Walton 173849 v. Bouchard, 2:02-cv-00117

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2:02-cv-00117 | W.D. Mich. | Aug 16, 2010

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION JOHN H. WALTON, Plaintiff, v. Case No. 2:02-cv-117 HON. GORDON J. QUIST BARBARA BOUCHARD, et al., Defendants. __________________________________/ REPORT AND RECOMMENDATION Plaintiff John H. Walton filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against several employees of the Michigan Department of Corrections (MDOC). Specifically, defendants include Warden Barbara Bouchard, ADW David Bergh, Case Manager Denise Gerth, ROM Catherine Bauman and Deputy Warden Kenneth Gearin, all of whom are employed at Alger Maximum Correctional Facility (LMF).

Plaintiff’s complaint alleges that he was discriminated against based upon his race when he was given an indefinite upper slot restriction after assaulting an officer. Plaintiff, who is African American, asserts that white prisoners who have assaulted officers received an upper slot restriction for only a limited time period. In support of this assertion, Plaintiff names two white prisoners who assaulted officers and were given upper slot restrictions that have now been lifted.

Plaintiff claims that defendants’ actions violated his rights under the Fourteenth Amendment to the United States Constitution. Plaintiff is seeking compensatory and punitive damages.

Presently before the Court is Defendants’ Motion for Summary Judgment, pursuant to Fed. R. Civ. P. 56. Plaintiff has filed a response and the matter is ready for decision. Summary judgment is appropriate only if the moving party establishes that there is no genuine issue of material fact for trial and that he is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); 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, 322-323 (1986). If the movant carries the burden of showing there is an absence of evidence to support a claim or defense, then the party opposing the motion must demonstrate by affidavits, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue of material fact for trial. Id. at 324-25. The nonmoving party cannot rest on its pleadings but must present “specific facts showing that there is a genuine issue for trial.” Id. at 324 (quoting Fed. R. Civ. P. 56(e)). The evidence must be viewed in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242" date_filed="1986-06-25" court="SCOTUS" case_name="Anderson v. Liberty Lobby, Inc.">477 U.S. 242, 251-52 (1986). Thus, any direct evidence offered by the plaintiff in response to a summary judgment motion must be accepted as true. Muhammad v. Close , 379 F.3d 413" date_filed="2004-08-11" court="6th Cir." case_name="Shakur Muhammad, A/K/A John E. Mease v. Mark Close">379 F.3d 413, 416 (6th Cir. 2004) ( citing Adams v. Metiva , 31 F.3d 375" date_filed="1994-08-01" court="6th Cir." case_name="Gene Autrey Adams v. Paul Metiva">31 F.3d 375, 382 (6th Cir. 1994)). However, a mere scintilla of evidence in support of the nonmovant’s position will be insufficient. Anderson , 477 U.S. at 251-52. Ultimately, the court must determine whether there is sufficient “evidence on which the jury could reasonably find for the plaintiff.” Id. at 252. See also Leahy v. Trans Jones, Inc. , 996 F.2d 136" date_filed="1993-06-18" court="6th Cir." case_name="16 Employee Benefits Cas. 2511 v. Trans Jones">996 F.2d 136, 139 (6th Cir. 1993) (single affidavit, in presence of other evidence to the contrary, failed to present genuine issue of fact); cf. Moore, Owen, Thomas & Co. v. Coffey , 992 F.2d 1439" date_filed="1993-08-31" court="6th Cir." case_name="Moore, Owen, Thomas & Company v. L. Coleman Coffey and Robert Bruce Coffey, and L. Coleman Coffey and Robert Bruce Coffey v. Thomas O. Moore">992 F.2d 1439, 1448 (6th Cir. 1993) (single affidavit concerning state of mind created factual issue).

