Farr v. Winn
Filing
56
OPINION and ORDER Sustaining in Part and Overruling in Part Plaintiff's Objections to 48 REPORT AND RECOMMENDATION, Granting in Part and Denying in Part 39 MOTION for Summary Judgment filed by Karl, Miller, and Denying 45 MOTION for Summary Judgment filed by Tommy Lee Farr. Signed by District Judge Stephanie Dawkins Davis. (THal)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TOMMY LEE FARR,
v.
Case No. 18-11092
Plaintiff,
Stephanie Dawkins Davis
United States District Judge
O’BELL WINN ET AL.,
R. Steven Whalen
United States Magistrate Judge
Defendants.
____________________________/
OPINION AND ORDER SUSTAINING
IN PARTAND OVERRULING IN PART
PLAINTIFF’S OBJECTIONS TO REPORT AND
RECOMMENDATION [ECF NO. 48] GRANTING
IN PART AND DENYING IN PART DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT [ECF NO. 39], AND DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [ECF NO. 45]
I. INTRODUCTION AND FACTUAL BACKGROUND
Plaintiff Tommy Lee Farr brought suit in this court against several
defendants alleging Eighth Amendment claims of deliberate indifference to a
serious need. (ECF No. 1). Farr claims that he received a threatening note from a
fellow prisoner and informed the Defendants of the threat. See id. However, Farr
claims that Defendants ignored Farr’s communications informing them about the
threat. See id. On September 22, 2015, the inmate who had threatened Farr, his
cellmate, physically assaulted him. (Id. at PageID.3). This matter is before the
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court on cross motions for summary judgment filed by Defendants Bobby Karl and
Gary Miller (ECF No. 39) and Plaintiff Tommy Farr. (ECF No. 45). This court
referred the matter to Magistrate Judge R. Steven Whalen, who issued a Report and
Recommendation (“R&R”) on August 26, 2020, recommending that the court
grant the Defendants’ motion for summary judgment and deny Plaintiff’s motion
for summary judgment. (ECF No. 48, PageID.408).
To sustain a failure to protect claim under the Eighth Amendment, a plaintiff
must satisfy a two-prong test. The first prong of a failure to protect claim requires
an inmate to satisfy an objective standard. A prisoner must demonstrate that he
was “incarcerated under conditions posing a substantial risk of serious harm.”
Beck v. Hamblen Cnty, Tenn., 969 F.3d 592, 600 (6th Cir. 2020) (quoting Farmer
v. Brennan, 511 U.S. 825, 828 (1994)). The second prong is subjective. Under the
second prong, a prisoner must prove that officials were deliberately indifferent to
his health or safety. A prisoner must “show that the official being sued
subjectively perceived facts from which to infer substantial risk to the prisoner,
that he did in fact draw the inference, and then disregarded that risk.” Cameron v.
Bouchard, 815 F. App’x 978, 984 (6th Cir. 2020) (quoting Comstock v. McCrary,
273 F.3d 693, 703 (6th Cir. 2001)). Prison officials must have a subjective state of
mind that is “more blameworthy than negligence”; the state of mind must be akin
to criminal recklessness. Cameron, 815 F. App’x at 984 (quoting Farmer, 511
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U.S. at 835, 839–40). Officials are not liable if “they knew the underlying facts
but believed (albeit unsoundly) that the risk to which the facts gave rise was
insubstantial or nonexistent.” Farmer, 511 U.S. at 844. And a prison official is
not liable if he knew about a substantial risk, responded reasonably, but the harm
was still not averted. Wilson v. Williams, 961 F.3d 829, 840 (6th Cr. 2020).
Further, “generally an isolated or occasional attack is not sufficient to state a
claim” for deliberate indifference. Stewart v. Love, 696 F.2d 43, 45 (6th Cir.
1982), rev’d on other grounds.
