Opinion
Case No. 2:98-CV-153.
Dated: March 31, 2000.
MEMORANDUM OPINION APPROVING REPORT AND RECOMMENDATION IN PART AND DISAPPROVING IT IN PART
This case presents an action by a prisoner, Joseph Corsetti, against numerous prison officials for alleged constitutional violations under 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 636(b)(1), the matter has been reviewed by United States Magistrate Judge Timothy P. Greeley, who has issued a 28-page report and recommendation. The magistrate judge has recommended that defendants' motion for summary judgment be granted in part and denied in part. He also recommends that plaintiff's motion for a temporary restraining order and preliminary injunction be denied. Both plaintiff and defendants have timely filed objections, which the Court now considers de novo.
I
As Magistrate Judge Greeley correctly observes, the only remaining claims before this Court are plaintiff's First Amendment claims regarding his legal mail and his access to the courts claims against defendants Haas, Lightfoot, Rapelji, Guilmette and Harwood; plaintiff's retaliation claims against defendants Romanowski, Riordan, McKee, Haas, Allen and Peltier; and plaintiff's Eighth Amendment claims against defendants Lightfoot, Peltier, Moon and Rapelji. All other claims were dismissed on January 29, 1999. Further, Magistrate Judge Greeley's recitation of the facts, as presently developed in the record, is complete and worthy of adoption, although those contested facts integral to the reasoning of this opinion will be discussed in greater detail.
Magistrate Judge Greeley has recommended that defendants' motion for summary judgment be granted in all respects except as follows. He recommends that defendant Allen's motion for summary judgment be denied because there is a genuine issue of material fact with respect to plaintiff's claim that Allen retaliated against him by filing a bogus misconduct report. Additionally, the magistrate judge recommends denial of the motion of defendants Haas, Rapelji and Lightfoot for summary judgment with respect to plaintiff's claim that they violated his First Amendment rights by reading legal materials in his cell.
Summary judgment is appropriate only if the moving party establishes that there is no genuine issue of material fact for trial and he is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). While the evidence must be viewed in the light most favorable to the nonmoving party, a mere scintilla of evidence in support of the nonmovant's position will not be sufficient to forestall summary judgment.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). 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, 139 (6th Cir. 1993).
II
Plaintiff asserts a litany of objections to the report and recommendation. The vast majority of these objections add no material evidence or authority in support of plaintiff's claims, but are in the nature of conclusory statements reiterating arguments already fully and fairly considered and evaluated by the magistrate judge.
To the extent plaintiff has asserted an Eighth Amendment claim against various defendants, the magistrate judge recommends the motion for summary judgment be granted pursuant to 42 U.S.C. § 1997e(e) for lack of a showing of physical injury. Plaintiff objects, contending defendants' deliberate indifference to his need for prescribed ointment to maintain the cleanliness of his false eye and eye socket resulted in pain and an infection that ultimately required surgery. The objection is not without merit. Defendants have not refuted the allegation that plaintiff underwent surgery.
Prison officials may be held liable under the Eighth Amendment for acting with deliberate indifference to inmate health or safety if they know an inmate faces a substantial risk of harm and disregard that risk by failing to take reasonable measures to abate it.Farmer v. Brennan, 511 U.S. 825 (1994). There appears to be no dispute that eye medication had been prescribed for plaintiff's use and that plaintiff was not allowed to possess it while in administrative segregation. Whether plaintiff repeatedly requested and was denied access to the medication by defendants Lightfoot, Moon and Peltier is controverted, however.
Yet, even assuming defendants knew the eye medication had been prescribed and denied plaintiff access to it on three identified days in February and March 1998; and even assuming such denials proximately contributed to the causation or worsening of an infection that ultimately necessitated surgery some seven to eight months later in October 1998, there is no factual basis for a reasonable finding that defendants "actually knew" in February or March that their temporary denial of the hygienic ointment created a substantial risk of harm to plaintiff — especially considering he was subject to care for the eye and other conditions by nurse and physician during this period. See id. at 844. Absent evidence to support this "subjective component" element of his deliberate indifference claim, there is no genuine issue of material fact, and defendants Lightfoot, Moon and Peltier are entitled to summary judgment on the Eighth Amendment claim against them.
