Reedy v. West et al

Filing 72

OPINION and ORDER Sustaining Defendant's 70 Objections, Rejecting 69 Magistrate Judge's Report and Recommendation, and Granting Defendant's 61 Motion for Summary Judgment. Signed by District Judge Bernard A. Friedman. (JCur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVID REEDY,
Plaintiff,
vs.

Civil Action No. 16-CV-13876
HON. BERNARD A. FRIEDMAN

MICHAEL WEST,
Defendant.
________________/
OPINION AND ORDER SUSTAINING DEFENDANT’S OBJECTIONS,
REJECTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION,
AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This matter is presently before the Court on Magistrate Judge Elizabeth A. Stafford’s
February 19, 2020, Report and Recommendation (“R&R”), in which she recommends that the Court
deny defendant’s motion for summary judgment. Defendant has filed objections [docket entry 70]
to the R&R. Plaintiff has not responded to defendant’s objections and the time for him to do so has
expired. Pursuant to E.D. Mich. LR 7.1(f)(2), the Court shall rule on defendant’s objections without
a hearing. For the following reasons, the Court shall sustain defendant’s objections, reject the R&R,
and grant defendant’s motion for summary judgment.
Facts
Plaintiff David Reedy, a prison inmate in the custody of the Michigan Department
of Corrections (“MDOC”), was severely injured on July 20, 2016, when his cell-mate, Oscar
Hensley, hit him in the head with a softball-sized rock while plaintiff slept in his bunk. Plaintiff
believes defendant Michael West, an MDOC counselor1 in plaintiff’s housing unit, is liable because

1

West testified that MDOC prison counselors “take care of paperwork, screening,
anything else that needs to be done paperwork-wise for the most part. We do do cell moves if

West knew that Hensley had threatened plaintiff but disregarded plaintiff’s and Hensley’s requests
to reassign plaintiff to a different cell. In his complaint, plaintiff alleges:
On or about June 18, 2016, I spoke to ARUS Wade2 about the
threats against my life made by my cell-mate. I subsequently made
ARUS West [and others] aware of the threats. I was told by ARUS
Wade that he would take care of it. Weeks later, after nothing had
been done to address the situation, I told ARUS West that I was in
fear for my safety due to the threats against my life, and to please
move me to another cell. I was told by ARUS West to “deal with it.”
...
On July 19, 2016, my cell-mate told ARUS West that “if y’all
don’t move this mutherfucker [sic] I’m gonna do what I gotta do!”
At this point, I literally begged to be moved for fear that my cell-mate
would act on his threats. . . . On July 20, 2016, at about 3:30 a.m., I
was attacked by my cell-mate . . . .
Compl. at 3.
When interviewed by the state police on July 23, 2016, plaintiff stated that
he and OSCAR have been roommates “bunkies” for approximately
three to five months. . . . DAVID advised they both (OSCAR and
DAVID) went to their counselor to request a room change. I asked
DAVID what his reason was to be moved and he stated that they
were just too different to live with each other. DAVID stated he
overheard the reason OSCAR gave to Mr. West and it was because
DAVID slammed the door.
Def.’s Ex. E at 5-6. Hensley told the police that “it was a white/black issue” between him and
plaintiff. Id. at 2. Plaintiff is African-American; Hensley is Caucasian. He also indicated that when
he and plaintiff asked West about “moving rooms,” West told them “to work it out.” Id.
At his deposition, plaintiff testified regarding defendant’s knowledge of Hensley’s

we need to, transfer requests, security classification screens, grievance responses, hearings.”
Pl.’s Ex. 5 at 8.
2

Wade, named along with several other prison officials, has been dismissed by
stipulation. See docket entry 60.
2

