Bennett v. Winn et al

Filing 71

ORDER (1) Overruling Defendants' 69 Objections to the Magistrate Judge's Report and Recommendation, (2) Adopting the Recommended Disposition of the 68 Report and Recommendation, and (3) Granting in Part and Denying in Part Defendants' 36 Motion for Summary Judgment. Signed by District Judge Matthew F. Leitman. (HMon)

Case 4:17-cv-12249-MFL-APP ECF No. 71 filed 07/16/20

PageID.1533

Page 1 of 29

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHN ERIC BENNETT,
Plaintiff,

Case No. 17-cv-12249
Hon. Matthew F. Leitman

v.
O’BELL T. WINN, et al.,
Defendants.
__________________________________________________________________/
ORDER (1) OVERRULING DEFENDANTS’ OBJECTIONS TO THE
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION (ECF No.
69), (2) ADOPTING THE RECOMMENDED DISPOSITION OF THE
REPORT AND RECOMMENDATION (ECF No. 68), AND (3) GRANTING
IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT (ECF No. 36)
Plaintiff John Eric Bennett is a state prisoner in the custody of the Michigan
Department of Corrections (the “MDOC”). In this pro se civil rights action, Bennett
alleges that certain MDOC employees violated his rights under the First and Eighth
Amendments to the United States Constitution and committed negligence under
Michigan law. (See Compl., ECF No. 1.) The remaining Defendants are Jason
Deshais,1 Karin Florey, Todd McLean, Obell T. Winn, and Wendt Wright. They

1

Defendant Deshais’ name is spelled as “Deshias” on the Court’s docket. The
Magistrate Judge’s Report and Recommendation also refers to him as “Deshias” (see
R&R, ECF No. 68, PageID.1449), but Bennett and Defendants refer to him as
“Deshais.” (See Compl. ¶ 11, ECF No. 1, PageID.4–5; Mot. for Summ. J., ECF No.
1

Case 4:17-cv-12249-MFL-APP ECF No. 71 filed 07/16/20

PageID.1534

Page 2 of 29

filed a Motion for Summary Judgment on all of Bennett’s remaining claims. (See
Mot. for Summ. J., ECF No. 36.) In the motion they argued that Bennett lacks
evidentiary support for his claims (but they do not seek summary judgment based on
qualified immunity). (See Addendum to Mot. for Summ. J., ECF No. 37.) The
assigned Magistrate Judge issued a Report and Recommendation (the “R&R”) in
which he recommended that Defendants’ motion be granted in part and denied in
part. (See R&R, ECF No. 68.) Defendants have now filed timely objections to the
R&R. (See Objections, ECF No. 69.) For the reasons explained below, Defendants’
objections are OVERRULED, the recommended disposition of the R&R is
ADOPTED, and Defendants’ Motion for Summary Judgment is GRANTED IN
PART and DENIED IN PART.
I
A
During the relevant time period, Bennett was incarcerated at the Saginaw
Correctional Facility (“SRF”). (See Compl. ¶ 4, ECF No. 1, PageID.2.2) Winn was
the deputy warden at SRF. (See id. ¶ 5, PageID.2–3.) McLean was an Assistant

36, PageID.500.) For the purposes of this Order, the Court will refer to this
Defendant as “Deshais.”
2

Bennett’s Complaint is a verified complaint. (See Compl., ECF No. 1, PageID.50.)
His complaint “therefore carries the same weight as would an affidavit for the
purposes of summary judgment.” El Bey v. Roop, 530 F.3d 407, 414 (6th Cir. 2008).
2

Case 4:17-cv-12249-MFL-APP ECF No. 71 filed 07/16/20

PageID.1535

Page 3 of 29

Resident Unit Supervisor (“ARUS”) at SRF and was assigned to Housing Unit #600.
(See id. ¶ 6, PageID.3.) Florey and Wright were SRF corrections officers assigned
to the facility’s “Yard Crew.” (Id. ¶ 10, PageID.4.) Deshais was an SRF corrections
officer assigned to Housing Unit #500. (See id. ¶ 11, PageID.4–5.)
On December 12, 2013, Bennett was physically assaulted by his cellmate,
Ralph Meredith. (See id. ¶¶ 21, 50–58, PageID.6, 11–12.) After the assault, Bennett
was transferred to Housing Unit #600 at SRF. (See id. ¶¶ 88–89, PageID.16.)
Bennett’s new cellmate, Christopher Beal, explained that there was gang activity in
Unit #600 and that he (Beal) was a member of “The Bloods” gang. (See id. ¶¶ 88,
90.)
On January 3, 2014, Beal accused Bennett of being a child molester and of
snitching on Meredith while Bennett lived with Meredith. (See id. ¶ 94.) Beal then
threatened Bennett, telling him: “YOU GOT TO GO!

My last bunky

[cellmate] . . . had a CSC [criminal sexual conduct] case. He didn’t want to pay us,
so we (The Bloods) made him move out of the unit because he was about to get
stabbed. So, I don’t care how you do it . . . tell the ARUS [i.e., McLean] you don’t
want to Lock-in this cell. But you’re moving.” (Id. ¶ 96.) Bennett “became very
nervous and worried about his safety” after this conversation with Beal. (Id. ¶ 97.)
On January 5, 2014, Bennett wrote a letter to McLean explaining the danger
he was in by sharing a cell with Beal. (See 1/5/14 Letter to McLean, ECF No. 65-1,
3

Case 4:17-cv-12249-MFL-APP ECF No. 71 filed 07/16/20

PageID.1536

Page 4 of 29

PageID.1358.) In the letter, Bennett said: “I don’t feel safe, because I believe my
life is in danger.” (Id.) Bennett concluded his letter by requesting that McLean
“please, please move me out of [my] cell []? Or place me in protective custody?
Because I am afraid of what could happen to me if I stay in this cell.” (Id.) Bennett
delivered this letter to McLean’s office on January 6, 2014. (See Compl. ¶ 101, ECF
No. 1, PageID.18.)
Later that day, Bennett spoke in-person with McLean.