Defendants’ summary judgment motion argues that Plaintiff did not prove the
second, subjective component of the failure to protect test and could not show that
Defendants were deliberately indifferent to a serious threat because Defendants did
not know about the threat against Farr. (ECF No. 39, PageID.161–63). The R&R
agreed with Defendants and concluded that there was not a triable issue of fact
about whether the Defendants had prior knowledge of the threat that Farr alleges
that he received. (ECF No. 415, PageID.5–8). The R&R notes that Farr testified
in his deposition that he gave Defendants notice of the threat made to him on
September 14, 2015; however, Farr then stated in his response to Defendants’
motion for summary judgment that he may have given notice to Defendants on a
different date, and does not contest that he could not have given notice to
Defendant Karl on September 14 because Karl was not working on that date. (Id.
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at PageID.412). The R&R then notes that Farr’s response speculates that video
footage from September 13, 14, or 16, 2015 may show Farr passing mail notice of
the threat to Karl. Id. The R&R ultimately concluded that the record did not
contain evidence to create a dispute of fact that Farr informed Defendants of the
threat from his fellow inmate and that Defendants had prior knowledge of the
threat to Farr. (Id. at PageID.413). The R&R therefore concluded that Defendants
were not deliberately indifferent in violation of the Eighth Amendment. Id. On
September 23, 2020, Farr filed an objection to the R&R. (ECF No. 50).
Defendants filed a response to Farr’s objection on October 16, 2020. (ECF No.
52).
For the reasons discussed, the court will SUSTAIN Plaintiff’s objection that
disputes of fact exist regarding whether Defendants Karl and Miller were
deliberately indifferent to a serious harm against Farr. The court also concludes
that Eleventh Amendment Immunity applies to prevent claims against Defendants
in their official capacities. The court therefore REJECTS the R&R’s
recommendation that summary judgment be entered in favor of the Defendants,
and instead will GRANT IN PART AND DENY IN PART Defendants’ motion for
summary judgment and DENY Plaintiff’s motion for summary judgment.
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II. LEGAL STANDARD
A party may object to a magistrate judge’s report and recommendation on
dispositive motions, and a district judge must resolve proper objections under a de
novo standard of review. 28 U.S.C. § 636(b)(1)(B)-(C); Fed. R. Civ. P. 72(b)(1)(3). This court “may accept, reject or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” Id. “For an objection to be
proper, Eastern District of Michigan Local Rule 72.1(d)(1) requires parties to
‘specify the part of the order, proposed findings, recommendations, or report to
which [the party] objects’ and to ‘state the basis for the objection.’” Pearce v.
Chrysler Group LLC Pension Plan, 893 F.3d 339, 346 (6th Cir. 2018). Objections
that dispute the general correctness of the report and recommendation are
improper. Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995).
Moreover, objections must be clear so that the district court can “discern
those issues that are dispositive and contentious.” Id. (citing Howard v. Sec’y of
Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991)); see also Thomas v.
Arn, 474 U.S. 140, 147 (1985) (explaining that objections must go to “factual and
legal” issues “at the heart of the parties’ dispute”). In sum, the objections must be
clear and specific enough that the court can squarely address them on the merits.
See Pearce, 893 F. 3d at 346. And, when objections are “merely perfunctory
responses . . . rehashing . . . the same arguments set forth in the original petition,
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reviewing courts should review [a Report and Recommendation] for clear error.”
Ramirez v. United States, 898 F.Supp.2d 659, 663 (S.D.N.Y. 2012); see also
Funderburg v. Comm’r of Soc. Sec., 2016 WL 1104466, at *1 (E.D. Mich. Mar.
22, 2016) (Hood, J.) (noting that the plaintiff’s objections merely restated his
summary judgment arguments, “an approach that is not appropriate or sufficient.”).
When a party files a motion for summary judgment, it must be granted “if
the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A party
asserting that a fact cannot be or is genuinely disputed must support the assertion
by: (A) citing to particular parts of materials in the record . . .; or (B) showing that
the materials cited do not establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to support the fact.”
