Benson #152327 v. Osborn et al

Filing 89

ORDER ADOPTING REPORT AND RECOMMENDATION 78 re 60 : Defendants' Motion for Summary Judgment 60 is GRANTED and Plaintiff's Complaint is DISMISSED; case closed; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
__________________________

TROBY BENSON,
Plaintiff,
v.

Case No. 2:12-CV-447

BYRON OSBORN, et al.,

HON. GORDON J. QUIST

Defendants.
________________________/

ORDER ADOPTING REPORT AND RECOMMENDATION
Plaintiff, Troby Benson, has filed Objections to Magistrate Judge Greeley’s December 4,
2015 Report and Recommendation (R & R), which recommends that the Court grant Defendants
Osborn’s and Durant’s motion for summary judgment and dismiss Plaintiff’s complaint in its
entirety. The magistrate judge concluded that Plaintiff’s access to the court claim fails because the
underlying civil rights claim would have been frivolous. (R & R at 8.) Specifically, the magistrate
judge noted that Plaintiff admitted in his deposition that he had no inkling that his cell mate intended
to harm him and that the attack was totally unexpected. (Id.) The magistrate judge concluded that
because Plaintiff failed to put forth any evidence showing that any prison official had knowledge
that Plaintiff was at risk of attack by his cell mate, Plaintiff could not establish that the defendants
in Plaintiff’s proposed lawsuit were deliberately indifferent to Plaintiff’s safety. (Id.)
After conducting a de novo review of the R & R, Plaintiff’s Objections, and the pertinent
portions of the record, see 28 U.S.C. § 636(b)(1), the Court concludes that the R & R should be
adopted and that Defendants’ motion should be granted.

In his Objections, Plaintiff does not contest the magistrate judge’s statement that Plaintiff
failed to offer any evidence showing that any prison official was aware that Plaintiff was at risk of
an assault by his cell mate. Instead, Plaintiff contends that he could have established his claims by
showing that prison guards failed to conduct their security rounds to check on the safety of inmates
locked in their cells and failed to inquire why inmate porters were talking to Plaintiff’s cell mate
through an opened food slot in the door of Plaintiff’s cell. (Objections at 4.) As the magistrate
judge observed, however, such allegations pertain to negligence, which is insufficient to establish
an Eighth Amendment violation. See Lewis v. McClennan, 7 F. App’x 373, 375 (6th Cir. 2001)
(holding that the plaintiff’s allegations that the sheriff and jailer should have known that placing the
plaintiff in a jail with a large population of white inmates put him at risk for attack failed to show
deliberate indifference).
Plaintiff cites Martin v. White, 742 F. 2d 469 (8th Cir. 1984), as support for his argument that
he may rely generally on a history of inmate assaults in the prison to establish an Eighth Amendment
violation. Martin does not support Plaintiff’s claim. First, the plaintiff in Martin sued the warden
for failure to establish reasonable procedures to protect inmates from sexual and physical assaults
by other inmates. See id. at 470–71. In contrast, in the instant case, Plaintiff sought to sue
individual corrections officers for their failure to protect him in connection with a single incident
rather than their failure to enact policies and procedures designed to prevent inmate assaults
generally. More importantly, as the Eighth Circuit subsequently observed in Jensen v. Clarke, 73
F.3d 808 (8th Cir. 1996), Martin, which applied a standard more akin to negligence, was abrogated
by Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970 (1994), which adopted the deliberate
indifference standard. Id. at 810–11. Accordingly, Plaintiff has failed to show that the R & R errs
in recommending that the Court grant Defendants’ motion.
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Plaintiff also contends that the Court should permit him to conduct discovery, and he
requests a continuance for such purpose. However, discovery is long closed, and Plaintiff has failed
to explain why he could not have obtained the discovery he seeks before the discovery period
expired. (ECF No. 55.) Moreover, Plaintiff fails to identify what discovery he might obtain that
would support his claim. Given his admission that the attack was totally unexpected, there is no
reasonable basis to conclude that Plaintiff could obtain evidence to support his claim that prison
officials were deliberately indifferent.
Therefore,
IT IS HEREBY ORDERED that the Magistrate Judge’s Report and Recommendation
issued December 4, 2015 (ECF No. 78 ) is ADOPTED as the Opinion of the Court, and Defendants’
Motion for Summary Judgment (ECF No. 60) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s complaint is DISMISSED WITH
PREJUDICE.
A separate judgment will enter.
This case is concluded.

Dated: March 8, 2016

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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