1:07-cv-00277 | W.D. Mich. | Sep 30, 2008
Case 1:07-cv-00277-PLM-ESC ECF No. 123 filed 09/30/08 PageID.1074 Page 1 of 18
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT LEE BOLES, JR.,
Plaintiff, Case No. 1:07-CV-277
v. Hon. Richard Alan Enslen
GARY LEWIS, et al.,
Defendants.
____________________________________/
OPINION
This is a civil rights action filed by a state prisoner pursuant to 42 U.S.C. § 1983. Plaintiff
Robert Lee Boles, Jr. is in the custody of the Michigan Department of Corrections (“MDOC”) and,
at the time relevant to his Complaint, was housed at the Ionia Maximum Correctional Facility
(“ICF”). Plaintiff sues the following ICF employees: Food Service Director Gary Lewis; Food
Service Supervisor Daniel Case; Corrections Officers J. Christiansen, M. Richardson, and
(unknown) Tefft1; Resident Unit Manager B. Haynie; Hearing Officers Lorenzo Lowery, and
(unknown) Jackson; and Dr. Robert Migliorino. The matter presently is before the Court on various
objections filed by all parties to two Reports and Recommendations (“Reports”) issued by United
States Magistrate Judge Ellen S. Carmody on three pending motions: (1) Defendant Migliorino’s
Motion to Dismiss; and (2) Defendants Lewis, Case, Christiansen, Tefft, Richardson, Haynie,
1
In his Complaint, Plaintiff spelled Defendant Tefft’s name “Teft.” Since that time, both
Defendants and Plaintiff have used the spelling “Tefft.” The Court has used “Tefft” throughout the
Opinion.
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Lowery and Jackson’s (collectively, “MDOC Defendants”) Motion for Summary Judgment; and (3)
Plaintiff’s Motion for Partial Summary Judgment.
I.
The Court will not reiterate the background facts set forth in the Report. In broad terms,
Plaintiff’s Complaint alleges that Defendants violated the Eighth, First and Fourteenth Amendments
by failing to honor his low-sodium diet detail, refusing to allow him to use the bathroom as
frequently as necessary or to provide a plastic urinal, and retaliating against him when he filed
grievances about their treatment.
The Magistrate Judge recommended that Defendant Migliorino’s Motion to Dismiss be
denied, the MDOC Defendants’ Motion for Summary Judgment be granted in part and denied in
part, and Plaintiff’s Motion for Summary Judgment be denied. Objections have been filed by
Plaintiff, Defendant Migliorino, and the MDOC Defendants.
This Court reviews de novo those portions of a Report to which objections are made. 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The Court may accept, reject or modify any or all of the
Magistrate Judge’s findings or recommendations. Id.
II.
A. Report and Recommendation on Motions for Summary Judgment
The MDOC Defendants filed a Motion for Summary Judgment. On a motion for summary
judgment filed by a party without the burden of proof, a court must consider all pleadings,
depositions, affidavits and admissions and draw all justifiable inferences in favor of the party
opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574" date_filed="1986-03-26" court="SCOTUS" case_name="Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation">475 U.S. 574, 587
(1986). The Court, however, “‘need not accept as true legal conclusions or unwarranted factual
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inferences.’” Michigan Paytel Joint Venture v. City of Detroit, 287 F.3d 527" date_filed="2002-04-23" court="6th Cir." case_name="None">287 F.3d 527, 533 (6th Cir. 2002)
(quoting Morgan v. Church’s Fried Chicken, 829 F.2d 10" date_filed="1987-09-22" court="6th Cir." case_name="Carolyn Morgan v. Church's Fried Chicken">829 F.2d 10, 12 (6th Cir. 1987)). The party moving
for summary judgment has the burden of pointing the court to the absence of evidence in support of
some essential element of the opponent’s case. Celotex Corp. v. Catrett, 477 U.S. 317" date_filed="1986-06-25" court="SCOTUS" case_name="Celotex Corp. v. Catrett, Administratrix of the Estate of Catrett">477 U.S. 317, 323 (1986);
Street v. J.C. Bradford & Co., 886 F.2d 1472" date_filed="1990-05-25" court="6th Cir." case_name="Fed. Sec. L. Rep. P 94,768 Phil A. Street and Clyde H. Street v. J.C. Bradford & Company">886 F.2d 1472, 1479 (6th Cir. 1989). Once the moving party has
made such a showing, the burden is on the non-moving party to demonstrate the existence of a
genuine issue for trial. Id. Summary judgment is appropriate when the record reveals that there are
no genuine issues as to any material fact in dispute and the moving party is entitled to judgment as
a matter of law. FED . R. CIV . P. 56(c); Kocak v. Community Health Partners of Ohio, Inc., 400
F.3d 466, 468 (6th Cir. 2005).
