Harris #218238 v. Jones et al

Filing 90

MEMORANDUM OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 81 ; granting 48 Defendant Frontera's motion to dismiss, and granting 49 Defendants Sego, Santure, Jones, Adams, Tenuta, Scott, Livermore, Sebaly, Seymore, and Rankin's motion to dismiss; The court certifies that appeal of this action would not be taken in good faith; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF MICHIGAN N O R T H E R N DIVISION

C U R T IS HARRIS, P l a in tif f , v. P . JONES, et al., D e f e n d a n ts . _________________________/ C A S E NO. 2:08-cv-131 H O N . ROBERT HOLMES BELL

M E M O R A N D U M OPINION AND ORDER T h is is an action brought by Plaintiff Curtis Harris pursuant to 42 U.S.C. § 1983. On N o v e m b e r 14, 2008, Defendant Frontera filed a motion to dismiss. (Dkt. No. 48.) The re m ain in g Defendants filed a motion to dismiss on November 21, 2008. (Dkt. No. 49.) On J u ly 13, 2009, Magistrate Judge Timothy P. Greeley, treating both motions as motions for su m m a ry judgment, issued a report and recommendation (R&R) recommending that both m o tio n s be granted and that this case be dismissed in its entirety. (Dkt. No. 81.) Plaintiff f ile d objections to the R&R on July 23, 2009. (Dkt. No. 82.) This Court must review de n o v o those portions of the R&R to which objection has been made, and may accept, reject, o r modify any or all of the Magistrate Judge's findings or recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Plaintiff has filed two specific objections to the R&R. First, Plaintiff objects to the M a g is tra te Judge's determination that Defendant Frontera is entitled to summary judgment

o n Plaintiff's claim that Defendant Frontera violated Plaintiff's Eighth Amendment rights b y refusing to renew Plaintiff's medical detail relating to the use of chemical agents. The C o u rt agrees with the Magistrate Judge. The undisputed evidence shows that Defendant F ro n te ra declined to renew Plaintiff's medical detail out of concern for prison staff safety, a n d not as a result of "deliberate indifference" toward Plaintiff's medical condition. (See D k t. No. 1, Pl.'s Compl. 7.) Plaintiff next objects to the Magistrate Judge's observation that Plaintiff failed to re sp o n d to the motion for summary judgment filed on November 21, 2008, by Defendants S e g o , Santure, Jones, Adams, Tenuta, Scott, Livermore, Sebaly, Seymore, and Rankin. P la in tif f did, in fact, submit a response to this motion on December 31, 2008. (Dkt. No. 69.) H o w e v e r, even upon consideration of Plaintiff's response and the evidence attached thereto, th e Court nevertheless agrees with the Magistrate Judge's ultimate determination that D e f e n d a n ts are entitled to summary judgment on Plaintiff's Eighth Amendment claims. To withstand Defendants' motion for summary judgment, Plaintiff must present e v id e n c e sufficient to create a genuine issue of material fact as to whether Defendants used th e chemical agent "maliciously and sadistically to cause harm," rather than "in a good-faith e f f o rt to maintain or restore discipline." Fed. R. Civ. P. 56(c); Hudson v. McMillian, 503 U .S . 1, 7 (1992) (setting forth the standard for Eighth Amendment violations in excessiveu s e -o f -f o rc e cases). "The mere existence of a scintilla of evidence in support of the P lain tiff 's position will be insufficient; there must be evidence on which the jury could

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re a so n a b ly find for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In an effort to show that the use of the chemical agent was not the result of a good faith e f fo rt to maintain or restore discipline, Plaintiff attaches to his response to Defendants' m o tio n for summary judgment an affidavit in which he declares that he obeyed all of the o rde rs he was given prior to the chemical discharge. (Dkt. No. 69.) This assertion, however, is contradicted by the overwhelming evidence that Plaintiff did not obey Defendants' order to expose the palms of his hands during the strip search, even though the order was repeated m u ltip le times. (Dkt. No. 50, Ex. A.) Defendants submit the affidavit of prison officer K e e n a Jones, a copy of the "critical incident report" filed after the chemical discharge, s ta te m e n ts from six eyewitnesses (Sgt. Livermore, RUO Sebaly, RUO Sego, C/O Santure, C /O Warzack, and C/O Rankin), and a copy of the hearing officer's report finding Plaintiff g u ilty of a major misconduct for disobeying a direct order, which references and relies on a v id e o -ta p e recording of the incident.1 All of this evidence indicates that Plaintiff failed to

e x p o se his palms when ordered to do so and told that failure to comply would result in the a p p lic a tio n of the chemical agent. The Court concludes that no reasonable juror, upon co n side ratio n of all the available evidence, could conclude that Defendants' actions were " m a lic io u s " and "sadistic" rather than a good-faith effort to maintain or restore discipline.

Statements contained in these documents appear to fit within the hearsay exceptions contained in Rules 803(6) and (8) of the Federal Rules of Evidence. Plaintiff has not challenged the evidence as inadmissible. See Reynolds v. Green, 184 F.3d 589, 596 (6th Cir. 1999) ("Because records prepared by public officials are presumed to be trustworthy, the burden is on the party opposing admission to show that a report is inadmissible because its sources of information or other circumstances indicated a lack of trustworthiness."). 3

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A c c o r d i n g l y, I T IS HEREBY ORDERED that Plaintiff's objections to the report & rec o m m en d atio n (Dkt. No. 82) are OVERRULED. IT IS FURTHER ORDERED that the Report and Recommendation (Dkt. No. 81) is APPROVED and, combined with the discussion set forth herein, ADOPTED as the o p in io n of the Court. I T IS FURTHER ORDERED that the motion to dismiss filed by Defendant Frontera ( D k t . No. 48) is GRANTED. I T IS FURTHER ORDERED that the motion to dismiss filed by Defendants Sego, S a n tu re , Jones, Adams, Tenuta, Scott, Livermore, Sebaly, Seymore, and Rankin (Dkt. No. 4 9 ) is GRANTED. T h e Court certifies that appeal of this action would not be taken in good faith. 28 U .S .C . § 1915(a)(3).

Dated: March 31, 2010

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

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