Fed. R. Civ. P. 56(c)(1). The standard for determining whether summary judgment
is appropriate is “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.” State Farm Fire & Cas. Co. v. McGowan, 421 F.3d
433, 436 (6th Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251–52 (1986)). Furthermore, the evidence and all reasonable inferences must be
construed in the light most favorable to the non-moving party. Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
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Where the movant establishes the lack of a genuine issue of material fact,
the burden of demonstrating the existence of such an issue then shifts to the nonmoving party to come forward with “specific facts showing that there is a genuine
issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). That is,
the party opposing a motion for summary judgment must make an affirmative
showing with proper evidence and to do so must “designate specific facts in
affidavits, depositions, or other factual material showing ‘evidence on which the
jury could reasonably find for the plaintiff.’” Brown v. Scott, 329 F. Supp. 2d 905,
910 (6th Cir. 2004). In order to fulfill this burden, the non-moving party only
needs to demonstrate the minimal standard that a jury could ostensibly find in his
favor. Anderson, 477 U.S. at 248; McLean v. 988011 Ontario, Ltd., 224 F.3d 797,
800 (6th Cir. 2000). However, mere allegations or denials in the non-movant’s
pleadings will not satisfy this burden, nor will a mere scintilla of evidence
supporting the non-moving party. Anderson, 477 U.S. at 248, 251.
III. DISCUSSION
A. Timeliness of Objection
As an initial matter, this court must determine if Farr filed his objection in a
timely manner. Magistrate Judge Whalen issued his R&R on August 26, 2020.
Farr filed his objection on September 23, 2020. (ECF No. 50). Defendants assert
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that Farr did not file his objection on time; therefore, this court should not consider
it. (ECF No. 52, PageID.431–32).
Under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(a), a party has 14 days
to file an objection after being served with a report and recommendation. Fed. R.
Civ. P. 6(d) extends the objection period for documents served via regular mail
from 14 days to 17 days. Farr filed a letter with the court on September 15, 2020
stating that he received service of the R&R on September 8, 2020. (ECF No. 49,
PageID.418). Therefore, pursuant to the Federal Rule of Civil Procedure, Farr had
17 days—until September 25, 2020, to file his objections. Farr’s September 23,
2020 objection was therefore timely filed. However, even if Farr had not filed his
objections by September 25, 2020, this court recognizes that the COVID-19
pandemic has created delays with the United States Postal Service and the filings
docketed by this court. It appears that such delays could have affected Farr’s
receipt of the R&R, the delivery of Farr’s objections to the court, and the docketing
of the objections once received in the court. Therefore, the court would still
consider objections that are not filed within the 14 or 17-day period required under
the statute and rules.
B. Objection One
Farr’s first objection states that the R&R wrongly concluded that the record
does not show a dispute of material fact about whether Defendants had notice of
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the threat that Farr received. (ECF No. 50, PageID.421). Farr states that
eyewitness testimony can differ based on the individual. Id. He then states that
other statements should be given the same weight as deposition testimony. (Id. at
PageID.421–22). Farr also states that he did not know how to properly utilize
discovery procedures, but public record information substantiates his claims that he
informed Defendants of the threat that he received. (Id. at PageID.422). Farr next
states that evidence exists to show that prison personnel deliberately refuse to
move cellmates unless someone goes to segregation or to the hospital. (Id. at
PageID.423).
The R&R concluded that there is no dispute of fact regarding notice to
Defendant Karl because Farr could not have hand-delivered a letter to Karl on
September 14, 2015 informing Karl of the threat against him as Karl was not
working on that date. (ECF No. 48, PageID.412). The R&R notes that Karl
submitted documentary evidence showing that he was not working on September
14, 2015. Id. The R&R also reasons that Farr’s response to Defendants’ summary
judgment motion states that he might have been mistaken about the date that he
gave the letter to Karl. (Id. at PageID.413). However, the R&R states that any
theory about Farr giving Karl the letter on a different date is based on speculation.
(Id. at PageID.414.).
