Bey #236321 v. Luoma et al

Filing 120

ORDER REJECTING REPORT AND RECOMMENDATION 105 , denying plaintiff's motion for partial summary judgment 91 , denying plaintiff's motion for an injunction 88 , denying plaintiff's motion for attorney's fees and costs 89 , denyi ng plaintiff's motion for transfer to a new facility 116 , denying plaintiff's motion for a subpoena to produce plaintiff 103 , and granting in part Defendant's motion for summary judgment 77 . Plaintiff's case shall proceed s olely with respect to his Eighth Amendment claim that he was directly exposed to human waste in his cell. The Magistrate Judge is directed to revisit Plaintiff's motions related to discovery and witnesses (docket nos. 60, 61, 69, 70, 71, 73, 74, 93, 95, and 96); signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN N O R T H E R N DIVISION

C H R IS T O P H E R BEY #236321, P l a in tif f , F ile No. 2:06-CV-243 v. H O N . ROBERT HOLMES BELL T IM O T H Y LUOMA, et. al., D e f e n d a n ts . / M E M O R A N D U M OPINION AND ORDER R E J E C T I N G THE REPORT AND RECOMMENDATION T h is matter is before the Court on a Report and Recommendation ("R&R") of M ag istrate Judge Greeley (Dkt. No. 105) with respect to Defendants' motion for summary jud g m en t (Dkt. No. 77) and Plaintiff's motion for partial summary judgment (Dkt. No. 91). T h e R&R recommends granting Defendants' motion for summary judgment. In addition, the R & R recommends denying Plaintiff's motion for partial summary judgment as well as d e n yin g a number of motions filed by Plaintiff with respect to discovery. Plaintiff submitted o b je c tio n s to the R&R. (Dkt. No. 106.) I. P la in tif f filed a complaint, pro se, on September 15, 2006, pursuant to 42 U.S.C. § 1983 alleging violation of his Eighth Amendment rights as a result of: (1) exposure to the sm e ll of human waste over a period of six months, and (2) direct exposure to human waste

in a detention cell over a period of 20 days.1 Plaintiff claims that Defendants deliberately f a ile d to promptly clean up human waste that was smeared over the walls of prison cells and p l a c e d into the prison vents by mentally ill prisoners. II. T h is Court is required to make a de novo determination of those portions of the R&R to which specific objection has been made, and may accept, reject, or modify any or all of th e Magistrate Judge's findings or recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P . 72(b). Examining the evidence, the R&R determined that Defendants presented evidence that D e f en d a n ts were not deliberately indifferent, and noted that Plaintiff presented no evidence th a t Defendants "caused other prisoners to spread human waste in their cells simply to make P la in tif f smell the unpleasant odors." (Dkt. No. 105.) Plaintiff objects to the R&R on the b a sis that, if given the opportunity to pursue further discovery, he could provide evidence to s u p p o rt his claims. In his response to Defendants' motion for summary judgment, Plaintiff in d ic a te s that Defendants have not responded to certain requests for information, or produced c e r ta in documents, including the prison unit logs and grievances filed by other prisoners, w h ic h could provide support for Plaintiff's claims. The Court also notes that Plaintiff filed s e v e r a l motions related to discovery prior to the motion for summary judgment, and these m o t io n s were pending at the time the Magistrate Judge issued the R&R. In his objections,
1

The Court notes that Plaintiff's complaint does not specifically allege the latter facts; they were first alleged in a motion filed by Plaintiff on June 12, 2008. 2

P lain tiff cites Rule 56(f) of the Federal Rules of Civil Procedure, which provides that a court m a y deny a motion for summary judgment if a party opposing the motion can show "by a f f id a v it that, for specified reasons, it cannot present facts essential to justify its opposition . . . ." Fed. R. Civ. P. 56(f). Plaintiff also objects to the R&R because his claim, in part, is th a t he was directly exposed to human waste in his cell. E v e n assuming that Plaintiff has properly shown, pursuant to Rule 56(f), that he could o b ta in sufficient evidence in support of his claim after further discovery from Defendants, h e fails to state a claim that exposure to the smell of human waste violates the Eighth A m e n d m e n t in his case. The Court will grant Defendants' motion on this basis.

N e v e rth e les s, Defendants' motion did not address Plaintiff's claim that he was directly e x p o se d to human waste in his cell. Thus, the Court will reject the R&R and grant D e f en d a n ts ' motion solely with respect to the Plaintiff's claim regarding exposure to the s m e ll of human waste. I I I. A . Eighth Amendment T h e Eighth Amendment prohibits cruel and unusual punishment, which includes a d u ty by prison officials to provide "humane" conditions of confinement. Farmer v. Brennan, 5 1 1 U.S. 825, 832 (1994). A conditions-of-confinement claim within the prison setting re q u ire s the prisoner to show: (1) an objectively serious deprivation, and (2) a sufficiently c u lp a b le state of mind on the part of the prison officials. Id. at 834.