Further, to the extent plaintiff has asserted an Eighth Amendment claim against defendant Rapelje in connection with his two-hour refusal to allow plaintiff to use a restroom, the claim is properly dismissed. While the Court does not condone Rapelje's alleged conduct, absent the showing of a physical injury, it is not actionable. 42 U.S.C. § 1997e(e).
With regard to defendant Harwood, plaintiff's complaint is silent as to any substantive wrongful actions taken by him. Plaintiff merely states that Harwood "knew" of the actions being taken against him which are the subject of his complaint. Such an unsupported allegation is clearly insufficient to withstand a motion for summary judgment for there is no allegation of any specific violation of plaintiff's constitutional rights by defendant Harwood and there is no respondeat superior liability under § 1983. Polk Co. v. Dodson, 454 U.S. 312, 325-26 (1981);Monell v. New York City Department of Social Services, 436 U.S. 658 (1978). A person cannot beheld liable under § 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, 1246 (6th Cir. 1989), cert. denied, 495 U.S. 932 (1990).
With regard to defendant Guilmette, plaintiff repeats his original allegations of Eighth Amendment, First Amendment and conspiracy claims. Only the First Amendment claim remains pending and plaintiff has made no plausible claim that Guilmette infringed his constitutional rights. The Court concurs with the magistrate judge's conclusion that Guilmette's mere statement to the effect that plaintiff had limited access to the grievance process while in segregation, even if proved, is insufficient, standing alone, to make out a First Amendment violation. Plaintiff's objection fails to undermine this conclusion.
Similarly, defendant Riordan is entitled to summary judgment. The only remaining claim against Riordan is for retaliation. As Magistrate Judge Greeley correctly indicated, the current standard for retaliation is laid out in Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999). There, the Sixth Circuit identified the three necessary elements for a retaliation claim, namely: (1) that the plaintiff be engaged in protected conduct; (2) that an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) that the adverse action was motivated at least in part by the plaintiff's protected conduct. Id. at 394. Plaintiff has neither shown nor alleged facts sufficient to satisfy any of the three required elements with respect to Riordan. That defendant Riordan may have ordered a number of searches of plaintiff's cell during a three-month period hardly constitutes the sort of improper or adverse action that would deter a person of ordinary person from exercising his rights.
Plaintiff also objects to the recommendation that defendant McKee be awarded summary judgment on the retaliation claim growing out of a misconduct charge issued on October 22, 1997. The Court has duly considered the record and finds the magistrate judge's analysis of this claim to be proper. Plaintiff's bald allegation that defendant McKee's affidavit contains lies is insufficient to create a genuine issue of material fact.
Plaintiff contends defendant Romanowski is not entitled to summary judgment. He contends his placement in administrative segregation was unnecessarily prolonged due to Romanowski's retaliatory motive. Plaintiff maintains there is a genuine issue of material fact concerning the circumstances surrounding his eventual release from segregation. Although the circumstances surrounding his release are controverted, the Court concurs with the magistrate judge's assessment of the record taken as a whole. In view of evidence that plaintiff was released from segregation after appearing before the Security Classification Committee and stating that he no longer needed protection from inmate enemies, the claim that the duration of his segregation was the product of Romanowski's retaliation is simply implausible. No reasonable trier of fact could find that Romanowski's actions, even if proven as alleged, make out a valid § 1983 claim.
Finally, plaintiff objects to the recommendation that his motion for injunctive relief, requiring his transfer to another facility, be denied. As correctly stated by the magistrate judge, plaintiff's requests for a temporary restraining order and preliminary injunction are requests for extraordinary relief that plaintiff is not entitled to at this time. The magistrate judge's analysis of the motion is fair and complete and is hereby adopted by the Court.
Accordingly, plaintiff's objections are overruled.
III
The Court now turns to defendants' objections. The magistrate judge concluded there is a genuine fact issue concerning plaintiff's retaliation claim against defendant Allen. It appears that after plaintiff and Allen accidentally bumped into each other on March 5, 1998, Allen wrote a misconduct report charging plaintiff with assault and battery. Plaintiff alleges the misconduct was bogus and retaliatory, because Allen knew the physical contact, if it occurred at all, was minimal and accidental. The misconduct charge was dismissed when the hearing officer concluded the contact was accidental, due in part to the fact that plaintiff has no left eye. The magistrate judge concluded there is a genuine fact issue because the parties have given conflicting versions of the incident. In his objection, defendant Allen points out that plaintiff admitted in the misconduct report that he did accidentally bump into him. This admission is said to legitimize the misconduct charge by Allen, who did not know plaintiff was missing one eye and genuinely believed the contact was intentional.
