Spearman #320836 v. Williams et al

Filing 34

OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 31 except as noted; Motion to dismiss 21 is GRANTED IN PART AND DENIED IN PART; case is REFERRED back to the Magistrate Judge for further proceedings; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RUFUS L. SPEARMAN #320836,
Plaintiff,
Case No. 1:17-cv-1070
v.
HON. JANET T. NEFF
CHAD H. WILLIAMS, et al.,
Defendants.

____________________________/
OPINION AND ORDER
This is a prisoner civil rights action filed pursuant to 42 U.S.C. § 1983. The remaining
Defendants, Chad Williams, David Fenby, and Peter Youngert, filed a motion to dismiss on
grounds of qualified immunity. The matter was referred to the Magistrate Judge, who issued a
Report and Recommendation (R&R), recommending the motion be granted and this action
terminated. The matter is presently before the Court on Plaintiff’s objections to the Report and
Recommendation. In accordance with 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b)(3), the
Court has performed de novo consideration of those portions of the Report and Recommendation
to which objections have been made. The Court grants in part and denies in part the objections,
and issues this Opinion and Order.
Plaintiff states three objections to the Report and Recommendation (Pl. Obj., ECF No. 32
at PageID.283-290). The Court grants the first and second objections, and denies the third
objection, as discussed herein.

Plaintiff’s first and second objections are based on the same facts and arguments related to
his security classification (id. at PageID.287). First, Plaintiff objects to the Magistrate Judge’s
recommended dismissal of his claim that Defendants Youngert, Williams, and Fenby conspired to
increase his security level and transfer him to a higher level prison because he filed grievances
against them (id. at PageID.283, 287). Second, Plaintiff objects to the recommended dismissal of
his claim that Defendants Williams and Fenby retaliated against him by increasing his security
level (id. at PageID.287).
Plaintiff argues that the Magistrate Judge erred in her determination that Plaintiff’s custody
security classification did not increase from a Level IV to a Level V as a result of the August 2014
security classification review by Defendant Fenby (id. at 284-285; R&R, ECF No. 31 at
PageID.275). Upon review of the record, the Magistrate Judge determined that Plaintiff’s claim
failed because Plaintiff’s security classification score was not increased as Plaintiff asserted (R&R,
ECF No. 31 at PageID.275). The Magistrate Judge noted that, instead, Plaintiff’s Management
Score was decreased from 35 to 30 in the August 2014 Security Classification Screen completed
by Defendant Fenby (id., citing ECF No. 15-1 at PageID.196). Thus, because Management Scores
between 25-35 correlate to security level V, “Plaintiff’s security classification score did not
increase as a result of his August 2014 security classification review” (R&R, ECF No. 31 at
PageID.275). Accordingly, Plaintiff’s retaliation claim failed because he cannot establish an
adverse action sufficient to maintain a retaliation claim; his conspiracy claim likewise failed
because he cannot establish that the alleged conspiracy deprived him of a right or privilege
protected by the laws or Constitution of the United States (id. at PageID.275-276).
In his objection, Plaintiff argues that he has never made an issue of his management score
and the score is irrelevant because Defendants changed his custody security level by removing a

