Opinion
CIVIL ACTION NO. 13-CV-15073
02-27-2015
MARK WHITE, Plaintiff, v. ROSILYN JINDAL, et al., Defendants.
DISTRICT JUDGE AVERN COHN
REPORT AND RECOMMENDATION
Plaintiff Mark White, currently a prisoner at the Gus Harrison Correctional Facility (ARF) in Adrian, Michigan, filed this action under 42 U.S.C. § 1983 against Defendants Roslyn Jindal (a Physician's Assistant), Corizon Health Incorporated (Corizon) (formerly known as Correctional Medical Services (CMS)) (health-care contractors that provide services to the Michigan Department of Corrections (MDOC)), Paul Klee (the Warden of the Gus Harrison Facility), and Dr. William Nelson (a former MDOC physician). (Docket no. 1 at 1-2.) In his Complaint, Plaintiff alleges that Defendants Jindal, Nelson, Corizon, and CMS violated his Eighth Amendment rights when they were deliberately indifferent to his serious medical needs. (Id. at 4.) Plaintiff alleges that Defendant Klee violated his rights under the First, Fifth, Eighth, and Fourteenth Amendments when he "placed plaintiff in grave personal danger of death or physical injury in violation of MDOC policy." (Id.) Through his Complaint, Plaintiff seeks "punitive, compensatory & declaratory damages in excess of [$25,000] on the deliberate indifferent (sic) claims" and "immediate injunctive treatment & transfer to prevent death or physical injury." (Id.)
On February 11, 2014, Plaintiff filed his Amended Complaint and added four additional defendants to this matter: (1) Thomas G. Finco (Deputy Director of the MDOC); (2) Bill Collier (the lead psychiatrist at the Gus Harrison facility); (3) Lee McRoberts (the Deputy Warden at the Gus Harrison facility); and (4) C. Condon (a Resident Unit Manager at the Gus Harrison facility). (See docket no. 14 at 1.) Plaintiff also adds two additional claims for violations of the Americans with Disabilities Act, 21 U.S.C. § 12101, and for violations of Michigan's Handicap Civil Rights Laws, M.C.L. 37.1103. (Id. at 2.)
The undersigned will refer to Defendants Jindal, Corizon, CMS, Nelson, Finco, and Collier as the "Medical Defendants" and Defendants Klee, McRoberts, and Condon as the "MDOC Defendants."
On March 25, 2014, the undersigned reviewed Plaintiff's Motion for Immediate Temporary Injunction and recommended that the Court grant Plaintiff's Motion because Plaintiff had shown a "specific, immediate, and substantial threat to [his] safety" and because Defendants had failed to provide any evidence to the contrary. (Docket no. 31.) On April 22, 2014, the Court adopted the undersigned's Report and Recommendation and ordered that "Defendants shall transfer plaintiff to an MDOC facility that does not have a 'high concentration' of members of the Gangster's Disciples prison gang." (Docket no. 44.)
Instead of transferring Plaintiff as the Court ordered, Defendants placed Plaintiff in segregation and filed a Motion for Reconsideration. (Docket no. 47.) Defendant Klee also filed a Motion for Summary Judgment, and Defendants Corizon and Nelson filed a Motion to Dismiss. (Docket nos. 22 and 27.) On June 24, 2014, the Court dismissed Plaintiff's claims against CMS and Nelson because they were barred by the applicable statute of limitations and dismissed Plaintiff's claims against the remaining Medical Defendants without prejudice for improper joinder. (Docket no. 73.) Thus, Plaintiff's remaining claims are limited to his claims against the MDOC Defendants.
On January 14, 2015, the Court granted Plaintiff's Motion for Appointment of Counsel, noting that while Plaintiff had proceeded in this matter without counsel thus far, the nature of his discovery requests raised security concerns such that certain documents would need to be produced for attorney's eyes only, necessitating the appointment of counsel. (Docket no. 97.) The Court also granted Defendants' Motion to Take Plaintiff's Deposition but required that Defendants' wait to do so until Plaintiff's counsel is appointed. (Id.)