While there may be a genuine fact issue concerning Allen's state of mind and his motivation for writing the misconduct charge, the Court concludes the issue is immaterial. Even if Allen did not genuinely believe the bumping was intentional, the mere writing of a meritless misconduct charge that is dismissed within days and results in no adverse consequences to plaintiff, is not, as required by Thaddeus-X, the sort of adverse action that would deter a person of ordinary firmness from exercising his rights. There being no factual support for this essential element of plaintiff's retaliation claim against Allen, summary judgment is properly awarded to defendant Allen. His objection is therefore sustained and the magistrate judge's recommendation is, in this respect, disapproved.
Defendants Haas, Rapelji and Lightfoot are alleged to have unlawfully read plaintiff's legal mail and legal materials in his cell while he was taking a shower on March 12, 1998. In support of their motion for summary judgment on this claim, defendants have filed affidavits stating the alleged cell search on March 12, 1998 did not take place. In response to the motion, plaintiff, in his notarized brief, insists he observed defendants reading his materials from the shower, which was directly across from his cell. The magistrate judge has concluded that a genuine fact issue is presented that precludes summary judgment. In their objections, defendants contend the claim should be dismissed because plaintiff has neither alleged nor shown that the disputed reading of his legal materials compromised his access to the courts or otherwise resulted in any injury.
The Court questions first of all whether the First Amendment offers plaintiff any protection under the alleged circumstances. Yes, the Sixth Circuit has recognized that a prisoner's right to receive incoming mail implicates First Amendment protections. SeeLavado v. Keohane, 992 F.2d 601 (6th Cir. 1993). Inspection of a prisoner's outgoing legal mail also implicates First Amendment protections. Bell-Bey v. Williams, 87 F.3d 832 (6th Cir. 1996). Yet, though plaintiff has used the term "legal mail," there is no reason to believe the papers allegedly read by defendants were incoming or outgoing "mail" at all. They appear to have been litigation-related papers possessed by plaintiff in his cell. Plaintiff has not alleged that any papers were seized or that defendants' reading of the papers compromised his right of access to the courts in any way that might be actionable as a First Amendment violation. See Lewis v. Casey, 518 U.S. 343 (1996);Boswell v. Mayer, 169 F.3d 384, 387 (6th Cir. 1999). Further, as a general proposition, it is clear that a prisoner has no reasonable expectation of privacy in his prison cell, such as might be protected under the Fourth Amendment. Hudson v. Palmer, 468 U.S. 517 (1984).
Thus, the Court is left to wonder just what right has been allegedly violated by defendants' mere reading of plaintiff's papers, within his view, during a cell search. Plaintiff has not alleged the sort of "distinct and palpable injury" necessary to confer standing to proceed under § 1983. See Thaddeus-X, 175 F.3d at 394. At best, he alleges facts suggesting the existence of a hypothetical injury, de minimus in nature, with which the Constitution is not concerned. Id. at 394, 404. Plaintiff has thus failed, as a matter of law, to make out a valid claim upon which relief could be granted.
Therefore, defendants' objection is sustained. To the extent the magistrate judge has recommended defendants' motion for summary judgment on this claim be denied, it is disapproved.
IV
For the foregoing reasons, plaintiff's objections to the report and recommendation are overruled and defendants' objections are sustained. The report and recommendation is approved in part and disapproved in part. A judgment order consistent with this opinion, granting defendants' motion for summary judgment in toto, shall issue forthwith.
SUMMARY JUDGMENT ORDER
In accordance with the Court's memorandum opinion of even date,
IT IS HEREBY ORDERED:
That the report and recommendation of United States Magistrate Judge Timothy P. Greeley, dated November 8, 1999, is APPROVED in part and DISAPPROVED in part;
That the defendants' motion for summary judgment (docket # 25) is GRANTED, and defendants are hereby AWARDED SUMMARY JUDGMENT in their favor on all outstanding claims against defendants Haas, Lightfoot, Rapelji, Guilmette, Harwood, Romanowski, Riordan, McKee, Allen, Peltier, and Moon; and
That plaintiff's motion for a temporary restraining order and preliminary injunction (docket #38) is DENIED.