During that

conversation, Bennett expressed that he did “not feel safe in [his] cell” and requested
that McLean “put me in protective custody or move me to Housing Unit #500[.]”
(Id. ¶ 102–105, PageID.18–19.) McLean responded by saying:
We aren’t so quick to put someone in protective custody
just because they ask for it. There’s an investigation
protocol that has to take place, then a determination has to
be made. As for now, I suggest you return to your cell and
try to reconcile with prisoner Beal. If you have any more
troubles, you let me know. In the meantime, I’ll work on
getting you moved out of that cell.
(Id. ¶ 108, PageID.19.) McLean also warned Bennett against going “behind my back
to the warden” – i.e., to Defendant Winn – with complaints “about any of my
officers.” (Id. ¶ 106.) McLean then threatened Bennett that he would “transfer
[Bennett’s] ass to Ionia or across that bridge” if he found out that Bennett “went
behind my back to the warden” with any complaints. (Id.)

4

Case 4:17-cv-12249-MFL-APP ECF No. 71 filed 07/16/20

PageID.1537

Page 5 of 29

Despite McLean’s threat, Bennett sent a letter to Winn. (See id. ¶¶ 111–112,
PageID.20.) In that letter, Bennett detailed that Beal had accused him of being a
child molester and a snitch, expressed that he “fear[ed his] life is in danger,” and
requested that Winn “please make an emergency cell change or place me in
[protective custody].” (1/6/14 Letter to Winn, ECF No. 65-1, PageID.1406.)
Bennett’s letter also said that McLean “is aware of this situation, but he deliberately
refused to do anything about it.” (Id.)
On January 8, 2014, McLean summoned Bennett into his office and said:
“Didn’t I tell you not to go behind my back to the administration regarding anything
that goes on in this unit?” (Compl. ¶ 113, ECF No. 1, PageID.20.)

Bennett

responded by reiterating his safety concerns and again requesting that he be moved
out of Beal’s cell. (See id. ¶ 114, PageID.20–21.) McLean then proclaimed, “You’re
gonna be moved alright! You thought I was bullshitting. Dress warm because your
ass is going across that bridge!” (Id.)
McLean and Winn do not “recall receiving a [letter] from prisoner Bennett
stating he was in fear of his life.” (McLean Aff. ¶ 4, ECF No. 37-2, PageID.532; see
also Winn Aff. ¶ 4, ECF No. 37-3, PageID.536.) According to McLean, “If I
received a kite stating a prisoner was in fear of his life, my standard response would
have been to call him into my office to find out the circumstances. I would have
then completed a protection request for the [Security Classification Committee] team
5

Case 4:17-cv-12249-MFL-APP ECF No. 71 filed 07/16/20

PageID.1538

Page 6 of 29

to review. If a prisoner stated he was in fear of his cell mate, I would have moved
the prisoner to another cell or to another unit depending on the situation.” (McLean
Aff. ¶ 4, ECF No. 37-2, PageID.532.) Winn similarly attests that, “If I received a
[letter] stating a prisoner was in fear of his life, my standard response would have
been to initiate an investigation of the threat.” (Winn Aff. ¶ 4, ECF No. 37-3,
PageID.536.) McLean also does not “recall having any conversations with prisoner
Bennett.” (McLean Aff. ¶ 5, ECF No. 37-2, PageID.532.) McLean further attests
that “I have never told a prisoner that I would send them across the bridge or to
Ionia.” (Id. ¶ 7, PageID.533.) Finally, McLean says that he does not “decide what
prisoners go into protective custody” (id. ¶ 8), and Winn asserts that he does not
“arrange for cell changes.” (Winn Aff. ¶ 5, ECF No. 37-3, PageID.536.)
B
By January 10, 2014, Bennett had not yet been transferred out of the cell he
shared with Beal. That day, as Bennett was walking from the chow hall to his unit,
he entered an “L-shaped” walkway that connects the two areas. (See R&R, ECF No.
68, PageID.1451; Pl.’s Decl. ¶ 24, ECF No. 65, PageID.1270–1271.) According to
Bennett, it is “common knowledge among SRF corrections officers, as well as SRF
inmates who lock in Housing Unit #600, that gang-related attacks and stabbings
happen quite frequently on [Housing Unit] #600’s ‘L-shape’ walkway, because this
walkway is located in an isolated area of the prison.” (Pl.’s Decl. ¶ 69, ECF No. 65,
6

Case 4:17-cv-12249-MFL-APP ECF No. 71 filed 07/16/20

PageID.1539

Page 7 of 29

PageID.1282; emphasis omitted.) In fact, Bennett witnessed two beatings and one
stabbing in the walkway area during the 28 days he spent in Unit #600. (See id.,
PageID.1282–1283.) No corrections officers were standing post at or near Unit #600
at the time of those assaults. (See id.)
At the time Bennett was passing through the L-shaped walkway, Florey and
Wright were assigned to stand post and observe the walkway. (See id. ¶¶ 69–72,
PageID.1282–1283.) Despite the “common knowledge” that the walkway was a site
of frequent violence, however, neither Florey nor Wright were at their posts. Florey
was instead “standing outside [the] chowhall talking with two unknown corrections
officers.” (Id. ¶ 71, PageID.1283.) And Wright was instead “‘chatting’ with another
officer” about 50 yards from the unit entrance door. (Id. ¶ 72.)
While Bennett was in the walkway, Beal – who was walking with a group of
“Bloods” gang members – assaulted Bennett with a shank, stabbing him once in the
neck and once in the upper right arm. (See R&R, ECF No. 68, PageID.1451; see also
Compl. ¶¶ 118–129, ECF No. 1, PageID.21–23; Pl.’s Decl. ¶¶ 24–34, ECF No. 65,
PageID.1270–1273; Critical Incident Report, ECF No. 65-1, PageID.1362.) Bennett
was sent to the hospital after the attack, where he was told that he was “very fortunate
to be alive.” (Pl.’s Decl. ¶ 25, ECF No. 65, PageID.1271.)