Defendants contend that they are entitled to summary judgment because Plaintiff fails to allege facts demonstrating their personal involvement in the activity forming the basis for his claim. Liability under Section 1983 must be based on more than merely the right to control employees. Polk Co. v. Dodson , 454 U.S. 312" date_filed="1981-12-14" court="SCOTUS" case_name="Polk County v. Dodson">454 U.S. 312, 325-26 (1981); Monell v. New York City Department of Social Services , 436 U.S. 658" date_filed="1978-06-06" court="SCOTUS" case_name="Monell v. New York City Dept. of Social Servs.">436 U.S. 658 (1978). Thus, Section 1983 liability cannot be premised upon mere allegations of respondeat superior . Monell , 436 U.S. 658" date_filed="1978-06-06" court="SCOTUS" case_name="Monell v. New York City Dept. of Social Servs.">436 U.S. at 691; Polk , 454 U.S. 312" date_filed="1981-12-14" court="SCOTUS" case_name="Polk County v. Dodson">454 U.S. at 325. A party cannot be held liable under Section 1983 absent a showing that the party personally participated in, or otherwise authorized, approved or knowingly acquiesced in, the allegedly unconstitutional conduct. See e.g. Leach v. Shelby Co. Sheriff , 891 F.2d 1241" date_filed="1990-02-08" court="6th Cir." case_name="Larry M. Leach v. Shelby County Sheriff and Mayor of Shelby County, Tennessee">891 F.2d 1241, 1246 (6th Cir. 1989), cert. denied , 495 U.S. 932" date_filed="1990-05-14" court="SCOTUS" case_name="Hall ex rel. Hall v. CNA Insurance Cos.">495 U.S. 932 (1990); Hays v. Jefferson , 668 F.2d 869" date_filed="1982-01-04" court="6th Cir." case_name="Donald L. Hays, Jr., and Michael C. Potter, Cross-Appellants v. Jefferson County, Kentucky, Wilbur Bilyeu and Russell McDaniel Cross-Appellees">668 F.2d 869, 874 (6th Cir.), cert. denied , 459 U.S. 833" date_filed="1982-10-04" court="SCOTUS" case_name="Sutton v. Southern Natural Gas Co.">459 U.S. 833 (1982). See also Bellamy v. Bradley , 729 F.2d 416" date_filed="1984-03-09" court="6th Cir." case_name="Leroy Bellamy v. Harold Bradley Sgt. Loafman George Baxter Mathis Ms. Watkins Jim Rose James Vandever Richard Tedrow Capt. Earl Lowe Ralph Holloway Donald Adams & Alvin Carter In Their Official Capacities">729 F.2d 416, 421 (6th Cir.), cert. denied 469 U.S. 845" date_filed="1984-10-01" court="SCOTUS" case_name="Ogle v. Missouri">469 U.S. 845 (1984).

Supervisory officials can be held liable for the acts of their subordinates only if plaintiff establishes that the supervisor failed to appropriately discharge his supervisory duties, and that this failure resulted in a denial or deprivation of plaintiff’s federal rights. See e.g. Leach , 891 F.2d at 1246; Hayes v. Vessey , 777 F.2d 1149" date_filed="1985-11-29" court="6th Cir." case_name="Linda Hayes and John Hayes, Cross-Appellants v. Harry Vessey, Cross-Appellee">777 F.2d 1149, 1154 (6th Cir. 1985). However, the failure of a supervisor to supervise, control or train the offending employee is not actionable absent a showing that the official implicitly encouraged, authorized, approved or knowingly acquiesced in, or in some other way directly participated in, the offensive conduct. Leach , 891 F.2d 1241" date_filed="1990-02-08" court="6th Cir." case_name="Larry M. Leach v. Shelby County Sheriff and Mayor of Shelby County, Tennessee">891 F.2d at 1246. Such a claim requires, at a minimum, that the official had knowledge of the offending employee’s conduct at a time when the conduct could be prevented, or that such conduct was otherwise foreseeable or predictable. See e.g. Gibson v. Foltz , 963 F.2d 851" date_filed="1992-07-30" court="6th Cir." case_name="Betty Gibson v. Dale Foltz John Jabe John Gauldin Lewis Herr Beverly Williams George Drake James Roth Joyce Rinehold Ozzie Bryant Larry Kuras Bill Mcfarlan Brad Brager John Doe Deputy Grinage Inspector Moats">963 F.2d 851, 854 (6th Cir. 1992). In addition, plaintiff must show that defendant had some duty or authority to act. See e.g. Birrell v. Brown , 867 F.2d 956" date_filed="1989-02-13" court="6th Cir." case_name="Joseph E. Birrell v. Robert Brown, Director, Michigan Dept. Of Corrections">867 F.2d 956, 959 (6th Cir. 1989) (lower level official not liable for shortcomings of building); Ghandi v. Police Dept. of City of Detroit , 747 F.2d 338" date_filed="1985-01-08" court="6th Cir." case_name="Khushro Ghandi v. Police Department of The City of Detroit">747 F.2d 338, 351 (6th Cir. 1984) (mere presence at the scene is insufficient grounds to impose Section 1983 liability in the absence of a duty to act); accord Hall v. Shipley , 932 F.2d 1147 (6th Cir. 1991). In addition, merely bringing a problem to the attention of a supervisory official is not sufficient to impose such liability. See Shelly v. Johnson , 684 F. Supp. 941" date_filed="1987-08-14" court="W.D. Mich." case_name="Shelly v. Johnson">684 F. Supp. 941, 946 (W.D. Mich. 1987) (Hillman, C.J.), aff’d 849 F.2d 228" date_filed="1988-06-14" court="6th Cir." case_name="Lawrence William Shelly v. Perry M. Johnson, Jack Bergman, Marjorie Vanochten, William O'connor, and Jerry Sherman">849 F.2d 228 (6th Cir. 1988). Finally, supervisory liability claims cannot be based on simple negligence. Leach , 891 F.2d 1241" date_filed="1990-02-08" court="6th Cir." case_name="Larry M. Leach v. Shelby County Sheriff and Mayor of Shelby County, Tennessee">891 F.2d at 1246; Weaver v. Toombs , 756 F. Supp. 335, 337 (W.D. Mich. 1989), aff’d 915 F.2d 1574" date_filed="1990-10-09" court="6th Cir." case_name="Thomas R. Warren, Jr. v. Larry Lack, Penny Bernhardt, Ronald McRady and Dennis Talley">915 F.2d 1574 (6th Cir. 1990).

