Fitts #198867 v. Burt et al

Filing 114

OPINION ADOPTING REPORT AND RECOMMENDATION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

U N I T E D STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN N O R T H E R N DIVISION C A M E R O N FITTS, P l a in tif f , v. SHERRY L. BURT et al., D e f e n d a n ts . _________________________________/ O P I N IO N ADOPTING REPORT AND RECOMMENDATION T h is is a prisoner civil rights action filed pursuant to 42 U.S.C. § 1983. Defendants f il e d a motion for summary judgment (docket #99). The matter was referred to the F I L E NO. 2:08-CV-85 H O N . ROBERT HOLMES BELL

M a g is tra te Judge, who issued a Report and Recommendation ("R&R"), recommending that th is Court grant the motion of Defendants MacEachern, Hofbauer, Napel, Tretheway, Aalto, A le x a n d er, Johns and MacMeekin and enter judgment for those Defendants and Defendant G rim (docket #110).1 The matter presently is before the Court on Plaintiff's objections to t h e R&R (docket #112). For the reasons that follow, Plaintiff's objections are denied, the R & R is adopted, and summary judgment is granted to Defendants MacEachern, Hofbauer, N a p e l, Tretheway, Aalto, Alexander, Johns and MacMeekin. The claims against Defendant
1

The caption on Defendants' motion suggests that the motion was filed by Defendants Burt, Civieja, Vallie, Cady, Carter, Birkett and Meagher, and, in electronically filing their motion, Defendants selected those parties as the parties bringing the motion. The contents of the motion, however, indicate that the motion was filed by Defendants MacEachern, MacMeekin, Hofbauer, Napel, Aalto, Alexander and Johns. Inasmuch as the latter Defendants and Defendant Grim were the only Defendants transferred to this Court from the Eastern District of Michigan (see docket #95), the Court has construed the motion consistent with the contents rather than the filing.

G rim are dismissed without prejudice. I. T h i s Court reviews de novo those portions of an R&R to which objections are made. 2 8 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The Court may accept, reject or modify any or a ll of the Magistrate Judge's findings or recommendations. Id. On a motion for summary judgment, a court must consider all pleadings, depositions, a f f id a v its and admissions and draw all justifiable inferences in favor of the party opposing th e motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1 9 8 6 ). The court, however, "'need not accept as true legal conclusions or unwarranted f a c tu a l inferences.'" Michigan Paytel Joint Venture v. City of Detroit, 287 F.3d 527, 533 (6th C ir. 2002) (quoting Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987)). T h e party moving for summary judgment has the burden of pointing the court to the absence o f evidence in support of some essential element of the opponent's case. Celotex Corp. v. C a tre tt, 477 U.S. 317, 323 (1986); Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th C ir. 1989). Once the moving party has made such a showing, the burden is on the

n o n m o v in g party to demonstrate the existence of a genuine issue for trial. Id. Summary ju d g m e n t is appropriate when the record reveals that there are no genuine issues as to any m a te ria l fact in dispute and the moving party is entitled to judgment as a matter of law. FED. R . CIV. P. 56(c); Kocak v. Community Health Partners of Ohio, Inc., 400 F.3d 466, 468 (6th C ir. 2005).

-2-

In order to prove that a triable issue exists, the nonmoving party must do more than re ly upon allegations, but must come forward with specific facts in support of his or her c la im . Celotex, 477 U.S. at 322; Mulhall v. Ashcroft, 287 F.3d 543, 550 (6th Cir. 2002). A p a rty opposing a motion for summary judgment "may not merely recite the incantation, 'c re d ib ility,' and have a trial in the hope that a jury may believe factually uncontested proof." F o g e ry v. MGM Holdings Corp., Inc., 379 F.3d 348, 353 (6th Cir. 2004). After reviewing t h e whole record, the court must determine "whether the evidence presents a sufficient d i sa g r e e m e n t to require submission to a jury or whether it is so one-sided that one party must p r e v a i l as a matter of law." Booker v. Brown & Williamson Tobacco Co., Inc., 879 F.2d 1 3 0 4 , 1310 (6th Cir. 1989) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1 9 8 6 )). "'[D]iscredited testimony is not [normally] considered a sufficient basis'" for d e f e a tin g the motion. Anderson, 477 U.S. at 256-57 (quoting Bose Corp. v. Consumers U n io n of United States, Inc., 466 U.S. 485, 512 (1984)). In addition, where the factual co n text makes a party's claim implausible, that party must come forward with more p e rs u a s iv e evidence demonstrating a genuine issue for trial. Celotex, 477 U.S. at 323-24; M a tsu sh ita , 475 U.S. at 586-87; Street, 886 F.2d at 1480. "A mere scintilla of evidence is in s u f f ic ie n t; 'there must be evidence on which a jury could reasonably find for the [nonm o v a n t ].'" Daniels v. Woodside, 396 F.3d 730, 734 (6th Cir. 2005) (quoting Anderson, 477 U .S . at 252).