While a moving party without the burden of proof need only show that the opponent cannot
sustain his burden at trial, see Morris v. Oldham County Fiscal Court, 201 F.3d 784" date_filed="2000-03-03" court="6th Cir." case_name="Judy G. Morris v. Oldham County Fiscal Court John W. Black, County Judge/executive Brent Likins">201 F.3d 784, 787 (6th Cir.
2000); Minadeo v. ICI Paints, 398 F.3d 751" date_filed="2005-02-18" court="6th Cir." case_name="Christina Murphy Minadeo v. Ici Paints D/B/A the Glidden Company">398 F.3d 751, 761 (6th Cir. 2005), a moving party with the burden
of proof faces a “substantially higher hurdle.” Arnett v. Myers, 281 F.3d 552" date_filed="2002-04-10" court="6th Cir." case_name="Gary Arnett v. Gary T. Myers, Executive Director of the Tennessee Wildlife Resources Agency">281 F.3d 552, 561 (6th Cir. 2002);
see also Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036" date_filed="2001-11-09" court="6th Cir." case_name="Donna Cockrel v. Shelby County School District">270 F.3d 1036, 1056 (6th Cir. 2001). “Where the
moving party has the burden – the plaintiff on a claim for relief or the defendant on an affirmative
defense – his showing must be sufficient for the court to hold that no reasonable trier of fact could
find other than for the moving party.” Calderone v. United States, 799 F.2d 254" date_filed="1986-09-02" court="6th Cir." case_name="Anthony A. Calderone, Clark Hornbaker, Plaintiffs-Counterclaim Defendants v. United States of America, Defendant-Counter-Claimant-Appellant">799 F.2d 254, 259 (6th Cir. 1986)
(quoting W. SCHWARZER, Summary Judgment Under the Federal Rules: Defining Genuine Issues
of Material Fact, 99 F.R.D. 465, 487-88 (1984)). The Sixth Circuit Court of Appeals repeatedly has
emphasized that the party with the burden of proof “must show the record contains evidence
satisfying the burden of persuasion and that the evidence is so powerful that no reasonable jury
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would be free to disbelieve it.” Arnett, 281 F.3d 552" date_filed="2002-04-10" court="6th Cir." case_name="Gary Arnett v. Gary T. Myers, Executive Director of the Tennessee Wildlife Resources Agency">281 F.3d at 561 (quoting 11 JAMES WILLIAM MOORE , ET AL.,
MOORE ’S FEDERAL PRACTICE § 56.13[1], at 56-138 (3d ed. 2000); Cockrel, 270 F.2d at 1056 (same).
Accordingly, summary judgment in favor of a plaintiff “is inappropriate when the evidence is
susceptible of different interpretations or inferences by the trier of fact.” Hunt v. Cromartie, 526
U.S. 541, 553 (1999).
1. Objections of MDOC Defendants
The MDOC Defendants raise three objections to the Report, which the Court will discuss in
turn.
(a) Objection #1
In their first objection, the MDOC Defendants argue the Magistrate Judge erred in concluding
that Defendant Lewis was not entitled to summary judgment on Plaintiff’s Eighth Amendment claim.
Plaintiff alleged that Defendant Lewis had violated the Eighth Amendment by refusing to honor
Plaintiff’s detail for low-sodium meals that had been issued by a facility other than ICF, despite the
fact that the detail was valid through July 20, 2004.
The MDOC Defendants contend that, because Defendant Lewis was a non-health-care
employee, he was not on notice of Plaintiff’s underlying health condition. They therefore argue
Defendant Lewis could not be charged with deliberate indifference to an excessive risk to Plaintiff’s
serious medical needs. Defendant Lewis’ argument is without merit.
The Magistrate Judge properly set forth the standard for an Eighth Amendment claim and
properly analyzed the issue. According to Plaintiff’s allegations, averments and exhibits, Defendant
Lewis was aware a medical determination had been made that Plaintiff’s health required a low-
sodium diet. Even if Defendant Lewis was unaware of the precise nature of Plaintiff’s medical
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condition, he was aware a doctor had found that Plaintiff’s condition required the ordered treatment,
and he could infer that a substantial risk of serious harm existed in terminating the treatment without
a doctor’s authorization. Farmer v. Brennan, 511 U.S. 825" date_filed="1994-06-06" court="SCOTUS" case_name="Farmer v. Brennan">511 U.S. 825, 843 (1994) (“The question under the
Eighth Amendment is whether prison officials, acting with deliberate indifference, exposed a
prisoner to a sufficiently substantial ‘risk of serious damage to his future health . . . .’”) (quoting
Helling v. McKinney, 509 U.S. 25" date_filed="1993-06-18" court="SCOTUS" case_name="Helling v. McKinney">509 U.S. 25, 35 (1993)). Defendant Lewis was not required to know with
certainty that Plaintiff would be harmed. A reasonable jury could find that, without any basis for
knowing the severity of the impact of his decision, Defendant Lewis acted with reckless disregard
of the consequences in terminating physician-ordered treatment. See Farmer, 511 U.S. 825" date_filed="1994-06-06" court="SCOTUS" case_name="Farmer v. Brennan">511 U.S. at 839-40
(adopting subjective recklessness as the test for deliberate indifference under the Eighth
Amendment).
