United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, OR, IN THE
ALTERNATIVE, MOTION TO DISMISS 
STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE.
January 26, 2015, pro se plaintiff Robert Annabel
("Annabel") filed his civil rights complaint
alleging that prison officials at the Macomb Correctional
Facility ("MCF") violated various constitutional
provisions and state laws. In May 2016, the Court referred
all pretrial matters to Magistrate Judge Davis. ECF 22. The
Court later rescinded the order of reference as to
dispositive motions. ECF 106. There are two dispositive
motions currently pending. The Court will address only the
motion for summary judgment, or in the alternative, motion to
dismiss. ECF 99. For the reasons stated below, the Court will
grant in part and deny in part Defendants' motion.
Procedural History and the Parties
filed his complaint on January 26, 2015. The Court initially
dismissed the complaint under the Prison Litigation Reform
Act's "three strikes" provision. ECF 6. Annabel
filed a motion for reconsideration, ECF 9, and a notice of
appeal, ECF 10. The Court granted Annabel's motion for
reconsideration, reopened the case, and granted Annabel in
forma pauperis status. ECF 16, 19. The Court's grant of
reconsideration rendered Annabel's appeal moot. ECF 17.
the federal Marshal Service served eleven defendants, who
each waived service. ECF 27-34, 36-38. The Marshals were
unable to serve four defendants: Jorg Erichsen, and
Corrections Officers ("CO") Weberg, Robbinson, and
Brown. ECF 23-26. Erichsen returned a waiver of service on
March 3, 2017. ECF 69. Over the course of more than one year,
the Court attempted to effectuate service on Weberg,
Robbinson, and Brown. See ECF 45, 47, 54, 57, 65,
86, 89, 101, 102, and 110. Neither Robbinson nor Brown could
be served, ECF 95-96, and the Court dismissed them from the
case, ECF 101. Weberg returned a waiver of service on
November 20, 2017. ECF 113.
the Marshals successfully served thirteen defendants: Jorg
Erichsen; CO Weberg; and the "MDOC Defendants." The
MDOC Defendants include: COs Antwan Oden, Thomas Jordan,
Jorge Lebron, Kenneth Loftis; Sergeant James Haggerty;
Grievance Coordinator Eutrilla Taylor; Mental Health
Therapists Janice Stewart and Scott Webster; Deputy Wardens
Darrell Steward and George Stephenson; and Warden Kenneth
the protracted service period, the parties filed numerous
motions that the Court addressed. First, on September 6,
2016, the MDOC Defendants filed a motion for summary judgment
or motion to dismiss. ECF 43. On September 22, 2016, Annabel
filed a motion for leave to file an amended complaint, ECF
48, and an amended complaint, ECF 49. Annabel subsequently
filed a response to MDOC Defendants' dispositive motion
on October 24, 2016. ECF 58. The MDOC Defendants replied. ECF
August 25, 2017, Magistrate Judge Davis filed a report and
recommendation suggesting that the Court grant Annabel's
motion for leave to file an amended complaint and deny the
MDOC Defendants' motion for summary judgment on the issue
of exhaustion. ECF 91. The Court rejected the Report and
Recommendation because both motions were moot. ECF 97. The
MDOC Defendants filed a motion under Rule 12(b) and
"Annabel filed an amended complaint within 21
days." Id. at 760. Pursuant to Rule 15(a),
therefore, "Annabel [was] entitled to amend his
complaint as of right." Id.
in April 2017, the Court addressed several other Reports and
Recommendations, overruled Annabel's objections to the
Reports, and affirmed Magistrate Judge Davis's orders on
a motion to compel, a motion to strike, and a renewed motion
for recusal. ECF 74, 76. Annabel filed a notice of appeal on
May 8, 2017. ECF 78. The Sixth Circuit dismissed the appeal
as premature. ECF 85.
Weberg filed an unopposed motion for summary judgment, which
the Court granted. ECF 122, ECF 125-26. As a result, only
twelve defendants remained active litigants in the case: Jorg
Erichsen and the MDOC Defendants.
October 10, 2017, the MDOC Defendants renewed their motion
for summary judgment or motion to dismiss. ECF 99. Annabel
responded to the motion. ECF 103. In the hopes of preserving
judicial resources-given the case's extraordinarily heavy
motion practice and that the MDOC Defendants' renewed
motion for summary judgment was identical to its previous,
mooted filing-the Court rescinded its order of referral to
Magistrate Davis for resolution of the dispositive motions.
Facts of the Case
December 2, 2013, Erichsen assaulted Annabel after Annabel
"jokingly" locked a fellow prisoner in a shower.