Plaintiff challenges, as a violation of his right to the equal protection of the laws, the imposition of an “upper slot restriction” for an indefinite time period. Plaintiff acknowledges that former Defendant Gearin imposed the restriction. [See D/E #1 at 6]. There are no averments suggesting that Defendants Bouchard, Bergh, Gerth or Bauman were personally involved in the imposition of the sanction. Plaintiff alleges that Defendants Bouchard and Bergh failed to respond to his letters of complaint, were aware of the alleged discrimination, and failed to act. Furthermore, Plaintiff claims that Defendant Bergh rejected his grievances. [See D/E #1 at 24, 25, 29, 30, 31, 35 and 36]. However, an alleged failure to act cannot give rise to liability. Plaintiff has only made allegations of discrimination against Defendant Gearin which, if true, could show a constitutional violation. Plaintiff fails to mention any unconstitutional activity by Defendants Bouchard, Bergh, Bauman and Gerth. Therefore, Plaintiff has not alleged facts establishing that these Defendants were personally involved in the activity which forms the basis of his claim. Accordingly, the Court concludes that Plaintiff’s claims against Defendants Bouchard, Bergh, Bauman and Gerth are properly dismissed for lack of personal involvement.

Defendants Bouchard, Bergh, Bauman and Gerth assert that they are entitled to summary judgment on Plaintiff’s official capacity claims against them because such claims are barred by the Eleventh Amendment. Any claims against the individually-named Defendants in their official capacities do not state a claim upon which relief can be granted. See Will v. Michigan Department of State Police , 491 U.S. 58" date_filed="1989-06-15" court="SCOTUS" case_name="Will v. Michigan Department of State Police">491 U.S. 58 (1989) (claims against a state agency or an official in his/her official capacity are claims against the state, and are not claims against a “person” subject to Section 1983 liability); Frederick v. Abramajtys , No. 94-1935, 1995 WL 564321, **1 (6th Cir. Sept. 21, 1995) (unpublished). Moreover, the Eleventh Amendment bars suit against the State or one of its agencies in federal court unless the state has given express consent, regardless of the relief sought. Pennhurst State School & Hospital v. Halderman , 465 U.S. 89" date_filed="1984-01-23" court="SCOTUS" case_name="Pennhurst State School and Hospital v. Halderman">465 U.S. 89, 100 (1984), overruled in part on other grounds, Will , 491 U.S. 58" date_filed="1989-06-15" court="SCOTUS" case_name="Will v. Michigan Department of State Police">491 U.S. 58; Alabama v. Pugh , 438 U.S. 781" date_filed="1978-07-03" court="SCOTUS" case_name="Alabama v. Pugh">438 U.S. 781, 782 (1978) (State and Board of ^[1] Corrections). The State of Michigan has not consented to civil rights suits in the federal courts. See Abick v. Michigan , 803 F.2d 874" date_filed="1986-10-23" court="6th Cir." case_name="John Abick James Bradley John Carruthers Gerald Clancy Isadore Coles Ruth Cotten Lucius Daniel v. State of Michigan Chief Justice Mennen Williams Justice Dorothy Comstock Riley Justice Charles Levin Justice James Ryan Justice James Brickley Justice Michael Cavanagh Justice Patricia Boyle State Judiciary Council">803 F.2d 874, 877 (6th Cir. 1986). The Eleventh Amendment therefore bars official-capacity suits for damages against its employees. Therefore, any official capacity claims are properly dismissed.