(b) Objection #2
In their second objection, the MDOC Defendants argue Defendant Lewis was acting under
the impression that, to be valid, a diet detail had to be written by a health care provider at Plaintiff’s
current institution, ICF. Defendants contend when Defendant Lewis was informed that a non-ICF
diet detail was enforceable at ICF, Plaintiff’s diet was reinstated. Defendants argue Defendant
Lewis’ actions were solely to implement what he believed was institutional policy. They therefore
claim Defendant Lewis is entitled to summary judgment because he was not acting with the requisite
recklessness and was only acting in accordance with his understanding of policy.
Defendants asked the Court to make a factual finding about Defendant Lewis’ reason for
denying the diet detail. As the Magistrate Judge noted, however, Defendant Lewis provides no
authority for his position that he could choose not to honor a medical detail from another facility.
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Indeed, MDOC policy specifically states, “[a] current Medical Detail or Special Accommodation
Notice shall be valid at all facilities unless cancelled in accordance with Paragraphs K through N of
this policy.” MICH . DEP’T OF CORR., Policy Directive 04.06.160, ¶ O. In addition, MDOC policy
requires employees with concerns about the appropriateness of the policy to report the concern
through the chain of command; an employee is not permitted to unilaterally cancel a valid detail.
MICH . DEP’T OF CORR., Policy Directive 04.06.160, ¶¶ L, M. While a violation of state policy is not
actionable under § 1983, see Laney v. Farley, 501 F.3d 577" date_filed="2007-08-28" court="6th Cir." case_name="Laney v. Farley">501 F.3d 577, 581 n.2 (6th Cir. 2007); Smith v.
Freland, 954 F.2d 343" date_filed="1992-01-06" court="6th Cir." case_name="Patricia Smith, Individually and as Administratrix of the Estate of Brent Robin Smith v. James Freland Peter Schulcz and the City of Springdale, Ohio">954 F.2d 343, 347-48 (6th Cir. 1992), the existence of the contrary policy undermines the
credibility of Defendant Lewis’ explanation. As a result, a genuine issue of fact exists concerning
Plaintiff’s Eighth Amendment claim against Defendant Lewis.
(c) Objection #3
The MDOC Defendants next argue the Magistrate Judge erred in denying summary judgment
to Defendant Richardson on Plaintiff’s claim that Defendant Richardson retaliated against him by
filing misconduct charges against him on February 28, 2006 and March 1, 2006.2 Defendants argue
the affidavit of RUM Haynie explained that custody staff did not receive an official copy of the
Warden’s Forum Minutes, indicating that the rules regarding bathroom use during the prisoner count
period had been changed, until March 13, 2006, though the minutes were signed on February 13,
2006. (See Haynie Aff., Dkt. No. 61-5.) Defendants therefore argue Defendant Richardson has
shown that he was unaware of the rule change on the dates he wrote the misconducts.
Contrary to Defendants’ argument, Haynie’s affidavit, while relevant, does not conclusively
determine Defendant Richardson’s knowledge of the rule change prior to personally receiving the
2
Plaintiff was found not guilty of the misconducts.
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official minutes. Indeed, according to Haynie’s affidavit, at least the draft minutes were posted
before Defendant Richardson issued the misconducts in question. Plaintiff also avers that he saw
the official minutes posted in the quiet room on February 27, 2006, and he told Defendant
Richardson that “he hope[s] the bathroom usage issue is clear now.” (Pl. Aff. ¶ 44, Dkt. No. 83 at
21.) Defendant Richardson told Plaintiff that he was not going to honor the rule. (Pl. Aff. ¶ 47, Dkt.
No. 83 at 22.) Plaintiff also introduced the affidavit of Prisoner Calvin Evans, Plaintiff’s Warden’s
Forum representative, who averred he received the official minutes on February 27, 2006 and that
he and Assistant Resident Unit Supervisor Kelly placed them into the locked window for prisoner
and staff review on that date. (Evans Aff., ¶ 12, Dkt. No. 83-3.) Finally, Plaintiff avers Defendant
Richardson ignored his attempts to use the bathroom, laughed at Plaintiff’s being forced to urinate
on himself and ordered Plaintiff back to his cell, suggesting that Defendant Richardson’s real
motivation was malicious. Plaintiff has provided sufficient evidence to create a genuine issue of
material fact on the question of whether Defendant Richardson was aware of the policy change and
whether he had retaliatory motive for writing the misconducts.
