordingly,
IT IS ORDERED that the Report and Recommendation [35] is ADOPTED
IN PART.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary
Judgment [15] is DENIED with respect to Plaintiff’s deliberate indifference claim,
Plaintiff’s excessive force claim against Defendants Campbell, McRoberts, and
McConnell in their individual capacities, and Plaintiff’s ADA claim against
Defendant Klee in his official capacity. The motion is GRANTED in all other
respects.

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IT IS FURTHER ORDERED that the case is STAYED pending resolution
of the Court’s request for pro bono counsel to represent Plaintiff.
SO ORDERED.

s/ Arthur J. Tarnow
Arthur J. Tarnow
Dated: 3/26/2015

Senior United States District Judge

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