threats:
Q. Now, can you explain Mr. West’s involvement in the – I guess the
allegations that make up your complaint?
A. Well, on July 13 I tried to catch Mr. West, he works both sides,
he works the level two and level one side of the facility for counselor
or ARUS.
Q. So you said you tried to catch him on the 13th. Were you able
to catch him that day?
A. I caught him for a brief maybe 60 seconds.
Q. What happened in those 60 seconds?
A. In those 60 seconds I told him that my bunkie had threatened me
and we needed to move or can we do something about the situation.
And he said I’ll get back with you.
Q. Did you tell him how your bunkie threatened you or did you just
kind of –
A. No, I didn’t.
Q. So you said that Mr. West told you that he’d get back with you?
A. Yes.
Q. Did he ever get back with you?
A. No.
Q. And did you talk to him again after this?
A. Approximately on the day of July 19th, eight a.m.
Q. I know we’re getting ahead of ourselves but that’s the day before
you were attacked; is that correct?
A. Yes.
Q. Okay. So on July 19th, approximately eight a.m. can you explain
to me your interaction with Mr. West?
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A. Me and my bunkie, Oscar Hensley, approached Mr. West in his
office. Oscar Hensley went in first and he was explaining to Mr.
West the reason why we need to be separated and moved from one
another. Approximately maybe 60 seconds after that Mr. Hensley
steps out of the office and Mr. West makes a comment to Mr.
Hensley, do what you got to do. Approximately another 30 seconds
in between Mr. Hensley stepped back to the front door, leaned his
head in and say, do what I got to do? Mr. West say yes. All of a
sudden Mr. Hensley takes off.
Q. Now, were you present – you said that Mr. Hensley stepped into
Mr. West’s office first.
A. Yes.
Q. Were you able to hear the conversation?
A. No.
Q. You said it was approximately 60 seconds?
A. Yes.
Q. And it was only Mr. West and Mr. Hensley in the room at the
time?
A. At the time, yes. I was right outside the door.
Q. Now, did you talk to Mr. West at that point in time?
A. At that time, yes, I talked to Mr. West at that time and Mr. West
stated to me – he phrased the statement, if he wants to move tell him
to come hit me and I’ll send him so far up north with paperwork up
his. . . .
*

*

*

Q. Okay. So I guess I’m not perfectly understanding the comment.
So did Mr. West instruct Mr. Hensley to hit you, to hit Mr. West?
Can you just repeat that one more time for me?
A. No, Mr. West told Mr. Hensley to do what you got to do.
Q. Well, what were you talking about when you referenced I’ll send
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you so far up north?
A. Mr. West was stating to me for me to go tell Mr. Hensley, if he
wants to move –
Q. Mr. Hensley wants to move?
A. If he wants to move come and hit me and I’ll have you so far
shipped up north with paperwork up your. . . .
Q. Oh, okay. So if Mr. Hensley attacked Mr. West then Hensley
would be transferred so far up north?
A. Yes.
*

*

*

Q. So you talked to Mr. West on the 13th and I believe he told you
that he’d get back with you.
A. Yes.
Q. And then on the 18th [sic] Mr. Hensley went in to talk with Mr.
West. And then what did you talk – so that’s what Mr. West told you
when you had a conversation with him?
A. Yes. We both, me and Mr. Hensley, both attended the office and
after the conversation with him and Mr. West that Hensley had he
told me, he stated to me if Mr. Hensley wants to move tell him to
come hit me.
Q. And did you talk about anything else with Mr. West on that date,
I think the 19th of July?
A. No. No, that was it right there.
Q. Is that, I guess, the entirety of your communications with Mr.
West, then, on the 13th and on the 19th of July?
A. Yes, yes.
* * *
Q. And after Hensley left you said you went in and talked to West,
right?
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A. Yes.
Q. And you told West you – did you reiterate your fear for your
safety?
A. Yes. And when I did that he – West told me that aww, he ain’t
going to do nothing. If he wants to do something tell him to come hit
me and I will send him so far up north that he have so much
paperwork up his. . . .
Pl.’s Dep. at 14-18, 51-52. Plaintiff also testified that he and Hensley had been cell-mates since the
previous March and that their relationship “for the most part . . . was good.” Id. at 27, 48. Plaintiff
never made a written request for protection or for transfer to another facility. Id. at 39-40.
Defendant testified that plaintiff never previously complained to him about Hensley,
and that his only interaction with them occurred the day before the assault:
Q. And isn’t it true that on or around July 19th, 2016, Hensley came
to your office to talk to you about transferring either Mr. Hensley or
Mr. Reedy out of the cell?
A. The only interaction I ever had with those two was – I couldn’t
even tell you the date. It might be the date that you’re specifying.
I’m not sure. Approximately 7:45 in the morning when I first got to
my office they were both standing outside my door when I got there
and Hensley stated that Reedy needed to get moved out of his cell.
Q. Did he say why?
A. No.
Q. And what happened after that? Did he leave right after you guys
talked or how – what was the –
A. No. I sat there and I asked both Mr. Reedy and Hensley at that
time how old they were. They stated – Reedy at the time I thought
said early 50’s, Hensley mid-50’s. I said, “You guys are two grown,
you know, adults here. You guys should be able to get this figured
out.” They both left my office. Approximately a half hour later
Reedy came down to my office, said they talked and everything was
good. That was the only interactions I had with those guys at all ‘til
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the assault happened at 3:30 in the morning I think is when it was.
*