Defendants also claim that Plaintiff’s individual capacity claims are barred by qualified immunity because Plaintiff has failed to show a violation of clearly established law. Government officials, performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Dietrich v. Burrows , 167 F.3d 1007" date_filed="1999-04-23" court="6th Cir." case_name="Estate of Kenneth G. Dietrich v. Richard W. Burrows">167 F.3d 1007, 1012 (6th Cir. 1999); Turner v. Scott , 119 F.3d 425" date_filed="1997-07-16" court="6th Cir." case_name="Eva Turner v. Michael Scott">119 F.3d 425, 429 (6th Cir. 1997); Noble v. Schmitt , 87 F.3d 157" date_filed="1996-06-14" court="6th Cir." case_name="Sherman L.G. Noble v. Janice Schmitt and Connie Stevens">87 F.3d 157, 160 (6th Cir. 1996); Harlow v. Fitzgerald , 457 U.S. 800" date_filed="1982-06-24" court="SCOTUS" case_name="Harlow v. Fitzgerald">457 U.S. 800, 818 (1982). An “objective reasonableness” test is used to determine whether the official could reasonably have believed his conduct was lawful. Dietrich , 167 F.3d 1007" date_filed="1999-04-23" court="6th Cir." case_name="Estate of Kenneth G. Dietrich v. Richard W. Burrows">167 F.3d at 1012; Anderson v. Creighton , 483 U.S. 635" date_filed="1987-06-25" court="SCOTUS" case_name="Anderson v. Creighton">483 U.S. 635, 641 (1987). “Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan , 129 S. Ct. 808" date_filed="2009-01-21" court="SCOTUS" case_name="Pearson v. Callahan">129 S. Ct. 808, 815 (2009).

In making a qualified immunity determination the court must decide whether the facts as alleged or shown make out a constitutional violation or whether the right that was allegedly violated was a clearly established right at the time of the alleged misconduct. Id. at 816. If the court can conclude that either no constitutional violation occurred or that the right was not clearly established, qualified immunity is warranted. The court may consider either approach without regard to sequence. Id . As noted above, Defendants did not violate Plaintiff’s constitutional rights. Accordingly, they are entitled to qualified immunity.

Finally, Defendant Gearin is entitled to judgment as a matter of law, because Plaintiff cannot demonstrate disparate treatment based on race. Plaintiff asserts that his equal protection rights were violated when he was indefinitely placed on upper slot restriction when other prisoners with the same or similar circumstances were granted temporary placement. The Equal Protection Clause of the Fourteenth Amendment provides that a state may not “deny to any person within its jurisdiction the equal protection of the laws,” which is essentially a direction that all persons similarly situated should be treated alike. U.S. C ONST ., amend. XIV; City of Cleburne v. Cleburne Living Center, Inc. , 473 U.S. 432" date_filed="1985-07-01" court="SCOTUS" case_name="City of Cleburne v. Cleburne Living Center, Inc.">473 U.S. 432, 439 (1985).

To prove his equal protection claim, Plaintiff must demonstrate “intentional and arbitrary discrimination” by the state; that is, he must demonstrate that he “has been intentionally treated differently from others who are similarly situated. Defendants assert that Plaintiff has not shown that he was “similarly situated” to non-black inmates who were placed on upper slot restriction. Plaintiff alleges that the duration of his upper slot restriction was indefinite, while the restriction was imposed for finite periods on two white inmates who had assaulted staff. Plaintiff first claims inmate “Gross #223745” is white, assaulted prison staff in March of 2002, and was placed on the restriction for 60 days. [D/E #1 at 7-9]. However, a search of current and former MDOC inmates reveals no such inmate. See Offender Tracking Information System at www.mi.us/mdod/asp/otis. Furthermore, Plaintiff claims that inmate James Sarah #280314 is white, has assaulted prison staff, has been on upper slot restriction three times, and “is no longer on upper slot sanction.” [See D/E #1 at 10-12]. However, Plaintiff’s allegations do not specify whether inmate Sarah continued to receive disciplinary charges while on sanction, as did Plaintiff.