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This court reviewed the evidence in this case. Farr testified in his deposition
that he wrote letters to Defendants Karl and Miller notifying them about the threat
against him. (ECF No.39-2, PageID.180). He stated that he personally handdelivered the letter to Karl on September 14, 2015—the same day that he wrote it.
(Id. at PageID.184–85). But in his response to Defendants’ summary judgment
motion, Farr states that video footage from September 13th, 15th, or 16th may
show him passing mail to Karl, suggesting that Farr is unsure of the date that he
gave Karl letter notice of the threat against him. (ECF No. 42, PageID.224).
For his part, Karl submitted an affidavit stating that Farr never told him verbally
or in writing that his bunkmate was threatening him. (ECF No. 39-5, PageID.202).
Karl also stated that he was not working on September 14, 2015 and thus could not
have received a letter from Farr on that date. Id. He proffered a work schedule
document that he states shows that he was not working on September 14, 2015.
(ECF No. 39-6, PageID.207). However, the work schedule document for
September 14, 2015 submitted by Karl is largely redacted. (ECF No. 39-6,
PageID.207). It does list Karl’s name in the right hand column under Supervisor
RDO, RDO Group #4 and a “G” appears under a column labeled “G/T.” Id. But
the reader is left to her own devices on how to interpret the worksheet given that
the majority of it is redacted, the meaning of the various abbreviations and
columns is not apparent, and Defendants’ summary judgment brief provides no
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guidance about how to read the document. If this document supports Karl’s claim
that he was not working on September 14, 2015, it is not apparent simply from the
face of the redacted document. The R&R properly found that Farr cannot
overcome a prior statement made under oath with a subsequent contradictory
statement. See Penny v. United Parcel Service, 128 F.3d 408, 415 (6th Cir. 1997)
(party cannot create a genuine issue of material fact by filing an affidavit after
summary judgment has been made, that contradicts the earlier deposition
testimony); Dotson v. U.S. Postal Service, 977 F.2d 976, 978 (6th Cir.), cert.
denied, 506 U.S. 892, (1992) (party cannot rely upon an affidavit contradicting
prior sworn testimony); Reid v. Sears, Roebuck and Co., 790 F.2d 453, 460 (6th
Cir. 1986) (same). Here, Plaintiff has offered even less – not a sworn statement,
but rather merely an argument suggesting that the date referenced in his prior
testimony may have been off. Regardless of whether Plaintiff’s equivocation
negates his prior sworn testimony, the R&R’s conclusion regarding the subsequent
statement is not dispositive of the notice issue because it was not the only evidence
of notice.
Even if there is no dispute of fact about whether Farr delivered the letter to Karl
on the 14th, there remains other evidence in the record that Karl received notice.
For instance, Farr testified that he also gave Karl verbal notice of the threats
against him by his bunkmate. At his deposition he stated as follows:
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Q. Okay, so just so the timeline is clear, you spoke to Morgan verbally - A. Right.
Q. - - and then you wrote him a letter?
A. Right, him and Karl.
Q. And Karl?
A. Right, because Karl was like a regular officer on days, so every time he’d
come by I’d let him know, hey, man, this guy is still threatening me.”
Q. And do you remember exactly what the conversation was?
A. Well, basically they act like they don’t want to get involved.
(ECF No.39-2, PageID.180–81). (emphasis supplied). Thus, Farr’s deposition
states that Farr gave verbal notice to prison officers Morgan and Karl about his
cellmate’s threat. (ECF No. 39-2, PageID.180).
