Johnson #168554 v. Sharp

Filing 28

ORDER ADOPTING REPORT AND RECOMMENDATION 25 AND GRANTING LEAVE TO AMEND: Defendant Sharp's Motion 15 for Summary Judgment is GRANTED; Plaintiff's Motion 18 to Stay is DENIED; Plaintiff to file within 14 days; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
__________________________

JOSEPH JOHNSON,
Plaintiff,
v.

Case No. 1:10-CV-978

RICK SHARP,

HON. GORDON J. QUIST

Defendant.
________________________/
ORDER ADOPTING REPORT AND
RECOMMENDATION AND GRANTING LEAVE TO AMEND
Plaintiff, Joseph Johnson, has filed an Objection to the Report and Recommendation (“R &
R”) issued June 22, 2011, in which Magistrate Judge Carmody recommended that the Court grant
Defendant Rick Sharp’s motion for summary judgment. The magistrate judge concluded that
summary judgment is proper because Plaintiff failed to present any evidence creating an issue of fact
as to whether Defendant Sharp was personally involved in the alleged constitutional deprivation.
In particular, the magistrate judge noted that Defendant Sharp stated in his affidavit that he had no
contact nor did he speak with Plaintiff during the evacuation for the fire drill. (R & R at 8.) The
magistrate judge found that, while Plaintiff submitted an affidavit in response to Defendant Sharp’s
motion for summary judgment, Plaintiff failed to assert facts contradicting Defendant Sharp’s
statements that he was not personally involved in denying Plaintiff’s request for his coat and socks.
In addition to recommending that Defendant Sharp be granted summary judgment, the magistrate
judge recommended that Plaintiff’s motion to stay be denied, in part, because the discovery Plaintiff
sought would not affect the outcome of Defendant Sharp’s motion.

After conducting a de novo review of the Report and Recommendation, Plaintiff’s Objection,
and the pertinent portions of the record, the Court concludes that the Report and Recommendation
should be adopted, and Defendant Sharp’s motion for summary judgment granted. However, the
Court will grant Plaintiff leave to amend his complaint to name certain individuals he identifies in
his Objection.
Plaintiff raises several issues in his Objection, none of which persuades the Court that the
magistrate judge erred in recommending that summary judgment be granted. First, Plaintiff argues
that an inconsistency between Defendant Sharp’s affidavit and his administrative grievance response
regarding the outside temperature on the date of the incident somehow shows that Defendant Sharp
was involved in violating Plaintiff’s rights. Plaintiff reasons that “if Defendant Sharp intended on
having prisoners stand outside . . . he needed to know what the weather was on January 15, 2010.”
(Objection at 2.) Plaintiff appears to be alleging that Defendant Sharp was negligent in failing to
account for the weather when planning the fire drill, but this is not Plaintiff’s claim. Rather,
Plaintiff is asserting that he was subjected to cruel and unusual punishment because his request for
his coat and socks was denied and he was not permitted to use the bathroom. Plaintiff has still not
shown that Defendant Sharp was personally involved in these denials.
Second, Plaintiff contends that the reason his health care records do not show that he was
treated for frostbite on January 15, 2010, is that his request was deemed an emergency, the
implication being that a Health Care Request is not generated in emergency situations. But whether
Plaintiff actually received treatment is immaterial to the basis for summary judgment, that is,
Defendant Sharp’s lack of personal involvement.
Third, Plaintiff argues that summary judgment should be denied on the issue of Defendant
Sharp’s personal involvement because Defendant Sharp answered Plaintiff’s grievance, and if he
felt he had no personal involvement in the alleged deprivation he should have said so in his
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response. The Court disagrees. First, “[p]rison officials are not liable under § 1983 for denying or
failing to act on grievances.” Barnett v. Luttrell, 414 F. App’x 784, 787 (6th Cir. 2011) (citing
Grinter v. Knight, 532 F.3d 567, 576 (6th Cir. 2008)). Moreover, Plaintiff fails to cite any authority
for the proposition that a respondent must deny personal liability in a grievance response. Defendant
Sharp properly did so in his affidavit supporting his motion for summary judgment.
Finally, Plaintiff complains that his motion to stay should be granted to allow him an
opportunity to obtain discovery that may assist him in amending his complaint. More specifically,
Plaintiff states that he should be allowed the opportunity to amend his complaint to add Deputy Ball,
who was present with Defendant Sharp when the fire drill started; ARUS Grambau, who told
Plaintiff to hurry up and get out; and Sgt. Burmis, the officer who denied Plaintiff a bathroom break
after being informed of Plaintiff’s condition. Given that Defendant Sharp is entitled to summary
judgment, it is difficult to see how Deputy Ball could be liable on Plaintiff’s claims. On the other
hand, Plaintiff may have meritorious claims against ARUS Grambau and Sgt. Burmis.
Understandably, the magistrate judge did not recommend that Plaintiff be granted leave to file an
amended complaint because Plaintiff’s motion was to stay Defendant Sharp’s motion for summary
judgment, not to amend. However, Plaintiff has made clear in his Objection that he was requesting
leave to amend, even if his motion did not specifically request leave. Under these circumstances,
the Court finds it appropriate to allow Plaintiff an opportunity to amend his complaint to add the
additional defendants. Cf. Brown v. Matauszak, 415 F. App’x 608, 615 (6th Cir. 2011) (holding that
the district court should have allowed the plaintiff an opportunity to amend his complaint before
dismissing it with prejudice, even though the plaintiff did not so request, where information in the
record showed that the deficiency could be cured by amendment). Although the Court will afford
Plaintiff an opportunity to amend to add ARUS Grambau and Sgt. Burmis as defendants, Plaintiff

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will not be permitted to conduct discovery prior to filing an amendment, as Plaintiff should possess
all the information he requires to amend. Therefore,
IT IS HEREBY ORDERED that the Magistrate Judge's Report and Recommendation
issued June 22, 2011 (docket no. 25 ) is ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that Defendant Sharp’s Motion for Summary Judgment
(docket no. 15) is GRANTED based upon Defendant Sharp’s lack of personal involvement.
IT IS FURTHER ORDERED that Plaintiff’s Motion To Stay Defendant’s Summary
Judgment (docket no. 18) is DENIED.
IT IS FURTHER ORDERED that Plaintiff shall have fourteen (14) days from the date
of this Order to file an amended complaint adding ARUS Grambau and Sgt. Burmis as defendants.
Plaintiff’s failure to file his amendment within that time shall result in the dismissal of Plaintiff’s
claims with prejudice.

Dated: September 2, 2011

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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