Plaintiff allows that he was given an indefinite restriction so that his conduct could be monitored and that the restriction could be discontinued if Plaintiff’s conduct improved. Plaintiff acknowledges that “a prisoner is only to remain on a sanction if he/she is disruptive.” [D/E #1, ¶ 39]. Plaintiff further acknowledges he continued to receive Major Misconduct charges during the course of the sanction. [See D/E #1, ¶ 13-21]. Plaintiff has not shown facts that could prove disparate treatment based on race because inmate Gross is unidentifiable and Plaintiff sets forth no averments regarding the duration of inmate Sarah’s upper slot restriction or whether Sarah continued to incur misconduct charges during the course of his restriction. Accordingly, Defendant Gearin is entitled to summary judgment on Plaintiff’s equal protection claim.

In summary, in the opinion of the undersigned, Plaintiff has failed to sustain his burden of proof in response to Defendants’ motion for summary judgment. Accordingly, it is recommended that Defendants’ motion for summary judgment (docket #90) be granted and this case be dismissed in its entirety. ^[2]

Should the court adopt the report and recommendation in this case, the court must next decide whether an appeal of this action would be in good faith within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth , 114 F.3d 601" date_filed="1997-06-11" court="6th Cir." case_name="Darryl McGore v. Gene L. Wrigglesworth, Chief Sheriff Richard Chinelli, Administrator Ingham County Sheriff's Department">114 F.3d 601, 611 (6th Cir. 1997). For the same reasons that the undersigned recommends granting Defendants’ motion for summary judgment, the undersigned discerns no good-faith basis for an appeal. Should the court adopt the report and recommendation and should Plaintiff appeal this decision, the court will assess the $455 appellate filing fee pursuant to § 1915(b)(1), see McGore , 114 F.3d 601" date_filed="1997-06-11" court="6th Cir." case_name="Darryl McGore v. Gene L. Wrigglesworth, Chief Sheriff Richard Chinelli, Administrator Ingham County Sheriff's Department">114 F.3d at 610-11, unless Plaintiff is barred from proceeding in forma pauperis , e.g., by the “three-strikes” rule of § 1915(g). If he is barred, he will be required to pay the $455 appellate filing fee in one lump sum.

NOTICE TO PARTIES: Objections to this Report and Recommendation must be served on opposing parties and filed with the Clerk of the Court within fourteen (14) days of receipt of this Report and Recommendation. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b); W.D. Mich. LCivR 72.3(b). Failure to file timely objections constitutes a waiver of any further right to appeal. United States v. Walters , 638 F.2d 947" date_filed="1981-01-20" court="6th Cir." case_name="United States v. W. R. Walters, United States of America v. Two Hundred Sixty-Two Firearms">638 F.2d 947 (6th Cir. 1981). See also Thomas v. Arn , 474 U.S. 140" date_filed="1986-01-27" court="SCOTUS" case_name="Thomas v. Arn">474 U.S. 140 (1985).

/s/ Timothy P. Greeley

TIMOTHY P. GREELEY

UNITED STATES MAGISTRATE JUDGE

Dated: August 16, 2010

NOTES

[1] The Sixth Circuit has held that since an official capacity suit for retroactive relief, such as monetary damages, is deemed to be against the State, whose officers are the nominal Defendants, the claim is barred by the Eleventh Amendment. Doe v. Wigginton , 21 F.3d 733" date_filed="1994-04-19" court="6th Cir." case_name="John Doe v. John T. Wigginton">21 F.3d 733, 736-737 (6th Cir. 1994).

[2] To the extent that Plaintiff is suing the individual Defendants in their official capacities, such claims are barred by the Eleventh Amendment. See Will v. Michigan Department of State Police , 491 U.S. 58 (1989) (claims against a state agency or an official in his/her official capacity are claims against the state, and are not claims against a “person” subject to Section 1983 liability); Frederick v. Abramajtys , No. 94-1935, 1995 W L 564321, **1 (6th Cir. Sept. 21, 1995) (unpublished).