He continues to

“experience numbness and chronic pain in [his] right hand and arm due to this
stabbing incident.” (Id. ¶ 26.)
7

Case 4:17-cv-12249-MFL-APP ECF No. 71 filed 07/16/20

PageID.1540

Page 8 of 29

C
Bennett was transferred to a cell in Housing Unit #500 after the attack. (See
Compl. ¶ 162, ECF No. 1, PageID.28.) On January 16, 2014, six days after the
attack, Bennett called his sister from the phones in Unit #500. (See Pl.’s Decl. ¶ 80,
ECF No. 65, PageID.1285.) He told her about the stabbing and that he had informed
McLean and Winn about Beal’s threats but that they had not moved him. (See id.
¶¶ 80–81, PageID.1285–1286.) Bennett also told his sister that he was going to call
his appellate attorney and inquire about filing a civil lawsuit against MDOC staff.
(See id. ¶ 81, PageID.1286.) The next day, on January 17, 2014, Bennett called his
attorney and left a voicemail informing the attorney that he had been stabbed and
saying that he needed legal advice about bringing a claim regarding McLean and
Winn’s failure to move him. (See id. ¶ 82.)
The following day, on January 18, 2014, Deshais conducted a shakedown of
Bennett’s new cell. (See id. ¶ 83.) When Deshais entered the cell, he asked Bennett,
“So you’re the jailhouse lawyer trying to sue Winn, huh?” (Id. ¶ 84, PageID.1287.)
After searching Bennett’s cell, Deshais shouted “We got him!” and then produced a
shank, a tattoo needle, and a razor blade that Deshais said he found in a locker in
Bennett’s cell. (Id. ¶¶ 84–85.) Bennett insists that the needle and shank were not
his. (See id. ¶ 91, PageID.1288.) At a misconduct hearing, Bennett told the hearing
officer that the shank could have been his cellmate’s or could have been planted by
8

Case 4:17-cv-12249-MFL-APP ECF No. 71 filed 07/16/20

PageID.1541

Page 9 of 29

Deshais. (See id.; see also Misconduct Hr’g Report, ECF No. 37-4, PageID.544.)
Bennett was ultimately found guilty of possessing dangerous contraband. (See
Misconduct Hr’g Report, ECF No. 37-4, PageID.544.)
Bennett alleges here that Deshais and Winn conspired to plant the shank in his
cell in retaliation for Bennett planning to sue prison officials. (See Compl. ¶¶ 172–
177, ECF No. 1, PageID.30–31.) Bennett’s allegation is based on evidence that (1)
Winn has the authority to monitor non-attorney outgoing calls from SRF’s prisoner
phones, (2) Winn admitted to Bennett that he knew Deshais, and (3) Deshais
referenced Bennett’s plans for a lawsuit when he searched Bennett’s cell and found
the contraband. (See Pl.’s Decl. ¶¶ 84–85, 97, 101, ECF No. 65, PageID.1287, 1290–
1291.) Winn, for his part, denies that he “ever conspired to have a weapon or other
contraband planted on a prisoner or in a prisoner’s cell.” (Winn Aff. ¶ 7, ECF No.
37-3, PageID.537.) Deshais did not specifically respond to Bennett’s allegations.
(See R&R, ECF No. 68, PageID.1485.)
On February 13, 2014, Bennett was transferred to the Bellamy Creek
Correctional Facility (“IBC”) in Ionia, Michigan. (See Transfer Order, ECF No. 651, PageID.1409.) Bennett’s transfer order says that the transfer request was due to
the finding that Bennett possessed dangerous contraband. (See id.)

9

Case 4:17-cv-12249-MFL-APP ECF No. 71 filed 07/16/20

PageID.1542

Page 10 of 29

II
Bennett filed this pro se civil rights action on July 10, 2017. (See Compl., ECF
No. 1.) On August 14, 2018, the Court granted partial summary judgment in favor
of Defendants on some of Bennett’s claims. (See 8/14/18 Order, ECF No. 31.)
Bennett’s remaining claims allege that McLean, Winn, Florey, and Wright violated
the Eighth Amendment to the United States Constitution when they failed to protect
him from the assault by Beal. (See Compl. ¶¶ 239–251, ECF No. 1, PageID.43–45.)
Bennett further alleges that these officers were negligent under Michigan law for
failing “to act with reasonable care to protect him from assaults by other prisoners.”
(Id. ¶¶ 252–265, PageID.46–48.) Bennett also alleges that McLean, Winn, and
Deshais violated the First Amendment to the United States Constitution when they
retaliated against him for complaining about the attack and the officers’ failure to
protect him. (See id. ¶¶ 230–238, PageID.40–43.)
Defendants filed a Motion for Summary Judgment on March 8, 2019. (See
Mot. for Summ. J., ECF No. 36.) Defendants argued that Bennett lacks evidentiary
support for his claims; they did not argue that they are entitled to qualified immunity
for their actions. (See Addendum to Mot. for Summ. J., ECF No. 37.) Bennett
opposed the motion. (See Resp. to Mot. for Summ. J., ECF No. 65.)
On February 18, 2020, the assigned Magistrate Judge issued the R&R in
which he recommended that Defendants’ motion be granted in part and denied in
10

