Annabel v. Ericson et al
Filing
149
ORDER Granting in Part and Denying in Part 99 Motion for Summary Judgment; or in the Alternative 99 Motion to Dismiss. Signed by District Judge Stephen J. Murphy, III. (DPar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT ANNABEL,
Case No. 2:15-cv-10345
Plaintiff,
HONORABLE STEPHEN J. MURPHY, III
v.
JORG ERICHSEN, et al.,
Defendants.
/
OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, MOTION TO DISMISS [99]
On January 26, 2015, pro se plaintiff Robert Annabel ("Annabel") filed his civil
rights complaint alleging that prison officials at the Macomb Correctional Facility ("MCF")
violated various constitutional provisions and state laws. In May 2016, the Court referred
all pretrial matters to Magistrate Judge Davis. ECF 22. The Court later rescinded the order
of reference as to dispositive motions. ECF 106. There are two dispositive motions
currently pending. The Court will address only the motion for summary judgment, or in
the alternative, motion to dismiss. ECF 99. For the reasons stated below, the Court will
grant in part and deny in part Defendants' motion.
BACKGROUND
I.
Procedural History and the Parties
Annabel filed his complaint on January 26, 2015. The Court initially dismissed the
complaint under the Prison Litigation Reform Act's "three strikes" provision. ECF 6.
Annabel filed a motion for reconsideration, ECF 9, and a notice of appeal, ECF 10. The
Court granted Annabel's motion for reconsideration, reopened the case, and granted
1
Annabel in forma pauperis status. ECF 16, 19. The Court’s grant of reconsideration
rendered Annabel's appeal moot. ECF 17.
Then, the federal Marshal Service served eleven defendants, who each waived
service. ECF 27–34, 36–38. The Marshals were unable to serve four defendants: Jorg
Erichsen, and Corrections Officers ("CO") Weberg, Robbinson, and Brown. ECF 23–26.
Erichsen returned a waiver of service on March 3, 2017. ECF 69. Over the course of more
than one year, the Court attempted to effectuate service on Weberg, Robbinson, and
Brown. See ECF 45, 47, 54, 57, 65, 86, 89, 101, 102, and 110. Neither Robbinson nor
Brown could be served, ECF 95–96, and the Court dismissed them from the case, ECF
101. Weberg returned a waiver of service on November 20, 2017. ECF 113.
In sum, the Marshals successfully served thirteen defendants: Jorg Erichsen; CO
Weberg; and the "MDOC Defendants." The MDOC Defendants include: COs Antwan
Oden, Thomas Jordan, Jorge Lebron, Kenneth Loftis; Sergeant James Haggerty;
Grievance Coordinator Eutrilla Taylor; Mental Health Therapists Janice Stewart and Scott
Webster; Deputy Wardens Darrell Steward and George Stephenson; and Warden
Kenneth Romanowski.1
During the protracted service period, the parties filed numerous motions that the
Court addressed. First, on September 6, 2016, the MDOC Defendants filed a motion for
summary judgment or motion to dismiss. ECF 43. On September 22, 2016, Annabel filed
a motion for leave to file an amended complaint, ECF 48, and an amended complaint,
1
Annabel neither listed the first names of any of the defendants nor spelled all names
correctly in his original complaint. His amended complaint properly lists all MDOC
defendants and the Court uses those spellings. ECF 49, PgID 356–57.
2
ECF 49. Annabel subsequently filed a response to MDOC Defendants' dispositive motion
on October 24, 2016. ECF 58. The MDOC Defendants replied. ECF 60.
On August 25, 2017, Magistrate Judge Davis filed a report and recommendation
suggesting that the Court grant Annabel's motion for leave to file an amended complaint
and deny the MDOC Defendants' motion for summary judgment on the issue of
exhaustion. ECF 91. The Court rejected the Report and Recommendation because both
motions were moot. ECF 97. The MDOC Defendants filed a motion under Rule 12(b) and
"Annabel filed an amended complaint within 21 days." Id. at 760. Pursuant to Rule 15(a),
therefore, "Annabel [was] entitled to amend his complaint as of right." Id.
Second, in April 2017, the Court addressed several other Reports and
Recommendations, overruled Annabel's objections to the Reports, and affirmed
Magistrate Judge Davis's orders on a motion to compel, a motion to strike, and a renewed
motion for recusal. ECF 74, 76. Annabel filed a notice of appeal on May 8, 2017. ECF 78.
The Sixth Circuit dismissed the appeal as premature. ECF 85.
Third, Weberg filed an unopposed motion for summary judgment, which the Court
granted. ECF 122, ECF 125–26. As a result, only twelve defendants remained active
litigants in the case: Jorg Erichsen and the MDOC Defendants.
On October 10, 2017, the MDOC Defendants renewed their motion for summary
judgment or motion to dismiss. ECF 99. Annabel responded to the motion. ECF 103. In
the hopes of preserving judicial resources—given the case's extraordinarily heavy motion
practice2 and that the MDOC Defendants' renewed motion for summary judgment was
2
As of May 2018, the parties filed twenty-nine motions, six objections to various Reports,
four letters, and two notices of appeal.
3
identical to its previous, mooted filing—the Court rescinded its order of referral to
Magistrate Davis for resolution of the dispositive motions. ECF 106.
II.
Facts of the Case3
On December 2, 2013, Erichsen assaulted Annabel after Annabel "jokingly" locked
a fellow prisoner in a shower. ECF 49, PgID 358. During the encounter, Erichsen said,
"You fuckhead, now I have to go get the key! How about I lock you in there, bitch!" Id.
Plaintiff contends that a DVD of the event existed. Id. at 359.
After Annabel reported the incident, his injuries were treated and photographed.
Id. at 358–59. Plaintiff then filed a grievance for the assault, MRF-12-12-1179-26a.
Plaintiff suggests that MDOC failed to comply with the grievance policy in responding to
the grievance. Id. at 359. Further, Plaintiff expressed to MDOC inspector K. Steece a
desire to press criminal charges. Id.
Then, on December 12, 2013, COs Oden, Weberg, and an unknown officer called
Annabel a "snitch." Id. at 360. Annabel feared that the other prisoners would interpret the
statement to mean he was a snitch against them rather than a snitch against Erichsen.
Id. at 360. If interpreted that way, he suspected that the other prisoners would attack or
harass him. Id. Annabel responded by filing a grievance, MRF-13-12-1225-17b. Annabel
maintains that during its investigation of the incident, MDOC failed to interview an
identified witness. Id.
One week later, non-party Jordan asked Annabel a question about "privileged
information formally disclosed only to Sergeant Kelly, Inspector K. Steece, and Deputy
3
Given the summary judgment standard to be employed, the Court recounts the facts in
the light most favorable to Plaintiff. The summary is not a finding of fact.
