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Moore v. Smith

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

March 3, 2017

CHARLES MOORE, Plaintiff,
v.
WILLIE O. SMITH, et al., Defendants.

          REPORT AND RECOMMENDATION

          Hon. Gordon J. Quist, Judge

         This is a pro se civil rights action brought by a state prisoner at a Michigan Department of Corrections (MDOC) facility pursuant to 42 U.S.C. § 1983. This matter is now before the Court on a motion for summary judgment filed by defendants Smith, Treiweiler, Kipp, Krick, Klatt, Showers, Miller, Christiansen, Sanchez, Hynesbach, Clark and Stott (docket no. 82).[1]

         I. Plaintiff's amended complaint

         The events about which plaintiff complains took place while he was housed at the Carson City Correctional Facility (DRF). Plaintiff sues the following DRF personnel: Warden Willie O. Smith; Deputy Warden Tony Treiweiler; Deputy Warden Timothy Kipp; Deputy Warden Laura Krick; Assistant Resident Unit Supervisor (ARUS) Russell Klatt; ARUS Brad Showers; Resident Unit Manager (RUM) Cheryl Miller; Inspector Christiansen; Inspector Sanchez; Corrections Officer (CO) Clark, CO Hynesbach and CO Stott.

         Plaintiff was housed at DRF on November 23, 2011. Letter (docket no. 7-1, PageID.51). On January 22, 2012, plaintiff wrote a letter to Warden Smith complaining about the “serious risks to his health and safety” as a result of COs Clark and Hynesbach's decision to dilute bleach and that he had complained about it to ARUS Showers. Amend. Compl. (docket no. 7, PageID.43). Sometime prior to February 10, 2012, plaintiff asked COs Clark and Hynesbach “to instruct the unit ports to quit diluting the bleach and disinfectants and to ensure the bathrooms, sinks and showers are properly cleaned since mold was present all over the unit, ” knowing that there were cases of prisoners infect with Methicillin-resistant Staphylococcus aureus (MRSA). Id. at PageID.42. Plaintiff filed a grievance on February 10, 2012 against Warden Smith, Deputy Warden Treiweiler and CO Clark after he saw Clark “diluting the bleach used for prisoners' laundry, and containers used to clean showers, toilets and living areas.” Id. In this regard, plaintiff alleged that according to MDOC records, Deputy Warden Treiweiler was aware of a bleach dilution problem as early as March 2011. Id. at PageID.43.

         On April 4, 2012, plaintiff filed a grievance against Warden Smith for failing to investigate ARUS Klatt's retaliatory conduct. Id. at PageID.44. Plaintiff does not allege the nature of Klatt's retaliatory conduct, other than Klatt's statement “that if the Plaintiff had a problem with the way bleach was handled: ‘maybe I should move you to . . . unit 1200, ' which is a higher security level.” Id.

         During the Warden's Forum on April 16, 2012, prisoners brought up their concerns about mildew and roof leaks to Warden Smith and Deputy Wardens Treiweiler and Krick. Id. at PageID.43.

         In July and August 2012, after plaintiff was elected as a “Prisoner's Representative, ” he wrote letters to the Warden complaining about various matters related to the diluted bleach, cases of MRSA, “mold all over” the shower walls and lack of disinfectants. Id. at PageID.44-45. Plaintiff also wrote letters complaining of retaliatory conduct by ARUS Klatt, ARUS Showers, CO Clark, CO Hynesbach, CO Stott and RUM Miller. Id. at PageID.45.

         At the Warden's Forum on August 21, 2012, prisoners' representatives “brought up the hazardous living conditions and poor ventilation to Defendants Smith, Kipp and Krick's attention.” Id. The prisoners' complaints “angered” Warden Smith who threatened all of the representatives with punitive segregation. Id. Since that date, plaintiff has been subject to retaliation. Id.

         The sanitation issue was raised at a Warden's Forum meeting in September 2012, at which Warden Smith, Deputy Warden Kipp and Deputy Warden Krick were present. Id. Warden Smith again used abusive language in addressing the prisoners. Id.

         In September 2012, Deputy Warden Kipp called out plaintiff and offered him a job if plaintiff would quit the Warden's Forum and stop filing grievances against the Warden and other staff. Id. at PageID.45. According to plaintiff, Deputy Warden Kipp “threatened that if Mr. Moore continued bringing up prisoners' complaints and protesting about the hazardous conditions, he will be sorry.” Id. at PageID.45-46. Plaintiff asked Deputy Warden Kipp to transfer him to the Macomb Facility. Id. at PageID.46.

         Sometime after his meeting with Deputy Warden Kipp, both plaintiff's Prisoner Trust Account and his “J-Pay” account were frozen.[2] Id. While being interviewed by Inspector Christiansen, the inspector denied freezing plaintiff's account. Id. ARUS Klatt showed plaintiff a computer screen that said “Account frozen by the Inspector.” Id. Inspector Sanchez became the new inspector, and told plaintiff “I am aware who you are and what you have been doing. Maybe you shouldn't be filing grievances.” Id. Finally, plaintiff alleged that his transfer out of DRF on December 5, 2012 was “in retaliation in violation of MDOC's Policies and Operating Procedures.” Id.