Case 4:17-cv-12249-MFL-APP ECF No. 71 filed 07/16/20

PageID.1543

Page 11 of 29

part. (See R&R, ECF No. 68.) The Magistrate Judge recommended that Defendants’
motion be denied with respect to Bennett’s Eighth Amendment and negligence
claims against McLean, Winn, Florey, and Wright. (See id., PageID.1458–1477.)
The Magistrate Judge also recommended that Defendants’ motion be denied with
respect to Bennett’s First Amendment retaliation claim against Deshais. (See id.,
PageID.1490–1491.) But the Magistrate Judge recommended that the Defendants
be granted summary judgment with respect to Bennett’s First Amendment retaliation
claims against McLean and Winn. (See id., PageID.1477–1490.) The Magistrate
Judge also informed the parties that they were required to file any objections to the
R&R within 14 days. (See id., PageID.1492.)
Defendants filed timely objections to the R&R on March 2, 2020. (See
Objections, ECF No. 69.) Bennett responded to Defendants’ Objections (see Resp.
to Objections, ECF No. 70), but he did not object to any portion of the R&R.
III
Where a party objects to a portion of a Magistrate Judge’s report and
recommendation, the Court reviews that portion de novo. See Fed. R. Civ. P.
72(b)(3); Lyons v. Comm’r of Soc. Sec., 351 F. Supp. 2d 659, 661 (E.D. Mich. 2004).
The Court has no duty to conduct an independent review of the portions of the report
and recommendation to which a party has not objected. See Thomas v. Arn, 474 U.S.
140, 149 (1985).
11

Case 4:17-cv-12249-MFL-APP ECF No. 71 filed 07/16/20

PageID.1544

Page 12 of 29

A movant is entitled to summary judgment when it “shows that there is no
genuine dispute as to any material fact.” SEC v. Sierra Brokerage Servs., Inc., 712
F.3d 321, 326–27 (6th Cir. 2013) (citing Fed. R. Civ. P. 56(a)). When reviewing the
record, “the court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor.” Id. (quoting Tysinger
v. Police Dep’t of City of Zanesville, 463 F.3d 569, 572 (6th Cir. 2006)). “The mere
existence of a scintilla of evidence in support of the [non-moving party’s] position
will be insufficient; there must be evidence on which the jury could reasonably find
for [that party].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
Summary judgment is not appropriate when “the evidence presents a sufficient
disagreement to require submission to a jury.” Id. at 251–52. Indeed, “[c]redibility
determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge.” Id. at 255.
IV
Defendants first object that the Magistrate Judge wrongly considered
Bennett’s documents that were filed late and did not adhere to the Local Rules. (See
Objections, ECF No. 69, PageID.1495–1499.) The Court overrules this objection.
The Magistrate Judge properly exercised his discretion to overlook any potential rule
violations and to address Defendants’ motion on the merits.

12

Case 4:17-cv-12249-MFL-APP ECF No. 71 filed 07/16/20

PageID.1545

Page 13 of 29

V
Defendants next raise several substantive objections to the Magistrate Judge’s
recommended disposition. The Court will address each objection in turn.
A
The Court begins with Bennett’s Eighth Amendment failure-to protect claims
against Defendants McLean and Winn. (See Compl. ¶¶ 243–244, 247–248, ECF No.
1, PageID.43–45.) Bennett alleges that both McLean and Winn acted with deliberate
indifference to his safety when they failed to take reasonable measures to protect
him after they learned about Beal’s threats against him. (See id.)
An Eighth Amendment failure-to-protect claim has both an objective and a
subjective element. To satisfy the objective element, “a prison inmate . . . must
show that the failure to protect from risk of harm is objectively ‘sufficiently
serious.’” Bishop v. Hackel, 636 F.3d 757, 766 (6th Cir. 2011) (quoting Farmer v.
Brennan, 511 U.S. 825, 833 (1994)).

To satisfy the subjective element, “a

plaintiff . . . must show that prison officials acted with ‘deliberate indifference’ to
inmate health or safety.” Id. “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 766–67
(quoting Farmer, 511 U.S. at 837). “Whether a prison official had the requisite
13

Case 4:17-cv-12249-MFL-APP ECF No. 71 filed 07/16/20

PageID.1546

Page 14 of 29

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 767 (quoting Farmer, 511 U.S. at 842).
In their motion, Defendants argued that Bennett failed to show that McLean
and Winn acted with deliberate indifference:
Bennett alleges that his cellmate, Beal [], was
hostile towards him but that McLean and Winn refused to
move Bennett to another cell. McLean and Winn assert
that this allegation is false.
McLean does not recall any conversations with
Bennett, including regarding his cellmate Beal. McLean
does not recall Bennett ever telling him that he was in fear
of Beal or needed protection. Had Bennett done so,
McLean would have completed a protection request and
moved Bennett to another cell either in his unit or another
unit. Winn does not recall receiving any kites from
Bennett regarding his cellmate Beal or that he was in fear
of his life. As Deputy Warden, Winn would not have
arranged a cell change as that is handled by housing staff.
If he was made aware of a threat, Winn would have made
sure the threat was investigated.
Bennett and Beal were cellmates from December
12, 2013 through January 10, 2014 and there is no record
that Bennett reported to any housing unit staff that he had
an issue with Beal that required him to be moved. On
January 10, 2014, Bennett was assaulted by Beal on the
walk from the chow-hall back to the housing unit. . . .
Defendants were not aware of any danger to Bennett
because the assault was a sudden and isolated incident,
14

