United States District Court, W.D. Michigan, Northern Division
ROBERT HOLMES BELL, JUDGE
REPORT AND RECOMMENDATION
TIMOTHY P. GREELEY, UNITED STATES MAGISTRATE JUDGE
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.
submitted a Step I grievance against Defendant Bradley
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.
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
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.
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).
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.
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)).
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' ...