         Plaintiff's amended complaint set forth three counts against defendants. In Count I, plaintiff alleged that defendants retaliated against him. Id. at PageID.46-47. In Count II, plaintiff alleged that defendants violated his due process rights by freezing his account. Id. at PageID.47-48. In Count III, plaintiff alleged that defendants acted with deliberate indifference by willfully exposing him to MRSA, mold, unsanitary conditions and lack of ventilation. Id. at PageID.48-49. Plaintiff seeks $150, 000.00 of damages from each defendant. Id. at PageID.50.

         In screening the amended complaint, the Court found that plaintiff had sufficiently alleged a claim for retaliation under the First Amendment. Id. at PageID.93-94. The Court also found that plaintiff had alleged Eighth Amendment claims related to poor ventilation (“[p]oor ventilation leading to prolonged exposure to foul odors or unhealthy airborne microorganisms can violate the Eighth Amendment in some circumstances”) and exposure to communicable diseases (“[l]ikewise, exposure to serious communicable diseases, including MRSA, may form the basis of a deliberate indifference claim under the Eighth Amendment where there is an ‘unacceptable risk of serious damage to [Plaintiff's] future health.'”). Id. at PageID.96-97. However, the Court rejected plaintiff's due process claim with respect to freezing his prison account. Id. at PageID.94-96. The Court dismissed plaintiff's due process claims and authorized service with respect to his First Amendment and Eighth Amendment claims. Id. at PageID.97; Order for partial dismissal and partial service (docket no. 9).

         II. Defendants' motion for summary judgment

         A. Legal standard

         Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, which “provides a civil cause of action for individuals who are deprived of any rights, privileges, or immunities secured by the Constitution or federal laws by those acting under color of state law.” Smith v. City of Salem, Ohio, 378 F.3d 566, 576 (6th Cir. 2004). To state a § 1983 claim, a plaintiff must allege two elements: (1) a deprivation of rights secured by the Constitution and laws of the United States, and (2) that the defendant deprived him of this federal right under color of law. Jones v. Duncan, 840 F.2d 359, 360-61 (6th Cir. 1988); 42 U.S.C. § 1983.

         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Rule 56 further provides that a party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1).

         In Copeland v. Machulis, 57 F.3d 476 (6th Cir. 1995), the court set forth the parties' burden of proof in a motion for summary judgment:

The moving party bears the initial burden of establishing an absence of evidence to support the nonmoving party's case. Once the moving party has met its burden of production, the nonmoving party cannot rest on its pleadings, but must present significant probative evidence in support of the complaint to defeat the motion for summary judgment. The mere existence of a scintilla of evidence to support plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.

Copeland, 57 F.3d at 478-79 (citations omitted). “In deciding a motion for summary judgment, the court views the factual evidence and draws all reasonable inferences in favor of the nonmoving party.” McLean v. 988011 Ontario Ltd., 224 F.3d 797, 800 (6th Cir. 2000).

         B. RUM Miller

         Plaintiff testified that RUM Miller is a defendant only because she responded to his grievances. Charles Moore Dep. (docket no. 83-2, PageID.337). A prison official whose only role involved the denial of an administrative grievance cannot be liable under § 1983. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). “The mere denial of a prisoner's grievance states no claim of constitutional dimension.” Alder v. Correctional Medical Services, 73 Fed.Appx. 839, 841 (6th Cir. 2003). Accordingly, RUM Miller is entitled to summary judgment on all claims.

         C. Eighth Amendment claim that Warden Smith, Deputy Warden Treiweiler, Deputy Warden Krick, ARUS Showers, CO Clark and CO Hynesbach exposed plaintiff to an unreasonable risk to his future health by diluting the bleach used to sanitize laundry and exposing him to infectious diseases

         Plaintiff alleged that defendants violated his Eighth Amendment rights by diluting the bleach used for laundry and cleaning. The only time that plaintiff actually observed this occurrence was on an unspecified date when he stood outside of the laundry room and observed another prisoner diluting the bleach into a mechanical device used to dispense the bleach into the laundry. Moore Dep. at PageID.319. According to plaintiff, this resulted in “double diluting” the bleach because the system “is designed to dilute pure bleach to the right amount [sic] water going into the washing machine” and “taking away from its effectiveness.” Id. at PageID.321. Plaintiff also stated that the washing machines were being used to launder prisoners' clothes as well as mopheads used to clean hazmat spills. Id.

         Inmates have a constitutionally protected right to health and safety grounded in the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 833 (1994). Thus, prison staff are obliged “to take reasonable measures to guarantee the safety of the inmates” in their care. Hudson v. Palmer, 468 U.S. 517, 526-27 (1984). 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 ...


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