3

U n d e r the objective prong, "the official's act must result in the denial of `the minimal c iv iliz e d measure of life's necessities' . . . ." Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 3 4 7 (1981)). This determination is made by reference to "contemporary standards of c iv iliz e d decency that currently prevail in society." Hadix v. Johnson, 367 F.3d 513, 525 (6th C ir. 2004). In a conditions-of-confinement case, the Eighth Amendment is concerned only w ith "deprivations of essential food, medical care, or sanitation" or "other conditions in to le ra b le for prison confinement." Rhodes, 452 U.S. at 348. "Routine discomfort is `part o f the penalty that criminal offenders pay for their offenses against society.'" Hudson v. M c M illia n , 503 U.S. 1, 9 (1992) (quoting Rhodes, 452 U.S. at 347). Accordingly, "extreme d e p riv a tio n s are required to make out a conditions-of-confinement claim." Id. P la in tif f alleges that he was exposed to human waste fumes emanating from the vent in his cell, over a period of approximately six months from July 2005 to December 2005. (D k t. No. 1, Compl. ¶ 3.) He claims that exposure to these fumes caused "sickness, migraine h e a d ac h e s, nosebleeds, lack of appetite, lose [sic] of sleep, redness in the eyes, difficulties in breathing, pain and suffering." (Compl. ¶ 10.) Relying on Abdur-Reheem-X v. McGinnis, No. 99-1075, 1999 WL 1045069, at *2 (6th C ir. Nov. 12, 1999) (unpublished), Defendants argue that, accepting the allegations in P la in tif f 's complaint as true, exposure to the smell of human waste is not, in itself, s u f f ic ie n tly serious to constitute a violation of the Eighth Amendment. See also Williams v. L u e tz o w , No. 2:06-CV-100, 2006 U.S. Dist. LEXIS 38366 at *17 (W.D. Mich. Jun. 9, 2006)

4

(u n p u b lis h e d ) (granting dismissal of Eighth Amendment claim where prisoner's claims in c lu d e d exposure to smells of urine and feces from nearby prison cells because prisoner did n o t show denial of "basic human needs and requirements" and did not allege a physical in ju ry). In Abdur-Reheem-X, the court noted: R e g a rd in g the sickening odors caused by his mentally ill neighbor and the cleaning o f that cell, Abdur-Reheem-X has not specified a specific serious health threat caused b y these odors. A condition of confinement claim requires a showing that society c o n sid e rs the health threat "to be so grave that it violates contemporary standards of d e c e n c y to expose anyone unwillingly" to it. Anyone who thoroughly cleans a b a th ro o m is exposed to the strong smell of bleach. This element of A b d u r- R e h e e m -X 's claim lacks merit. . . . Other than nausea, Abdur-Reheem-X has asserted no serious health threat arising f ro m the unpleasant odors. The Eighth Amendment protects Abdur-Reheem-X from c o n d itio n s of confinement that are health threats; it does not shield him from c o n d itio n s that cause mere discomfort. In addition, the actions of the mentally ill in m a te were not within the control of the defendants. A b d u r -R e h e e m -X , 1999 WL 1045069, at *7, 8 (emphasis added) (citations omitted). In a different case in this district, the prisoner contended that: M e n tally ill prisoners [housed with plaintiff] are frequently unable or unwilling to tak e care of their basic hygienic needs. Most never shower and live in their own filth f o r weeks at a time. Plaintiff contends that some cells resemble giant septic tanks w ith excrement smeared on walls and doors, and with puddles of urine on the floor. A s a result, the smell of fermenting urine and feces in administrative segregation is c o m m o n and inescapable. . . . Mentally ill prisoners also throw urine and feces at o th e r prisoners and staff and self-mutilate and attempt suicide. W i l lia m s, 2006 U.S. Dist. LEXIS 38366 at *15-17. In Williams, the court concluded that " [ P la in tif f ] does not allege or show that he was denied basic human needs and requirements."