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departure/waiver that lowered his true security classification and placement to Level IV (Pl. Obj.,
ECF No. 32 at PageID.284-285). Plaintiff asserts that after Defendants transferred him to another
prison, the departure/waiver was subsequently reinstated, thus placing him back to a Level IV from
a Level V (id. at PageID.285, citing Pl. Ex. A, 4/28/15 Security Classification Screen, ECF No.
32-1 at PageID.295).
Plaintiff’s argument is arguably valid based on the record before the Court. Defendants’
argument and cited evidence do not provide a basis for determining otherwise. Defendants argued
that Plaintiff’s Security Classification was at a Level V because of his Management Level:
Management Levels are assigned based on the sum of points given for various
criteria identified in the right-hand column of the document. A Level V
classification is assigned when a prisoner has between 23-35 point[s]. As of the
date of his last screening (January 31, 2014), Spearman had 35 points, placing him
at a Level V. The current screen, which Defendant Fenby approved and which,
apparently, bears Defendant Williams’ recommendation, calculated Spearman’s a
[sic] Management Score as less than the prior screen (30), but still within the Level
V range. Spearman’s Security Classification did not increase.
(Defs. Br., ECF No. 22 at PageID.214-215, citing ECF No. 15-1 at PageID.196).
However, the two cited Security Classification Screens show that, despite the Scores
correlating to a Management Level V, Plaintiff’s “True Security Level” on the 1/31/14 Security
Classification Screen was “IV” and his “Actual Placement Level” was “IV”; the Security
Classification Screen approved by Defendant Fenby increased Plaintiff’s “True Security Level” to
“V” and his “Actual Placement Level” to “V” (compare Pl. Obj., Ex. A, ECF No. 32-1 at
PageID.294, with Pl. Am. Compl., Ex. A, ECF No. 15-1 at PageID.196). On this record, the Court
cannot determine whether Plaintiff in fact suffered an adverse action to support his retaliation
claim and the deprivation of a right or privilege to support his conspiracy claim.
Therefore, the Court grants Plaintiff’s first and second objections. The Court rejects the
Report and Recommendation as it pertains to Plaintiff’s conspiracy and retaliation claims, and
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denies without prejudice Defendants’ motion to dismiss as to these claims. This matter will be
remanded to the Magistrate Judge for further proceedings on these claims. It may well be that
Defendants are entitled to dismissal of Plaintiff’s claims based on his security classification, but
the Court cannot make that determination on the present record and arguments.
Lastly, Plaintiff objects to the Magistrate Judge’s determination that Plaintiff’s Eighth
Amendment claim of abuse should be dismissed (Pl. Obj., ECF No. 32 at PageID.287). The
Magistrate Judge determined that Plaintiff’s allegations of verbal assault and spitting do not
implicate the Eighth Amendment (R&R, ECF No. 31 at PageID.276-277). Plaintiff asserts that
the alleged incidents of abuse are more than isolated incidents and taken together amount to serious
misconduct by officials (Pl. Obj., ECF No. 32 at PageID.287-288). In support, Plaintiff sets forth
case law where abuse by officials did implicate the Eighth Amendment (id. at 288-289).
The objection is denied. The authority Plaintiff cites involves official conduct more
egregious than that alleged by Plaintiff (see id.). The Magistrate Judge properly applied the
governing legal principles to the facts and circumstances of this case to conclude that this claim
failed (R&R, ECF No. 31 at PageID.276-277).
Accordingly, this Court adopts the Magistrate Judge’s Report and Recommendation as the
Opinion of this Court, except as noted herein. Defendants’ motion to dismiss is denied without
prejudice as to Plaintiff’s conspiracy and retaliation claims, and is granted as to Plaintiff’s Eighth
Amendment claim. Plaintiff’s Eighth Amendment claim is dismissed with prejudice. This Court
certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal of this decision would not be taken in
good faith. See McGore v. Wrigglesworth, 114 F.3d 601, 610 (6th Cir. 1997), overruled on other
grounds by Jones v. Bock, 549 U.S. 199, 206, 211-12 (2007).
Therefore:

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IT IS HEREBY ORDERED that the Objections (ECF No. 32) are GRANTED IN PART
AND DENIED IN PART: the objections regarding Plaintiff’s conspiracy and retaliation claims
are granted; the objection pertaining to Plaintiff’s Eighth Amendment claim is denied; and the
Report and Recommendation of the Magistrate Judge (ECF No. 31) is APPROVED and
ADOPTED as the Opinion of the Court, except as noted herein.
IT IS FURTHER ORDERED that the Motion to Dismiss (ECF No. 21) is GRANTED
IN PART AND DENIED IN PART: the Court grants the motion as to Plaintiff’s Eighth
Amendment claim; the Court denies the motion without prejudice as to Plaintiff’s conspiracy and
retaliation claims.
IT IS FURTHER ORDERED that Plaintiff’s Eighth Amendment claim is dismissed with
prejudice.
IT IS FURTHER ORDERED that this case is referred back to the Magistrate Judge for
further proceedings deemed appropriate by the Magistrate Judge.
IT IS FURTHER ORDERED that this Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that an appeal of this decision would not be taken in good faith.

Dated: March 18, 2019

/s/ Janet T. Neff
JANET T. NEFF
United States District Judge

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