-3-

II. T h e Magistrate Judge recommended that Defendants' motion be granted and judgment b e entered for all of the moving Defendants. The Magistrate Judge further recommended th a t Defendant Grim be dismissed from the action for lack of service. Petitioner makes no o b je c tio n to the Magistrate Judge's recommendation concerning Defendant Grim. A c cording ly, the Court accepts the Magistrate Judge's recommendation to dismiss Defendant G rim for want of prosecution. In his complaint, Plaintiff alleged that he was in administrative segregation for more t h a n 23 months before he was briefly released in August 2003. He asserted that he was p la c ed back into segregation on August 6, 2003 without first being given a hearing, o s te n sib ly in violation of his right to due process. The Magistrate Judge recommended that D e f e n d a n ts be granted summary judgment on the claim because Plaintiff had no liberty in te re st in staying out of administrative segregation and therefore due process was not r e q u ire d by the Constitution before Plaintiff was returned to administrative segregation. P la in tif f objects to the Magistrate Judge's recommendation, arguing that, because he had been re le a se d from administrative segregation for a few days, he had a right to a hearing. P la in tif f 's claim is without merit. As the Magistrate Judge held, the Due Process Clause does n o t protect every change in the conditions of confinement having an impact on a prisoner. S e e Meachum v. Fano, 427 U.S. 215, 225 (1976). In Sandin v. Conner, 515 U.S. 472, 484 ( 1 9 9 5 ) , the Court set forth the standard for determining when a state-created right creates a

-4-

f e d era lly cognizable liberty interest protected by the Due Process Clause. According to the S a n d in Court, a prisoner is entitled to the protections of due process only when a deprivation im p o ses an "atypical and significant hardship on the inmate in relation to the ordinary in c i d e n ts of prison life." Sandin, 515 U.S. at 484; see also Jones v. Baker, 155 F.3d 810, 812 (6 th Cir. 1998); Rimmer-Bey v. Brown, 62 F.3d 789, 790-91 (6th Cir. 1995). The Sandin C o u rt concluded that mere placement in administrative segregation did not implicate a liberty in te re st because the segregation at issue in that case did not impose an atypical and s ig n if ic a n t hardship. Sandin, 515 U.S. at 484; Wilkinson v. Austin, 545 U.S. 209, 222-23 (2 0 0 5 ). In addition, the Magistrate Judge concluded that, even if Plaintiff's extended p la c em e n t in administrative segregation at some point rose to the level of being an "atypical an d significant hardship" under Sandin, on the record of the case, Plaintiff received all the p ro c e ss to which he was entitled. The Court has reviewed the reasoning of the Magistrate J u d g e on this issue and finds no error. Accordingly, the Court adopts that portion of the R & R and will grant judgment to Defendants on Plaintiff's due process claim. T h e Magistrate Judge also recommended that Plaintiff's Eighth Amendment claim be d ism iss e d because confinement in administrative segregation does not constitute an Eighth A m e n d m e n t violation. Plaintiff objects to the recommendation on the grounds that his m en ta l health problems were exacerbated by his continued confinement in segregation. He a lle g e s that the segregation rose to the level of an Eighth Amendment violation because of th e mental health problems caused by the confinement. -5-

U p o n review, the Court agrees with the Magistrate Judge's analysis concerning the E ig h th Amendment violation. In addition, the Court concludes that summary judgment is w a rra n te d on alternative grounds. Under 42 U.S.C. § 1997e(e), "[n]o Federal civil action may b e brought by a prisoner confined in a jail, prison, or other correctional facility, for mental o r emotional injury suffered while in custody without a prior showing of physical injury." P e titio n e r has failed to allege or show any physical injury in support of his claim. In HardenB e y v. Rutter, 524 F.3d 789, 795, the Sixth Circuit rejected a prisoner's claim that continued a d m in istra tiv e segregation had caused emotional or mental issues. The court determined that, ab sen t a showing of physical injury, the prisoner's claim was barred by 42 U.S.C. § 1997e(e). U n d er Harden-Bey, Defendants are entitle to summary judgment. In his third objection, Plaintiff argues that he has been subjected to an Eighth A m en d m en t violation by the denial of placement in a Residential Treatment Program (RTP), d e sp ite having been approved for such placement by Michigan Department of Mental Health P s yc h o lo g is ts Meyers and Jacobson. The Magistrate Judge concluded that Plaintiff's

a lle g a tio n s about the need for placement in RTP were conclusory, and Plaintiff had failed e n tirely to allege or show that denial of the placement in RTP constituted deliberate ind iffe ren c e . The Court has reviewed the Magistrate Judge's analysis and finds no error. A c c o rd in g ly, the Court adopts that portion of the R&R. In addition, as with his other Eighth A m e n d m e n t claim, Plaintiff has failed to demonstrate the necessary physical injury to entitle h im to emotional or mental damages under 42 U.S.C. § 1997e(e).

