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Ward v. Campbell

United States District Court, W.D. Michigan, Northern Division

December 6, 2016

NATHANIEL WARD, Plaintiff,
v.
D. CAMPBELL, et al., Defendants.

          HON. ROBERT HOLMES BELL, JUDGE

          REPORT AND RECOMMENDATION

          TIMOTHY P. GREELEY, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Nathaniel Ward filed this pro se civil rights action pursuant to 42 U.S.C. § 1983. The remaining claims are that Defendant Virginia Olmstead retaliated against Plaintiff by writing two false misconduct tickets against Plaintiff on October 21, 2014, and that Defendant Colin Bradley violated Plaintiff's Eighth Amendment rights by demanding sexual favors from Plaintiff. Defendants filed a motion for summary judgment. ECF. No. 27. Plaintiff has not filed a response.

         Plaintiff submitted a Step I grievance against Defendant Bradley asserting that:

Staff Block Officer Bradley stated to me, to “stop talking before I put this dick in your mouth.” I stated “I'm not a homosexual, why do you like talking about dick all the time.” He stated “so you can get used to me saying this and you will be ready to suck it when the time is right.” I told him that I will write a grievance. He said “write your grievance I don't care. Your grievance writing won't do shit to me.” He also said “after you finish writing all you little grievance you'll be ready to let me fuck you in the ass.” Sexual Misconduct is prohibited by policies. This is a violation that Block Officer Bradley continue to do.

ECF No. 16-3, PageID.192. The grievance was denied because an investigation revealed that there was insufficient evidence to support Plaintiff's assertions. PageID.193.

         Plaintiff alleges that he received fabricated misconduct tickets from Defendant Olmstead. Defendant Olmstead wrote a misconduct ticket dated October 21, 2014, which included charges of insolence and substance abuse. Plaintiff argued at his misconduct hearing that Defendant Olmstead fabricated the ticket because Plaintiff had submitted grievances against her. ECF No. 16-5, PageID.277. Plaintiff was found guilty of the charges:

SUBSTANCE ABUSE: Prisoner Ward had in his hands and therefore in his possession a bottle of yellow liquid that smelled of fermentation without staff authorization 10-21-14 at 1840hrs. I find that this was alcohol as it looked and smelled like spud juice a homemade alcohol. First, Prisoner Ward was given a contraband removal record which does describe location of evidence so he was notified of this and his due process was not violated. Second, Prisoner Ward's statement is not believed because if he never had the bottle in his hands and he never called her a liar then he would have wanted the witnesses in the bathroom and his cube to say what they saw. The Officer is clear and factual in his statement and is found to be credible. The charge is upheld.
INSOLENCE: Prisoner Ward said to Officer Olmstead “you never saw me with any spud you're a liar go ahead and write the ticket liar, ” on 10-21-14 at 1840hrs. I find that this statement by its very nature is intended to harass and degrade the officer. For the reasons stated above, Prisoner Ward's statement is not believed. The Officer is clear and factual in his statement and is found to be credible. The charge is upheld.

Id.

         Summary judgment is appropriate only if the moving party establishes that there is no genuine issue of material fact for trial and that he is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). If the movant carries the burden of showing there is an absence of evidence to support a claim or defense, then the party opposing the motion must demonstrate by affidavits, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue of material fact for trial. Id. at 324-25. The nonmoving party cannot rest on its pleadings but must present “specific facts showing that there is a genuine issue for trial.” Id. at 324 (quoting Fed.R.Civ.P. 56(e)). The evidence must be viewed in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Thus, any direct evidence offered by the plaintiff in response to a summary judgment motion must be accepted as true. Muhammad v. Close, 379 F.3d 413, 416 (6th Cir. 2004) (citing Adams v. Metiva, 31 F.3d 375, 382 (6th Cir. 1994)). However, a mere scintilla of evidence in support of the nonmovant's position will be insufficient. Anderson, 477 U.S. at 251-52. 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) (single affidavit, in presence of other evidence to the contrary, failed to present genuine issue of fact); cf. Moore, Owen, Thomas & Co. v. Coffey, 992 F.2d 1439, 1448 (6th Cir. 1993) (single affidavit concerning state of mind created factual issue).

         The Eighth Amendment imposes a constitutional limitation on the power of the states to punish those convicted of crimes. Punishment may not be “barbarous” nor may it contravene society's “evolving standards of decency.” Rhodes v. Chapman, 452 U.S. 337, 345-46 (1981). The Amendment, therefore, prohibits conduct by prison officials that involves the “unnecessary and wanton infliction of pain.” Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987) (per curiam) (quoting Rhodes, 452 U.S. at 346). The deprivation alleged must result in the denial of the “minimal civilized measure of life's necessities.” Rhodes, 452 U.S. at 347; see also Wilson v. Yaklich, 148 F.3d 596, 600-01 (6th Cir. 1998). The Eighth Amendment is only concerned with “deprivations of essential food, medical care, or sanitation” or “other conditions intolerable for prison confinement.” Rhodes, 452 U.S. at 348 (citation omitted). Moreover, “[n]ot every unpleasant experience a prisoner might endure while incarcerated constitutes cruel and unusual punishment within the meaning of the Eighth Amendment.” Ivey, 832 F.2d at 954.

         In order for a prisoner to prevail on an Eighth Amendment claim, he must show that he faced a sufficiently serious risk to his health or safety and that the defendant official acted with “‘deliberate indifference' to [his] health or safety.” Mingus v. Butler, 591 F.3d 474, 479-80 (6th Cir. 2010) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994) (applying deliberate indifference standard to medical claims); see also Helling v. McKinney, 509 U.S. 25, 35 (1993) (applying deliberate indifference standard to conditions of confinement claims)).

         Defendant Bradley argues that Plaintiff's claims of sexual harassment fail to support an Eighth Amendment violation. “[B]ecause the sexual harassment or abuse of an inmate by a corrections officer can never serve a legitimate penological purpose and may well result in severe physical and psychological harm, such abuse can, in certain circumstances, constitute the ‘unnecessary and wanton infliction of pain' ...


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