Case 4:17-cv-12249-MFL-APP ECF No. 71 filed 07/16/20

PageID.1547

Page 15 of 29

which they had no prior knowledge was going to take
place.
***
Bennett has . . . failed to prove facts sufficient to
establish deliberate indifference by McLean [and]
Winn . . . to an unreasonable risk of injury. The act or
omission of the prison official must also display a
deliberate indifference to the unreasonable risk of injury.
This crucial element is lacking in this case. At best, these
facts show an isolated incident not connected with
previous violence that could establish any pattern.
Additionally, Bennett’s request for a cell change would
not have prevented the assault on Bennett, because the
assault occurred in a common area of the prison, not in his
cell. . . . Bennett has failed to assert any evidence of
intentional conduct or deliberate indifference to his safety
and McLean [and] Winn . . . are entitled to summary
judgment on Bennett’s Eighth Amendment failure to
protect claims.
(Addendum to Mot. for Summ. J., ECF No. 37, PageID.515–516, 520–521; citations
omitted.)
The Magistrate Judge carefully reviewed each portion of this argument. First,
the Magistrate Judge concluded that the thrust of Defendants’ argument came down
to a credibility contest between Bennett and the officers regarding whether Bennett
told McLean and Winn about the danger posed by Beal. (See R&R, ECF No. 68,
PageID.1458–1466.) Because Bennett had presented sufficient evidence that he had
informed the officers about the danger – including his sworn declaration and his
letters to McLean and Winn – the Magistrate Judge found that Bennett had raised a
15

Case 4:17-cv-12249-MFL-APP ECF No. 71 filed 07/16/20

PageID.1548

Page 16 of 29

genuine issue of material fact whether the officers were aware of a substantial threat
to Bennett but nevertheless failed to protect him. (See id.)
Second, the Magistrate Judge thoroughly reviewed the case law cited by
Defendants. In particular, the Magistrate Judge carefully distinguished a Sixth
Circuit decision, Stewart v. Love, 696 F.2d 43 (6th Cir. 1982), that was cited by
Defendants to argue that McLean and Winn could not be liable for Beal’s attack on
Bennett because it was an isolated incident. (See R&R, ECF No. 68, PageID.1462–
1463.)

As the Magistrate Judge explained, the officers in Stewart were not

deliberately indifferent because, unlike the officers here, they “had taken at least
some action in response to the prisoner’s concerns.” (Id., PageID.1462.) Moreover,
the Court in Stewart noted that “[h]ad no action whatsoever been taken to protect the
plaintiff, the court would be inclined to allow this action to proceed to a full hearing.”
Stewart, 696 F.2d at 45.
Third, the Magistrate Judge addressed Defendants’ argument that Bennett’s
request for a cell change, if granted, would not have prevented the assault because
the assault occurred in a common area of the prison, not in his cell. (See R&R, ECF
No. 68, PageID.1466.) According to the Magistrate Judge:
This argument misses plaintiff’s point. Plaintiff told the
defendants that Beal wanted him out of their cell. It is
reasonable to infer, based on the facts presented here, that
Beal would have become increas[ingly] angry if plaintiff
remained in the cell. On the other hand, it appears that
Beal would have been satisfied if plaintiff had been
16

Case 4:17-cv-12249-MFL-APP ECF No. 71 filed 07/16/20

PageID.1549

Page 17 of 29

moved. If he was moved, there is no indication that the
attack would have happened. Further, defendants cite no
support for the assertion that the attack must take place in
the cell under these circumstances in order for their
inaction to be considered a constitutional violation.
(Id.)
Defendants object to the Magistrate Judge’s conclusion that Bennett presented
sufficient evidence of deliberate indifference:
The Magistrate correctly noted that there is a question of
fact as to whether Plaintiff told McLean and Winn that he
believed he was in danger, but failed to address McLean
and Winn’s uncontroverted statements that if they believe
a prisoner is in danger they would have completed
protection requests. (Affidavit of McLean, R.37-2,
PgID.532, and Affidavit of Winn, R.37-3, PgID.536.) For
Plaintiff to prove an Eighth Amendment violation, he must
show that Winn and McLean not only had actual
knowledge of facts upon which a reasonable person might
infer a substantial risk to Plaintiff, but that Winn and
McLean actually drew the inference. . . . It is uncontested
that if Winn and McLean drew the inference that Plaintiff
was facing a substantial risk of harm, they would have
completed a protection request. While Plaintiff tries to
show that Winn and McLean had knowledge of the risk,
his evidence amounts to hearsay and is not admissible.
Because there was no protection request prior to the
assault on Bennett, the Magistrate should have determined
that Winn and McLean did not draw the inference that
Bennett faced a substantial risk of harm. The Magistrate
erred in not determining that Winn and McLean did not
infer that Plaintiff faced a substantial risk of harm and
Defendants Winn and McLean are entitled to summary
judgment.
(Objections, ECF No. 69, PageID.1499–1500.)
17

Case 4:17-cv-12249-MFL-APP ECF No. 71 filed 07/16/20

PageID.1550

Page 18 of 29

The Court overrules Defendants’ objection because it differs from the
argument raised in their motion. Defendants did not argue in their motion – as they
do in their Objections – that even if McLean and Winn were aware of Beal’s threat,
Bennett’s claim would still fail because there is no evidence that McLean and Winn
actually inferred, based upon their knowledge of the threat, that Bennett was in
serious danger. Instead, Defendants argued in their motion that McLean and Winn
could not have inferred that Bennett was in danger because McLean and Winn did
not know about the threat by Beal.3 (See Addendum to Mot. for Summ. J., ECF No.
37, PageID.515–516, 520–521.)

