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Burley v. Miller

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

March 13, 2017


          Magistrate Judge Mona K. Majzoub


          DAVID M. LAWSON United States District Judge

         Plaintiff Edward Burley, a Michigan prisoner representing himself, filed this lawsuit under 42 U.S.C. § 1983 against prison correction officers alleging that they forced him to stand in freezing rain and then sit in a classroom in his wet clothes, knowing that he suffered from respiratory ailments, including asthma. That conduct, he says, violated the Eighth Amendment, and also the First Amendment, because it was in retaliation for the Plaintiff's past grievances. The Court referred the case to United States Magistrate Judge Mona K. Majzoub under 28 U.S.C. § 636(b)(1)(B) and E.D. Mich. LR 72.1(b)(3) to conduct pretrial proceedings. Thereafter, the defendants filed a motion for summary judgment. Judge Majzoub filed a report on March 17, 2016 recommending that the defendants' motion be granted and the case be dismissed.

         The magistrate judge concluded that the facts of the case did not support the First Amendment violation claim, or any Eighth Amendment claim against defendant Stacey Bosworth. She also concluded that the plaintiff demonstrated that defendants Patrick Miller and Daniel Heilman violated the Plaintiff's rights under the Eighth Amendment, but those rights were not clearly established at the time of the events, and therefore those defendants were entitled to dismissal on the basis of qualified immunity. None of the defendants objected to the report. The plaintiff filed timely objections to the report and recommendation, and the matter is now before the Court for fresh review.


         In her report, the magistrate judge focused on Burley's allegation that he was forced to wait in freezing rain before he was allowed to enter a building for a program class. According to Burley, on November 11, 2013, he was authorized to attend a Bridge Builders class in prison school building 300. Burley alleges that when he entered the building 10 to 12 minutes before the class began, defendants Miller, Heilman, and Bosworth ordered him to leave the building and “to stand out in the freezing rain for a period of time, without proper winter attire.” Burley says that he informed Miller, Heilman, and Bosworth that he had asthma and other respiratory complications. Nonetheless, they ordered him back into the freezing rain. And even though his housing unit was 40 yards from the school building, he was not allowed to return to his unit to avoid the severe weather conditions. But Burley also asserted that once he was admitted into the building, he was not allowed to change his clothes and was forced to sit in his saturated clothing for two hours. The magistrate judge ignored that aspect of Burley's complaint when she conducted her qualified immunity analysis.

         The defendants argued to the magistrate judge that their actions were justified by MDOC policy regarding prisoner call-outs for attendance at programs. Judge Majzoub rejected that rationale, concluding that the policies do not support the order for the plaintiff to stand in the rain or prohibit him from entering the building at the time he arrived before his class. Judge Majzoub also observed that the Plaintiff's conditions-of-confinement claim required proof of a subjective component and an objective component, and that the plaintiff satisfied both as to defendants Miller and Heilman. The defendants did not object to those findings, and therefore the Court will not discuss them further. See McClanahan v. Comm'r of Soc. Sec., 474 F.3d 830, 837 (6th Cir. 2006) (explaining that “‘[o]nly those specific objections to the magistrate's report made to the district court will be preserved for appellate review; making some objections but failing to raise others will not preserve all the objections a party may have'”) (quoting Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987)).

         Judge Majzoub also found that Burley had not established that defendant Bosworth was aware of Burley's respiratory ailments when he ordered him to stand in the rain, or that Bosworth was involved personally in the incident. She concluded, therefore, that the plaintiff had not supplied evidence to satisfy the subjective component of his Eighth Amendment claim against that defendant, and recommended dismissal.

         Turning to the qualified immunity question, the magistrate judge then observed that the Sixth Circuit has not dealt with a conditions-of-confinement case under the Eighth Amendment in which a prisoner complained of exposure to cold weather. She defined the issue as follows: “whether it is clearly established that ordering a prisoner with a respiratory condition to stand in freezing rain for a short period of time amounts to a violation.” She concluded that such a proposition was not “clearly established, ” a reasonable prison guard would not have understood that his actions violated the Plaintiff's constitutional rights, and therefore the defendants were entitled to qualified immunity.

         Finally, Judge Majzoub could not find any evidence that supported the Plaintiff's retaliation claim, and recommended that it be dismissed.