The deposition testimony does not specify dates when Farr verbally told Karl
about the threats against him. However, viewing the evidence in the light most
favorable to Farr, a reasonable reading of the testimony suggests that he verbally
told Karl about the threats on multiple days before he was attacked. See In re
Scrap Metal Antitrust Litig., 527 F.3d 517, 532 (6th Cir. 2008) (noting that in
summary judgment proceedings, “evidence should be viewed in the light most
favorable to the party against whom the motion is made, and that party given the
benefit of all reasonable inferences”) (quoting Tisdale v. Fed. Exp. Corp., 415 F.3d
516, 531 (6th Cir. 2005)). Therefore, Farr’s uncertainty about the date on which he
hand-delivered the letter of notice to Karl does not extinguish the existence of a
question of fact about whether Karl had notice of the threat against Farr. While the
R&R was correct to note that Farr’s uncertainty about the date that he delivered the
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letter to Karl may render his testimony in that regard speculative, Farr’s testimony
that he also gave Karl verbal notice of the threats against him is also material to the
issue of notice to Karl. Hence, summary judgment is not appropriate.
Considering the evidence regarding notice to Defendant Karl, the court
concludes that a dispute of fact exists about whether Karl received notice of the
threat against Farr. Karl maintains that he was not working on September 14;
therefore, Farr could not have hand-delivered the letter of notice to him on that
date. However, the work schedule submitted by Karl to prove that he was not
working on September 14 is not decipherable to the court. Therefore, the evidence
that is left regarding the delivery of the letter to Karl is Karl’s affidavit testimony
that he was not working on September 14 to receive Farr’s letter, and Farr’s
deposition testimony that he handed the letter to Karl on September 14. And as the
R&R correctly notes, Farr’s statements in his response to Defendants’ summary
judgment motion that he may have delivered the letter to Karl on a different date
are not sufficient to create a dispute about the date of delivery of the letter. In
addition, Farr testified that he verbally informed Karl on potentially multiple days
about the threat. (See id. at PageID.180–81) (stating, “Karl was like a regular
officer on days, so every time he’d come by I’d let him know, hey, man, this guy is
still threatening me.”). Therefore, the conflicting testimony of Farr and Karl
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creates a dispute of fact about whether Karl received notice from Farr, either in a
letter or verbally, about the threat against Farr.
Regarding Defendant Miller, Farr testified that he put a letter about the threat in
the mailbox addressed to Defendant Miller. (Id. at PageID.186). He stated that he
did not have any way of knowing if Miller received the letter because he did not
follow-up on Miller’s receipt of the letter. Id. The R&R and Defendants’ motion
for summary judgment reiterate that Farr did not know if Miller received the letter
notifying him of the threat, and Farr did not follow up with Miller. (ECF No.48,
PageID.412–13; ECF No. 39, PageID.167). However, Defendants present no
authority that failure to ensure that a prison official has received a letter of notice
means that there cannot be a dispute of fact about receipt of the letter, and
therefore a dispute of fact regarding notice. To the contrary, case law suggests that
following-up to ensure that an official has received a letter is not required. See
Sullivan v. Mich. Dep’t of Corrections, No. 07-12218, 2008 WL 2938092, at *5
(E.D. Mich. July 28, 2008). In Sullivan, the plaintiff was a prisoner who alleged
that he received threats from fellow inmates and sent a letter to the warden about
the threats before another prisoner attacked him. Id. The warden claimed that she
did not receive the letter. Id. The court denied the warden’s motion for summary
judgment, finding that it could not make credibility determinations and was
required to view the facts in the light most favorable to the plaintiff. Id. The court
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did not assess—and presumably did not deem material—whether the plaintiff had
followed-up to ensure that the warden received the letter. See id. See also Scarber
v. Fisher, No. CIV. 11-12821, 2012 WL 553900, at *6 (E.D. Mich. Jan. 27, 2012)
report and recommendation adopted sub nom. Scarber v. Arambula, No. 1112821, 2012 WL 554337 (E.D. Mich. Feb. 21, 2012) (same).
In this case, Farr alleges that he submitted a letter to Miller informing him of
the threat by his cellmate. Farr did not follow-up with Miller to verify that he
received the letter. However, authority does not hold that a failure to follow-up on
receipt of a letter to a prison official compels the conclusion that the prison official
did not have notice. As discussed above, cases from courts in this district suggest
that follow-up is not required to create a dispute of fact. Thus, in the absence of
authority stating otherwise, this court concludes that a dispute of fact remains
about whether Miller received Farr’s letter, and consequently whether he received
notice of the threat against Farr.
