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Hernandez v. Smith

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

October 31, 2017

WILLIE SMITH, et al., Defendants.

          Hon. Gordon J. Quist, Judge.



         This is a pro se civil rights action brought by a prisoner in the custody of the Michigan Department of Corrections (MDOC). This matter is now before the Court on defendants Smith, Christiansen, Schiebner, Greenfield, Jaramillo, Andrews, Ybarra, Scott, Howard, Hengesbach, Wilkinson, and Watkins' motion for summary judgment on the basis of exhaustion (ECF No. 33).

         I. Background

         The defendants in this action include the following MDOC employees at Ionia Correctional Facility (ICF): Warden Willie Smith, Deputy Warden John Christiansen, Deputy Warden James Schiebner [listed on the docket sheet as “Scheibner”], Sgt. John Greenfield, Corrections Officer (CO) John Jaramillo, CO Dena Andrews, CO Silvero Ybarra, CO Amy Scott, Lt. Delan Howard, CO Louis Hengesbach [listed in the complaint as “Henegbasch”], CO Mark Wilkinson, and CO Dewey Watkins. Compl. (ECF No. 1, PageID.1-3); Defendants' Brief (ECF No. 34). Plaintiff also sued Dr. Roger Gerlach, identified in the complaint as “a Doctor (Dr.) at ICF”. Compl. at PageID.3.

         Plaintiff's complaint set forth the following allegations, all of which occurred at the Ionia Correctional Facility (ICF). On September 18, 2016, “[p]laintiff began a hunger strike because of the lack of control he has over his mental illness.” Compl. at PageID.3. October 18, 2016, defendant Greenfield came to plaintiff's cell asked him if he wanted to be seen by health care. Id. at PageID.4. Plaintiff informed Greenfield that he needed help and that he was too weak to walk. Id. Defendant Dr. Gerlach came to plaintiff's cell and asked if he would come out for healthcare, and plaintiff also told the doctor that he was too weak to walk and needed help. Id. Defendant Scott came to the cell and asked if plaintiff would come out to be seen by healthcare. Id. Plaintiff gave her the same answer. Id. Scott told plaintiff that it did not matter, because they were going to get him out. Id.

         Defendants Greenfield and Dr. Gerlach came by again and told plaintiff that they would “really like” plaintiff to attempt to come to health care. Id. Plaintiff repeated his response. Id. Dr. Gerlach then told plaintiff “that he was going to have him gassed if he didn't come out for health care.” Id. “Plaintiff then pleaded with Defendant Roger Gerlach for help because his body was extremely weak and he would have trouble walking.” Id. Then, defendants Christiansen, Smith, Dr. Gerlach, and Schiebner authorized defendants Greenfield, Jaramillo, Andrews, Wilkinson, Hengesbach, Watkins, and Ybarra “to use a chemical agent against Plaintiff for not being physically able to walk to health care . . . even though Plaintiff was not being disruptive.” Id. at PageID.4-5.

         After gassing plaintiff, defendants Greenfield, Jaramillo, Andrews, Wilkinson, Hengesbach, Watkins, and Ybarra, dragged plaintiff out of his cell, threw plaintiff into the shower, pulled plaintiff out of the shower, escorted plaintiff to health care, placed plaintiff back into his cell, and refused to clean the chemical agent from his cell. Id. at PageID.6-7. Plaintiff was left in the “inhumane living conditions” in his cell until November 7, 2016, when he was placed back in the general population. Id. at PageID.7-8.

         Then, on November 14, 2016, defendant Howard retaliated against plaintiff by writing a “fabricated misconduct” because plaintiff used the grievance process. Id. at PageID.8-9. Plaintiff alleged that on November 15, 2016, non-party Sgt. Davis reviewed the class two misconduct, which stated that plaintiff had falsified and fabricated a grievance against non-party grievance coordinator Clarice Lewis. Id. at PageID.9. With respect to this claim, the record reflects that Sgt. Davis reviewed the misconduct on November 14, 2016, that plaintiff refused to sign off on the misconduct, and that a copy of the misconduct was given to plaintiff. See Misconduct Report (ECF No. 34-4, PageID.169). Plaintiff's complaint omits the fact that on November 16, 2016, A/Lt. Drabek: found plaintiff guilty of the charged misconduct of “interference with administration of the rules;” found that plaintiff admitted to defendant Howard that the grievance at issue was “written prematurely and fabricated;” and found that plaintiff signed off on the grievance as “resolved.” See Misconduct Hearing Report (Nov. 16, 2016) (ECF No. 1-1, PageID.35; ECF No. 34-4, PageID.168). After finding that plaintiff was guilty of the misconduct, A/Lt. Drabek issued plaintiff a sanction of seven days loss of privileges. Id. Plaintiff also attached a copy of an MDOC Class II and Class III Misconduct Appeal which denied plaintiff's claim that his due process rights were violated. See Appeal (Nov. 22, 2016) (ECF No. 1-1, PageID.36).[1]

         In summary, plaintiff claims that defendants Smith, Christiansen, Schiebner, Greenfield, Jaramillo, Andrews, and Scott's use of chemical agent, excessive force, and his placement in inhumane living conditions violated his rights under the Eighth Amendment. Plaintiff also claims that defendants Howard, Smith, Christiansen, and Scheibner retaliated against him by securing a misconduct conviction which violated his First Amendment right to file grievances. Compl. at PageID.12. Plaintiff seeks monetary damages and injunctive relief. Id. at PageID.12-13.

         II. Defendants' motion for summary judgment

         A. Legal standard

         “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), ...

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