United States District Court, W.D. Michigan, Southern Division
REPORT AND RECOMMENDATION
Gordon J. Quist, Judge
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).
Plaintiff's amended complaint
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.
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.
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.
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
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.
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
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
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.
after his meeting with Deputy Warden Kipp, both
plaintiff's Prisoner Trust Account and his
“J-Pay” account were frozen. 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.
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.
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).
Defendants' motion for summary judgment
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.
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).
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
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.
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
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
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.
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 ...