Merriweather #209190 v. Jenkins et al

Filing 35

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 33 , and granting Defendants Jenkins, McKee, and McLean's motion for summary judgment 16 ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
BASHARA MERRIWEATHER,
Plaintiff,
Case No. 2:11-cv-459
v.
HON. ROBERT HOLMES BELL
JOHN JENKINS, et al.,
Defendants.
/
ORDER APPROVING AND ADOPTING
REPORT AND RECOMMENDATION
On August 14, 2012, Magistrate Judge Timothy P. Greeley issued a Report and
Recommendation (“R&R”) recommending that the motion for summary judgment filed by
Defendants Jeffrey Jenkins, Chris McKee, and Michael McLean (Dkt. No. 16) be granted.
(Dkt. No. 33.) This matter is before the Court on Plaintiff Bashara Merriweather’s objections
to the R&R. (Dkt. No. 34.)
This Court makes a de novo determination of those portions of an R&R to which
specific objections are made. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). “[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). The Court may accept, reject, or modify any or
all of the Magistrate Judge’s findings or recommendations. Id.

Plaintiff only objects to the R&R’s conclusions regarding his Eighth Amendment
claim. In particular, Plaintiff objects to the R&R’s conclusion that the one-time denial of his
request to use a toilet – resulting in Plaintiff defecating in a mop bucket – was insufficient
to constitute cruel and unusual punishment under the Eighth Amendment.
Plaintiff contends that two cases upon which the R&R relied, Hartsfield v. Vidor, 199
F.3d 305 (6th Cir. 1999), and Dellis v. Corr. Corp. of Am., 257 F.3d 508 (6th Cir. 2001), are
not controlling due to a more recent Supreme Court decision, Hope v. Pelzer, 536 U.S. 730
(2002). This is incorrect.
Hope concerned an entirely different situation than that alleged by Plaintiff. In Hope,
the plaintiff alleged that he had been handcuffed to a hitching post and left out in the sun
shirtless for seven hours with no bathroom breaks. Id. at 730. The Supreme Court found that
this unique combination of “substantial risk of physical harm, unnecessary pain, unnecessary
exposure to the sun, prolonged thirst and taunting, and a deprivation of bathroom breaks []
created a risk of particular discomfort and humiliation.” Id. at 731. The Court further noted
the “obvious cruelty inherent in the practice.” Id.
Plaintiff has not alleged such obvious cruelty in the present case. Instead, Plaintiff
alleges that around 7:45 AM on November 28, 2010, he asked to leave the exercise yard
because of an urgent need to defecate but was told he had to wait until 8:00 AM. (Dkt. No.
1, ¶¶ 8-12.) Following this refusal, Plaintiff “could not control his bowels” and consequently
defecated in a mop bucket. (Id. at ¶ 14.) Because of this stark contrast to the facts
underlying the Hope decision, the R&R correctly relied upon Hartsfield and Dellis.
2

Alternatively, Plaintiff attempts to distinguish his case from Hartsfield and Dellis.
As to the former, Plaintiff misconstrues the Hartsfield decision as resting solely on the
ground that the defendants had offered sworn testimony and documentation that toilet breaks
had been offered. As the R&R correctly noted, Hartsfield also relied upon Stephens v. Carter
County Jail, 816 F.2d 682 (6th Cir.1987), which held that deprivation of access to a toilet for
a twenty hour period was not cruel and unusual punishment.
Plaintiff also narrowly construes Dellis as only applying in situations where the
prisoner’s toilet is not working. This is incorrect. As explained in the R&R, Dellis was
decided on the ground that deprivation of access to a working toilet – along with deprivation
of a lower bunk and flooding in the prisoner’s cell – was an example of a “temporary
inconvenience[]” which does not rise to the level of cruel and unusual punishment. Dellis,
257 F.3d at 511. The R&R correctly found that Plaintiff’s one-time, approximately fifteen
minute deprivation of access to a toilet, resulting in his defecation in a mop bucket, was such
a temporary inconvenience. Accordingly,
IT IS HEREBY ORDERED that the August 14, 2012, R&R (Dkt. No. 33) is
APPROVED and ADOPTED as the opinion of the Court.
IT IS FURTHER ORDERED that the motion for summary judgment filed by
Defendants Jenkins, McKee, and McLean (Dkt. No. 16) is GRANTED.

Dated: September 7, 2012

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
3