Before the Court are Plaintiff's Motion for Summary Judgment (docket no. 82) and Motion for Judgment on the Pleadings (docket no. 94), both of which were pending at the time the Court entered its January 14, 2015 Order. Defendants have filed Responses to Plaintiff's Motions. (Docket nos. 89 and 95.) Plaintiff filed a Supplement to his Motion for Summary Judgment. (Docket no. 83.) All pretrial matters have been referred to the undersigned for consideration. (Docket no. 12.) The undersigned has reviewed the pleadings, dispenses with a hearing pursuant to E.D. Mich. L.R. 7.1(f)(2), and issues this Report and Recommendation.
I. Recommendation
For the reasons stated herein, the undersigned recommends that Plaintiff's Motion for Summary Judgment [82] be DENIED without prejudice and that Plaintiff's Motion for Judgment on the Pleadings [94] be DENIED.
II. Report
A. Facts
Although not contained in his initial Complaint, Plaintiff alleges in his Motion for Summary Judgment that he was first approached in February 2013 by ARF C/O Thompson about snitching on inmates doing drugs in ARF. He states that Thompson found two pills on the ground near Plaintiff's workstation and that Thompson threatened to issue Plaintiff a major misconduct if Plaintiff refused to help. When Plaintiff refused, "the misconduct issued and the grievance [that Plaintiff filed later] was rejected and Plaintiff found guilty." (Docket no. 82 at 6.) Plaintiff asserts that this type of conduct continued from ARF staff until he ultimately sent a request for an investigation to the Michigan Legislative Ombudsman, asking for assistance. (Id.) Plaintiff states that the Ombudsman did initially help, and he was elected to the Warden's Forum to help bring prisoner complaints to the attention of the Warden in September 2013. (Id. at 6-7.)
Plaintiff alleges that due to an "explosion of thefts & fights due to gang activity" in November 2013, Plaintiff was asked by his assistant unit managers, King and Donaghy, to provide anonymous information regarding the gang activity. (Docket no. 14; see also docket no. 82 at 7.) Plaintiff "felt pressured and threatened" because one gang, the Gangsters Disciples, "has been known to stab inmates for merely saying their names out loud." (Id.) Nevertheless, Plaintiff refused to provide any information. (Id.) Plaintiff further alleges that on November 21, 2013, he met with Klee, Defendant McRoberts, and Defendant Condon. (Id.) During this meeting, Plaintiff "was outspoken in his belief that administrations (sic) threats to penalize the entire population for gang activity was wrong;" he also voiced concerns over library-access times. (Id.) Plaintiff contends that after this meeting, Klee also asked him to provide anonymous information related to the gangs. (Id.) Plaintiff states that he again felt pressured and threatened, but he still refused. (Id.)
Plaintiff asserts that on November 22, 2013, King and Donaghy took all of his property and issued him two "major misconducts" in retaliation for his refusal to cooperate. (Id. at 6.) He contends that these misconducts resulted from his refusal to identify members of the Gangsters Disciples. (Docket no. 82 at 8.) Plaintiff claims that he then consented to Defendants' request on the condition that Defendants agreed to dismiss the misconducts against him, at which time Defendants issued him another misconduct for attempted bribery. (Id. At 8.) Plaintiff then claims that on December 3, 2013, Condon presided over a hearing related to Plaintiff's misconduct and "within hearing range of numerous inmates . . . read a misconduct written by Donaghy . . . [which] contained the words "informant & gangsters disciples." (Docket no. 14 at 6; docket no. 82 at 8-9.) Plaintiff alleges that Condon "made sure [he] could be overhead by inmates" and that he now fears for his life after being called a snitch. (Docket no. 14 at 6; see also docket no. 1 at 4.)
Plaintiff also alleges that on December 4, 2013, the day after his hearing, Condon had Plaintiff moved to a new unit that has "numerous gangsters disciples," and he asserts that he was placed in a cell with inmate Terry Ridley, whom Plaintiff asserts would have "violent episodes of punching the walls, locker, and his bunk." (Docket no. 14 at 6; docket no. 82 at 9.) Sometime in January 2014, Plaintiff was moved to a cell with inmate Hill, who "would sleep all day then wake around 3 PM and begin pacing back and forth in front of the cell door." (Docket no. 82 at 9.)
