United States District Court, W.D. Michigan, Southern Division
For Isaiah Doxey #719074, Isaiah James Doxey, Plaintiff, Pro se, Marquette, MI USA.
For Unknown Mcconkey, Corrections Officer, Unknown Schaffer, Correctionns Officer, Unknown Bgverka, Corrections Officer, Defendants: Kevin R. Himebaugh, MI Dept Attorney General (Corrections), Corrections Division, Lansing, MI USA.
For Unknown Kennerly, Physicians Assistance (P.A), Defendant: Kimberley A. Koester, Chapman and Associates PC, Bloomfield Hills, MI USA.
For Unknown Mouralis, Nurse, Unknown Woods, Sgt/Corrections Officer, Unknown Jones, Corrections Officer, Unknown Wellman, Corrections Officer, Unknown Haynes, Corrections Officer, Defendants: Kevin R. Himebaugh, MI Dept Attorney General (Corrections), Corrections Division, Lansing, MI USA.
HUGH W. BRENNEMAN, JR., United States Magistrate Judge. Hon. Robert J. Jonker.
REPORT AND RECOMMENDATION
HUGH W. BRENNEMAN, JR., United States Magistrate Judge
This is a pro se civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983. This matter is now before the court on motions for summary judgment filed by defendants Jared McConkey, Kirt Schafer, Nathan Badryka, Anne Maroulis, Kevin Wood, Troy Jones, Matthew Wellman, and Nakita Haynes (docket no. 52) and defendant Michael Kennerly, P.A. (docket no. 78).
I. Plaintiff's complaint
The Court previously summarized plaintiff's complaint as follows:
Plaintiff Isaiah Doxey is a state prisoner incarcerated by the Michigan Department of Corrections (MDOC) at the Ionia Correctional Facility (ICF). Defendants are Daniel Heyns, the Director of the MDOC, and the following employees at ICF: Warden Kathy Stoddard; Deputy Warden Erika Huss; Resident Unit Manager (RUM) " Unknown" Ball; Sergeants/Corrections Officers " Unknown" Woods and " Unknown" Riske; Corrections Officers " Unknown" McConkey, " Unknown" Schaffer [Schafer], " Unknown" Bgverka, [Badryka] " Unknown" Risk, " Unknown" Jones, " Unknown" Wellman, " Unknown" Shreve, " Unknown" Haynes, and " Unknown" Thebo; Physician's Assistant (PA) " Unknown" Kennerly; and Nurse " Unknown" Mouralis. ( See Compl., docket #1, Page ID#4.)
According to the complaint, on March 9, 2012, at approximately 7:30 a.m., PA Kennerly, Nurse Mouralis, Sgt. Wood, Officer Jones, and several unidentified prison officers " rushed" into Plaintiff's cell while he was lying on his bed. (Compl., docket #1, Page ID#4.) They then started to press on his pressure points in order to " force" him to give his " vitals." (Id.) Plaintiff assumed a fetal position, " screamed" for them to stop, and " refused medical attention numerous times." (Id.) Someone told Plaintiff, " [Y]ou can't we[']re going to taze you." (Id.) Defendants and the other officers then decided to leave the cell. One officer asked Sgt. Wood, " [D]o you want to cuff him up? Let's cuff him up." (Id.) Sgt. Wood replied, " [N]o, we're [going to] gas him." (Id.) Five minutes later, the officers " gassed" Plaintiff, even though they knew that he has chronic asthma. (Id.)
Plaintiff asked to be removed from the cell because it was filled with gas, and he backed up to his door to be cuffed. Officer Jones opened the flap on the cell door to look into Plaintiff's cell and told him to back up to the door, even though Plaintiff was already at the door. Plaintiff stated that he was at the door, but Jones replied, " No you're not." (Id.) Plaintiff contends that Jones deliberately ignored Plaintiff's compliance in order to force Plaintiff to remain in the gas-filled cell for a few additional minutes. Finally, after Plaintiff started knocking on the door, Jones and the other officers put him in handcuffs and removed him from his cell. As they did so, they " tried to break [his] arms on the slot, " even though he was not resisting. (Id.)
Immediately after leaving his cell, Plaintiff asked for his inhaler because his lungs were " on fire" and were so constricted that he could not breathe. (Id.) Nurse Mouralis had his inhaler but she refused to give it to him, telling him that he would not receive it until he was given a medical examination. Plaintiff was then taken up some stairs, with the officers bending his fingers and arms into a painful position. (Id.) On the way up the stairs, an officer pulled down Plaintiff's underwear in order to humiliate him. Plaintiff was then taken to a shower.