2. Plaintiff’s Objections
Plaintiff raises eight objections to the Report. The Court will address each objection in turn:
(a) Objection #1
Plaintiff argues the existence of the MDOC policy concerning medical details, together with
the undisputed fact that Defendant Lewis denied him his low-sodium diet for ten days, entitles him
to summary judgment on his Eighth Amendment claim against Defendant Lewis. The Court finds
no error in the Magistrate Judge’s conclusion that the MDOC Defendants submitted evidence that
Plaintiff had violated his diet on at least one occasion, creating a genuine issue of material fact as
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to whether Plaintiff’s request for a low-sodium diet was the product of a serious medical need or
merely personal preference.
(b) Objection #2
Plaintiff next objects that the Magistrate Judge failed to consider his Eighth Amendment
claim against Defendants Christiansen and Case for writing a false memorandum to Health Services
stating Plaintiff had traded his low-sodium chicken for apple cobbler from the regular menu. The
memorandum resulted in Plaintiff’s diet being cancelled from February 23, 2005 until March 15,
2005, after which it was reinstated due to Plaintiff’s serious symptoms of high blood pressure.
Plaintiff is correct that the Magistrate Judge’s Report does not address Plaintiff’s Eighth
Amendment claims against Defendants Christiansen and Case for writing a false memorandum. The
failure to address the claim, however, is entirely understandable, as the MDOC Defendants failed
to move for summary judgment on that claim. As previously discussed, Defendants had the burden
to point the Court to the absence of evidence on any element of a claim for which they sought
summary judgment. Celotex, 477 U.S. 317" date_filed="1986-06-25" court="SCOTUS" case_name="Celotex Corp. v. Catrett, Administratrix of the Estate of Catrett">477 U.S. at 323. Because they failed to meet their initial burden,
Defendants Christiansen and Case are not entitled to summary judgment on Plaintiff’s Eighth
Amendment claims against them.
(c) Objection #3
Plaintiff asserts the Magistrate Judge erred in recommending that the Court grant summary
judgment to Defendants Richardson and Tefft on Plaintiff’s Eighth Amendment claims against them.
The Court agrees with Plaintiff with respect to Defendant Richardson.
An Eighth Amendment claim has both an objective and subjective component. Farmer, 511
U.S. at 834. Under the objective prong of Eighth Amendment analysis, contemporary standards of
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decency determine whether conditions of confinement are cruel and unusual. See Hadix v. Johnson,
367 F.3d 513" date_filed="2004-05-06" court="6th Cir." case_name="Everett Hadix v. Perry M. Johnson">367 F.3d 513, 525 (6th Cir. 2004) (citing Rhodes, 452 U.S. at 346). It unquestionably is true that
the Eighth Amendment does not protect against “mere discomfort or inconvenience,” Talal v. White,
403 F.3d 423" date_filed="2005-03-31" court="6th Cir." case_name="Lutfi Shaqf Talal v. Quenton White">403 F.3d 423, 426 (6th cir. 2005), but contemporary standards of decency are violated by “extreme
deprivations” of the “minimal civilized measure of life’s necessities.” Hadix, 367 F.3d 513" date_filed="2004-05-06" court="6th Cir." case_name="Everett Hadix v. Perry M. Johnson">367 F.3d at 525
(quoting Hudson v. McMillan, 503 U.S. 1" date_filed="1992-02-25" court="SCOTUS" case_name="Hudson v. McMillian">503 U.S. 1, 9 (1992)). The subjective component requires an inmate
to show that prison officials have “a sufficiently culpable state of mind.” Farmer, 511 U.S. 825" date_filed="1994-06-06" court="SCOTUS" case_name="Farmer v. Brennan">511 U.S. at 834.
In sum, a prisoner must present evidence from which a reasonable tier of fact could conclude that
the official acted with “deliberate indifference” by being subjectively aware of the risk to the
prisoner’s health or safety and disregarding that risk. Id. at 847.
The Magistrate Judge concluded she would “not second guess the judgment of prison
officials who determined that legitimate security needs necessitated that prisoners remain in their cell
for the brief time that it takes to complete a prisoner head count.” (8/28/2008 Report at 13, Dkt. No.
113.) Further, relying on Hartsfield v. Vidor, 199 F.3d 305" date_filed="1999-12-03" court="6th Cir." case_name="Napoleon Hartsfield v. Pete Vidor, Deputy, Sued in His Individual and Official Capacity">199 F.3d 305, 310 (6th Cir. 1999), and Dellis v.
Corrections Corp. of Am., 257 F.3d 508" date_filed="2001-07-18" court="6th Cir." case_name="David Dellis v. Corrections Corporation of America State of Wisconsin Allen Bargery Patrick Whalen">257 F.3d 508, 511 (6th Cir. 2001), the Magistrate Judge concluded that
relatively short delays in permitting prisoners to use the bathroom were the sort of temporary
deprivations that do not implicate the Eighth Amendment.
