Gonzalez #761448 v. Bauman et al

Filing 36

ORDER ADOPTING REPORT AND RECOMMENDATION 34 AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 28 ; 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

FORTINO GONZALEZ #761448,
Plaintiff,
v.

Case No. 2:16-CV-266

LARRY HENLEY,

HON. GORDON J. QUIST

Defendant.
____________________________/

ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff, Fortino Gonzalez, a state prisoner at a Michigan Department of Corrections
(MDOC) facility, brought this pro se civil rights action pursuant to 42 U.S.C. § 1983, alleging that
several Defendants violated Plaintiff’s Eighth Amendment rights by refusing to accommodate his
medical need for a lower bunk and violated his First Amendment rights by issuing a retaliatory
misconduct ticket. This Court dismissed Plaintiff’s complaint with respect to ten Defendants,
leaving Defendant Larry Henley as the sole Defendant. (ECF No. 7.) Defendant Henley now
moves for summary judgment on Plaintiff’s claims. (ECF No. 28.) Magistrate Judge Timothy
Greeley submitted a Report and Recommendation (R & R) recommending that the Court grant
Defendant Henley’s motion for summary judgment and dismiss the case in its entirety. (ECF No.
34.)
Plaintiff has filed objections to the R & R. (ECF No. 35.) Upon receiving objections to
the R & R, the district judge “shall make a de novo determination of those portions of the report
or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. §

636(b)(1). This Court may accept, reject, or 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).
After conducting a de novo review of the R & R, the objections, and the pertinent portions
of the record, the Court concludes that the R & R should be adopted.
I. Background
Plaintiff transferred to Alger Correctional Facility after hours on March 21, 2016. The late
transfer was processed through the Control Center rather than through the transfer hub because of
the timing of the transfer. Defendant Henley responded to a call from the Control Center informing
him that a new prisoner had arrived and that the prisoner was assigned to Maple Unit, cell 227,
upper bunk. When Defendant Henley told Plaintiff his cell assignment, Plaintiff protested,
explaining that he had a medical detail for a lower bunk.
According to Plaintiff, he tried to show Defendant Henley his special accommodation
order, but Defendant Henley refused to look at it. Plaintiff then showed Defendant Henley his leg
brace, but Defendant Henley became angry and cuffed Plaintiff’s hands behind his back.
According to Defendant Henley, Plaintiff never showed him a special accommodation
order. Defendant Henley telephoned the Control Center and spoke with Officer Giotto, who
checked the computer database but was unable to locate Plaintiff’s medical detail. Plaintiff told
Defendant Henley to send Plaintiff to segregation because he could not stay in an upper bunk.
Defendant Henley ordered Plaintiff to enter cell 227 for the time being while Defendant Henley
checked with Health Services to determine if Plaintiff had a medical need for a lower bunk.
Plaintiff argued and refused to enter the cell. Plaintiff disputes that Defendant Henley gave him a
direct order to enter the cell, and Plaintiff maintains that he did not tell Defendant Henley to send
Plaintiff to segregation.

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Defendant Henley issued Plaintiff a Class II misconduct ticket for disobeying a direct
order. The supervisor who reviewed the misconduct ticket elevated the offense to a Class I
infraction. At the misconduct hearing, the hearing officer determined that Plaintiff was given a
reasonable and valid order to enter cell 227 and that Plaintiff could have complied with the order
without risk to his physical safety because he could have waited in the cell without climbing to the
upper bunk.
II. Preclusive Effect of the Misconduct Hearing Officer’s Factual Findings
At first glance, Plaintiff’s notarized affidavit (ECF No. 31-5)—included in his response to
Defendant Henley’s motion for summary judgment and contesting key facts related to Plaintiff’s
claims—would make summary judgment inappropriate because genuine issues of material fact
still exist. Fed. R. Civ. P. 56(a) (“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.”); Muhammad v. Close, 379 F.3d 413, 416 (6th Cir. 2004) (stating that “any direct
evidence offered by the plaintiff in response to a summary judgment motion must be accepted as
true”). However, the findings of the misconduct hearing have preclusive effect in this litigation,
and those findings support Defendant Henley’s version of events.
To determine whether a hearing officer’s factual determinations at a misconduct hearing
have a preclusive effect in subsequent § 1983 litigation, this Court looks to the test set forth in
Peterson v. Johnson, 714 F.3d 905 (6th Cir. 2013). See Maben v. Thelen, 887 F.3d 252, 259 (6th
Cir. 2018), reh’g denied (Apr. 19, 2018) (applying the Peterson test in finding that a minor
misconduct hearing does not have preclusive effect on later § 1983 litigation, as distinguished from
a major misconduct hearing that can have preclusive effect). The Peterson test relies on four
criteria to determine preclusive effect: (1) that the agency acted in a judicial capacity; (2) that the