4
Warden Stewart." Id. at 361. Annabel avers that non-party Jordan's question
demonstrated Grievance Coordinator Eutrilla Taylor disclosed privileged information and
that the disclosure evidenced Taylor's corruption. So, Annabel filed a grievance, MRF 1401-0056-28e. Taylor rejected that grievance as vague, which Annabel believes further
evidences her corruption. Id.
On January 14, 2014, COs Jordan and Lebron stopped Annabel as he proceeded
to a therapy group. Id. at 360. Jordan told Plaintiff: "You aren't going to any groups today,
because you should have kept your mouth shut about [Erichsen]. Go in there (the Unit 7
dayroom), and I'll write you a threatening behavior, and you'll be down on A-wing." Id.
That day, Annabel submitted a grievance to Inspector Steece. Id. at 361.
Then, before dinner on January 19, 2014, CO Loftis checked Annabel's ID at a
guard station. Id. at 360–61. During the exchange, Loftis told Annabel, "I'm not going
down like [Erichsen] did." Id. at 361. The next day, Annabel filed another grievance with
Inspector Steece. Id.
Sergeant Kelly interviewed Plaintiff about the incidents and determined that there
was insufficient evidence to discredit staff. Plaintiff received neither grievance receipt
identifiers nor Step I Responses, which foreclosed appeal. Id.
On January 28, 2014, Annabel submitted a written complaint to "the Unit 7 nonwhite prisoner unit representative" and asked him "to raise as issues at the Warden's
Forum" that Grievance Coordinator Taylor failed "to provide Step I receipt identifiers" and
Step II Appeals forms. Id.
5
On February 1, 2014, Annabel wrote a letter to Inspector Steece expressing
concern for his safety at the facility because of staff conduct. Id. at 362.4 The next day,
Annabel requested grievance forms from CO Brown5 who suggested that Annabel could
retrieve them from the desk. Instead, Brown allegedly ordered Annabel into a shower
cage, drew his Taser, and pushed Plaintiff into the cage. Id. at 361–62. Brown kept
Annabel in the shower cage for more than ninety minutes. Id. at 362. During the
interaction, Annabel remembered Erichsen's assault and felt punished for filing the
grievance against Erichsen. Plaintiff also recalled a painful experience he had with a
Taser. Id.
On February 3, 2014, Annabel complained to his treating psychiatrist of an upset
stomach. He identified the staff's treatment of him as the source; the psychiatrist
suggested that Annabel's decision to stop taking medication prompted his stomach pain.
Id. at 362.
Soon thereafter, Plaintiff returned to his unit but prison staff locked him in a "shower
cage, stripped him of his clothes, and placed him in a suicide observation cell" without
explanation or authorization. Id. at 363. Earlier that day, unknown prison staff had packed
Annabel's property, discarded his eyeglasses and books, and discovered "contraband
4
The timing of the letter seems confusing. Annabel contends that the shower incident
with CO Brown occurred on February 2, 2014. ECF 49, PgID 361. He then states that
after the incident and "[u]pon returning to his cell, on February 1, 2014, Plaintiff
immediately wrote Inspector K. Steece" the letter. Id. at 362. The Court will use the
February 1 date because Plaintiff explicitly provided the date of the letter.
5
The Court dismissed Brown for failure to serve. The Court includes the allegation only
because it relates to Annabel's supervisory liability claims.
6
metal." Id. Annabel filed a grievance for the incident, MRF-14-03-0373-19z.6 Whichever
officer packed Annabel's belongings allegedly failed to provide the mandatory packing
slip. Id. Then, on February 4, 2014, Defendants Haggerty, Robbinson, Webster, and
Stewart did not remove Annabel from the observation cell in time to attend a scheduled
law library session. Id. Further, Robbinson "verbally harassed Plaintiff about the
unjustified placement." Id.
Annabel contends that detention in the observation cell caused him extreme
emotional distress and aggravated symptoms of PTSD. Id. at 364. While in an aggravated
mental state, Annabel "flooded his cell, destroyed a mattress, and slit open a gash on his
forehead from headbutting the cell door window[.]" Id. As a nurse attended to his wound,
staff drew their Tasers and Lebron asked, "[A]re we supposed to be happy that
[Erichsen's] off duty?" Id. The COs mocked Annabel that Erichsen would soon return. Id.
The prison transferred Annabel to the Crisis Stabilization Unit at Woodland
Correctional Facility ("WCF") for Annabel's recovery from his mental breakdown. Id. On
February 6, 2014, Plaintiff mailed two grievances to Inspector Steece at MCF describing:
(i) Brown locking him in a shower and threatening him, (ii) interacting with his psychiatrist,
(iii) staff locking him in suicide observation, (iv) missing his library session because of
staff delay, and (v) the officers' harassing him while the nurse tended to his head wound
("Steece Grievances 3 and 4"). Id. at 364.
Less than one week later, Annabel mailed another grievance to Steece and the
previous grievances, which were returned as undeliverable. Id. The new grievance
6
Annabel apparently filed an additional grievance for the incident, ARF-14-03-0581-19z.
A record of that grievance does not exist. Regardless, only the MRF grievance relates to
the defendants. The Court, therefore, will address only that grievance.
7
identified Warden Kenneth Romanowski and Deputy Wardens George Stephenson and
Darrell Steward as responsible for implementing a "policy or custom of deliberate
indifference and negligence" by allowing the staff to "retaliate with overt impunity" against
Annabel, by awarding Erichsen "an unreasonable paid vacation for the assault," and by
encouraging and condoning the staff's campaign of misconduct. Id. at 364 ("Steece
Grievance 5"). Plaintiff did not receive grievance identifiers or Step I Responses from
Steece or Taylor for Steece Grievances 3, 4, or 5. Id. at 365. That failure allegedly
prevented any appeal. Steece did receive a consent for medical information from Annabel
to investigate Annabel's placement in the suicide observation cell. Id.
On February 20, 2014, Annabel was transferred from WCF to Gus Harrison
Correctional Facility. ECF 58, PgID 36. Then, in May 2014, Annabel was transferred to
Ionia Correctional Facility. Id.
In the subsequent months, and throughout his transfers, Annabel submitted
inquiries to Taylor, Romanowski, and Steece. In particular, Annabel sent Taylor six letters
asking for Step II Appeal forms and for updates on unprocessed grievances. Id. Annabel's
inquiries went largely unanswered.
Annabel filed suit and alleged the following claims:7
Count I: Erichsen violated Annabel's Eighth Amendment rights by using excessive
force;
Count II: Brown violated Annabel's Eighth Amendment rights by using excessive
force;
7
For simplicity, the Court will assign Count numbers to Annabel's "Statement of Claims."
See ECF 49, PgID 366–67.