         The report and recommendation was filed on March 17, 2016. Because no objections were presented by the Clerk to the Court within the deadline, the Court adopted the report and entered judgment on April 4, 2016. The following day, Burley's objections were docketed. Because the objections were dated March 25, 2016, the Court determined that they were timely and vacated the order adopting the magistrate judge's report and judgment. On April 5, 2016, Burley also filed a “Rule 56(f) motion, ” in which he suggested that discovery may unearth some facts that would support his claims. The defendants subsequently filed a response to Burley's objections, but, as noted above, did not file objections of their own.


         The plaintiff filed nine objections. The filing of timely objections to a report and recommendation requires the Court to “make a de novo determination of those portions of the report or specified findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667 (1980); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). This de novo review requires the Court to re-examine all of the relevant evidence previously reviewed by the magistrate judge in order to determine whether the recommendation should be accepted, rejected, or modified in whole or in part. 28 U.S.C. § 636(b)(1). The review, however, is concentrated on those aspects of the report with which the parties take issue. “The filing of objections provides the district court with the opportunity to consider the specific contentions of the parties and to correct any errors immediately, ” Walters, 638 F.2d at 950, enabling the court “to focus attention on those issues - factual and legal - that are at the heart of the parties' dispute, ” Thomas v. Arn, 474 U.S. 140, 147 (1985).


         In his first objection, Burley argues that the magistrate judge erred by failing to consider the full span of the transaction, that is, not only the few minutes that he was exposed to freezing rain, but also the two hours that he was also ordered to sit in his wet clothing in a cold room for the duration of the two-hour “call-out.” He points out that he was prohibited from returning to his unit to change into a dry set of clothes, and he argues that such treatment amounts to cruel and unusual punishment.

         The plaintiff has a point. Although this added fact likely would not have altered the magistrate judge's conclusions that there was an Eighth Amendment violation, that fact - which is supported by the record - is material to the qualified immunity analysis, as noted below.


         Next, Burley believes that the magistrate judge misapplied the “reasonable person” component of the qualified immunity test outlined in Harlow v. Fitzgerald, 457 U.S. 800 (1982). See Id. at 817-18 (holding “ that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known”) (emphasis added). The defendants argue that there is no evidence that they knew of Burley's medical conditions prior to the alleged incident, and that it was not sufficiently clear at the time that the defendants' actions were unconstitutional.

         The defendants' contentions are at odds with the record facts. Taking the facts in the light most favorable to the plaintiff, as the Court must do when adjudicating a motion for summary judgment under Federal Rule of Civil Procedure 56, Alexander v. CareSource, 576 F.3d 551, 557-58 (6th Cir. 2009), the magistrate judge concluded correctly that defendants Miller and Heilman were aware of Burley's medical conditions, noting that Burley himself told them that he had asthma when on a previous occasion the defendants “shook him down” because he was carrying two inhalers.

         The magistrate judge applied a three-part test to assess the defendants' qualified immunity claim. The Supreme Court has held that a claim of qualified immunity must be examined in two stages, see Saucier v. Katz, 533 U.S. 194, 200 (2001): “[f]irst, a court must consider whether the facts, viewed in the light most favorable to the plaintiff, ‘show the officer's conduct violated a constitutional right, '” and “the court must then decide ‘whether the right was clearly established.'” Solomon v. Auburn Hills Police Dept., 389 F.3d 167, 172 (6th Cir. 2004) (quoting Saucier, 533 U.S. at 201-02). At one time, the Sixth Circuit expanded that inquiry into a three-step sequential analysis, stating: “The first inquiry is whether the plaintiff has shown a violation of a constitutionally protected right; the second inquiry is whether that right was clearly established at the time such that a reasonable official would have understood that his behavior violated that right; and the third inquiry is ‘whether the plaintiff has alleged sufficient facts, and supported the allegations by sufficient evidence, to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established rights.'” Tucker v. City of Richmond, Ky., 388 F.3d 216, 219 (6th Cir. 2004) (quoting Higgason v. Stephens, 288 F.3d 868, 876 (6th Cir. 2002); see also Champion v. Outlook Nashville, Inc., 380 F.3d 893, 901 (citing Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003)). Later, however, the Sixth Circuit reiterated the requirement announced in Saucier v. Katz that this defense must be analyzed in two stages. See Lyon v. City of Xenia, 417 F.3d 565, 571 (6th Cir. 2005).

         Once the qualified immunity defense is raised, “the plaintiff must show that (1) the defendant violated a constitutional right and (2) that right was clearly established.” McDonald v. Flake, 814 F.3d 804, 812 (6th Cir. 2016) (citing Quigley v. Tuong Vinh Thai,707 F.3d 675, 680 (6th Cir. 2013)). The plaintiff must clear both hurdles, but the Court may take up the questions in ...

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