5

Id . at *18. Plaintiff's complaints of nausea, headaches, and vomiting are similar to the types of c o m p la in ts asserted by the plaintiffs in Abdur-Reheem-X and Williams and which those co u rts found were not sufficiently serious health threats.2 Moreover, this is not a case where P lain tiff has alleged that he has a serious medical condition that was exacerbated by exposure to the allegedly inhumane conditions. Compare Reilly v. Grayson, 310 F.3d 519 (6th Cir. 2 0 0 2 ) (upholding an Eighth Amendment claim where the lower court found that the prisoner " su f f ere d from a serious medical condition that was exacerbated by exposure to second-hand sm o k e" ) with Henderson v. Martin, No. 01-2463, 73 F. App'x 115, 118 (6th Cir. Aug. 4, 2 0 0 3 ) ("Unlike the inmate in Reilly, Henderson has made no showing of any serious medical c o n d itio n like asthma that was significantly exacerbated by exposure to ETS. . . . H e n d e rs o n 's discomfort is not sufficiently serious to bring him under the protection of the E ig h th Amendment."). Accordingly, the Court agrees with Defendants that Plaintiff has failed to show that, b y exposure to smell of human feces, he was subjected to a health risk "so grave that it v io la te s contemporary standards of decency." Helling v. McKinney, 509 U.S. 25, 36 (1993). B . Qualified Immunity D ef en d an ts also argue that they are subject to qualified immunity; even if this Court

Plaintiff has alleged that the fumes created the risk of contracting airborne diseases, such as Hepatitis, but Plaintiff offers no evidence of this assertion and does not indicate how further discovery would assist him in proving this allegation. 6

2

w e re to determine that Plaintiff has sufficiently shown a claim of violation of the Eighth A m e n d m e n t for exposure to the smell of human waste, the Court agrees that Defendants w o u ld be subject to qualified immunity with respect to this claim. "The burden of convincing a court that the law was clearly established `rests squarely w ith the plaintiff.'" Key, 179 F.3d at 1000 (quoting Cope v. Heltsley, 128 F.3d 452, 459 (6th C ir. 1997)). The analysis of whether a right is "clearly established" "`must be undertaken in light of the specific context of the case, not as a broad general proposition.'" Brosseau v. H a u g e n , 543 U.S. at 198 (quoting Saucier, 533 U.S. at 201). "`[T]he right the official is a lle g e d to have violated must have been `clearly established' in a more particularized, and h e n c e more relevant sense.'" Lyons v. City of Xenia, 417 F.3d 565, 572 (6th Cir. 2005) (q u o tin g Brosseau, 543 U.S. at 199); see Perez, 466 F.3d at 428 ("Because most legal rights a re clearly established at some level of generality, immunity would be impossible to obtain if a plaintiff were required only to cite an abstract legal principle that an official had `clearly v io la te d .'" ). "`The relevant, dispositive inquiry . . . is whether it would be clear to a re a so n a b le officer that his conduct was unlawful in the situation he confronted.'" Comstock v . McCrary, 273 F.3d 693, 702 (6th Cir. 2001) (quoting Saucier, 533 U.S. at 201); see W e a v er v. Shadoan, 340 F.3d 398, 407 (6th Cir. 2003). "Ordinarily, a Supreme Court or S ix th Circuit decision on point is necessary." Carver v. City of Cincinnati, 474 F.3d 283, 287 (6 th Cir. 2007). The court must focus on whether, at the time the defendant acted, the right a ss e rte d was "clearly established" by the decisions of the Supreme Court or the Sixth Circuit.

7

See Reynolds v. City of Anchorage, 379 F.3d 358, 366 (6th Cir. 2004); Gragg v. Kentucky C a b in e t for Workforce Dev., 289 F.3d 958, 964 (6th Cir. 2002). "`[Q]ualified immunity protects all but the plainly incompetent or those who k n o w in g ly violate the law.'" Armstrong, 432 F.3d at 699 (quoting Malley v. Briggs, 475 U.S. 3 3 5 , 341 (1986)). "Thus, officials are `entitled to qualified immunity [when] their decision w a s reasonable, even if mistaken.'" Toms v. Taft, 338 F.3d 519, 524 (6th Cir. 2003) (quoting H u n te r v. Bryant, 502 U.S. 224, 229 (1991)); Humphrey v. Mabry, 482 F.3d 840, 847 (6th C ir. 2007) ("Qualified immunity leaves government authorities `ample room for mistaken ju d g m e n ts .'" ) (quoting Scott v. Clay County, 205 F.3d 867, 873 n. 9 (6th Cir. 2000)). "If r e a s o n a b le officials could disagree on the issue, immunity should be recognized." Key v. G r a y so n , 179 F.3d 996, 1000 (6th Cir. 1999); see Akers, 352 F.3d at 1042. "For qualified im m u n ity to be surrendered, pre-existing law must dictate, that is truly compel (not just su g g e st or allow to raise a question about), the conclusion for every like-situated, reasonable g o v e rn m e n t agent that what the defendant is doing violates federal law in the circumstances." S a y lo r v. Bd. of Educ., 118 F.3d 507, 514 (6th Cir. 1997). Plaintiff fails to meet his burden; th e lack of any relevant Supreme Court or Sixth Circuit cases offered by Plaintiff, and the d e c is io n s in Williams and Abdur-Reheem-X, indicate that Plaintiff's asserted right under the E ig h th Amendment to be free of the smell of human waste is not clearly established. In finding in favor of Defendants on the claim regarding exposure to the smell of h u m an waste, however, the Court notes that Defendants have not addressed Plaintiff's