8
Count III: Erichsen, Oden, Weberg, Jordan, Lebron, Loftis, Robbinson, Haggerty,
Taylor, Webster, and Stewart violated Plaintiff's First Amendment rights by a campaign
and conspiracy to retaliate and violated the Eighth Amendment by causing him physical
and psychological pain;
Count IV: Weberg and Oden violated Plaintiff's Eighth Amendment rights by
creating an excessive risk of harm by attempting to incite prisoner to assault Annabel by
calling him a "snitch";
Count V: Romanowski, Steward, Stephenson, Haggerty, and Taylor violated
Plaintiff's Eighth Amendment rights by authorizing, approving, and encouraging their
subordinates' retaliatory campaign after Annabel filed the Assault Grievance and ensured
that subordinate purposefully mishandled the grievance process;
Count VI: Romanowski, Steward, Stephenson, Haggerty, Taylor, Erichsen, Brown,
Jordan, Lebron, Oden, Weberg, Loftis, Robbinson, Webster, and Stewart committed
intentional infliction of emotional distress and conspiracy;
Count VII: Erichsen committed state law assault and battery;
Count VIII: Brown committed state law assault and battery;
Count IX: Oden and Weberg committed the tort of slanderous defamation by
announcing Plaintiff that was a "snitch"; and
Count X: Romanowski, Steward, Stephenson, and Taylor committed the state law
torts of negligence and gross negligence by failing in their duties to supervise and
investigate, and mishandling the grievance process.
9
STANDARD OF REVIEW
Summary judgment is proper if 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).8 A fact
is material for purposes of summary judgment if its resolution would establish or refute an
"essential element[] of a cause of action or defense asserted by the parties[.]" Kendall v.
Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984).
In considering a motion for summary judgment, the Court must view the facts and
draw all inferences in the light most favorable to the non-moving party. Stiles ex rel. D.S.
v. Grainger Cty., 819 F.3d 834, 848 (6th Cir. 2016). The Court must then determine
"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." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). And although the Court may not make
credibility judgments or weigh the evidence, Moran v. Al Basit LLC, 788 F.3d 201, 204
(6th Cir. 2015), a mere "scintilla" of evidence is insufficient to survive summary judgment;
8
The MDOC defendants filed a motion for summary judgment or motion to dismiss. In
Jones v. Bock, the Supreme Court determined that the PLRA required defendant prisons
to "plead and prove" failure to exhaust as an affirmative defense. 549 U.S. 199, 204
(2007). In light of that decision, questions remain about whether the affirmative defense
must be raised under Rule 12 or Rule 56. The Sixth Circuit implicitly acknowledges the
propriety of using the summary judgment standard. See generally Mattox v. Edelman,
851 F.3d 583 (6th Cir. 2017). Practically speaking, the summary judgment standard
seems appropriate here because prisons must offer the prison grievance policy and
administrative record to support their affirmative defense of failure to exhaust. At least
one other circuit determined that a motion for summary judgment was the only appropriate
device for deciding exhaustion in cases governed by the PLRA. See Albino v. Baca, 747
F.3d 1162 (9th Cir. 2014). Although Annabel's complaint references the MDOC's policy
and administrative record and the Court could consider exhaustion under Rule 12's
standard, the Court will apply the summary judgment standard.
10
"there must be evidence on which the jury could reasonably find for the plaintiff,"
Anderson, 477 U.S. at 252.
DISCUSSION
I.
Exhaustion
A. Legal Standard
Pursuant to the Prison Litigation Reform Act ("PLRA"), a prisoner must exhaust
administrative remedies before filing suit. 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548
U.S. 81, 90 (2006). But a prisoner is not required to plead exhaustion; rather, a prison
must raise failure to exhaust administrative remedies as an affirmative defense. 42 U.S.C.
§ 1997e(a); Jones v. Bock, 549 U.S. 199, 212 (2007). At summary judgment, the prison
must prove that no reasonable jury could find that the plaintiff exhausted his
administrative remedies. Surles v. Andison, 678 F.3d 452, 455–56 (6th Cir. 2012).
The PLRA "requires proper exhaustion." Woodford, 548 at 93. A federal
exhaustion standard does not exist. So, a prisoner properly "exhausts his remedies when
he complies with the grievance procedures put forward by his correctional institution."
Mattox v. Edelman, 851 F.3d 583, 590 (6th Cir. 2017) (citing Jones, 549 U.S. at 217–19);
see also Woodford, 548 U.S. at 90 (describing proper exhaustion in administrate law as
requiring "compliance with an agency's deadlines and other critical procedural rules");
see further Napier v. Laurel Cty., 636 F.3d 218, 224 (6th Cir. 2011) (stating "a prisoner
must do what is required by the grievance policy"). A prisoner's "[f]ailure to file an
administrative grievance within proper time limits precludes proper exhaustion and thus
bars the claim in federal court." Reynolds-Bey v. Harris-Spicer, 428 F. App'x 493, 500
(6th Cir. 2011) (citing Woodford, 548 U.S. at 93); see also Pool v. Klenz, No. 17-3426,
11
2018 WL 1989637, at *2 (6th Cir. Jan. 17, 2018) (citing Scott v. Ambani, 577 F.3d 642,
647 (6th Cir. 2009) ("Woodford makes clear that a prisoner cannot satisfy the [Prison
Litigation Reform Act] exhaustion requirement by filing an untimely or otherwise
procedurally defective administrative grievance.")).
To exhaust his administrative remedies, therefore, a prisoner must comply with the
prison's grievance procedures. If a prisoner fails to do so, courts typically dismiss
unexhausted claims and address the merits of exhausted claims. Jones, 549 U.S. at 220–
24.
The PLRA's exhaustion requirement accomplishes three ends. Exhaustion
"allow[s] prison officials a fair opportunity to address grievances on the merits, to correct
prison errors that can and should be corrected[,] and to create an administrative record
for those disputes that eventually end up in court." Mattox, 851 F.3d at 591.
Federal courts may address unexhausted claims in two situations, however. First,
courts may consider unexhausted prisoner claims if a prison declined to enforce its "own
procedural requirements and opt[ed] to consider otherwise-defaulted claims on the
merits[.]" Reed-Bey v. Pramstaller, 603 F.3d 322, 325 (6th Cir. 2010).
Second, courts may excuse a prisoner's failure to exhaust if the administrative
remedies were not available. Before addressing whether administrative procedures were
unavailable, the prisoner must present evidence of his affirmative efforts to comply with
the procedures. Rivers v. Turner, No. 16-4241, 2017 WL 9249945 (citing Napier, 636 F.3d
at 224). The prisoner's affirmative efforts, even if unsuccessful, must be "sufficient under
the circumstances." Lee v. Wiley, 789 F.3d 673, 677 (6th Cir. 2015) (quoting Risher v.
Lappin, 639 F.3d 236, 240 (6th Cir. 2011)).