The Magistrate Judge correctly rejected that

argument because there is a factual dispute as to whether Bennett told McLean and
Winn about the danger posed by Beal.4

3

Defendants’ argument in their motion tracked McLean’s and Winn’s affidavits. In
those affidavits, McLean and Winn attested that Bennett never informed them of a
threat. (See, e.g., McLean Aff. ¶ 5, ECF No. 37-2, PageID.532 (“I do not recall
having any conversations with prisoner Bennett.”); Winn Aff. ¶ 4, ECF No. 37-3,
PageID.536 (“I do not recall receiving any kites from prisoner Bennett stating he
was in fear of his life.”).) McLean and Winn did not say Bennett informed them of
a threat and that after considering the threat, they determined that he was not in
danger.
4

As noted above, Defendants argued in their motion for summary judgment that
Bennett’s claim failed because (1) Bennett was attacked in a common area, not in
his cell, and thus (2) Bennett’s request for a cell change, if granted, would not have
prevented the attack. As further noted above, the Magistrate Judge rejected that
argument. Defendants do not object to the Magistrate Judge’s rejection of that
argument. The Court nonetheless notes that the argument fails for an additional
reason beyond those given by the Magistrate Judge. The argument rests upon the
18

Case 4:17-cv-12249-MFL-APP ECF No. 71 filed 07/16/20

PageID.1551

Page 19 of 29

B
The Court turns next to Bennett’s Eighth Amendment failure-to-protect
claims against Defendants Wright and Florey.
Bennett alleges that Wright and Florey “knowingly expose[d] [Bennett] to a
substantial risk of serious harm, by willfully abandoning their security post in an
isolated and highly-assaultive area of housing unit #600 walkway during mass
prisoner movement.” (Compl. ¶ 246, ECF No. 1, PageID.44.) Defendants argued in
their motion that they are entitled to summary judgment on this claim because
“Bennett has not alleged any facts that Florey or Wright had any awareness of danger
to Bennett, merely that they were not where he thinks they should have been on the
walkway.” (Addendum to Mot. for Summ. J., ECF No. 37, PageID.520–521.)
The Magistrate Judge recommended that the Court deny summary judgment
on Bennett’s Eighth Amendment claims against Florey and Wright because a
reasonable jury could find that the officers disregarded a known risk by not standing
at their posts. (See R&R, ECF No. 68, PageID.1466–1472.) According to the
Magistrate Judge, Bennett “presented unrebutted evidence that it was common
knowledge among corrections officers that inmate attacks in the walkway happened

mistaken premise that Bennett requested only a cell change. Bennett has presented
evidence that he requested to be moved to a different unit and/or to be moved to
segregation. (See, e.g., 1/5/14 Letter to McLean, ECF No. 65-1, PageID.1358;
Compl. ¶ 102–105, ECF No. 1, PageID.18–19.)
19

Case 4:17-cv-12249-MFL-APP ECF No. 71 filed 07/16/20

PageID.1552

Page 20 of 29

frequently” and that “Florey and Wright were regularly assigned to the walkway.”
(Id., PageID.1470.)

Therefore, the Magistrate Judge determined that “[i]t is

reasonable to infer that Florey and Wright were thus aware of the frequency of
attacks but disregarded the risk by not standing at their posts.” (Id.)
Defendants object that the Magistrate Judge “accept[ed] Plaintiff’s assertion
that there were ‘frequent’ violent attacks in the L-shaped walkway” despite Bennett
“not offer[ing] any evidence or factual allegations to show that there are ‘frequent’
violent attacks at this location of the correctional facility.” (Objections, ECF No. 69,
PageID.1501.) Defendants also argue that “the Magistrate erred in determining that
Plaintiff has provided any evidence to show Florey and Wright knew of and inferred
that prisoners are exposed to a substantial risk of serious harm in the L-shaped
walkway.” (Id., PageID.1502.)
The Court disagrees. Bennett presented evidence that the particular walkway
in question was unreasonably dangerous, that it was common knowledge among
SRF staff that the walkway was dangerous, and that Florey and Wright nonetheless
left their posts and thereby left Bennett vulnerable to an attack. (See, e.g., Pl’s Decl.
¶ 69, ECF No. 65, PageID.1282.) Moreover, Bennett supported his contention that
the walkway was especially dangerous by presenting evidence that he witnessed two
beatings and one stabbing in the walkway area during a 28-day period. (See id.,

20

Case 4:17-cv-12249-MFL-APP ECF No. 71 filed 07/16/20

PageID.1282–1283.)

PageID.1553

Page 21 of 29

For all of these reasons, the Magistrate Judge correctly

recommended that the Court deny summary judgment to Florey and Wright.5
C
The Court next turns to Bennett’s claim under state law that Winn, McLean,
Florey, and Wright were negligent for failing to protect him.6

5

The Magistrate Judge also addressed an additional issue: whether the fact that
another corrections officer – Marvin Sanders – was present in the walkway at the
time of the incident is fatal to Bennett’s deliberate indifference claim against Florey
and Wright. (See R&R, ECF No. 68, PageID.1471–1472; see also Critical Incident
Report, ECF No. 37-4, PageID.548.) It is unclear why the Magistrate Judge
addressed this issue, as Defendants did not argue this point in their Motion for
Summary Judgment. (See Addendum to Mot. for Summ. J., ECF No. 37,
PageID.513–521.) The Magistrate Judge concluded that “even though Sanders
states he was in the walkway and heard a thud, it is not clear that this would absolve
Florey and Wright of liability if they were also supposed to be there. If they were
there, it is conceivable that the attack might not have happened.” (R&R, ECF No.
68, PageID.1472.)
In Defendants’ Objections, they contend that “[t]he fact that Sanders saw the assault
on Plaintiff and quickly responded highlights Plaintiff’s conclusory allegation that
had Florey and Wright been where he wanted them to be, he would not have been
assaulted.” (Id., PageID.1503.) To the extent Defendants object to the Magistrate
Judge’s finding with respect to Sanders’ presence in the walkway, the Court
overrules this objection. The fact that Sanders’ presence in the general area did not
prevent the attack does not establish, as a matter of law, that the attack would have
happened even if Florey and Wright were at their posts in the walkway area. (See
R&R, ECF No. 68, PageID.1472.)
6

Bennett styles this claim as a “gross negligence” claim. (See Compl., ECF No. 1,
PageID.46.) As the Sixth Circuit has recognized, however, there is a question
whether there is an independent cause of action for gross negligence under Michigan
law. See Bletz v. Gribble, 641 F.3d 743, 756 (6th Cir. 2011). The Court, giving a
liberal construction to Bennett’s pro se pleadings, reads Bennett’s Complaint not as
21