Plaintiff asserts that another prisoner, inmate Williams, was supposed to clean up the gas inside Plaintiff's cell while Plaintiff was in the shower; however, when Williams entered the cell and started choking due to the gas, an officer told him to leave, saying, " [W]e just need to make it look good for the camera." (Id.) As a result, the cell was not properly cleaned and Plaintiff was forced to return to a cell that still contained the gas. Plaintiff claims that the gas exposure damaged his lungs, requiring long-term treatment with a steroid called Qvar. Plaintiff filed a grievance regarding the foregoing incidents on March 10, 2012, but he never received a response.
On May 16, 2012, Officer Shreve refused to give Plaintiff his lunch tray. Plaintiff claims that Shreve did this to deter Plaintiff from filing grievances or seeking redress for the exposure to gas. On three other occasions, other officers who are not named as defendants also refused to give Plaintiff his food trays.
Approximately one year later, Plaintiff met with an analyst from the office of the MDOC Ombudsman regarding the gas incident. On or about May 14, 2013, Officer McConkey told Plaintiff that he would be assaulted for speaking to the Ombudsman. McConkey also told a prisoner in the cell next to Plaintiff's to " go through [the] wall" and assault Plaintiff, because Plaintiff was a " rat, " but the prisoner refused. (Id.)
On or about May 30, 2013, McConkey allegedly told Officer Wellman to refuse to give Plaintiff a shower because Plaintiff wrote a grievance against McConkey. Wellman did so.
On or about August 22, 2013, Officer Thebo refused to give Plaintiff his lunch tray, stating, " [T]ry not to piss off 2nd shift and you'd get your trays. It isn't personal." (Id. at Page ID#5.) The next day, Officer Risk spit in Plaintiff's food, allegedly in retaliation for Plaintiff's " issue with McConkey" and for Plaintiff's complaints to the Ombudsman. Later, Officer Schaffer [Schafer] stopped by Plaintiff's cell and asked him, " [H]ow'd [you] like that spit loaf?" (Id.)
On or about August 27, 2013, Officer Schaffer [Schafer] tore up Plaintiff's mail and told him, " If you continue to write grievances we[']re going to beat your ass like we did Harry." (Id.)
On or about August 28, 2013, Officers Bgverka [Badryka] and Schaffer [Schafer] refused to give Plaintiff his food tray, calling him a " rat." (Id.) The next day, Officer Schaffer [Schafer] threw Plaintiff's food tray into his cell, causing the food to land on the floor. Officer Bgverka [Badryka]observed the incident and did nothing to stop it.
On or about August 31, 2013, while they were handing out food trays, Officer Haynes told Officer Schaffer [Schafer], " I think we[']re short a tray." (Id.) Schaffer [Schafer] responded, " [N]o Doxey's not eating[; ] he's been lying on McConkey and Wilson." (Id.) Haynes did not give Plaintiff a food tray. Schaffer [Schafer] also stated, " [G]ot me a new shirt yesterday, know what it says? Stop snitching!" (Id.)
On or about September 15, 2013 [September 5, 2013], Officer Schaffer [Schafer] refused to give Plaintiff and inmate Harry their " store bags, " stating, " You niggers don't have shit coming!" (Id.) Schaffer [Schafer] later came to Plaintiff and said that he would give Plaintiff his bag if Plaintiff took inmate Harry's bag. Plaintiff refused. Plaintiff and Harry did not receive their bags until 9:30 p.m. that evening, while other prisoners received theirs at 3:00 p.m.
Plaintiff claims that he lives in constant fear for his life and his physical safety. He asserts that unit one at ICF is " notorious" for " malicious, sadistic and wanton infliction of pain, " and that " [t]aking prisoner's food trays, showers, mail and yards [is] the norm, " as is " [j]umping on prisoners in handcuffs and using chemical agents unjustifiably and excessively." (Id.) He claims that Defendants Huss, Stoddard, Ball, and Heyns are aware of the other Defendants' " propensity to be violent" and " propensity for harming prisoners"; however, they did nothing to prevent the harm to Plaintiff. (Id.) Plaintiff asserts that Huss, Stoddard, Ball and Heyns " tacitly encouraged" the other officers to do as they pleased. (Id.)
As relief, Plaintiff seeks compensatory and punitive damages, as well as criminal charges against the officers ...