-6-

In his fourth objection, Plaintiff contends that the Magistrate Judge erred in c o n c lu d in g that Plaintiff's equal protection claim was conclusory and failed to state a claim. T h e Court has reviewed the Magistrate Judge's analysis and finds no error. The objection th e re f o re is denied and that portion of the R&R is adopted. N ex t, the Magistrate Judge recommended that Defendants be granted summary ju d g m e n t on Plaintiff's claim that, in reaching their decision to return Plaintiff to a d m in i str a tiv e segregation and continue his placement there, Defendants retaliated against P la in tif f for having filed his lawsuit in Fitts v. Sickler, No. 1:03-cv-571 (W.D. Mich.). The M ag istrate Judge recommended that the claim be dismissed because it was wholly conclusory a n d Plaintiff failed to allege or present any facts that supported his retaliation claim. Plaintiff a rg u e s in his fifth objection that his complaint and the supporting documents attached to the c o m p la in t contain sufficient factual support for his claim. T h e only facts alleged in Plaintiff's verified complaint are that, on July 13, 2005 and Ju ly 14, 2005, he was told by non-Defendant Nurse Buyer and Defendant Case Manager Phil Johns, respectively, that Plaintiff had been denied placement in an RTP program in retaliation fo r his having filed the prior lawsuit. Assuming such facts are true, however, they are in s u f f ic ie n t to support Plaintiff's claim. According to Plaintiff's allegations, on July 10, 2005, certain mental health providers s u b m itte d Plaintiff's name for transfer to Huron Valley Men's Facility's RPT program. On J u ly 12, 2005, Defendants Hofbauer and Aalto denied the transfer. Neither Nurse Buyer nor

-7-

D e f e n d a n t Jones was involved in the decision to deny Plaintiff's transfer. A defendant's s ta te m e n ts or conduct are not evidence of retaliation if the defendant is not the decisionmaker ta k in g the alleged adverse action. Smith v. Campbell, 250 F.3d 1032, 1038 (6th Cir. 2001); S h e h e e v. Luttrell, 199 F.3d 295, 301 (6th Cir. 1999). As a result, Plaintiff has alleged no f a cts in support of his conclusory claim of retaliation. In d e e d , the factual circumstances actually undermine any claim of retaliation. First, n e ith e r Hofbauer nor Aalto were named Defendants in the prior lawsuit, and Hofbauer and A a lto were officials at the Marquette Branch Prison, while Plaintiff had sued individuals at th e Ionia Maximum Correctional Facility and the Standish Maximum Correctional Facility. A s a result, nothing about the actors involved suggests a retaliatory motive. Moreover, P la in tif f 's claims in Fitts v. Sickler had been rejected by a jury on October 1, 2004, more than n in e months before the alleged retaliation occurred. Although the action remained pending o n appeal, the MDOC defendants in that action had prevailed and had no ongoing reason e ith e r to retaliate themselves or to encourage others at a distant facility to do so. For all these re a s o n s , Plaintiff's allegations of retaliation fail to state a claim. In his final objection to the R&R, Plaintiff asserts that the Defendants are not entitled to qualified immunity. The Magistrate Judge determined that, because Plaintiff failed to d e m o n stra te that a clear constitutional violation occurred, Defendants also were entitled to s u m m a ry judgment on the grounds of qualified immunity. The Court finds no error in the M a g is tra te Judge's determination.

-8-

I I I. H av in g considered each of Plaintiff's objections and finding no error, the Court hereby d e n ies Plaintiff's objections and adopts the Report and Recommendation of the Magistrate J u d g e as the opinion of the Court. Accordingly, the Court will grant Defendants' motion for su m m a ry judgment and enter judgment for Defendants MacEachern, Hofbauer, Napel, T re th e w a y, Aalto, Alexander, Johns and MacMeekin. The Court also will dismiss Plaintiff's c laim s against Defendant Grim for want of prosecution. A judgment consistent with this o p in io n shall be entered.

Dated: June 30, 2009

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

-9-