The Supreme Court has recognized that the “deprivation of bathroom breaks that created a
risk of particular discomfort and humiliation,” could, under some circumstances, implicate the
Eighth Amendment. Hope v. Pelzer, 536 U.S. 730" date_filed="2002-06-27" court="SCOTUS" case_name="Hope v. Pelzer">536 U.S. 730, 738 (2002). Both Hartsford and Dellis were
decided before the Supreme Court’s decision in Hope. In Hartsford, 199 F.3d 305" date_filed="1999-12-03" court="6th Cir." case_name="Napoleon Hartsfield v. Pete Vidor, Deputy, Sued in His Individual and Official Capacity">199 F.3d at 310, the Sixth
Circuit held that temporary denials of the opportunity to use a toilet are not cruel or unusual. The
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plaintiff in Hartsford was held in top-of-bed restraints for 18 hours after he damaged his cell. The
court concluded that the denial of access to a toilet for 18 hours would not rise to the level of an
Eighth Amendment violation. Id. The Hartsfield conclusion is itself dicta, as the court expressly
found that the defendants had presented unrefuted sworn testimony and records showing that
plaintiff had been offered toilet breaks and that he took advantage of them at least once. Moreover,
in reaching the decision, the court relied upon an unpublished order in which plaintiff did not
complain about a denial of access to a toilet and in which the court expressly noted that plaintiff had
had the opportunity to use the restroom during the time of confinement. See Stephens v. Carter Cty.
Jail, No. 86-5565, 1987 WL 36997, at *1 (6th Cir. Apr. 10, 1987).
In Dellis, 257 F.3d 508" date_filed="2001-07-18" court="6th Cir." case_name="David Dellis v. Corrections Corporation of America State of Wisconsin Allen Bargery Patrick Whalen">257 F.3d at 511, the Sixth Circuit rejected a prisoner’s Eighth Amendment claim
based on allegations that he was “deprived of a lower bunk, was subjected to a flooded cell, and was
deprived of a working toilet . . . .” Id. The Dellis court addressed a single instance of deprivation.
Moreover, the plaintiff’s allegations were that his toilet was not working, not that he could not use
the toilet and was forced to soil himself.
Both Dellis and Hartsford describe single instances involving a temporary denial of access
to a toilet. Here, Plaintiff’s averments, if believed, show that Defendant Richardson repeatedly and
maliciously denied Plaintiff access to a toilet during the count period, applying an interpretation of
policy that other officers did not use, and that Defendant Richardson laughed at Plaintiff for urinating
on himself in public. Plaintiff alleges Defendant Richardson’s treatment resulted in Plaintiff
experiencing substantial pain on numerous dates and urinating on himself on 11 occasions between
January 18, 2006 and March 1, 2006. (Pl. Aff. ¶¶ 30, 31, 32, 37, 45, Dkt. No. 83.) Allegations of
ongoing and repeated deprivations of basic human needs cannot be deemed, as a matter of law, to
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be merely temporary inconveniences. If Plaintiff’s proofs are to be believed, this sort of “punitive
treatment amounts to gratuitous infliction of ‘wanton and unnecessary’ pain that our precedent
clearly prohibits.” Hope, 536 U.S. 730" date_filed="2002-06-27" court="SCOTUS" case_name="Hope v. Pelzer">536 U.S. at 738 (quoting Rhodes, 452 U.S. at 346); see also Tate v.
Campbell, 85 Fed. App. 413, 417 (6th Cir. 2003) (noting in dicta that “forcing a person in the
custody or under the control of state authority to publicly soil themselves may create a constitutional
violation”) (citing Glaspy v. Malicoat, 134 F. Supp. 2d 890" date_filed="2001-02-12" court="W.D. Mich." case_name="Glaspy v. Malicoat">134 F. Supp. 2d 890 (W.D. Mich. 2001)).
This Court also disagrees with the Magistrate Judge’s conclusion that Plaintiff failed to
present evidence that he suffered from a medical condition that necessitated he use the bathroom
during the count. Plaintiff averred that he consulted with an infectious disease specialist,
Dr. Hutchinson, on April 19, 2005, and Dr. Hutchinson determined Plaintiff to be qualified for anti-
viral treatment of his Hepatitis C. Plaintiff avers that Dr. Hutchinson expressly instructed him to
drink more than the normal amount of water in order to ease the side effects. Plaintiff also averred
that, as the result of drinking such quantities of water, he needed to urinate frequently. (Pl. Aff., ¶¶
22-23, Dkt. No. 83.) Plaintiff’s affidavit is sufficient evidence of his medical need to withstand
summary judgment.
For all these reasons, this Court concludes that, with respect to Plaintiff’s allegations against
Defendant Richardson, Plaintiff has presented sufficient evidence to withstand summary judgment
on his Eighth Amendment claim.