8

a lle g a tio n that he was directly exposed to human waste in his own cell and forced to drink f ro m a contaminated sink.3 For the foregoing reasons, the Court rejects the R&R and grants D e f en d a n ts ' motion for summary judgment solely with respect to Plaintiff's claim of e x p o su re to the smell of human waste. IV . T h e Court also denies Plaintiff's motion for partial summary judgment. In his motion, P la in tif f does not argue or show that material facts supporting his claims are not in genuine d is p u te ; rather, Plaintiff's motion essentially restates Plaintiff's arguments opposing D e f e n d a n ts' summary judgment motion, and lists facts that Plaintiff believes are still in d is p u te . Thus, he fails to make the requisite showing under Rule 56 of the Federal Rules of C iv il Procedure. V. A ls o pending before the Court is Plaintiff's motion for an injunction. (Dkt. No. 88.) P la in tif f requests an injunction preventing Defendants from seeking reimbursement from P la in tif f pursuant to the State Correctional Facility Reimbursement Act, Mich. Comp. Laws § § 800.401, et seq. (the "SCFRA"). Plaintiff contends that the SCFRA is preempted by an a w a rd of damages under § 1983, citing Hankins v. Finnel, 964 F.2d 853 (8th Cir. 1992). H o w e v e r, the Court has not awarded any damages to Plaintiff in this case. Plaintiff's motion w ill be denied.

In an earlier R&R adopted by this Court, the Magistrate Judge noted that, unlike the prisoner in Abdur-Reheem-X, Plaintiff alleged that his water was contaminated. (Dkt. No. 54, 02/20/2008 R&R 8.) 9

3

S im ila rly, Plaintiff's motion for attorney's fees and costs (Dkt. No. 89) is denied b e c a u se Plaintiff has not, as of this time, prevailed on any of his claims and provides no basis f o r granting such a motion. In addition, Plaintiff asks the Court for a subpoena to produce him to testify at trial. (D k t. No. 103.) This case has not yet been scheduled for trial; the Court will issue a writ if o n e is necessary. P la in tif f 's motion requesting transfer to a new facility is denied. (Dkt. No. 116.) F in a lly, the R&R recommended denial of a number of motions filed by Defendant re late d to discovery and witnesses, though the basis for denial is not stated in the R&R. (Dkt. N o s. 60, 61, 69, 70, 71, 73, 74, 93, 95, 96.) Because the Court rejects the R&R, the Court w ill direct the Magistrate Judge to revisit these motions in light of this opinion. A c c o rd in g ly, IT IS HEREBY ORDERED THAT the Report and Recommendation of the M a g i str a te Judge (Dkt. No. 105) is REJECTED as the opinion of the Court. I T IS FURTHER ORDERED that Plaintiff's objections to the R&R (Dkt. No. 106) a re GRANTED. I T IS FURTHER ORDERED that Plaintiff's motion for partial summary judgment ( D k t . No. 91) is DENIED. I T IS FURTHER ORDERED that Defendants' motion for summary judgment (Dkt. N o . 77) is GRANTED IN PART, solely with respect to Plaintiff's allegations of exposure

10

to the smell of human waste, and DENIED IN PART with respect to Plaintiff's allegations o f direct exposure to human waste. IT IS FURTHER ORDERED that Plaintiff's motions for an injunction (Dkt. No. 8 8 ), for attorney's fees and costs (Dkt. No. 89), for a subpoena to produce Plaintiff (Dkt. No. 1 0 3 ), for transfer to a new facility (Dkt. No. 116), are DENIED. P la in tif f 's case shall proceed solely with respect to his Eighth Amendment claim that h e was directly exposed to human waste in his cell. The Magistrate Judge is directed to re v is it Plaintiff's pending motions related to discovery and witnesses (Dkt. Nos. 60, 61, 69, 7 0 , 71, 73, 74, 93, 95, 96) in light of this opinion.

Dated: March 30, 2009

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

11