Case 4:17-cv-12249-MFL-APP ECF No. 71 filed 07/16/20

PageID.1554

Page 22 of 29

Bennett’s negligence claim is “based on the same conduct that forms the
failure to protect claims against these defendants.” (R&R, ECF No. 68,
PageID.1472.) Bennett alleges that Winn, McLean, Florey, and Wright owed him
“a duty to act with reasonable care to protect him from assaults by other prisoners.”
(Compl. ¶ 253, ECF No. 1, PageID.46.) According to Bennett, the officers breached
this duty when they failed to protect him from Beal. (See id. ¶ 257, PageID.46–47.)
Defendants argued in their motion that they have state-law tort immunity and
are therefore entitled to summary judgment on Bennett’s negligence claim. Under
the Michigan Governmental Tort Liability Act (the “GTLA”), corrections officers
are entitled to tort immunity so long as their conduct (a) was not grossly negligent
and (b) was not the proximate cause of a prisoner’s injury. See Mich. Comp. Laws
§ 691.1407(2).

In the GTLA context, “proximate cause” is “the one most

immediate, efficient, and direct cause of the injury or damage.” Robinson v. City of
Detroit, 613 N.W.2d 307, 319 (Mich. 2000). According to Defendants, Beal’s
stabbing of Bennett – rather than any action or inaction on the part of the officers –
was the proximate cause of Bennett’s injury. (See Addendum to Mot. for Summ. J.,
ECF No. 37, PageID.522.) Defendants therefore argued that they were entitled to

bringing a claim for “gross negligence,” but rather as bringing a negligence claim
against these Defendants and arguing that their conduct was so grossly negligent that
they are not entitled to state-law immunity.
22

Case 4:17-cv-12249-MFL-APP ECF No. 71 filed 07/16/20

PageID.1555

Page 23 of 29

GTLA immunity because they were not the proximate cause of Bennett’s injury.
(See id.)
The Magistrate Judge disagreed. The Magistrate Judge noted that “there are
multiple variables affecting the determination of respective negligence. We have
the defendants’ actions, discussed above. Of course, Beal is an important actor in
plaintiff’s injury as well. Perhaps plaintiff had some part in this in allowing himself
to walk closely to the inmates, and Beal, ahead of him in the walkway.” (R&R, ECF
No. 68, PageID.1476.) Accordingly, the Magistrate Judge concluded that, “[o]n
these facts, and drawing reasonable inferences in plaintiff’s favor, the defendants’
actions could have been the proximate cause of plaintiff’s injury.” (Id.)
Defendants raise two objections to the Magistrate Judge’s recommendation.
First, Defendants argue that the Magistrate Judge “did not note that the proximate
cause” under the GTLA is the “one most immediate, efficient, and direct cause of
the injuries.” (Objections, ECF No. 69, PageID.1504; quoting Ray v. Swager (Ray
II), 909 N.W.2d 917, 920 (Mich. Ct. App. 2017).) The Defendants are incorrect.
The Magistrate Judge specifically quoted the language that Defendants say he failed
to note:
Once the various proximate causes have been determined,
the question then becomes whether taking all possible
proximate causes into account, the government actor’s
gross negligence was the proximate cause of injury. This
requires considering defendant’s actions alongside any
potential proximate causes to determine whether
23

Case 4:17-cv-12249-MFL-APP ECF No. 71 filed 07/16/20

PageID.1556

Page 24 of 29

defendant’s actions were, or could have been, the one most
immediate, efficient, and direct cause of the injuries. The
relevant inquiry is not whether the defendant’s conduct
was the immediate factual cause of the injury, but whether,
weighing the legal responsibilities of the actors involved,
the government actor could be considered the proximate
cause.
(R&R, ECF No. 68, PageID.1474–1475; first emphasis in original; second emphasis
added; quoting Ray II, 909 N.W.2d at 920.)
Second, Defendants object to the Magistrate Judge’s “determination that there
is a question of fact as to ‘the proximate cause’ of Plaintiff’s injury.” (Objections,
ECF No. 69, PageID.1503.) According to Defendants, “[b]ecause the proximate
cause of Plaintiff’s injuries was the criminal attack of another prisoner, Defendants
are entitled to summary judgment on Plaintiff’s gross negligence claim.” (Id.,
PageID.1504.)
The Court disagrees. According to the Michigan Supreme Court, “the wellestablished understanding of proximate cause . . . involves the foreseeability of the
consequences of the conduct of human actors, regardless of whether ‘a proximate
cause’ or ‘the proximate cause’ is at issue.” Ray v. Swager (Ray I), 903 N.W.2d 366,
373 (Mich. 2017). The court noted that its definition of proximate cause is the same
today as it was “[a]lmost one hundred years ago”:
If a man does an act and he knows, or by the exercise of
reasonable foresight should have known, that in the event
of such a subsequent occurrence, which is not unlikely to
happen, injury may result from his act, and such
24

Case 4:17-cv-12249-MFL-APP ECF No. 71 filed 07/16/20

PageID.1557

Page 25 of 29

subsequent occurrence does happen and injury does result,
the act committed is negligent, and will be deemed to be
the proximate cause of the injury.
Id. (quoting Northern Oil Co. v. Vandervort, 200 N.W. 145 (1924)). Here, viewing
the facts in the light most favorable to Bennett, a reasonable jury could find that the
officers’ failure to prevent a foreseeable harm – an attack by Beal – was the
proximate cause of Bennett’s injuries. Thus, the officers are not entitled to summary
judgment on Bennett’s negligence claim.
D
Finally, the Court turns to Bennett’s First Amendment retaliation claim
against Deshais.
Bennett alleges that Deshais “engage[d] [in an] unlawful conspiracy with
Defendant Winn to ‘plant’ illegal contraband weapons in Plaintiff’s cell during a
bogus shakedown.” (Compl. ¶ 237, ECF No. 1, PageID.42.) Bennett contends that
Deshais planted the contraband in retaliation for him (Bennett) planning to file a
lawsuit regarding his attack. (See id. ¶¶ 237–238, PageID.42–43.)
“A retaliation claim essentially 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

25

Case 4:17-cv-12249-MFL-APP ECF No. 71 filed 07/16/20

PageID.1558

Page 26 of 29

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).
In the motion for summary judgment, Defendants argued that Bennett’s
retaliation claim against Deshais fails because “Deshais did not take any adverse
actions against Plaintiff and did not know of Plaintiff’s protected conduct.”
(Addendum to Mot. for Summ. J., ECF No. 37, PageID.526.)