C. Objection Two
In the second part of his objection, Farr states that he demonstrated that the
Defendants showed him deliberate indifference because Defendants did not
respond to his grievances. (ECF No. 50, PageID.424). Farr states that he can call
witnesses who will allege that prison personnel discard their grievances regarding
cell mate compatibility. Id. However, Farr fails to attach any statements from
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these alleged witnesses to his objection. Therefore, the court cannot verify that
such witnesses exist and can testify that prison personnel deliberately discard
grievances. Further, the court has sustained Farr’s first objection and found that
disputes of fact exist regarding whether Defendants showed him deliberate
indifference. The court will therefore overrule this objection.
D. Objection Three
In the third part of his objection, Farr states that he showed that the Defendants
had knowledge of the threat against him. (ECF No. 50, PageID.424). Farr
references his other objections to support his contention. Id. As the court
concluded supra, the record contains a dispute of fact about whether Defendants
received notice of the threat that Farr’s cellmate made against him. Therefore, the
court has already sustained this objection.
E. Objection Four
Lastly, Farr repeats his claim that prison employees do not appropriately
respond to communication from inmates. Farr does not present any additional
evidence to support his argument, but references his arguments made supra. (ECF
No. 50, PageID.425). The court concluded above that Farr did not bring evidence
supporting his contention that Defendants intentionally do not respond to
correspondence from inmates. Therefore, the court will overrule this objection.
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F. Sufficiency of the Remainder of Farr’s Eighth Amendment Claim
Defendants in this case do not argue that Farr fails to satisfy the first, objective
component of the Eighth Amendment failure to protect test—that Farr was
incarcerated under conditions posing a substantial risk of serious harm to him.
(See ECF No. 39). Therefore, the court finds that Farr satisfies the first prong of
the Eighth Amendment failure to protect test. This court concluded above that a
dispute of fact exists regarding whether Defendants showed deliberate indifference
to Farr under the second prong of the failure to protect test. However, in addition
to arguing that there is no dispute of fact about deliberate indifference, Defendants’
motion for summary judgment asserts that an isolated or occasional attack is not
sufficient to state a claim of Eighth Amendment deliberate indifference. (ECF No.
39, PageID.163). Therefore, Defendants argue that they are not liable for the
isolated attack against Farr. See id.
In general, “an isolated or occasional attack is not sufficient to state a claim” for
deliberate indifference. Stewart, 696 F.2d at 45 (6th Cir. 1982). Defendants cite
the Stewart case for their argument that they cannot be held liable for an isolated
attack. In Stewart, an inmate alleged that he informed prison officials about
rumors of an impending assault against him. Id. at 44. The prison officials
transferred the inmate to a different cell for six months. Id. When the prisoner
returned to his old cell after six months, he reported “only the most general
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allegations that someone was going to get hit on the head,” and officials did not
move his cell again. Id. at 44, 45. The prisoner was subsequently assaulted. Id. at
44. The court concluded that the prison officials did not violate the inmate’s
Eighth Amendment rights, but the court made clear that the inmate did not show
deliberate indifference because the officers had taken at least some action in
response to the prisoner’s warnings. Id. at 45 (reasoning 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.”). A full reading of the Stewart case thus
shows that the court did not fail to find deliberate indifference simply because the
attack against the prisoner was an isolated attack. Indeed, several courts in this
district have denied summary judgment on deliberate indifference claims stemming
from the single, isolated attack of a prisoner. Bennett v. Winn, No. 17-12249, 2020
WL 5985988, at *5 (E.D. Mich. Feb. 18, 2020), report and recommendation
adopted, No. 17-CV-12249, 2020 WL 4013307 (E.D. Mich. July 16, 2020)
(rejecting the defendant’s Stewart argument that he could not be liable for failing
to protect the plaintiff from an isolated incident); Scarber, 2012 WL 553900, at *4
(rejecting the defendant’s Stewart argument that she could not be liable for failing
to protect the plaintiff from an isolated incident); Mills v. Lafler, No.07-cv-13285,
2008 WL 4386750, at *11 (E.D. Mich. Sept. 25, 2008) (concluding that “[u]nlike
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in Stewart, [p]laintiff . . . alleges that [defendant] . . . took no action even though
he was repeatedly made aware of the [inmate’s] threats and assaults.”).