*

*

A. Hensley was the only one that spoke.
Q. Mr. Reedy said nothing the whole time?
A. Reedy did not say anything. He stood over by where our door is
for our caustic room when the whole conversation happened.
Q. So at no time during this conversation did Mr. Hensley say that
he has to be moved or he’s going to do what he’s got to do?
A. He did say that.
Q. What did you mean – what did you think he meant by “do what
I gotta do”?
A. People will say anything that they need to to get a cell move.
Like I said, they’re not on my caseload. I don’t know anything about
them. And I did let them know at that time also, you know, because
he said whatever happens, you know, is going to be onto me and I, of
course, had to tell them, “You guys are adults. You know, any actions
that you take, that falls upon you for anything that does happen.” At
that time there, that was all that was said and then they walked away
from my door.
Q. And then Mr. Reedy came back on his own?
A. Mr. Reedy came back on his own going out to the yard and said
they talked, everything was good.
*

*

*

Q. All right. I just – you know. And can you tell me actually what
Hensley told you the day before the assault when he – when he met
you outside the office, your office?
*

*

*

A. He came up to me and they’re standing out there and he said,
“You guys got to move this motherfucker out of my cell.”

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Q. All right. He said, “Motherfucker out of my cell”?
A. Yes.
Q. Okay. And did you ask him why?
A. At that point there is when I said, “Hold on. You’re not going to
tell me who I am moving, who I’m not moving.” I asked them how
old both of them were. I said, “You guys need to be able to figure
this out,” they left. Reedy came back approximately a half hour later,
said they talked and everything was good.
Q. But you never asked him why he had to be moved out of the cell?
A. No.
*

*

*

Q. And did you ever draw the conclusion in your own mind that Mr.
Reedy needed protection and that there was an imminent threat on his
life from Mr. Hensley’s comments to you?
A. No, I didn’t due to Mr. Reedy coming back to . . . my office and
stating that they talked and everything was good.
Def.’s Dep. at 15-17, 51, 57. In response to an interrogatory, West indicated that during the July 19
conversation Hensley told West: “If y’all don’t move this motherfucker y’all going to be responsible
for what happens.” Pl.’s Ex. 7.
Legal Standards
In a case such as this, where a plaintiff-inmate claims that a defendant-guard has
violated his Eighth Amendment right to safety, plaintiff must prove both that his safety was
objectively at risk, i.e., that he was “incarcerated under conditions posing a substantial risk of
serious harm,” Curry v. Scott, 249 F.3d 493, 506 (6th Cir. 2001), and that defendant was deliberately
indifferent to that risk. The Sixth Circuit has summarized plaintiff’s burden as follows:
1. The objective component
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To establish a constitutional violation based on failure to
protect, a prison inmate first must show that the failure to protect
from risk of harm is objectively “sufficiently serious.” Id. [Farmer
v. Brennan, 555 U.S. 223 (2009)] at 833, 114 S.Ct. 1970 (citation
omitted). The inmate must show that “he is incarcerated under
conditions posing a substantial risk of serious harm.” Id.
*

*

*

2. The subjective component
To establish a constitutional violation based on failure to
protect, a plaintiff also must show that prison officials acted with
“deliberate indifference” to inmate health or safety. Id. at 834, 114
S.Ct. 1970. An official is deliberately indifferent if he or she “knows
of and disregards an excessive risk to inmate health or safety; the
official must both be aware of the facts from which the inference
could be drawn that a substantial risk of harm exists, and he must also
draw the inference.” Id. at 837, 114 S.Ct. 1970. The Supreme Court
has held that:
Whether a prison official had the requisite knowledge
of a substantial risk is a question of fact subject to
demonstration in the usual ways, including inference
from circumstantial evidence . . . and a factfinder may
conclude that a prison official knew of a substantial
risk from the very fact that the risk was obvious.
Id. at 842, 114 S.Ct. 1970. However, 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. See id. at 841-42,
114 S.Ct. 1970.
Bishop v. Hackel, 636 F.3d 757, 766-67 (6th Cir. 2011). Plaintiff must show that defendant
“actually drew the inference, not just that he should have done so. . . . Deliberate indifference . . .
requires the reckless disregard of a substantial risk of serious harm; mere negligence is insufficient.”
Mangum v. Repp, 674 F. App’x 531, 541 (6th Cir. 2017).
Analysis

