The opinion of the court was delivered by: Honorable Arthur J. Tarnow
ORDER ADOPTING IN PART AND REJECTING IN PART THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION  GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT 
Before the Court is the Magistrate Judge's Report and Recommendation , which recommends that Defendants' Motion for Summary Judgment be granted and that Plaintiff's complaint be dismissed. Plaintiff filed an Objection  on January 4, 2010. Defendants did not file a response.
Under 28 U.S.C. § 636(b)(1), a magistrate judge's orders shall not be disturbed unless "found to be clearly erroneous or contrary to law." United States v. Curtis, 237 F.3d 598, 603. The "clearly erroneous" standard requires that the Court affirm the Magistrate's decision unless, after reviewing the entirety of the evidence, the Court "is left with the definite and firm conviction that a mistake has been committed." Sandles v. U.S. Marshal's Service, 2007 WL 4374077 at *1 (E.D. Mich. 2007) (citing United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746, 766 (1948)). The test is: not whether the finding is the best or only conclusion that can be drawn from the evidence, or whether it is the one which the reviewing court would draw. Rather the test is whether there is evidence in the record to support the lower court's finding, and whether its construction of that evidence is a reasonable one.
Heights Community Congress v. Hilltop Realty, Inc., 774 F.2d 135, 140 (6th Cir.1985).
This Court reviews de novo any objections to a Magistrate's Report and Recommendation. See 28 U.S.C. § 636(b)(1).
Plaintiff, a pro se inmate, asserts in his Objection that he is no longer seeking declaratory and injunctive relief; accordingly, this Court adopts the Magistrate's recommendation that those claims be dismissed. Plaintiff also states that he does not object to the dismissal of Defendants Caruso, Straub, and Sherry. The Court will therefore adopt the recommendation that they be dismissed from this complaint. That leaves Defendants Rapelje and Winn.
The Magistrate concludes that these Defendants are entitled to qualified immunity because their actions did not violate Plaintiff's constitutional rights.*fn1 This Court agrees with the Magistrate's statement of law that in order to establish liability under the Eighth Amendment for the claim at issue, Plaintiff must demonstrate that Defendants acted with "deliberate indifference" to a substantial risk of serious harm. See Farmer v. Brennan, 511 U.S. 825, 834 (1994); see also Woods v. Lecureux. et al., 110 F.3d 1215, 1222 (6th Cir. 1997). The Magistrate goes on to state that this test involves an objective and subjective component and that Plaintiff fails to raise a genuine issue of material fact as to either element. Plaintiff objects to these findings.
As the Magistrate notes, Plaintiff, in order to satisfy the objective component, must allege a deprivation that is "sufficiently serious" and "must show that he is incarcerated under conditions posing a substantial risk of serious harm." See Farmer, 511 U.S. at 834.
The Magistrate's recommendation that Plaintiff failed to demonstrate a genuine issue of material fact exists with respect to the objective component of Plaintiff's claim (in other words, Plaintiff did not show he was incarcerated under conditions posing a substantial risk of serious harm) was based on, in part, the fact that Plaintiff "was assigned a top bunk for at least two months and only fell twice." See R&R at 12 (emphasis added). This Court strongly disagrees with the Magistrate's conclusion. Plaintiff is not required to fall out of a chair and hit the floor a certain number of times in order to establish a viable claim. Here, Plaintiff fell once, was almost hurt, and asserts he sent a letter to the warden warning him of the danger of accessing the top bunk by chair. When nothing was done to address this situation, Plaintiff fell again, hurt his back, and required medical care.
Moreover, the Magistrate indicates that Defendant Rapelje's affidavit states that while there are 730 inmates at the facility assigned to top bunks, there are no regular complaints about top bunk assignments. This Court is unaware of how many complaints constitute "no regular complaints" and what number of complaints must be received before action is taken. Regardless of how many complaints were made by others, Plaintiff raised the issue.
Furthermore, the issue of access to the top bunk was previously raised, as far back as 2001. Plaintiff attached to his complaint a copy of minutes from a 2001 Warden's Forum, which indicated that the Forum (attended by various prison officials) "believes the facility should provide some sort of step for prisoners assigned to top bunks. Most prisoners use chairs, but these are not sturdy enough for some prisoners." The indicated response to this concern was that "[s]uggestions are sought from the Prisoner Reps." The minutes from the September 2008 Warden's Forum that Defendant attaches to its Summary Judgment Motion indicates, "The Forum is requesting ladders be installed on the bunks to assist prisoners getting in and out of the top bunk." The Response to this issue states, "This is a budgetary issue; no funds are available.
If the items become available as facilities close, SRF will inquire into the availability of same." See Exhibit 5, Attachment A. The Magistrate concludes that "the minutes for those meetings do not indicate that the issue was raised due to safety concerns rather than as a matter of comfort." See R&R at 12. However, it should not be assumed that safety concerns were not the reason for the issue being ...