Plaintiff’s allegations and averments against Defendant Tefft, in contrast, are limited to a
single occasion on which Defendant Tefft denied Plaintiff permission to use the bathroom. (Pl. Aff.,
¶ 48. Dkt. No. 83.) This Court agrees with the Magistrate Judge that Plaintiff’s allegations against
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Defendant Tefft amount to a claim of temporary inconvenience that does not implicate the Eighth
Amendment.
(d) Objection #4
Plaintiff next objects to that portion of the Report in which the Magistrate Judge concluded
Defendants Case and Richardson were entitled to summary judgment on Plaintiff’s claims that the
January 11, 2005 and January 20, 2006 misconduct tickets were retaliatory. Plaintiff was convicted
of both misconducts. Upon review, this Court concludes that the Magistrate Judge correctly granted
summary judgment to Defendants on both claims, although for different reasons.
The Supreme Court has held that a claim for declaratory relief and monetary damages, based
upon allegations of deceit and bias on the part of the decision maker that necessarily implies the
invalidity of the punishment imposed, is not cognizable under § 1983 until the conviction has been
overturned. Edwards v. Balisok, 520 U.S. 641" date_filed="1997-05-19" court="SCOTUS" case_name="Edwards v. Balisok">520 U.S. 641, 648 (1997). The Court relied upon Heck, 512 U.S.
at 486-87, which held that “in order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction
or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been
[overturned].” Edwards, 520 U.S. 641" date_filed="1997-05-19" court="SCOTUS" case_name="Edwards v. Balisok">520 U.S. at 646 (emphasis in original). Thus, where a prisoner’s claim of
unfair procedures in a disciplinary hearing necessarily implies the invalidity of the deprivation of
good-time credits, his claim is not cognizable under § 1983. Id.; see also Bailey v. McCoy, No.
98-1746, 1999 WL 777351, at *2 (6th Cir. Sept. 21, 1999) (collecting Sixth Circuit decisions
applying Edwards to procedural due process challenges).
Plaintiff’s claims that he was falsely charged and convicted of major misconducts written by
Defendants Case and Richardson necessarily imply the invalidity of his misconduct convictions. See
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Ruiz v. Bouchard, 60 Fed. App. 572, 573 (6th Cir. 2003) (First Amendment retaliation claim barred
by Heck and Edwards); Clemons v. Cook, 52 Fed. App. 762, 763 (6th Cir. 2002) (claim that guard
retaliated for the exercise of First Amendment rights was Heck-barred); Burton v. Rowley, No. 00-
1144, 2000 WL 1679463, at *2 (6th Cir. Nov. 1, 2000) (prisoner’s claim that his due process and
Eighth Amendment rights were violated by false, retaliatory misconduct charges necessarily implies
the invalidity of the guilty findings on the misconduct tickets). Plaintiff therefore must first show
that his misconduct convictions have been invalidated before his § 1983 action will be cognizable.
Edwards, 520 U.S. 641" date_filed="1997-05-19" court="SCOTUS" case_name="Edwards v. Balisok">520 U.S. at 646.
Under Michigan law, a prisoner may seek a rehearing of a decision made by the Hearings
Division within 30 calendar days after a copy of the Major Misconduct Hearing Report is received.
MICH . COMP. LAWS § 791.254; MICH. DEP’T OF CORR. Policy Directive 03.03.105, ¶ DDD (effective
Jan. 1, 2007). Upon denial of his motion for rehearing, a prisoner may file an application for leave
to appeal in the state circuit court. See MICH . COMP. LAWS § 791.255(2); Policy Directive
03.03.105, ¶ GGG (concerning appeal). If he is not successful, he may then seek to overturn the
convictions by bringing a federal habeas corpus action.3
Plaintiff does not argue or show that his misconduct convictions have been invalidated.
Accordingly, Plaintiff’s retaliation claims against Defendants Case and Richardson for the
misconduct tickets issued January 11, 2005 and January 20, 2006 are not presently cognizable.
3
A misconduct conviction results in the loss of good-time credits, which is equivalent to a
loss of a “shortened prison sentence.” Wolff v. McDonnell, 418 U.S. 539" date_filed="1974-06-26" court="SCOTUS" case_name="Wolff v. McDonnell">418 U.S. 539, 556-57 (1974). A
challenge to a “shortened” prison sentence is a challenge to the fact or duration of confinement that
is properly brought as an action for habeas corpus relief. Preiser v. Rodriguez, 411 U.S. 475" date_filed="1973-05-07" court="SCOTUS" case_name="Preiser v. Rodriguez">411 U.S. 475, 487-88
(1973). However, a prisoner must exhaust available state remedies before bringing a habeas corpus
action, which would include appealing the conviction through the state courts. See 28 U.S.C.
§ 2254(b)(1).
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Defendants Case and Richardson therefore are entitled to dismissal of these two retaliation claims.
