Brandon #269552 v. Bergh et al

Filing 133

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 129 ; Defendants' motions for summary judgment [46, 103] are granted in part and denied in part. The motions are granted as to Defendants Bergh, Bauman, DeShambo, Bobo, McBurney, Carberry, John Adams, Hursh, Blusar, Lee, Eyke, Monroe, and Hite, and denied as to Defendants Richardson, Steve Adams, Fleury, Wickwire, Sabin, Kennedy, Masters, Monticello, Heidtman, and Salo. Judgment is entered in favor of Defendants Bergh, Bauman, DeShambo, Bobo, McBurney, Carberry, John Adams, Hursh, Blusar, Lee, Eyke, Monroe, and Hite ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

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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

IS R A E L BRANDON, Plaintiff, File No: 2:08-CV-152 v. HON. ROBERT HOLMES BELL D A V ID BERGH, et al., Defendants. / MEMORANDUM OPINION AND ORDER APPROVING AND ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION O n July 31, 2009, Magistrate Judge Timothy P. Greeley issued a Report and R e c o m m e n d a tio n ("R&R") recommending that Defendants' motions for summary judgment (D k t. Nos. 46, 103) be granted in part and denied in part. (Dkt. No. 129, R&R). Plaintiff filed objections to the R&R on August 17, 2009. (Dkt. No. 130.) This 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). Plaintiff objects to the R&R because it recommends granting summary judgment prior to a ruling on Plaintiff's motion to compel discovery. (Dkt. No. 113.) "[A] general objection

to a magistrate's report, which fails to specify the issues of contention, does not satisfy the

requirement that an objection be filed. The objections must be clear enough to enable the district court to discern those issues that are dispositive and contentious." Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). Plaintiff has not identified how the denial of discovery
a f f e c te d any particular aspect of the R&R. Plaintiff merely suggests that discovery could h a v e helped Plaintiff's theory of the case. This general and hypothetical objection does not

require action by this Court.
Plaintiff's second objection is to the R&R's conclusion that Plaintiff presented insu ff icien t evidence to create an issue of fact as to the causal-connection prong of Plaintiff's F irs t Amendment retaliation claim against Defendant Masters. Plaintiff contends that the R & R failed to consider his supporting circumstantial and indirect evidence of temporal p r o x im ity. (See Dkt. No. 118, Brandon Aff. ¶¶ 60-70, 74; Dkt. No. 126, Brandon Suppl. D e c l. ¶ 5 (a)-(h).) Contrary to Plaintiff's assertions, the Magistrate Judge did consider this e v id e n c e . In fact, he quoted from Plaintiff's supplemental declaration in the R&R. (R&R 8 .) The remaining allegations in the affidavit and declaration do not add any facts that would s tre n g th e n Plaintiff's allegation that Defendant Masters's adverse action was motivated by P la in tif f 's protected conduct. Plaintiff relies on Muhammad v. Close, 379 F.3d 413 (6th Cir. 2004), in support of th e proposition that his showing of temporal proximity alone was significant enough to co n stitute indirect evidence of causal connection so as to create an inference of retaliatory m o tiv e against Defendant Masters. Contrary to Plaintiff's assertions, Muhammad does not

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s ta n d for the proposition that temporal proximity alone is sufficient to create an issue of fact a s to retaliatory motive. In Muhammad the Sixth Circuit did not resolve the issue, but merely o b s e rv e d that "temporal proximity alone may be `significant enough to constitute indirect e v id e n c e of a causal connection so as to create an inference of retaliatory motive.'" Id. at 418 (q u o tin g DiCarlo v. Potter, 358 F.3d 408, 422 (6th Cir. 2004) (emphasis added). Even if tem p o r a l proximity may in some cases create an issue of fact as to retaliatory motive, it w o u ld only be sufficient if the evidence was "significant enough." Plaintiff's conclusory and am b ig u o u s evidence is not "significant enough" to create an issue of fact as to retaliatory m o tiv e . Plaintiff's third objection is to the R&R's recommendation that Plaintiff's Eighth A m e n d m e n t claim against Defendants Bergh, DeShambo, Bobo, Bauman, McBurney, C a rb e rry, Adams, Hursh, Belusar and Lee be dismissed because Plaintiff failed to allege facts e sta b lis h in g that these Defendants were personally involved in the alleged contamination of P la in tif f 's food. (R&R 9-10.) Plaintiff does not challenge the finding that he failed to allege th a t these supervisory Defendants were personally involved in the contamination of his food. In s te a d , he contends that the Magistrate Judge failed to consider his alternative theory that th e se Defendants are liable based upon their deliberate indifference to what other employees w e re doing to the prisoners in segregation. Plaintiff alleged in his amended complaint that b a se d on institutional records and reports, including grievances, complaints, misconduct rep o rts, investigations, emails, and logbook entries, these supervisory Defendants were aware