According to

Defendants, “Plaintiff’s claim that the contraband was planted by Deshais is merely
conclusory and is refuted by the misconduct hearing report where Plaintiff admitted
that at least the razor was his and alleged that the shank was his cellmate’s.” (Id.)
And Defendants argued that “Plaintiff has failed to allege that Deshais had any
knowledge of Plaintiff’s protected conduct.” (Id.)
The Magistrate Judge, however, concluded that there is a question of material
fact with respect to whether Deshais knew about Bennett’s protected conduct and
whether Deshais engaged in an adverse action against Bennett. (See R&R, ECF No.
68, PageID.1490–1491.)

First, the Magistrate Judge rejected Defendants’

contention that Bennett’s claim failed because the factual basis for the claim – i.e.,
that Deshais planted the shank in his cell – was inconsistent with Bennett’s
statements during the misconduct proceedings. As the Magistrate Judge explained,
“[w]hile it is true that the misconduct report recorded that plaintiff blamed his cell
mate for the shank, plaintiff has rebutted this evidence with his declaration in which
26

Case 4:17-cv-12249-MFL-APP ECF No. 71 filed 07/16/20

PageID.1559

Page 27 of 29

he states he also said, at the misconduct hearing, that it could have been planted there
by [Deshais].” (Id., PageID.1490; citing Pl.’s Decl. ¶ 92, ECF No. 65, PageID.1288.)
Second, the Magistrate Judge concluded that Bennett “created a question of material
fact on this retaliation claim.” (Id.) According to the Magistrate Judge:
[Bennett] has brought forth evidence suggesting that
[Deshais] became aware—somehow—that he was
planning to file a lawsuit against Winn about the failure to
protect him from the attack. He also avers that he did not
have or own the shank or tattoo needle, but once [Deshais]
gained access to plaintiff’s cell, [Deshais] came upon these
objects. Based on this evidence, it is reasonable to infer
that [Deshais] planted the contraband; and, [Deshais] did
not submit evidence to the contrary (for example, by way
of affidavit disputing that he planted the evidence).
(Id., PageID.1490–1491.)
Defendants object that “there is no competent evidence that Deshais knew of
Plaintiff’s protected conduct” beyond “Plaintiff’s conclusory allegations.”
(Objections, ECF No. 69, PageID.1505–1506.) And Defendants argue that because
Bennett was found guilty of a Class I misconduct offense by a hearing officer, that
“finding precludes a jury from finding that Deshais planted the weapon in retaliation
for Plaintiff’s alleged protected conduct.” (Id., PageID.1506; citing Peterson v.
Johnson, 714 F.3d 905, 908–11 (6th Cir. 2013).)
The Court overrules both of these objections. First, as the Magistrate Judge
noted, Bennett provided specific evidence that Deshais knew of his (Bennett’s)
protected conduct. That evidence was Bennett’s sworn statement that Deshais
27

Case 4:17-cv-12249-MFL-APP ECF No. 71 filed 07/16/20

PageID.1560

Page 28 of 29

referred to Bennett’s intent to file a lawsuit just before Deshais announced his
discovery of the shank (that Bennett says he did not own) in Bennett’s cell. (See Pl.’s
Decl. ¶¶ 84–85, ECF No. 65, PageID.1287.) Second, Defendants cannot now object
that the result of Bennett’s misconduct hearing had a preclusive effect, because they
failed to present this argument in their summary judgment motion. Defendants
devoted only one paragraph of their motion to discussing Bennett’s claims against
Deshais, and they did not argue that the result of Bennett’s misconduct hearing had
a preclusive effect – only that Bennett’s allegation was “refuted” by the misconduct
hearing record. (Addendum to Mot. for Summ. J., ECF No. 37, PageID.526.)
Defendants cannot now raise this issue for the first time in their objections to the
R&R.
VI
Bennett did not object to the Magistrate Judge’s recommendation that the
Defendants be granted summary judgment with respect to his First Amendment
retaliation claims against Defendants McLean and Winn. (See R&R, ECF No. 68,
PageID.1477–1490.) Accordingly, the Court has no duty to independently review
this portion of the R&R, and the Court will adopt the Magistrate Judge’s
recommended disposition with respect to these claims. See Thomas v. Arn, 474 U.S.
140, 149 (1985).

28

Case 4:17-cv-12249-MFL-APP ECF No. 71 filed 07/16/20

PageID.1561

Page 29 of 29

VII
Accordingly, for the reasons explained above:
 Defendants’ Objections to the R&R (ECF No. 69) are OVERRULED;
 The recommended disposition of the R&R (ECF No. 68) is ADOPTED; and
 Defendants’ Motion for Summary Judgment (ECF No. 36) is GRANTED IN
PART and DENIED IN PART. Defendants shall be granted summary
judgment with respect to Bennett’s First Amendment retaliation claims
against Defendants McLean and Winn. But Bennett’s action shall proceed
with respect to his First Amendment claim against Defendant Deshais as well
as his Eighth Amendment and gross negligence claims against Defendants
McLean, Winn, Florey, and Wright.
IT IS SO ORDERED.

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

Dated: July 16, 2020
I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on July 16, 2020, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

29