In the meantime, however, on December 8, 2013, Plaintiff was assaulted by two members of the Gangsters Disciples and threatened with future beatings; they specifically noted that "if any members were transfered (sic) or received misconducts, plaintiff would be stabbed or killed." (Docket no. 14 at 6; docket no. 10 at 5; docket no. 82 at 10; see also docket no. 20 at 1.) Plaintiff alleges that these two individuals, inmates Little and Powe, grabbed him while he was at a urinal, slammed him against a wall, and struck him in the head and face with a sock filled with rocks or state soap. (Docket no. 82 at 10.) Plaintiff also alleges that these individuals gave him 60 days to provide a phone number and address where someone outside the prison could pick up cash for "protection money." (Docket no. 14 at 6; docket no. 82 at 10.) Plaintiff asserts that he requested protection from McRoberts, but on December 20, 2013, McRoberts "called plaintiff to the Officers station and in front of other inmates and with [Condon] present called plaintiff a liar over the entire incident, denied any move or protection, and then threatened plaintiff [by saying], 'This is the last I want to hear of this matter.'" (Id.) Plaintiff, therefore, claims that Klee, McRoberts, and Condon "conspired to punish plaintiff for exercise of his [First Amendment right to] free speech . . . and are refusing to provide proper protection in violation of [the Eighth Amendment]." (Id. at 7.) Plaintiff alleges that the retaliation continued throughout December 2013 and into March of 2014 when prison staff would not allow him to use the prison library because he was not doing what was asked of him. (Docket no. 82 at 12.)
In his Motion for Summary Judgment, Plaintiff also sets forth the factual detail surrounding his time in administrative segregation related to the Court's April 22, 2014 Order. (Id.) He discusses his belief that he was transferred to segregation for punitive purposes instead of for protection, as Defendants argued before the Court, and how he was transferred back to the general population. (Id. at 12-15.) These issues, however, are not properly before the Court as Plaintiff has neither amended his Complaint to include claims related to these allegations nor has he filed any related motions.
B. Governing Law
1. Summary Judgment Standard
"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." Fed. R. Civ. P. 56(a). A moving party may meet that burden "by 'showing' - that is, pointing out to the district court - that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Rule 56 expressly provides that:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:Fed. R. Civ. P. 56(c)(1). The Rule also provides the consequences of failing to properly support or address a fact:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may:Fed. R. Civ. P. 56(e). "The court need consider only the cited materials, but it may consider other materials in the record." Fed. R. Civ. P. 56(c)(3).
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials - including the facts considered undisputed - show that the movant is entitled to it; or
(4) issue any other appropriate order.
When the moving party has met its burden under rule 56, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industries Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Ultimately a district court must determine whether the record as a whole presents a genuine issue of material fact, id. at 587, drawing "all justifiable inferences in the light most favorable to the non-moving party," Hager v. Pike County Bd. Of Education, 286 F.3d 366, 370 (6th Cir. 2002).
2. Judgment on the Pleadings Standard
Fed. R. Civ. P. 12(c) provides that "[a]fter the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings." Motions for judgment on the pleadings are reviewed under the same standard used for reviewing a motion under Fed. R. Civ. P. 12(b)(6). Albrecht v. Treon, 617 F.3d 890, 893 (6th Cir. 2010). The Court must construe the complaint in the light most favorable to the non-moving party, accept all well-pled factual allegations as true, and determine whether the complaint states a plausible claim for relief. Id. (citations omitted). And when determining whether a plaintiff is entitled to a Judgment on the Pleadings, such a judgment may be based on admissions by the Defendant under Fed.R.Civ.P. 8(b). See, e.g., Encompass Ins., Inc. v. Hagerty Ins. Agency, Inc., No. 08-337, 2009 WL 160776, at *6 (W.D. Mich. Jan. 22, 2009).
C. Analysis
1. Plaintiff's Motion for Summary Judgment
In his Motion for Summary Judgment, Plaintiff sets for the facts of this matter and asks the Court to grant him summary judgment on all counts. (Docket no. 82.) Defendants do not ask the Court to deny Plaintiff's Motion on the merits but, instead, ask that the Court deny Plaintiff's Motion because Defendants have not had an opportunity to conduct discovery so that they may properly respond. (Docket no. 89 at 4-5.)