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o f the pattern of abuse of segregation prisoners through their food, and that their failure to c u rb the abuses amounted to deliberate indifference in violation of Plaintiff's Eighth A m en d m en t rights. (Dkt. No. 56, Proposed Am. Compl. ¶¶ 32-35, 48.) In Lewellen v. Metro. Gov't, 34 F.3d 345 (6th Cir. 1994), the Sixth Circuit observed th a t the Supreme Court in Collins v. City of Harker Heights, 503 U.S. 114 (1992), had left o p e n the possibility that deliberate indifference may be an alternative to respondeat superior lia b ility. Lewellen, 34 F.3d at 35. Even if such a theory exists in the abstract, it does not a p p ly in this case. At least in the conditions of confinement context, to be found liable under th e Eight Amendment, a prison official must "both be aware of facts from which the in f e re n c e could be drawn that a substantial risk of serious harm exists, and he must also draw th e inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994). Plaintiff has not alleged facts fro m which an inference can be drawn that these supervisory Defendants were both aware o f facts from which an inference could be drawn that guards were engaging in food abuses a m o u n tin g to an Eighth Amendment violation and that they also drew that inference. A c c o r d in g ly, the Court agrees with the Magistrate Judge that Plaintiff's claims against these s u p e rv is o ry Defendants are properly dismissed. Plaintiff's fourth objection is to the Magistrate Judge's conclusion that Plaintiff failed to state a claim with regard to Defendant Eyke, the prison psychologist. The Magistrate Ju d g e concluded that there is no evidence that Eyke was deliberately indifferent to Plaintiff's c o m p lain t because he advised Plaintiff to go through the grievance process to resolve his

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f o o d contamination complaint. Plaintiff contends that even if Eyke's advice was reasonable o n June 30, it could not be deemed reasonable two weeks later when it was apparent that the fo o d attacks had not abated and Plaintiff was refusing food. Upon review, the Court c o n c lu d e s that Plaintiff's contention that Eyke was subjectively aware that Plaintiff was su ff ering from a "substantial risk of serious harm" is not supported by the record. The Court a c c o rd in g ly agrees with the R&R that Defendant Eyke is entitled to summary judgment. Plaintiff's fifth and final objection is to the Magistrate Judge's conclusion that D e f en d a n t nurses Hite and Monroe are entitled to summary judgment on Plaintiff's denial o f medical treatment claim. In support of his objection Plaintiff relies on the fact that he p ro d u c e d evidence directly contradicting Defendants' evidence that he refused treatment. (Brandon Suppl. Decl. ¶ 6.) Even if there is a question of fact as whether Plaintiff refused trea tm en t, this question is not material because the primary basis for the Magistrate Judge's re c o m m e n d a tio n is that differences in opinion between the nurses and Plaintiff as to what m ed ical tests were necessary does not constitute an Eighth Amendment violation. The Court a g re e s with this reasoning. Accordingly, I T IS HEREBY ORDERED that the July 31, 2009, R&R (Dkt. No. 129) is A D O P T E D as the opinion of the Court. IT IS FURTHER ORDERED that Defendants' motions for summary judgment (Dkt. N o s . 46, 103) are GRANTED IN PART and DENIED IN PART. The motions are granted a s to Defendants Bergh, Bauman, DeShambo, Bobo, McBurney, Carberry, John Adams,

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H u rs h , Blusar, Lee, Eyke, Monroe, and Hite, and denied as to Defendants Richardson, Steve A d a m s , Fleury, Wickwire, Sabin, Kennedy, Masters, Monticello, Heidtman, and Salo. I T IS FURTHER ORDERED that JUDGMENT is entered in favor of Defendants B e rg h , Bauman, DeShambo, Bobo, McBurney, Carberry, John Adams, Hursh, Blusar, Lee, E yk e , Monroe, and Hite.

Dated: January 16, 2010

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

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