12
A grievance procedure is unavailable if: (1) the procedure offers "a simple dead
end—with officers unable or consistently unwilling to provide any relief to aggrieved
inmates;" (2) no ordinary prisoner could navigate the procedures; or (3) prison officials
"through machination, misrepresentation, or intimidation" "thwart inmates from taking
advantage" of the procedures. Ross v. Blake, 136 S. Ct. 1850, 1858–60 (2016).
Finally, a reviewing court may "dismiss [an] underlying claim without first requiring
the exhaustion of administrative remedies" if the claim "fails to state a claim upon which
relief can be granted." 42 U.S.C. § 1997e(c)(2).
B. MDOC Grievance Policy
MDOC Policy Directive 03.02.130 ("Policy") provides two grievance procedures,
which the Court will refer to as the Primary and Alternative Grievance Procedures.
1. Primary Grievance Procedure
The Policy's primary grievance procedure contains four parts. First, within two
business days of a grievable issue, the prisoner must attempt to resolve the issue with
the staffer. ECF 43-2, PgID 245, ¶ P. Second, within five business days of any attempted
and unsuccessful oral resolution, the prisoner must send a "Step I grievance" to the Step
I Grievance Coordinator of the facility where the grievable issue occurred. Id. at 245–46,
¶¶ P, R, V. The Step I grievance must include the "[d]ates, times, places, and names of
all those involved" in the grievable issue. Id. at 245, ¶ R. Usually, the prison must respond
within fifteen business days of receipt of the grievance. Id. at 246, ¶ X.
Third, the prisoner may file a Step II grievance with the facility's Step II Grievance
Coordinator if (i) he is dissatisfied with the Step I response, or (ii) he did not receive a
timely response. Id. at 247, ¶ BB. The prisoner must file a Step II grievance form within
13
ten business days of (i) receipt of the Step I response, or (ii) expiration of the prison's time
to respond. Id. Ordinarily, the prison must respond to a Step II grievance within fifteen
business days of receipt of the grievance. Id. at 247, ¶ CC.9
Fourth, the prisoner may send a Step III grievance to the prison's Grievance and
Appeals Section if (i) he is dissatisfied with the Step II response, or (ii) he did not receive
a timely response. Id. at 248, ¶ FF. Absent any extensions, therefore, a prisoner's Step
III grievance will be filed within no more than fifty-seven business days.10
The Policy's language requires the prisoner to file his grievance at the earlier of
either ten business days after receipt of a Step I or II response or ten business days after
a response date passed.11 The relevant language states: "the grievant must [file an
appeal] . . . within ten business days after receiving" a response "or, if no response was
received, within ten business days after the date the response was due[.]" ECF 43-2,
PgID 247, ¶ BB (Step II Grievance) and ¶ FF (Step III Grievance).
If the Policy allowed the prisoner to file a grievance at the later of the two dates,
the first clause—"within ten business days after receiving" a response—would be
9
For Step I or II responses outside the purview of the Internal Affairs Division, the prison
may receive, at maximum, an extension of fifteen business days. ECF 43-2, PgID 246,
¶ S.
10
The Court includes a timeline graphic of the MDOC's grievance policy absent any
extensions:
Day 7
• Step I
Grievance
Day 0
• Incident
Day 2
• Oral
Resolution
Day 32
• Step II
Grievance
Day 22
• Step I
Response
Day 57
• Step III
Grievance
Day 47
• Step II
Response
11
Step III
Response
This wrinkle reappears throughout the case; Defendants rely upon this rule for nearly
all of their exhaustion arguments.
14
superfluous. Ten business days from the response's due date would always be the later
date—regardless of whether the prisoner received a response on the due date. The Policy
therefore requires a grievant to file a Step II or III grievance within twenty-five days of the
prison's receipt of the grievance.
So, if Annabel received an MDOC response after the tolling of twenty-five business
days, any response to that tardy prison response would not properly exhaust his claims.
The Court may consider the unexhausted claims, however, if the prison responded to a
procedurally-defaulted grievance on the merits, see Reed-Bey, 603 F.3d at 325, or if the
grievance process was unavailable, see Ross, 136 S. Ct. at 1858–60.
2. Alternative Grievance Procedure
An alternative method for filing grievances exists. See id. at 245, ¶ Q. A grievant
may file a Step I grievance "directly with the inspector of the institution at which the
prisoner is housed instead of with the grievance coordinator" if the grievant alleges
"conduct which falls under the jurisdiction of the Internal Affairs Division." Id. The Internal
Affairs Division retains jurisdiction for six types of allegations: (1) cases of staff sexual
misconduct, (2) cases of staff overfamiliarity, (3) allegations constituting a felony or
misdemeanor, (4) allegations of infractions of work rule or policy of significant magnitude,
(5) conduct requiring an employee's discharge, and (6) allegations of discriminatory
harassment. ECF 60-2, PgID 499–500. If the Manager of the Internal Affairs Division
determines "that the grievance is not within the jurisdiction of the Internal Affairs Division,"
the grievance shall "be processed as a Step I grievance in accordance with this policy."
ECF 43-2, PgID 245, ¶ Q.
15
Regardless of his selected method, the prisoner must properly exhaust his claims
before filing a lawsuit.
II.
Exhaustion: Annabel's Grievances
Macomb Correctional Facility recorded fourteen grievances filed by Annabel and
assigned them grievance identifiers ("Recorded Grievances"). Annabel also filed
numerous grievances not contained in MDOC's records: one that received an identifier,
MRF-14-03-0373-19z, and five that never received identifiers after he mailed them to
Inspector Steece. The Court will refer collectively to these grievances as "Unrecorded
Grievances."
A. Recorded Grievances
MDOC records reflect that Annabel filed fourteen grievances while incarcerated at
MCF. Ten grievances do not relate to the present lawsuit.12 MDOC's records, therefore,
contain four grievances either explicitly mentioned or implicitly referenced in Annabel's
complaint. The Court now addresses whether Annabel exhausted those four grievances.
1. Assault Grievance
In MRF-13-12-1179-26a ("Assault Grievance"), Annabel alleged that, on
December 2, 2013, Defendant Jorg Erichsen assaulted him in the showers. Annabel
12
Six grievances predate the allegations in the complaint. See MRF 10-01-0014-17a,
MRF-10-02-0241-17a, MRF-10-05-0755-15d, MRF 10-07-9810-28c, MRF 10-07-098017b, and MRF 10-08-1080-17b.
Three grievances postdate, but do not relate to, the lawsuit's allegations. See ECF
43-3, PgID 308-11 (MRF-13-12-1254-28e (alleging that law librarian failed to provide legal
supplies)); id. at 293–97 (MRF 14-01-0039-28e (same)); and id. at 303–07 (MRF-14-020155-01h (alleging that Annabel purchased, but never received, deodorant from the
storekeeper)).