In this case, Farr is alleging that Defendants took no action to protect him, even
though he informed them that his cellmate was threatening him. Pursuant to
Stewart, and similar to the court’s conclusions in Bennett, Scarber and Mills,
defendants can be held liable for this single attack because Farr alleges that they
did nothing to attempt to protect him from it.
G. Farr’s Credibility
Defendants’ motion for summary judgment also asks this court to consider
Farr’s credibility. (ECF No. 39, PageID.169–70). Defendants allege that Farr
fabricated/forged the threatening letters that he alleges he received. However,
district courts may not “resolve credibility issues against the nonmovant.” CenTra,
Inc. v. Estrin, 538 F.3d 402, 412 (6th Cir. 2008). This court must also accept as
true any evidence offered by Farr in response to Defendants’ motion for summary
judgment. Id. “The district court errs by granting summary judgment for the
defendant where issues of credibility are determinative of the case.” Id. (quoting
Ctr. for Bio-Ethical Reform, 477 F.3d 807, 820 (6th Cir. 2007).
It is improper for this court to discuss and analyze credibility against Farr at the
summary judgment stage. Therefore, the court will not consider Defendants’
credibility argument.
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H. Qualified Immunity
Defendants’ motion for summary judgment asserts that qualified immunity
precludes their liability. (ECF No. 39, PageID.170). Farr opposes the applicability
of qualified immunity. (ECF No. 42, PageID.227). The doctrine of qualified
immunity shields government officials who are performing discretionary functions
from civil liability as long as their conduct does not violate a 1) clearly established
2) constitutional right. See Schreiber v. Moore, 596 F.3d 323, 329 (6th Cir. 2010).
“A right is ‘clearly established’ if ‘the contours of the right are sufficiently clear
that a reasonable official would understand that what he is doing violates that
right.’” Id. (quoting Morrison v. Bd. of Trs. of Green Twp., 583 F.3d 394, 400
(6th Cir. 2009)). Defendants assert that there was no constitutional violation;
therefore, qualified immunity shields them from liability. (ECF No. 39,
PageID.170–73). However, this court concluded above that a dispute of fact exists
about whether there was a constitutional violation.
Next, the court will address whether the right was clearly established. The
Supreme Court has stated that “prison officials have a duty . . . to protect prisoners
form violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825,
833 (1994) (quoting Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1d
Cir. 1988)). In addition, the Sixth Circuit has consistently held that “[a]n inmate’s
right to be free from violence at the hands of other prisoners” was clearly
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established at the time of an alleged violation of this right by prison officials who
allegedly ignored a warning of violence against an inmate. Bishop v. Hackel, 636
F.3d 757, 772 (6th Cir. 2011). See also Leary v. Livingston Cnty, 528 F.3d 438,
442 (6th Cir. 2008); Doe v. Bowles, 254 F.3d 617, 620 (6th Cir. 2001); Walker v.
Norris, 917 F.2d 1449, 1453 (6th Cir. 1990).
In this case, the Defendants understood that Farr had a right to be free from
violence from other prisoners. Defendants’ summary judgment motion and their
affidavits state that they moved Farr to a different cell after he was attacked, and
that they would have taken steps to move him before an attack if there were
credible threats against Farr. (See ECF No. 39, PageID.173; ECF Nos. 39-4, 39-5).
Therefore, Defendants should also have reasonably understood that ignoring the
warnings of the threat against Farr also violated Farr’s right to be free from
violence at the hands of other prisoners. Thus, Farr’s right to be from violence at
the hands of other prisoners was clearly established at the time of the alleged
constitutional violation.