See Morris v. Cason, 102 Fed. App. 902, 903 (6th Cir. 2004) (a claim barred by Heck is properly
dismissed for failure to state a claim); Murray v. Evert, 84 Fed. App. 553, 555(6th Cir. 2003) (same);
Harris v. Truesdell, 79 Fed. App. 756, 758-59 (6th Cir. 2003) (same).
(e) Objection #5
In his fifth objection, Plaintiff argues that the Magistrate Judge failed to address his claim
that Defendant Richardson retaliated against him for filing the January 22, 2006 grievance by
denying him permission to use the toilet on February 6, 14, 15, 22, and 24, 2006, and March 1, 2006.
This Court agrees.
In order to prove a First Amendment claim of retaliation, a Plaintiff must show three
elements: (1) plaintiff engaged in protected conduct; (2) and adverse action occurred that would deter
a person of ordinary firmness from continuing to engage in that conduct; and (3) there is a causal
connection between elements one and two. See Thaddeus-X v. Blatter, 175 F.3d 378" date_filed="1999-03-08" court="6th Cir." case_name="Thaddeus-X and Earnest Bell, Jr. v. Blatter">175 F.3d 378, 394 (6th Cir.
1999). In their motion, the MDOC Defendants make a two-sentence argument to the effect that
neither making a prisoner wait until after prisoner count to use the bathroom nor issuing misconducts
for violating prison rules about bathroom use or therapeutic diet constitute the sort of adverse action
necessary to prove a retaliation claim.
Plaintiff, however, did not simply aver that he was being made to wait to use the bathroom
until after count. Instead, he stated that Defendant Richardson intentionally made him wait under
circumstances that caused him to experience significant pain and to urinate on himself repeatedly.
The Court concludes that a reasonable finder of fact could conclude that a person of ordinary
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firmness would be deterred from filing grievances by being forced to publicly urinate on himself.
As a result, Defendant Richardson is not entitled to summary judgment on the claim.
(f) Objection #6
Plaintiff asserts the Magistrate Judge failed to rule on his claim that, on February 10, 2005,
Defendant Case retaliated against Plaintiff for filing a grievance against Case by inducing Defendant
Christiansen to prepare a false memorandum about Plaintiff exchanging low-sodium food for regular
menu food. The memorandum resulted in Plaintiff being removed from his special diet by Dr.
Migliorino.
With respect to Defendant Christiansen, the Magistrate Judge found that Plaintiff had put
forward sufficient facts to meet the first two elements of a retaliation claim: he was engaged in
protected conduct and an adverse action had been taken against him. The Magistrate Judge
determined, however, that Plaintiff had failed to demonstrate a genuine issue of fact on the existence
of a causal connection between Plaintiff’s grievance against Defendant Case and Defendant
Christiansen’s writing of the memorandum to Health Services. Plaintiff does not dispute the
Magistrate Judge’s conclusion with respect to Defendant Christiansen.
Plaintiff suggests, however, that the causal connection between Plaintiff’s grievance against
Defendant Case and Case’s own participation in the false memorandum is significantly stronger.
This Courts agrees. First, unlike with Defendant Christiansen, Plaintiff filed the grievance against
Defendant Case personally. Second, Plaintiff and his witnesses provided affidavits stating that
Plaintiff did not exchange low-sodium food for regular-diet food and that Defendant Case fabricated
the claim. Third, Defendant Case took Plaintiff’s name and ID and conveyed the alleged violation
to Defendant Christiansen. Fourth, another prisoner, Dwight Brown, averred that Defendant Case
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previously had threatened to retaliate against Plaintiff for his efforts to enforce his diet. (See Brown
Aff., Dkt. No. 81-3.) Taken together, a reasonable finder of fact could conclude that Defendant
Case’s conduct was causally connected to Plaintiff’s filing of a grievance.
(g) Objections ##7, 8
In his seventh objection, Plaintiff argues that the Magistrate Judge erred in concluding that
Defendant Lowery was entitled to summary judgment on Plaintiff’s due process claim.4 In his eighth
objection, Plaintiff contends that the Magistrate Judge erred in concluding that Defendant Haynie
was entitled to summary judgment on all claims. This Court has reviewed the analysis of the
Magistrate Judge on both issues and finds no error. Plaintiff’s seventh and eighth objections
therefore are denied.
B. Defendant Migliorino’s Motion to Dismiss
Defendant Migliorino filed a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6). Under Rule 12(b)(6), a complaint may be dismissed if “it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitled him to relief.” Conley
v. Gibson, 355 U.S. 41" date_filed="1957-11-18" court="SCOTUS" case_name="Conley v. Gibson">355 U.S. 41, 45-46 (1957); see also Hishon v. King & Spalding, 467 U.S. 69" date_filed="1984-05-22" court="SCOTUS" case_name="Hishon v. King & Spalding">467 U.S. 69, 73 (1984).