Finally, one grievance alleged that Arus Moses and RUM Grant failed to provide
Annabel with grievance forms. See ECF 43-3, PgID 283–87 (MRF-14-02-0154-28e).
Neither Moses nor Grant are defendants.
16
exhausted the Assault Grievance. Annabel sought to orally resolve the incident, timely
filed a Step I Grievance, and timely filed a Step II grievance. ECF 43-3, PgID 320–21.
Annabel filed his Step III grievance within ten business days of receiving the
prison's Step II response. Id. at 320. It is unclear whether Annabel filed his Step III
grievance at the earlier of the two available dates. See supra Part I.B.1. Regardless, the
prison waived any procedural error by responding on the merits. See ECF 43-3, PgID
319; see also Reed-Bey, 603 F.3d at 325. Annabel, therefore, exhausted the Assault
Grievance.
2. Snitch Grievance
In MRF-13-12-1225-17b ("Snitch Grievance"), Annabel alleged Defendant CO
Oden, CO Weberg, and one unknown officer called Annabel a "snitch" in an attempt to
provoke violence against him by other prisoners. The parties agree that Annabel properly
exhausted the Snitch Grievance.13
3. Forms Grievance
In MRF-14-03-0371-28e ("Forms Grievance"), Annabel alleged that Defendant
Grievance Coordinator Eutrilla Taylor failed to provide him with appeals forms. Annabel
did not exhaust this claim. First, Annabel's Step I Grievance was untimely. Annabel listed
February 24, 2014 as the date of the incident, but did not file the grievance until March 6,
2014. That date is eight business days after the incident. The Policy requires proper filing
within seven business days. See supra n.11.
13
Compare ECF 49, PgID 360 (noting that a witness was not called "[t]hrough all three
steps") with ECF 99, PgID 783 ("It would appear that Annabel properly exhausted his
administrative remedies as to C/O Oden."). In any event, Defendants do not raise
exhaustion as an affirmative defense for the events mentioned in the Snitch Grievance.
17
Second, even if Annabel's Step I filing were timely, Annabel's Step III grievance
was untimely. The prison responded to Annabel's Step I grievance in April 2014. Annabel
filed a timely Step II grievance on April 25, 2014. The prison did not respond and Annabel
filed a Step III grievance. The prison did not receive the Step III grievance until August 8,
2014.14
Annabel points to his multiple transfers as reasons for his untimely Step III
grievance. ECF 58, PgID 437. MDOC transferred Annabel on February 6 and 20, 2014
and on May 13, 2014. Id. Although the Policy prevents denial of a grievance "if there is a
valid reason for the delay" such as "transfer", but none of Annabel's transfers can
reasonably account for his three-month delay in filing his Step III grievance. ECF 43-2,
PgID 244, ¶ G. Annabel filed his Step II grievance on April 25, 2014. He had twenty-five
business days—fifteen business days for the prison's response and ten business days
from that due date—until May 16, 2014 to file his Step III grievance. When MDOC
transferred Annabel on May 13, 2014, ECF 43-3, PgID 299, the prison's response was
already tardy and Annabel had only three days to file his grievance. Although a transfer
may be a valid reason for a delay, a transfer three days before the due date of a grievance
is not a valid reason for a three-month delay in filing. The prison correctly denied the
grievance as untimely. For both these reasons, therefore, Annabel failed to exhaust the
Forms Grievance.
14
The Step III response states the prison received the Step III grievance on October 3,
2014, ECF 43-3, PgID 299, but the timestamp on the file indicates the prison received it
on August 8, 2014, id. at 300.
18
4. Comment Grievance
In MRF-14-01-0056-28e ("Comment Grievance"), Annabel alleged that non-party
CO Jordan commented about Erichsen's incident to Annabel. On December 29, 2013,
Annabel filed a grievance stating that few people knew the information Jordan asked him
about and that the comment exemplified Erichsen's communication "with fellow officers
to incite confrontation in an attempt to harass and retaliate against" Annabel. ECF 43-3,
PgID 291. Taylor rejected the grievance as vague. Id. at 292.
On June 13, 2014, Annabel filed his Step II grievance representing that his several
transfers delayed the response. The prison received the grievance on August 5, 2014.
Fifteen business days after that date is August 26, 2014. Annabel, therefore, had ten
more business days—until September 10, 2014—to file his Step III grievance. Annabel
did not file a timely Step III grievance.
The prison, however, waived the procedural defect by addressing Annabel's Step
II grievance on the merits, and returned the grievance to Annabel on February 5, 2015.
Id. at 290. Annabel filed a timely Step III grievance, which the prison incorrectly denied
as untimely. Annabel, therefore, properly exhausted the Comment Grievance.
B. Unrecorded Grievances
MDOC's records do not contain all grievances Annabel identified, however. The
Court now addresses whether Annabel exhausted the Unrecorded Grievances.
1. Cell Search Grievance
In MRF-14-03-0373-19z ("Cell Search Grievance"), Annabel alleged that in early
February 2014 unknown officers packed his property, discarded his eyeglasses and
literature, and possibly planted contraband. ECF 49, PgID 363. The MDOC records make
19
passing comment about the Cell Search Grievance: on October 7, 2014, the prison
"[r]eturned to P[risoner] under cover letter requesting Step I & II documents." ECF 43-3,
PgID 281. Defendants did not properly prove their affirmative defense that Annabel did
not exhaust the Cell Search Grievance.
2. Steece Grievances 1 and 2
On January 14, 2014, Annabel submitted Steece Grievance 1 concerning a threat
made by COs Jordan and Lebron. Then, on January 20, 2014, Annabel filed Steece
Grievance 2 alleging that CO Loftis told him: "I'm not going down like [Erichsen] did." ECF
49, PgID 361. As Annabel's documents demonstrate, ECF 58, he failed to exhaust
administrative remedies for Steece Grievances 1 and 2.
3. Steece Grievances 3, 4, and 5
Annabel failed to properly exhaust Steece Grievances 3, 4, and 5.
On February 6, 2014, Plaintiff mailed two grievances to Inspector Steece ("Steece
Grievances 3 and 4") at MCF describing multiple transgressions by Brown, his
psychiatrist, and numerous other officers. ECF 49, PgID 364. On February 13, 2014,
Plaintiff mailed another grievance to Steece and included Steece Grievances 3 and 4.
The new grievance identified Warden Kenneth Romanowski and Deputy Wardens
George Stephenson and Stewart as responsible for condoning the officers' misconduct.
Id. ("Steece Grievance 5").
Annabel could pursue two avenues to file his grievances: (1) submit a grievance
to the Grievance Coordinator of the institution where the incident occurred; or (2) submit
a grievance to the Inspector of the Institution in which the prisoner resided (if not the same
20
institution as the location of the incident). Here, Annabel's Steece Grievances 3, 4, and 5
failed to comply with the Policy's procedures.
