Hurick #480810 v. McKee et al

Filing 25

MEMORANDUM OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

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

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DALE ALLEN HURICK, # 480810,
)
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Plaintiff,
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v.
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KEN McKEE, et al.,
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Defendants.
)
____________________________________)

Case No. 1:15-cv-140
Honorable Paul L. Maloney
MEMORANDUM OPINION

This is a civil rights action brought by a pro se state prisoner under 42 U.S.C.
§ 1983. Plaintiff is an inmate at the Oaks Correctional Facility. This lawsuit arises
out of conditions of his confinement on December 28, 2013, at the Bellamy Creek
Correctional Facility (IBC).

Plaintiff named two employees of the Michigan

Department of Corrections (MDOC) as defendants: Warden Kenneth McKee and
Resident Unit Manager (RUM) Robert Mote. Plaintiff alleges that on December 28,
2013, defendants violated his Eighth Amendment rights by deliberate indifference to
the risk that plaintiff would be assaulted by another inmate. Plaintiff asks the Court,
in its discretion, to exercise supplemental jurisdiction over negligence claims against
defendants under state law. Plaintiff seeks declaratory relief and an award of damages
against defendants in their individual capacities.
The matter is before the Court on defendants’ motion for summary judgment.
(ECF No. 16). Plaintiff opposes the motion. (ECF No. 21). For the reasons set forth

herein, defendants’ motion for summary judgment will be granted and judgment will
be entered in defendants’ favor on all plaintiff’s federal claims. The Court, in its
discretion, declines to exercise supplemental jurisdiction over plaintiff’s purported state
law claims.
Summary Judgment Standard
Summary judgment is appropriate when the record reveals that there are no
genuine issues as to any material fact in dispute and the moving party is entitled to
judgment as a matter of law. FED. R. CIV. P. 56(a); McKay v. Federspiel, 823 F.3d 862,
866 (6th Cir. 2016). 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.’ ” Rocheleau v. Elder Living Const., LLC, 814 F.3d 398, 400 (6th Cir.
2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The
Court must consider all pleadings, depositions, affidavits, and admissions on file, and
draw all justifiable inferences in favor of the party opposing the motion.

See

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); France v.
Lucas, 836 F.3d 612, 624 (6th Cir. 2016).
When the party without the burden of proof seeks summary judgment, that
party bears the initial burden of pointing out to the district court an absence of
evidence to support the nonmoving party’s case, but need not support its motion with
affidavits or other materials “negating” the opponent’s claim. See Morris v. Oldham
County Fiscal Court, 201 F.3d 784, 787 (6th Cir. 2000); see also Minadeo v. ICI Paints,
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398 F.3d 751, 761 (6th Cir. 2005). Once the movant shows that “there is an absence
of evidence to support the nonmoving party’s case,” the nonmoving party has the
burden of coming forward with evidence raising a triable issue of fact. Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). To sustain this burden, the nonmoving party may
not rest on the mere allegations of his pleadings. See Ellington v. City of E. Cleveland,
689 F.3d 549, 552 (6th Cir. 2012); see also Scadden v. Warner, No. 16-1876, __ F. App’x
__, 2017 WL 384874, at * 4 (6th Cir. Jan. 27, 2017). The motion for summary
judgment forces the nonmoving party to present evidence sufficient to create a genuine
issue of fact for trial. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.
1990); see Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521, 533 (6th Cir.
2012). “A mere scintilla of evidence is insufficient; ‘there must be evidence on which
a jury could reasonably find for the [non-movant].’ ” Dominguez v. Correctional Med.
Servs., 555 F.3d 543, 549 (6th Cir. 2009) (quoting Anderson, 477 U.S. at 252); see
Brown v. Battle Creek Police Dep’t, 844 F.3d 556, 565 (6th Cir. 2016).

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Facts
The following facts are beyond genuine issue.1 Plaintiff is an inmate held in the
custody of the Michigan Department of Corrections (MDOC) on criminal convictions.
The defendants are employed by the MDOC at the Bellamy Creek Correctional Facility
(IBC). Kenneth McKee is the warden. (McKee Aff. ¶¶ 1-2, ECF No. 17-4, PageID.113).
Robert Mote is a Resident Unit Manager (RUM). (Mote Aff. ¶ 1-2, ECF No. 17-2,
PageID.64).
On September 30, 2013, plaintiff was charged with misconduct for fighting with
prisoner Jones. (ECF No. 17-2, PageID.84). On October 9, 2013, a hearing officer
conducted a hearing on this misconduct charge. Plaintiff denied that there had been
any fight. He characterized it as mere “horseplay.”

