Rayos #311171 v. Smith et al

Filing 238

ORDER ADOPTING REPORT AND RECOMMENDATION 235 ; denying 184 and 202 motions for partial summary judgment; granting in part 196 motion for summary judgment; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, acr)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARCOS RAYOS, #311171,

Plaintiff,

-vWILLIE SMITH, et al.,

Defendants.

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No. 1:15-cv-1153
Honorable Paul L. Maloney

ORDER ADOPTING REPORT AND RECOMMENDATION, DENYING
PLAINTFF'S MOTIONS FOR SUMMARY JUDGMENT AND GRANTING IN
PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Currently pending are three motions for summary judgment: two filed by Plaintiff
Rayos (ECF Nos. 184 and 202) and one filed by the five remaining Defendants (ECF No.
196). The magistrate judge reviewed the motions and issued a report recommending
Plaintiff's motions be denied and Defendants' motion be granted in part. (ECF No. 235.)
Plaintiff filed objections. (ECF No. 236.) Defendants did not file any objections.
After being served with a report and recommendation (R&R) issued by a magistrate
judge, a party has fourteen days to file written objections to the proposed findings and
recommendations. 28 U.S.C. ' 636(b)(1); Fed. R. Civ. P. 72(b)(2). A district court judge
reviews de novo the portions of the R&R to which objections have been filed. 28 U.S.C. '
636(b)(1); Fed. R. Civ. P. 72(b)(3). Only those objections that are specific are entitled to a
de novo review under the statute. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (per
curiam).

Plaintiff's objections address only his claim against Defendant Nevins, which arises
from the January 16, 2014, incident. The magistrate judge recommends dismissing the
claim, relying on the following conclusions:
A. The December 17, 2013 kite did not inform Nevins of a threat to Plaintiff by the
individual who attacked Plaintiff. The kite informed Nevins of a threat to Plaintiff from two
gang members. (PageID.1570.)
B. Nevins did not have the opportunity to read the January 16, 2014, kite which was
placed in the kite box approximately one hour before the attack. Therefore, Nevins had no
knowledge of an impending attack. (PageID.1570-71.)
C. Even if Nevins did have knowledge, the attack on January 16 was an isolated
incident, which is insufficient for an Eighth Amendment claim. (PageID.1571.)
Plaintiff argues that, for deliberate indifference, the law does not require that the
defendant knows about a risk of attack from a particular prisoner. The law requires only
that the defendant be aware of an obvious and substantial risk to the plaintiff. Plaintiff
identifies evidence in the record from which a factfinder could conclude that Nevins should
have understood that Plaintiff was in danger from other prisoners.
Plaintiff's objection is overruled. The kite at issue indicates that the threat was from
a particular gang, and specifically from two members of the gang. The December 17 kite
contains specific information as to those gang members that Nevins would not have been put
on notice of a general threat to Plaintiff's safety from any and all prisoners.

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Accordingly, the Report and Recommendation (ECF No. 235) is ADOPTED as the
Opinion of this Court. Plaintiff's motions for partial summary judgment (ECF Nos. 184 and
202) are DENIED.

Defendants' motion for summary judgment (ECF No. 196) is

GRANTED IN PART. Only the claim against Defendant Huss arising from the December
14, 2014, incident remains pending. Only Defendant Huss remains in this action.
IT IS SO ORDERED.
Date: March 26, 2019

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

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