Defendants also ask that the Court dismiss Plaintiff's retaliation claims to the extent that they rely on his misconduct tickets because "Plaintiff admits that he was found guilty of several misconduct tickets at an administrative hearing." (Docket no. 89 at 3-4.) This request to dismiss, however, is not properly before the Court.
Federal Rule of Civil Procedure 56 states that a party may move for summary judgment "at any time until 30 days after the close of all discovery" unless otherwise ordered by the Court. Fed. R. Civ. P. 56(a), (b). If a nonmoving party shows "by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition [to a motion for summary judgment], the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order." Fed. R. Civ. P. 56(d). The party opposing the motion bears the burden of showing that discovery is necessary. CGH Transport, Inc. v. Quebecor World, Inc., 261 Fed. Appx. 817, 821 (6th Cir. 2008). A Rule 56(d) affidavit or declaration must "identify the material facts it hopes to uncover" with additional discovery. Taylor Acquisitions, L.L.C. v. City of Taylor, 313 Fed. Appx. 826, 835 (6th Cir. 2009).
In support of their request under Rule 56, Defendants provide the affidavit of Robert J. Jenkins, Defendants' counsel. (Docket no. 83-3.) Attorney Jenkins notes that there is currently no discovery deadline in this matter and that he needs to review Plaintiff's medical files and take Plaintiff's deposition to properly defend this matter. (Id. at 3.) He asserts that without doing so, he would be "guessing at the injuries that Plaintiff may have received in the alleged assault." (Id.) He also believes that his clients "can refute [Plaintiff's allegations] through affidavits and other documents," but to do so, he "need[s] to flesh out the specifics of Plaintiff's allegations." (Id. at 4.)
Additionally, the Court notes that at the time of his Motion for Summary Judgment, Plaintiff had his own discovery requests oustanding as well as closely related Motion to Appoint Counsel. The Court has recently granted Plaintiff's Motion to Appoint Counsel, a portion of Plaintiff's Motion to Compel, and Defendants' Motion to take Plaintiff's Deposition. The undersigned agrees with Defendants that a ruling on the merits of Plaintiff's Motion for Summary Judgment would be premature as Plaintiff has not provided any additional evidence aside from his own allegations to show that there is no genuine issue of material fact. Defendants, however, cannot properly respond to Plaintiff's Motion until they have completed discovery. Therefore, the Court should deny Plaintiff's Motion without prejudice.
2. Plaintiff's Motion for Judgment on the Pleadings
This is the second Motion for Judgment on the Pleadings that Plaintiff has filed in this matter. (See docket no. 19.) Like his first Motion, Plaintiff's instant Motion for Judgment on the Pleadings only seeks a determination of his Motion for Summary Judgment and an enforcement of various Federal Rules. (See docket no. 94 at 2.) Thus, Plaintiff's Motion for Judgment on the Pleadings is, again, procedurally improper and is duplicative of his Motion for Summary Judgment. Therefore, the undersigned recommends denying Plaintiff's Motion for Judgment on the Pleadings.
D. Conclusion
For the reasons stated above, the undersigned recommends denying Plaintiff's Motion for Summary Judgment without prejudice [82] and denying Plaintiff's Motion for Judgment on the Pleadings [94].
III. Notice to Parties Regarding Objections
The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within fourteen (14) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec'y of Health & Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Filing of objections which raise some issues but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sec'y of Health & Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n Of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.
Any objections must be labeled as "Objection #1," "Objection #2," etc. Any objection must recite precisely the provision of this Report and Recommendation to which it pertains. Not later than fourteen days after service of an objection, the opposing party must file a concise response proportionate to the objections in length and complexity. The response must specifically address each issue raised in the objections, in the same order and labeled as "Response to Objection #1," "Response to Objection #2," etc. Dated: February 7, 2015
s/ Mona K. Majzoub
MONA K. MAJZOUB
UNITED STATES MAGISTRATE JUDGE
PROOF OF SERVICE
I hereby certify that a copy of this Report and Recommendation was served on counsel of record and on Plaintiff Mark White on this date. Dated: February 7, 2015
s/ Lisa C. Bartlett
Case Manager