Prisoner Jones, the other

participant, said that it was a fight. The hearing officer found plaintiff guilty of the

1

Plaintiff elected not to support his claims against defendants with his own
affidavit or unsworn declaration under penalty of perjury pursuant to 28 U.S.C. § 1746.
Plaintiff presented no medical evidence or evidence establishing that he was assaulted
by anyone on December 28, 2013. Defendants are correct that plaintiff has not
supported his claims with admissible evidence. (see ECF No. 23). There is nothing
authenticating the papers that plaintiff attached to his brief (see Exhibits C, D, F, ECF
No. 21-1, PageID.141, 143, 148), much less that those papers were created and received
by defendants on or before December 28, 2013. The conversations that prisoner Carter
claims to have overheard in November 2013 (Ex. E, PageID.145-46) are inadmissible
hearsay, and plaintiff has not established any basis on which such evidence could be
considered by this Court without committing error. See Alexander v. CareSource, 576
F.3d 551, 558 (6th Cir. 2009); see also King v. Alexander, 574 F. App’x 603, 606 (6th
Cir. 2014).
Plaintiff’s complaint is not verified under penalty of perjury. It cannot be
considered as his affidavit in opposition to defendants’ motion. See El Bey v. Roop, 530
F.3d 407, 414 (6th Cir. 2008); Williams v. Browman, 981 F.2d 901, 905 (6th Cir. 1992).
It is well established that statements appearing in a party’s brief are not evidence. See
Duha v. Agrium, Inc., 448 F.3d 867, 879 (6th Cir. 2006).
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misconduct of fighting and sentenced plaintiff to 15 days of detention. (ECF No. 17-2,
PageID.83; ECF No. 21-1, PageID.138-39). In October Prisoner Jones was transferred
to another prison. (Mote Aff. ¶ 6, ECF No. 17-2, PageID.65).
Pursuant to Policy Directive 04.05.120 and as a result of his misconduct
conviction, IBC’s Security Classification Committee (SCC) placed plaintiff in
administrative segregation. The SCC conducted periodic reviews of plaintiff’s status.
(ECF No. 17-2, PageID.68-81, 85-91).
On December 11, 2013, plaintiff filed a grievance in which he disavowed all his
earlier statements claiming that his interaction with prisoner Jones on September 30,
2013, had been mere horseplay. Now plaintiff claimed that prisoner Jones was a
“gangster” and that plaintiff had received “numerous death threats by gangbangers.”
(ECF No. 17-2, PageID.93). RUM Mote provided the Step I response to this grievance.
Mote noted that plaintiff’s allegations had been investigated and it was determined
that there was no credible, verifiable evidence supporting plaintiff’s allegations. (ECF
No. 17-2, PageID.94; Mote Aff. ¶¶ 11-12, PageID.65).
Plaintiff received no misconducts while he was held in administrative
segregation. Therefore, he was eligible to return to the prison’s general population.
(Mote Aff. ¶ 13, ECF No. 17-2, PageID.65). During the December 27, 2013, SCC
review, RUM Mote asked plaintiff if he was willing to return to IBC’s general
population. Plaintiff responded that he was willing to reenter the prison’s general
population. At no time during the SCC review did plaintiff make a protection request.
(Mote Aff. ¶ 14, ECF No. 17-2, PageID.65). On December 28, 2013, the SCC released
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plaintiff back into IBC’s general population. (ECF No. 17-2, PageID.91; Mote Aff. ¶ 16,
ECF No. 17-2, PageID.66).
Warden McKee and RUM Mote did not have any reason to believe that plaintiff
was exposed to a substantial risk of serious harm. (McKee Aff. ¶¶ 7-10, ECF No. 17-4,
PageID.113-14; Mote Aff. ¶¶ 17-18, ECF No. 17-2, PageID.66).
On December 28, 2013, plaintiff filed this lawsuit.
Discussion
I.

Eighth Amendment Claims
Plaintiff alleges defendants were deliberately indifferent to the risk that he