Annabel mailed Steece Grievances 3, 4, and 5 to the inspector of MRF, rather than
the inspector of the "institution at which the prisoner is housed[.]" ECF 43-2, PgID 245.15
By choosing to mail Steece Grievances 3, 4, and 5 to the inspector at a different facility,
Annabel failed to follow the Policy and thus failed to exhaust his administrative remedies
as to these claims.16
As the Supreme Court recognized, the PLRA's mandatory exhaustion language
"means a court may not excuse a failure to exhaust, even to take [special] circumstances
into account." Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). "[M]andatory exhaustion
statutes like the PLRA establish mandatory exhaustion regimes, foreclosing judicial
discretion." Id. at 1857. The Court, therefore, may not excuse Annabel's failure to follow
the Policy's procedure and concomitant failure to exhaust.
Any of Annabel's failures to exhaust his administrative remedies may be excused,
however, if the grievance procedures were unavailable to him. The Court now turns to
that question.
C. Availability of Grievance Procedure
A court may excuse a prisoner's failure to exhaust administrative remedies if they
were unavailable to him. Before considering availability of process, the Court must
15
Annabel submitted records of his purchase of postage to mail his grievance to Inspector
Steece. See ECF 48, PgID 464, 467, 471–73.
16
Magistrate Judge Davis's Report and Recommendation noted that "plaintiff's exhibits
demonstrate, he did not 'file a Step I grievance directly with the inspector of the institution
at which the prison [was] housed' but mailed his documents to an Inspector at a different
facility." ECF 91, PgID 733 (citing, e.g., ECF 58, PgID 464).
21
determine whether a prisoner took "affirmative efforts to comply with the administrative
remedies[.]" Lee v. Willey, 789 F.3d 673, 677 (6th Cir. 2015) (quoting Napier v. Laurel
Cty., 636 F.3d 218, 223 (6th Cir. 2011)). If the prisoner's efforts were "sufficient under the
circumstances," then the Court considers whether the procedure was available.
A grievance procedure is unavailable if: (1) the procedure offers "a simple dead
end—with officers unable or consistently unwilling to provide any relief to aggrieved
inmates;" (2) no ordinary prisoner could navigate the procedures; or (3) prison officials
"thwart inmates from taking advantage" of the procedures "through machination,
misrepresentation, or intimidation." Ross, 136 S. Ct. at 1858–60. Under such
circumstances, the PLRA's exhaustion requirement "poses no bar." Id.
Annabel failed to exhaust properly the Forms Grievance and Steece Grievances
1–5. The Court addresses whether (1) Annabel took affirmative efforts to comply with
the grievance procedure and (2) if so, whether his failure resulted from the grievance
procedure's unavailability.
1. Forms Grievance
The Court will not excuse Annabel's failure to exhaust the Forms Grievance
because the procedure was available to him. Annabel made affirmative efforts to comply
with the grievance procedure for the Forms Grievance, but failed to timely file a Step I or
Step III grievance. Annabel fails to make a showing that the procedure offered a simple
dead end, could not be navigated by an ordinary prisoner, or was thwarted by prison
officials. See Williams v. White, No. 17-5627, 2018 WL 739383 (6th Cir. Feb. 7, 2018)
(placing the burden on the prisoner to allege facts that demonstrate the unavailability of
22
the grievance procedure). The procedure, therefore, was available and the Court will not
excuse Annabel's failure to exhaust the Forms Grievance.
2. Steece Grievances 1 and 2
Annabel made sufficient affirmative efforts under the circumstances to comply with
the grievance procedure by filing Steece Grievanecs 1 and 2 "with the inspector of the
institution at which the prisoner [was] housed instead of with the grievance coordinator[.]"
ECF 43-2, PgID 245, ¶ Q. The remaining question, therefore, is whether the grievance
procedure was available to Annabel. It was not.
Defendants maintain that Annabel failed to "explain or demonstrate how his
grievances warranted Internal Affairs scrutiny[.]" ECF 60, PgID 493. MDOC Defendants
overstate the burden the Policy places on a prisoner-grievant. A prisoner may file a
grievance with the inspector of his institution if the alleged conduct is within the Internal
Affairs Division (IAD), which includes, among other issues, allegations of infractions of
work rule or policy of significant magnitude, or conduct requiring an employee's discharge
60-2, PgID 499–500. Even if the prisoner fails to state an issue within the jurisdiction of
the IAD, the IAD's Manager makes that determination and then "process[es] [the
grievance] as a Step I grievance in accordance with this policy." ECF 43-2, PgID 245,
¶ Q. The burden, therefore, shifts to the prison to ensure that the grievance enters the
proper channels of grievance review.
Annabel could have reasonably expected that the statements by the COs Jordan,
Lebron, and Loftis violated a work rule and created the perception of prison-wide
impropriety. When the IAD's Manager determined the issue fell outside IAD's jurisdiction,
the grievance ought to have proceeded as a normal grievance. It did not. Prison personnel
23
failed to comply with the Policy and prevented Annabel from properly exhausting Steece
Grievances 1 and 2. When prison staff ignore prison policy, the grievance procedure
offers no more than "a simple dead end" that no ordinary prisoner could navigate. Ross,
136 S. Ct. at 1859. Moreover, Taylor's repeated letters addressing Annabel's many
mailings, including those about Steece Grievances 1 and 2, ECF 58, PgID 441, 477–48,
at least amounted to a misrepresentation that thwarted Annabel "from taking advantage"
of the procedures. Ross, 136 S. Ct. at 1860. The grievance procedure, therefore, was
unavailable and the Court will excuse Annabel's failure to exhaust Steece Grievances 1
and 2.
3. Steece Grievances 3, 4, and 5
The Court will not excuse Annabel's failure to exhaust Steece Grievances 3, 4, and
5. Annabel affirmatively failed to comply with the procedure by filing Steece Grievances
3, 4, and 5 with the inspector of an institution at which he was previously held. The PLRA
"requires proper exhaustion," Woodford, 548 U.S. at 93, which occurs when a prisoner
complies with a prison's procedure, Mattox, 851 F.3d at 590. The PLRA's language
forecloses "judicial discretion" to consider special circumstances. Ross, 136 S. Ct. at
1850, 1857. The Policy offered more than a dead end, could be navigated by an ordinary
prisoner, and was not thwarted by prison officials. "[N]othing in the record suggest[s] that"
if Annabel followed the Policy, "prison officials [would have] fail[ed] to provide him any
relief he might deserve." Williams, No. 17-5627, 2018 WL 739383, at *2. Because the
procedure was available and Annabel failed to follow the Policy, the Court cannot excuse
Annabel's failure to exhaust Steece Grievances 3, 4, and 5.
24
III.