This court concludes that a dispute of fact exists about whether Defendants
violated Farr’s clearly established constitutional right. Therefore, the doctrine of
qualified immunity does not apply to shield Defendants from liability.
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I. Eleventh Amendment Immunity
Defendants argue that they are entitled to Eleventh Amendment Immunity
regarding the official capacity claims against them. (ECF No. 39, PageID.173).
Farr asserts that Eleventh Amendment Immunity does not apply, noting an
exception to immunity where a suit challenging the constitutionality of a state
official’s actions is not a suit against the state. (ECF No. 42, PageID.228). The
Eleventh Amendment states, “[t]he Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by Citizens or Subjects of
any Foreign State.” U.S. Const. Amend. XI. Eleventh Amendment immunity
extends to state officials who are sued in their official capacity. Turker v. Ohio
Dep’t of Rehab. & Corr., 157 F.3d 453, 457 (6th Cir. 1998). The state of Michigan
has not consented to civil rights suits against it in federal court. Harrison v
Michigan, 722 F.3d 768, 771 (6th Cir. 2013). “A plaintiff however, may sue state
officials for monetary damages in their individual capacities under § 1983 without
running afoul of the Eleventh Amendment.” Turker, 157 F.3d at 457.
Further, a limited exception to sovereign immunity exists where “a federal
court can issue prospective injunctive and declaratory relief compelling a state
official to comply with federal law.” S & M Brands, Inc. v. Cooper, 527 F.3d 500,
527 (6th Cir. 2008). “It is beyond dispute that federal courts have jurisdiction over
22
suits to enjoin state officials from interfering with federal rights.” Shaw v. Delta
Air Lines, Inc., 463 U.S. 85, 96 n. 14, (1983) (citing Ex parte Young, 209 U.S. 123,
160–62, 28 S. Ct. 441). See also Virginia Office for Prot. & Advocacy v. Stewart,
563 U.S. 247, 255, (2011) (noting that “when a federal court commands a state
official to do nothing more than refrain from violating federal law, he is not the
State for sovereign-immunity purposes.”). To determine if the sovereign immunity
exception applies, the court conducts a “ straightforward inquiry into whether [the]
complaint alleges an ongoing violation of federal law and seeks relief properly
characterized as prospective.” Stewart, 563 U.S. at 255 (quoting Verizon Md. Inc.
v. Public Serv. Comm’n of Md., 535 U.S. 635, 645 (2002)).
In this case, Farr is suing Defendants who were Michigan state employees
working in their official capacity at the time of his attack. Therefore, suit against
Defendants in their official capacity is barred by the Eleventh Amendment. The
exception announced in Ex Parte Young is not applicable to this case because
Farr’s complaint concerns alleged actions that happened in the past and are not
ongoing; therefore, the court is unable to grant prospective injunctive relief.
However, Farr can still maintain his claims against Defendants in their individual
capacities.
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IV. CONCLUSION
For the reasons stated herein, the court will SUSTAIN Farr’s objection that
disputes of fact exist on his Eighth Amendment claim and REJECT the portion of
the Report and Recommendation [ECF No. 48] finding otherwise. The court
accepts the portion of the R&R denying Plaintiff’s motion for summary judgment
in view of the absence of any objection to that recommendation and the court’s
finding that material issues of fact remain. Consequently, the Defendants’ Motion
for Summary Judgment [ECF No. 39] is GRANTED IN PART AND DENIED IN
PART, and Plaintiff’s Motion for Summary Judgment [ECF No. 45] is DENIED.
Farr’s Eighth Amendment claim against Defendants Karl and Miller survive
summary judgment. However, Farr may only bring this claim against Defendants
in their individual, and not official, capacities.
SO ORDERED.
Dated:
March 30, 2021
s/Stephanie Dawkins Davis
HON. STEPHANIE DAWKINS DAVIS
United States District Court Judge
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