would be assaulted that on December 28, 2013, by an unknown prisoner assailant in
violation of plaintiff’s rights under the Eighth Amendment’s Cruel and Unusual
Punishments Clause. “A prison official’s ‘deliberate indifference’ to a substantial risk
of serious harm to an inmate violates the Eighth Amendment.” Farmer v. Brennan, 511
U.S. 825, 828 (1994). “Deliberate indifference is a stringent standard of fault.”
Mangum v. Repp, No. 15-4292, __ F. App’x __, 2017 WL 57792, at * 5 (6th Cir. Jan 5,
2017) (quoting Connick v. Thompson, 563 U.S. 51, 61 (2011)). “ ‘To be cruel and
unusual punishment, conduct that does not purport to be punishment at all must
involve more than ordinary lack of due care for the prisoner's interests or safety.’ ”
Woods v. LeCureux, 110 F.3d 1215, 1222 (6th Cir. 1997) (quoting Whitley v. Albers, 475
U.S. 312, 319 (1986)). The Eighth Amendment proscribes deliberate indifference by
prison officials to an unreasonable risk of injury to prison inmates. See Davidson v.
Cannon, 474 U.S. 344, 347-48 (1986). An Eighth Amendment claim contains objective
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and subjective components. Cardinal v. Metrish, 564 F.3d 794, 802 (6th Cir. 2009).
First, “the deprivation alleged must be, objectively, ‘sufficiently serious.’ For a claim
(like the one here) based on a failure to prevent harm, the inmate must show that he
is incarcerated under conditions posing a substantial risk of serious harm.” Farmer,
511 U.S. at 834; Woods, 110 F.3d at 1222. Plaintiff has presented no evidence that he
was assaulted by anyone on December 28, 2013, or that he suffered any injury as a
result of the purported assault. There is no evidence that plaintiff informed defendants
that any specific inmate or group of inmates posed a particular risk, much less how
such an inmate or inmates harmed him on December 28, 2013. No reasonable trier of
fact could find in plaintiff’s favor on the objective component of his claims against
defendants.
The second requirement for a claim of deliberate indifference to the risk of
assault against an inmate by a fellow inmate is that the prison official have a
sufficiently culpable state of mind. In Farmer v. Brennan, the Supreme Court held
that the subjective element of a claim of deliberate indifference requires at least
criminal recklessness. 511 U.S. at 839-40. “[A] prison official cannot be found liable
under the Eighth Amendment for denying an inmate humane conditions of
confinement unless the official knows and disregards and excessive risk to inmate
health or safety; the official must be aware of the facts from which the inference could
be drawn that a substantial risk of serious harm exists, and he must also draw the
inference.” 511 U.S. at 837; see Cardinal v. Metrish, 564 F.3d at 802; see also Mangum
v. Repp, 2017 WL 57792, at * 6, 9. “This burden is not light; even ‘an official’s failure
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to alleviate a significant risk that he should have perceived but did not, while no cause
for commendation, cannot ... be condemned as punishment.’ ” Shade v. City of
Middletown, 200 F. App’x 566, 569 (6th Cir. 2006) (quoting Farmer, 511 U.S. at 838);
see Perez v. Oakland County, 466 F.3d 416, 424 (6th Cir. 2006). The plaintiff’s “burden
can be met ‘in the usual ways including inference from circumstantial evidence, and
a fact finder may conclude that a prison official knew of a substantial risk from the
very fact that the risk was obvious.’ ” Smith v. Yarrow, 78 F. App’x 529, 537 (6th Cir.
2003) (quoting Farmer, 511 U.S. at 842).
There is no evidence supporting an inference that defendants knew that any
specific inmate or group of inmates posed a particular risk to plaintiff. There is no
evidence that plaintiff was unusually vulnerable. A negligent failure to respond to a
prisoner’s vague report of a threat posed by unidentified “gangbangers” that could not
be verified falls far short of what is necessary to satisfy the subjective component of an
Eighth Amendment claim. No reasonable trier of fact could find in plaintiff’s favor on
the subjective component of his Eighth Amendment claims against defendants.2
2.

Supplemental Jurisdiction
Plaintiff asks the court to exercise supplemental jurisdiction over his state-law

negligence claims. Under 28 U.S.C. § 1367, a district court has broad discretion to
decide whether to exercise jurisdiction over state law claims.” Smith v. Erie County
Sheriff’s Dep’t, 603 F.3d 414, 424 (6th Cir. 2015). “Supplemental jurisdiction is a

2

It is not necessary to reach the issue of whether defendants are also entitled to
judgment in their favor on the basis of qualified immunity.
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doctrine of discretion, not of plaintiff’s right.” Habich v. City of Dearborn, 331 F.3d
524, 535 (6th Cir. 2003). Generally, where all federal claims have been dismissed,
federal courts decline to exercise supplemental jurisdiction over a plaintiff’s state-law
claims. See 28 U.S.C. § 1367(c)(3); see Brown v. Cassens Transp. Co., 546 F.3d 347, 363
(6th Cir. 2008); see also Shaver v. Brimfield Twp., 628 F. App’x 378, 384 (6th Cir.
2015); Smith v. Erie County Sheriff’s Dep’t, 603 F. App’x 414, 424 (6th Cir. 2015).
There is no reason in this case to depart from the general rule.
Conclusion
For the reasons set forth herein, defendants’ motion for summary judgment will
be granted and judgment will be entered in defendants’ favor on all plaintiff’s federal
claims. The Court, in its discretion, declines to exercise supplemental jurisdiction over
plaintiff’s purported state law claims.

Dated:

March 24, 2017

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

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