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When the evidence in the present case is viewed in the light most favorable to
plaintiff, it is apparent that no reasonable jury could find in his favor as to either component of this
Eighth Amendment claim.
A. The Risk To Plaintiff’s Safety Was Not Sufficiently Objectively Serious
On this record, there is insufficient evidence from which a jury could find that
plaintiff was at substantial risk of serious harm from having to remain in a cell with Hensley.
Plaintiff and Hensley had been cell-mates for months and plaintiff testified that their relationship
had been “for the most part . . . good” or “neutral.” Pl.’s Dep. at 27, 54. This changed in June,
approximately one month before Hensley attacked plaintiff, when plaintiff alleges that Hensley first
made “threats against my life.” Compl. at 3. Plaintiff reported the threats to counselor Wade on
June 18. He then waited until July 13 before raising the issue again, apparently this time only with
defendant, whom plaintiff told that Hensley had threatened him. Plaintiff did not tell defendant
about the nature of threat, and it is not apparent that plaintiff told defendant that Hensley had
threatened his life. Pl.’s Dep. at 14-15.
Plaintiff waited another six days before approaching defendant again, this time jointly
with Hensley. Plaintiff indicated that when he and Hensley saw defendant on July 19, plaintiff told
defendant he feared for his safety. See Pl.’s Dep. at 51-52. As noted, defendant acknowledges that
at this time Hensley also asked him to move plaintiff to another cell and stated that, “If y’all don’t
move this motherfucker y’all going to be responsible for what happens.” Pl.’s Ex. 7.
Objectively, the record reveals the following facts that are relevant to an assessment
of the risk Hensley posed to plaintiff: (1) they shared a cell in peace for at least three months; (2)
there is no history of violence between them; (3) there is no indication that Hensley was violent or

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mentally ill or that plaintiff was unduly vulnerable3; (4) plaintiff reported on June 18 (to Wade), July
13 (to defendant), and July 19 (to defendant) that Hensley threatened him; (5) Hensley told
defendant on July 19 that he wanted plaintiff moved to another cell because plaintiff slammed the
door and that, if plaintiff was not moved, “y’all going to be responsible for what happens”; (6)
shortly after Hensley made this statement, plaintiff returned to defendant’s office and told defendant
that he and Hensley “talked and everything was good”4; and (7) before he was attacked by Hensley,

3

Plaintiff argues that Hensley’s threats were made objectively more serious by the fact
that Hensley is taller and heavier than plaintiff (6'-1" and 198 pounds vs. 5'-8" and 160 pounds)
and that Hensley lifts weights. Pl.’s Dep. at 49; see also inmates’ biographical information
available at https://mdocweb.state.mi.us/otis2. Plaintiff suggests that this size differential
increased the threat to his safety, but the two inmate-on-inmate-violence cases he cites for this
proposition are easily distinguishable. In the first, Bishop, supra, the aggressor and the sexual
assault victim were nearly the same size (5'-9" and 160 pounds vs. 5'-5" and 160 pounds). See
636 F.3d at 762. The victim’s vulnerability in that case was due instead to the fact that he was
young (nineteen years old, while the aggressor was forty-four), “small, apparently mentally
‘slow,’ and did not have experience in jail.” Id. at 766. Moreover, the aggressor in Bishop was
in jail on multiple charges of criminal sexual conduct and was a known predator. See id. at 762,
766. In combination, these facts supported the court’s conclusion that the risk to plaintiff’s
safety was “objectively sufficiently serious” for Eighth Amendment purposes. Id. at 766. In the
other case plaintiff cites for his size-differential argument, Mangum, 674 F. App’x at 532-33, the
victim was a ninety-six-pound twelve years old who was sexually assaulted at a juvenile
detention facility by an eighteen-year old convicted child rapist who had also been disciplined
for sexual misconduct while in custody. The facts in the present case bear no resemblance to
those of Bishop or Mangum.
4