Merits of Claims Properly Before the Court
In sum, six grievances warrant review on the merits.17 The Court will address them
in turn.
A. Assault Grievance
Because Defendant Jorg Erichsen is not a party to the pending motion for
summary judgment, the Assault Grievance's merits is not properly before the Court and
the Court will not address it at this time.
B. Snitch Grievance
The Snitch Grievance makes claims against COs Oden and Weberg, and an
unknown CO.18 Annabel contends that Oden's statement violated his Eighth Amendment
rights "by creating an excessive risk of harm" by attempting to incite prisoners to assault
him for snitching. ECF 49, PgID 366. The Eighth Amendment prohibits punishments
involving "the unnecessary and wanton infliction of pain." Ivey v. Wilson, 832 F.2d 950,
954 (6th Cir. 1987) (citing Rhodes v. Chapman, 452 U.S. 337, 346 (1981)). In determining
whether a claim violates the Eighth Amendment, courts consider "the reason or motivation
for the conduct, the type and excessiveness of the force used, and the extent of injury
inflicted[.]" Parrish v. Johnson, 800 F.2d 600, 605 (6th Cir. 1986).
Here, Oden did not use force and did not inflict an injury. Annabel alleges only that
Oden's comments might have been overheard by other inmates and may have prompted
17
Annabel exhausted three grievances: the Assault Grievance, the Snitch Grievance, and
the Comment Grievance. The prison did not properly raise its affirmative defense of nonexhaustion of the Cell Search Grievance. The prison's conduct made the grievance
procedure unavailable for Steece Grievances 1 and 2.
18
The Court terminated CO Weberg. See ECF 126. The unknown officer was not served.
25
them to attack him. Annabel claims that one fellow inmate heard the comment, and
offered the inmate as a witness in his grievance process. Annabel does not allege that
any other inmates overheard Oden's "snitch" comment or that, even if they did, that any
other inmates threatened or attacked him. That allegation is not enough. See Gonzales
v. Ryan, 127 F.3d 1102 (6th Cir. 1997) (Table) (finding no Eighth Amendment violation
when the prisoner alleged that a "snitch" comment "may have been overheard by other
inmates and may cause other inmates to want to harm him").19 The claim, therefore, fails
to allege an Eighth Amendment violation.
Annabel further claims that Oden committed the state law tort of slanderous
defamation by calling him a snitch. Id. at 367. Michigan's law of defamation includes four
elements: "(1) a false and defamatory statement about the plaintiff; (2) an unprivileged
communication to a third party;" (3) at least negligence by the publisher; and "(4)
actionability of the statement irrespective of special harm (defamation per se) or the
existence of special harm caused by publication." Thomas M. Cooley Law Sch. v. Kurzon
Strauss, LLP, 759 F.3d 522, 527 (6th Cir. 2014) (citing Mitan v. Campbell, 474 Mich. 21
(2005)). Annabel cannot make out the first element. Although the term "snitch" carries a
negative connotation, "snitch" means an informer.20 Here, Annabel acted as an informer
of Erichsen's alleged assault. Despite the word's pejorative tone, Oden's statement was
19
The analysis would be different if Oden directly told other inmates that Annabel was a
snitch and the other inmates then threatened or attacked him. See Gonzales, 127 F.3d
at 1102 (referencing Tenth and Eight Circuit cases involving that fact pattern).
20
See
Snitch,
Oxford
English
Dictionary,
available
at:
http://www.oed.com/view/Entry/183315?rskey=z3UkfC&result=1&isAdvanced=false#eid
(last accessed June 19, 2018).
26
not false. Annabel therefore cannot make out a claim for slanderous defamation under
Michigan tort law.
C. Comment Grievance, Cell Search Grievance, and Steece Grievances 1 and 2
The remaining grievances relate to the following claims: (1) a campaign and
conspiracy of First Amendment retaliation by Erichsen, Oden, Jordan, Lebron, Loftis,
Haggerty, Taylor, Webster, and Stewart; (2) Eighth Amendment violation by Romanowski,
Steward, Stephenson, Haggerty, and Taylor for allegedly authorizing, approving, or
encouraging, their subordinates' retaliation; (3) intentional infliction of emotional distress
by all Defendants; and (4) negligence or gross negligence by Romanowski, Steward,
Stephenson, and Taylor for failing to supervise or for mishandling the grievance process.
The Court addresses the merits of the claims now.
1. Conspiracy of First Amendment Retaliation
Annabel contends that eleven defendants conspired to violate his First
Amendment rights through a campaign of retaliation. A retaliation claim entails three
elements:
(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 v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999). The Court will address each
element.
a. Protected conduct.
Annabel engaged in protected conduct. Annabel claims that the retaliatory conduct
arose after he filed a grievance against Erichsen for an alleged assault. A prisoner's First
27
Amendment rights to free speech include an entitlement to "petition the state for redress
of grievances." Noble v. Schmitt, 87 F.3d 157, 162 (6th Cir. 1996). Annabel's pursuit of a
grievance against Erichsen, therefore, constitutes protected conduct.
b. Adverse action.
In the prison context, an adverse action is conduct that would deter a person of
ordinary firmness from continuing to engage in protected activity. The Comment
Grievance, Cell Search Grievance, and Steece Grievances 1 and 2 contain different
allegations of adverse action. The Court addresses each in turn.
Annabel's Comment Grievance alleges that a non-party (CO Jordan) knew
information that Annabel had disclosed to few individuals. He alleges that the comment
indicated Erichsen's animus and Taylor's corruption. Plaintiff failed to establish that the
alleged retaliatory act encapsulated in the Comment Grievance "amounted to more than
a de minimis injury." Hill v. Lappin, 630 F.3d 468, 473 (6th Cir. 2010). That failure
precludes a finding that the conduct in the Comment Grievance constitutes a sufficient
adverse action to support a retaliation claim.
Annabel's Cell Search Grievance alleged that unknown, non-party prison staff
searched his cell, discarded his belongings, and failed to follow proper protocol. Not
"every objectionable act directed at a prisoner constitutes adverse action sufficient to
deter a person of ordinary firmness from engaging in protected activities." Reynolds-Bey,
428 F. App'x at 503. As such, the "single search of a prison cubicle would not deter a
person of 'ordinary firmness' from pursuing constitutional grievances." Id. (quoting Tate v.
Campbell, 85 F. App'x 413, 417 (6th Cir. 2003)). The allegations contained in the Cell
28
Search Grievance therefore do not constitute adverse action sufficient to establish a
retaliation claim.
Annabel's Steece Grievance 1 alleged that CO Jordan told Plaintiff that he could
not attend a group meeting, that he "should have kept his mouth shut" about Erichsen,
and that attending the group would result in a disciplinary sanction. ECF 49, PgID 360.