The standard requires that a “complaint must contain either direct or inferential allegations
respecting all the material elements to sustain a recovery under some viable legal theory.” Glassner
v. R.J. Reynolds Tobacco Co., 223 F.3d 343" date_filed="2000-08-31" court="6th Cir." case_name="John J. Glassner, for the Estate of Ella J. Glassner, Deceased v. R. J. Reynolds Tobacco Company Philip Morris, Inc.">223 F.3d 343, 346 (6th Cir. 2001). The complaint must be construed
in the light most favorable to the plaintiff, and its well-pleaded facts must be accepted as true.
Morgan v. Church’s Fried Chicken, 829 F.2d 10" date_filed="1987-09-22" court="6th Cir." case_name="Carolyn Morgan v. Church's Fried Chicken">829 F.2d 10, 12 (6th Cir. 1987). However, the court need not
4
Plaintiff does not object to the Report’s recommendation regarding the claim against
Defendant Jackson. Accordingly, the Magistrate Judge’s recommended grant of summary judgment
to Defendant Jackson is adopted.
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accept as true legal conclusions or unwarranted factual inferences. Lewis v. ACB Business Serv.,
Inc., 135 F.3d 389" date_filed="1998-01-30" court="6th Cir." case_name="William C. Lewis v. Acb Business Services, Inc., (96-3093/3498), American Express Travel Related Services Company, Inc. James P. Connors, (96-3498)">135 F.3d 389, 405 (6th Cir. 1998). A complaint fails to state a claim upon which relief can be
granted when it is clear that no relief could be granted under any set of facts that could be proved
consistent with the allegations of the complaint. Jones v. City of Carlisle, 3 F.3d 945" date_filed="1993-10-13" court="6th Cir." case_name="James Ricky Jones Vera Jones v. City of Carlisle">3 F.3d 945, 947 (6th Cir.
1993).
Defendant Migliorino objects to the Magistrate Judge’s determination that Plaintiff properly
stated an Eighth Amendment claim against Defendant Migliorino. In substantial measure, Defendant
Migliorino argues the Magistrate Judge erred on the basis of her purportedly contrary determination
in the Report and Recommendation to grant the MDOC Defendants’ Motion for Summary Judgment
on the Eighth Amendment claims against Defendants Richardson and Tefft.
Defendant Migliorino’s argument fails. Defendant Migliorino moved to dismiss the claim
against him. Unlike the MDOC Defendants, he did not seek summary judgment. As a result, the
Magistrate Judge was required to determine the issues solely on the basis of the pleadings, taking
Plaintiff’s allegations as true. In contrast, when considering the MDOC Defendants’ Motion for
Summary Judgment, the Magistrate Judge was required to look at the sufficiency of the evidence
presented to the Court. Defendant Migliorino apparently does not understand the distinction between
the standards, as reflected in his recitation of the summary judgment standard of review and his
reliance upon summary judgment case law. (Def. Migliorino’s Objs. at 11, Dkt. No. 114.)
Moreover, the Court has rejected the Magistrate Judge’s conclusion that a prisoner being
forced to endure urinary pain and to urinate on himself repeatedly cannot rise to the level of objective
seriousness to implicate the Eighth Amendment. Further, contrary to Defendant Migliorino’s
suggestion in his objections, Plaintiff’s allegations against Dr. Migliorino are that he was aware of
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Plaintiff’s medical need and ignored it, not that he treated Plaintiff, who simply disagreed with the
treatment.
The Court has carefully considered Defendant Migliorino’s objections and finds no error in
the Report issued by the Magistrate Judge. His objections therefore will be denied.
III. CONCLUSION
For all the foregoing reasons, Plaintiff’s Objections (Dkt. No. 121) are GRANTED IN
PART AND DENIED IN PART, the MDOC Defendants’ Objections (Dkt. No. 119) are
GRANTED IN PART AND DENIED IN PART, and Defendant Migliorino’s Objections (Dkt. No.
114) are DENIED. The Report of the Magistrate Judge issued August 22, 2008 (Dkt. No. 112) is
ADOPTED. The Report of the Magistrate Judge issued August 28, 2008 (Dkt. No. 113) is
ADOPTED IN PART AND REJECTED IN PART as set forth in this Opinion. Defendant
Migliorino’s Motion to Dismiss (Dkt. No. 93) is DENIED. The MDOC Defendants’ Motion for
Summary Judgment (Dkt. No. 58) is GRANTED IN PART AND DENIED IN PART. Plaintiff’s
Motion for Partial Summary Judgment (Dkt. No. 55) is DENIED. An Order and Partial Judgment
consistent with this Opinion shall issue.
/s/ Richard Alan Enslen
DATED in Kalamazoo, MI: RICHARD ALAN ENSLEN
September 30, 2008 SENIOR UNITED STATES DISTRICT JUDGE
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