Plaintiff testified that “the entirety” of his conversation with defendant on July 19
occurred when plaintiff and Hensley went to see defendant together. Pl.’s Dep. at 17-18.
However, in his summary judgment brief defendant repeatedly cites his testimony that plaintiff
subsequently told him that he and Hensely “talked and everything was good” to support his
argument that he did not believe plaintiff was in danger. See Def.’s Br. at 3, 13, 15. Plaintiff
makes no mention of this testimony or argument in his response brief. Under Fed. R. Civ. P.
56(e), “[i]f a party fails to . . . properly address another party’s assertion of fact as required by
Rule 56(c), the court may: . . . (2) consider the fact undisputed for purposes of the
motion.” Therefore, for purposes of this motion, defendant’s testimony on this issue is
undisputed. Defendant reiterated, at pages 3 and 7 of his objections, that plaintiff returned and
told him that “everything was good,” but, as noted, plaintiff has not responded to defendant’s
objections.
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plaintiff never made a written request for protection or to be moved.
These facts do not establish that plaintiff was “incarcerated under conditions posing
a substantial risk of serious harm.” Curry, 249 F.3d at 506. In particular, the Court finds it
significant that plaintiff and Hensley had no history of altercations of any kind, that there is no
evidence Hensley was predatory, and that plaintiff allowed so much time to elapse between his three
reports of Hensley’s threats (first to Wade on June 18, second to defendant on July 13, third to
defendant on July 19), suggesting that plaintiff himself saw no imminent danger in these threats.
It is also significant that Hensley told defendant that the source of the friction was plaintiff slamming
the door, as this suggests a frivolous dispute and not something over which a threat, even one laced
with profanity, would be carried out. Further, approximately thirty minutes after plaintiff and
Hensley spoke with plaintiff, plaintiff returned by himself and told defendant that he and Hensley
had “talked and everything was good,” thereby neutralizing any threat that Hensley’s earlier words
may have implied. In short, the evidence in this matter could not support a jury finding that Hensley
posed an “objectively sufficiently serious” risk to plaintiff’s safety. Bishop, 636 F.3d at 766.
B. Defendant Was Not Deliberately Indifferent
Plaintiff has also failed to demonstrate that a jury could reasonably find that
defendant was deliberately indifferent to the risk posed to his safety by continuing to house him with
Hensley. As noted above, plaintiff must show that defendant “kn[ew] of and disregard[ed] an
excessive risk to inmate health or safety; the official must both be aware of the facts from which the
inference could be drawn that a substantial risk of harm exists, and he must also draw the inference.”
Farmer, 511 U.S. at 837.
First, for the reasons stated above, there was no “excessive” or “obvious” risk to

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plaintiff’s safety. Plaintiff points to the testimony of officers Lennox, Houser, and Martin, who
stated that if an inmate says he fears for his safety, they would separate him pending an investigation
into his safety concerns. See Pl.’s Exs. 8-10. But the issue it not what other prison officials would
do or what prison policy requires (which may be relevant to a negligence claim), but rather whether
defendant recklessly disregarded an excessive risk to plaintiff’s safety in light of all of the
circumstances of this particular case.
Second, it is apparent from defendant’s deposition testimony that he did not perceive
an excessive risk to plaintiff’s safety. Defendant testified that when plaintiff and Hensley came to
him on July 19, defendant asked them how old they were, plainly indicating that he believed their
dispute to be childish. Plaintiff reported to the state police that he overheard Hensley tell defendant
that the basis of the dispute was plaintiff slamming the cell door, which certainly would justify
defendant in concluding that the issue was frivolous and in telling them that “[y]ou guys need to be
able to figure this out.” Def.’s Dep. at 51. A further indication that defendant did not perceive a
threat to plaintiff is defendant’s “aww, he ain’t going to do nothing” comment. Pl.’s Dep. at 52.
Defendant testified he dismissed Hensely’s threat as a ploy to get himself or plaintiff moved to
another cell. Def.’s Dep. at 17, 20. Further, as noted above, approximately thirty minutes after the
two met with defendant, plaintiff returned and told defendant that he and Hensley had talked and
“everything was good.” In short, defendant plainly did not infer that plaintiff faced a substantial risk
of harm; nor would the facts of the case permit a jury to find that he was compelled to draw such an
inference. See Farmer, 511 U.S. at 837.
Conclusion
For these reasons, the Court concludes that plaintiff has failed to adduce facts from

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which a jury could find in his favor as to either the objective or the subjective component of his
Eighth Amendment claim. For the same reasons, defendant is entitled to qualified immunity. While
an inmate’s “constitutional right to be free from deliberate indifference to assault” is clearly
established, Bishop, 636 F.3d at 766, no jury could find that a violation of this right occurred in this
case. Accordingly,

IT IS ORDERED that defendant’s objections to the magistrate judge’s R&R are
sustained and the R&R is rejected.

IT IS FURTHER ORDERED that defendant’s motion for summary judgment is
granted.

s/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
Dated: March 19, 2020
Detroit, Michigan

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