Opinion
CASE NO. 02-CV-73096-DT
April 29, 2003
REPORT AND RECOMMENDATION
I. RECOMMENDATION:
The Court should deny defendants' motion for summary judgment.
II. REPORT:
A. Procedural Background
1. Plaintiff, an inmate in the Scott Correctional Facility of the Michigan Department of Corrections, has filed a complaint accusing defendants Jouppi and Massaquoi with violating her federally protected rights. She alleges that they "displayed indifference and reckless disregard for [plaintiffs] safety by failing to act reasonably in response to immediate danger." Complaint at page 4. Specifically, "[t]he officers stood by while [plaintiff] was attacked by a prisoner Thomas," Id.
2.As a result of this attack, which allegedly involved plaintiff being struck in the face by Thomas with her fists for ten to fifteen minutes, plaintiff was unable to see out of her left eye. An eye specialist subsequently concluded that broken bone fragments on the floor of the eye socket had caused the blindness, and that nothing could be done. Plaintiff continues to suffer from headaches and eye pain and her vision is "less than it was before the incident." Complaint at additional page following page 4,
3. Plaintiff seeks compensatory damages of 510,000 from each defendant as well as an unspecified amount of punitive damages, Complaint at page 5,
4. The Attorney General has filed a motion for summary judgment on behalf of both defendants. The motion puts forward two arguments. First, the evidence docs not support the claim because "the defendants acted with haste to separate the fighters, and were not deliberately indifferent." Brief at page 3. Second, defendants arc entitled to qualified immunity. Brief at page 5,
5. Plaintiff filed a response to the motion. She argues that the Attorney General is wrong to characterize the incident as a fight between two prisoners because it was a simple — and brutal — assault by prisoner Thomas on plaintiff. Defendants were in a position to stop this assault but failed to act. Other prison personnel came on the scene and did stop the assault, but not until plaintiff had been grievously wounded and blinded in one eye,
6. Defendants filed a brief in reply to the response.
B. Legal Standard
Rule 56 of the Federal Rules of Civil Procedure embodies "a method for promptly disposing of actions in which there is no genuine issue as to any material fact." Advisory Committee Notes accompanying the 1937 adoption of the rule. The notes to the 1963 amendment state that "[t]he very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to sec whether there is a genuine need for trial." These same notes caution that the amendment regarding answers to interrogatories was not "designed to affect the ordinary standards applicable to the summary judgment motion, So, for example: Where an issue as to a material fact cannot be resolved without observation of the demeanor of witnesses in order to evaluate their credibility, summary judgment is not appropriate,"
C. Analysis
1. If the affidavits put forward by each of the two defendants were accepted at face value, the motion for summary judgment would be properly granted, These affidavits assert that plaintiff and Thomas both returned to the base area after initially heading for their cells, They began yelling at each other, Both prisoners were ordered to return to their cells. Thomas grabbed plaintiff by the hair with her left hand and began punching plaintiff with her right hand, Defendant Jouppi immediately tried to restrain Thomas, but Thomas circled away, Defendant Massaquoi returned to the area at this point and corrections officer Cecil and RUO Gentry also came on the scene. Cecil and Jouppi tried to restrain Thomas, but did not succeed in doing so until she had kicked plaintiff in the forehead.
2. However, plaintiff, in addition to her own testimony as set forth in her complaint, has attached five affidavits to her response to the summary judgment motion. The sworn statements of plaintiff and her sister inmates set forth a drastically different view of the incident, If this view were to be accepted by the trier of fact, liability might well be established.
a.) Inmate Anderson states in her affidavit that she "saw prisoner Thomas beat prisoner Hall. Officer Jouppi did nothing to break it up. He yelled, `I can't touch her. I can't put my hands on her. That's what you guys wanted,'" Anderson believes this was a reference to "the Cain law suit against M.D.O.C." Anderson also avers that defendant "Massaquoi was also watching this attack. She did nothing to stop the attack on prisoner Hall. She just stood their [sic] and yelled, `Oh my God, Oh my God, don't do that'. After 10-12 minutes officer Gentry arrived and she broke up the fight."
b.) Inmate Jones states that defendant Jouppi "did nothing to stop this fight for about 5 to 10 minutes."
c.) Inmate Scott states that there was a confrontation between plaintiff and Thomas. Thomas then started hitting plaintiff, "Inmate Hall would not fight back and the officers at the time just stood watching for approximately five to ten minutes,"
d.) Inmate Brown states that defendant Jouppi stepped in between plaintiff and Thomas, that Thomas reached around Jouppi and slapped plaintiff, that Jouppi yelled at Thomas to go to her room, but that Thomas grabbed plaintiff by the head and started to hit her with something in her hand. "Neither one of the officers tried to stop [Thomas] from beating [plaintiff] in the face. Then another prisoner and officer Gentry came from the B-side to pull them apart while officer Jouppi and Officer Massaquoi just stood there looking at Thomas beating [plaintiff] for about 15 to 20 minutes."
e.) Inmate Rivera avers that Thomas and plaintiff were arguing, that Thomas told plaintiff she would beat her up, that plaintiff started to walk away but was grabbed by Thomas and hit. Plaintiff asked the officers for help, but they (defendants Jouppi and Massaquoi) did nothing. Thomas continued to assault plaintiff "while the officers stood there, One of the officers (C. 0. Gentry) came from the B-side of Essex to the A side and grabbed prisoner Thomas off of [plaintiff]."
3. Defendants rely on the decision of the Supreme Court in Saucier v. Katz, 533 U.S. 194 (2001), which held that, in a case contending that unreasonable force had been used in making an arrest, a ruling on the arresting officer's claim of qualified immunity required an analysis "not susceptible effusion with the question whether unreasonable force was used in making the arrest." Saucier, supra. 533 U.S, at 197. The initial inquiry is whether a constitutional right would have been violated on the facts alleged. If so, the next inquiry is whether the right allegedly violated was clearly established. This inquiry must be undertaken with a view to the facts of the case; i.e., the inquiry must be whether it would be clear to the defendant officer that the conduct he or she was engaging in was unlawful in the situation being confronted. 533 U.S. at 201-02, 204, 206, The Court concluded that, assuming in hindsight a mistaken belief by the defendant that his or her conduct was appropriate, "qualified immunity can apply in the event the mistaken belief was reasonable." 533 U.S. at 206,
Applying the foregoing standard, I conclude that, if the testimony of plaintiff and her witnesses is credited, qualified immunity is not a viable defense,
Nor is the unreported Sixth Circuit decision cited by defendants controlling. In that case, Patmon v. Parker et. al. an officer was confronted by an inmate who had a deadly weapon, i.e., a knife. The officer had "no constitutional duty to intervene in an armed assault by an inmate when the intervention would place the guard in danger of physical harm."
III. NOTICE TO PARTIES REGARDING OBJECTIONS:
The parties to this action may object to and seek review of this Report and Recommendation, but arc required to act within ten (10) 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. Secretary of Health Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 19S1). 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. Secretary of Health Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72, 1(c1)(2), a copy of any objections is to be served upon this Magistrate Judge.
Within ten (10) days of service of any objecting party's timely filed objections, the opposing party may file a response. The response shall be not more than five (5) pages in length unless by motion and order such page limit is extended by the Court. The response shall address specifically, and in the same order raised, each issue contained within the objections.