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hearing officer resolved a disputed issue of fact that was properly before the agency; (3) that
Plaintiff had an adequate opportunity to litigate the factual dispute; and (4) that, if the first three
criteria are satisfied, the Court will give the agency’s finding the same preclusive effect that it
would be given in state courts. Peterson, 714 F.3d at 912-13. The Sixth Circuit in Peterson
determined that a major misconduct hearing (i.e., a Class I Misconduct Hearing) satisfies the first
and last criteria as long as the other two criteria are satisfied. Id.
Applying the second criterion to the instant case, the hearing officer was tasked with
determining whether Plaintiff disobeyed a direct order. More specifically, the hearing officer had
to determine whether the order from Defendant Henley was reasonable and valid, whether Plaintiff
heard and understood the order, and whether Plaintiff was able to comply with the order without a
significant risk of serious harm to his physical well-being. (ECF No. 29-2 at PageID.210.) The
hearing officer concluded that Defendant Henley’s order was reasonable and valid, that Plaintiff
heard and understood the order, and that Plaintiff was able to comply with the order because he
could have entered the cell without climbing to the upper bunk while Defendant Henley verified
Plaintiff’s accommodation with Health Services. (Id. at PageID.211.) Therefore, the hearing
officer’s factual findings satisfy the second criterion.
Turning to the third criterion, Plaintiff had an adequate opportunity to litigate the factual
issue. Plaintiff testified at the hearing. Plaintiff had an incentive to contest the factual issue
because the finding resulted in a loss of privileges. (Id.) If Plaintiff disagreed with the results of
the hearing, he could have requested a rehearing. (Id. at PageID.207.) Based on the procedures
provided to all prisoners charged with a Class I misconduct, and the notes of the hearing officer,
the Court believes that Plaintiff had an adequate opportunity to litigate the factual issues, regardless
of whether Plaintiff chose to litigate vigorously. See Peterson, 714 F.3d at 913 (finding the third

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criterion satisfied because major misconduct hearings offer a “plethora of statutory protections”
and the opportunity to appeal within the department and to the state courts if necessary). The
hearing officer’s factual findings satisfy all of the Peterson criteria, and thus, are given preclusive
effect in this litigation.
III. Eighth Amendment Deliberate Indifference Claim
Plaintiff claims that Defendant Henley refused to acknowledge Plaintiff’s medical detail,
and that Defendant Henley’s action constituted deliberate indifference to Plaintiff’s serious
medical need. For Plaintiff to prevail on his Eighth Amendment claim, he must show that he faced
a sufficiently serious risk to his health or safety and that Defendant Henley acted with deliberate
indifference to Plaintiff’s health or safety. Mingus v. Butler, 591 F.3d 474, 479–80 (6th Cir. 2010).
However, the hearing officer specifically found that Plaintiff could have complied with Defendant
Henley’s order to enter the cell without a serious risk to Plaintiff’s physical well-being because
Plaintiff could have simply waited in the cell while Defendant Henley verified Plaintiff’s
accommodation with Health Services. Consequently, Defendant Henley is entitled to summary
judgment on Plaintiff’s Eighth Amendment claim.
IV. First Amendment Retaliation Claim
Plaintiff also claims that Defendant Henley wrote a false misconduct ticket on Plaintiff in
retaliation for Plaintiff asserting his right to a medical accommodation. To prevail on this claim,
Plaintiff must establish that (1) he was engaged in protected conduct; (2) an adverse action was
taken against him that would deter a person of ordinary firmness from engaging in that conduct;
and (3) the adverse action was motivated, at least in part, by the protected conduct. Thaddeus-X
v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999). But “[i]f the defendant can show that he would have
taken the same action in the absence of the protected activity, he is entitled to prevail on summary

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judgment.” Id. at 399. Here, the hearing officer found that Defendant Henley issued a direct order
that was reasonable and valid, and that Plaintiff disobeyed that order. Thus, Plaintiff has failed to
show that Defendant Henley had a retaliatory motive for issuing the misconduct ticket, and
Defendant Henley is entitled to summary judgment on Plaintiff’s retaliation claim.
V. Conclusion
For the reasons stated above,
IT IS HEREBY ORDERED that the January 17, 2019, Report and Recommendation
(ECF No. 34) is approved and adopted as the Opinion of the Court.
IT IS FURTHER ORDERED that Defendant Henley’s motion for summary judgment
(ECF No. 28) is granted, and Plaintiff’s claims against Defendant Henley are dismissed with
prejudice.
This case is concluded.
A separate judgment will enter.

Dated: February 28, 2019

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

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