Here, CO Jordan threatened to discipline Annabel if he attended the group meeting. The
"mere potential threat of disciplinary sanctions is sufficiently adverse to support a claim
of retaliation." Maben v. Thelen, 887 F.3d 252, 266 (6th Cir. 2018) (quoting Scott v.
Churchill, 377 F.3d 565, 572 (6th Cir. 2004)).
Annabel's Steece Grievance 2 claimed that CO Loftis told Annabel, "I'm not going
down like [Erichsen] did." ECF 49, PgID 361. Ordinarily, verbal harassment cannot "deter
a person of ordinary firmness from engaging in protected conduct. An inmate has no right
to be free from verbal abuse, and minor threats do not rise to the level of a constitutional
violation." Smith v. Craven, 61 F. App'x 159, 162 (6th Cir. 2003) (citing Ivey v. Wilson,
832 F.2d 950, 954–55 (6th Cir. 1987) and Thaddeus-X, 175 F.3d at 398). CO Loftis's
comment inflicted no more than a de minimis injury and amounted to mere verbal
harassment insufficient to prevent a person of ordinary firmness from engaging in further
protected conduct.
c. Causal connection.
Annabel adequately alleged an adverse action sufficient to support a retaliation
claim in Steece Grievance 1. At the final step, the Court must determine whether the
adverse action relates to Annabel's protected activity of reporting Erichsen's alleged
assault. The Court analyzes the issue through a burden-shifting framework. First, the
29
plaintiff must show that the protected conduct "was a motivating factor behind any harm[.]"
Thaddeus-X, 175 F.3d at 399 (citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274 (1977)). Then, the defendant can show that he would have taken the same
action in the absence of the protected activity. Smith v. Campbell, 250 F.3d 1032, 1038
(6th Cir. 2001).
Here, CO Jordan's alleged reference to Annabel's grievance against Erichsen
immediately preceded CO Jordan's threat of disciplinary sanction if Annabel attended his
group meeting. Annabel's allegations sufficiently show that his protected activity
motivated CO Jordan's threat.
CO Jordan maintained only that Steece Grievance 1 was not exhausted. He
therefore did not present evidence that he would have prevented Annabel from attending
the group meeting notwithstanding Annabel's grievance against Erichsen. CO Jordan
therefore is not entitled to summary judgment on this claim.
2. Eighth Amendment Violation—Failure to Supervise
Section 1983 liability for supervisors cannot be based on mere respondeat
superior; rather, a supervisor's failure to supervise, control, or train subordinates is
actionable only if the supervisor "either encouraged the specific incident of misconduct or
in some other way directly participated in it." Shehee v. Luttrell, 199 F.3d 295, 300 (6th
Cir. 1999) (quoting Hays v. Jefferson Cty., 668 F.3d 869, 874 (6th Cir. 1982)). At a
minimum, therefore, a plaintiff must show the supervisor "implicitly authorized, approved,
or knowingly acquiesced in the unconstitutional conduct" of the offending officers. Id. The
showing must rely upon each government official's "own individual actions[.]" Ashcroft v.
Iqbal, 556 U.S. 662, 676 (2009).
30
First, there is no evidence in the record that Defendants Haggerty or Taylor have
a supervisory role over Corrections Officers. They cannot be liable on a failure to
supervise theory.
Second, as for Defendants Romanowski, Steward, and Stephenson, Annabel
makes only conclusory allegations. Annabel filed a grievance against Romanowski,
Steward, and Stephenson "for a policy and custom of deliberate indifference and
negligence" to allow MRF staff to retaliate against him for informing on Erichsen. ECF 49,
PgID 364. Then Annabel states Romanowski, Steward, and Stephenson implicitly
authorized, approved, condoned, or encouraged their subordinates' retaliatory campaign.
Id. at 366. Annabel's complaint lacks factual allegations demonstrating Romanowski,
Steward, or Stephenson's personal involvement in the alleged conduct or other facts
tending to show they acquiesced in unconstitutional conduct.
3. Intentional Infliction of Emotional Distress
Annabel further alleges that the Defendants engaged in intentional infliction of
emotional distress (IIED). To establish an IIED claim, a plaintiff must prove the following
elements: "(1) extreme and outrageous conduct, (2) intent or recklessness, (3) causation,
and (4) severe emotional distress." Hayley v. Allstate Ins. Co., 262 Mich. App. 571, 577
(2004). The complained-of conduct must be "so outrageous in character, and so extreme
in degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious and utterly intolerable in a civilized community." Id.
31
Annabel does not present evidence of extreme or outrageous conduct by any of
the MDOC Defendants.21 There are no factual allegations of any conduct by Warden
Romanowski, Deputy Wardens Steward or Stephenson, or Mental Health Therapist
Webster. COs Brown and Robbinson were not served, and Annabel did not contest
judgment in favor of CO Weberg.
Annabel does allege facts regarding six MDOC Defendants. He alleges that
Haggerty and Stewart failed to remove him from observation in time for a scheduled law
library session. He avers that Taylor denied one of his grievances as vague and failed to
provide grievance identifiers or appeals forms. He also claims that Jordan threatened him
about attending a group activity, Lebron asked whether the COs should be happy the
prison removed Erichsen from duty, and Loftis stated he was not going down like Erichsen
did. None of these actions are "so extreme in degree" to be "beyond all possible bounds
of decency." Summary judgment is therefore proper on the claim.
4. Negligence or Gross Negligence—Failure to Supervise
A § 1983 "claim of failure to supervise" cannot be based on simple negligence.
Leach v. Shelby Cty. Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989). A plaintiff must show
that a supervisor directly participated in, implicitly acquiesced in, or authorized
unconstitutional conduct. Id. (quoting Hays, 668 F.2d at 874). For the same reasons
discussed supra, sec. III.C.2, Annabel has not alleged facts sufficient to show
Romanowski, Steward, Stephenson, or Taylor participated in, acquiesced in, or
authorized unconstitutional conduct. Summary judgment is therefore proper on the claim.
21
The claim does include Jorg Erichsen, but Erichsen was not a party to the MDOC
Defendants' motion for summary judgment.
32
IV.
Conclusion
In sum, Annabel's claims against Defendant Jorg Erichsen and his First
Amendment retaliation claim against CO Jordan remain. All other claims against the
MDOC Defendants will be dismissed with prejudice. Annabel's claims against COs Brown
and Robbinson—who were not served—were dismissed without prejudice. Annabel's
claims against CO Weberg were dismissed with prejudice.
ORDER
WHEREFORE, it is hereby ORDERED that MDOC Defendants' motion for
summary judgment [99] is GRANTED IN PART AND DENIED IN PART.
This is not a final order and does not close the case.
SO ORDERED.
s/ Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: July 17, 2018
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on July 17, 2018, by electronic and/or ordinary mail.
s/ David Parker
Case Manager
33
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