ECF 49, PgID 358. During the encounter, Erichsen said,
"You fuckhead, now I have to go get the key! How about I
lock you in there, bitch!" Id. Plaintiff
contends that a DVD of the event existed. Id. at
Annabel reported the incident, his injuries were treated and
photographed. Id. at 358-59. Plaintiff then filed a
grievance for the assault, MRF-12-12-1179-26a. Plaintiff
suggests that MDOC failed to comply with the grievance policy
in responding to the grievance. Id. at 359. Further,
Plaintiff expressed to MDOC inspector K. Steece a desire to
press criminal charges. Id.
on December 12, 2013, COs Oden, Weberg, and an unknown
officer called Annabel a "snitch." Id. at
360. Annabel feared that the other prisoners would interpret
the statement to mean he was a snitch against them rather
than a snitch against Erichsen. Id. at 360. If
interpreted that way, he suspected that the other prisoners
would attack or harass him. Id. Annabel responded by
filing a grievance, MRF-13-12-1225-17b. Annabel maintains
that during its investigation of the incident, MDOC failed to
interview an identified witness. Id.
week later, non-party Jordan asked Annabel a question about
"privileged information formally disclosed only to
Sergeant Kelly, Inspector K. Steece, and Deputy Warden
Stewart." Id. at 361. Annabel avers that
non-party Jordan's question demonstrated Grievance
Coordinator Eutrilla Taylor disclosed privileged information
and that the disclosure evidenced Taylor's corruption.
So, Annabel filed a grievance, MRF 14-01-0056-28e. Taylor
rejected that grievance as vague, which Annabel believes
further evidences her corruption. Id.
January 14, 2014, COs Jordan and Lebron stopped Annabel as he
proceeded to a therapy group. Id. at 360. Jordan
told Plaintiff: "You aren't going to any groups
today, because you should have kept your mouth shut about
[Erichsen]. Go in there (the Unit 7 dayroom), and I'll
write you a threatening behavior, and you'll be down on
A-wing." Id. That day, Annabel submitted a
grievance to Inspector Steece. Id. at 361.
before dinner on January 19, 2014, CO Loftis checked
Annabel's ID at a guard station. Id. at 360-61.
During the exchange, Loftis told Annabel, "I'm not
going down like [Erichsen] did." Id. at 361.
The next day, Annabel filed another grievance with Inspector
Kelly interviewed Plaintiff about the incidents and
determined that there was insufficient evidence to discredit
staff. Plaintiff received neither grievance receipt
identifiers nor Step I Responses, which foreclosed appeal.
January 28, 2014, Annabel submitted a written complaint to
"the Unit 7 non-white prisoner unit representative"
and asked him "to raise as issues at the Warden's
Forum" that Grievance Coordinator Taylor failed "to
provide Step I receipt identifiers" and Step II Appeals
February 1, 2014, Annabel wrote a letter to Inspector Steece
expressing concern for his safety at the facility because of
staff conduct. Id. at 362. The next day, Annabel
requested grievance forms from CO Brown who suggested
that Annabel could retrieve them from the desk. Instead,
Brown allegedly ordered Annabel into a shower cage, drew his
Taser, and pushed Plaintiff into the cage. Id. at
361-62. Brown kept Annabel in the shower cage for more than
ninety minutes. Id. at 362. During the interaction,
Annabel remembered Erichsen's assault and felt punished
for filing the grievance against Erichsen. Plaintiff also
recalled a painful experience he had with a Taser.
February 3, 2014, Annabel complained to his treating
psychiatrist of an upset stomach. He identified the
staff's treatment of him as the source; the psychiatrist
suggested that Annabel's decision to stop taking
medication prompted his stomach pain. Id. at 362.
thereafter, Plaintiff returned to his unit but prison staff
locked him in a "shower cage, stripped him of his
clothes, and placed him in a suicide observation cell"
without explanation or authorization. Id. at 363.
Earlier that day, unknown prison staff had packed
Annabel's property, discarded his eyeglasses and books,
and discovered "contraband metal." Id.
Annabel filed a grievance for the incident,
MRF-14-03-0373-19z. Whichever officer packed Annabel's
belongings allegedly failed to provide the mandatory packing
slip. Id. Then, on February 4, 2014, Defendants
Haggerty, Robbinson, Webster, and Stewart did not remove
Annabel from the observation cell in time to attend a
scheduled law library session. Id. Further,
Robbinson "verbally harassed Plaintiff about the
unjustified placement." Id.
contends that detention in the observation cell caused him
extreme emotional distress and aggravated symptoms of PTSD.
Id. at 364. While in an aggravated mental state,
Annabel "flooded his cell, destroyed a mattress, and
slit open a gash on his forehead from headbutting the cell
door window[.]" Id. As a nurse attended to his
wound, staff drew their Tasers and Lebron asked, "[A]re
we supposed to be happy that [Erichsen's] off duty?"
Id. The COs mocked Annabel that Erichsen would soon
prison transferred Annabel to the Crisis Stabilization Unit
at Woodland Correctional Facility ("WCF") for
Annabel's recovery from his mental breakdown.
Id. On February 6, 2014, Plaintiff mailed two
grievances to Inspector Steece at MCF describing: (i) Brown
locking him in a shower and threatening him, (ii) interacting
with his psychiatrist, (iii) staff locking him in suicide
observation, (iv) missing his library session because of
staff delay, and (v) the officers' harassing him while
the nurse tended to his head wound ("Steece Grievances 3
and 4"). Id. at 364.
than one week later, Annabel mailed another grievance to
Steece and the previous grievances, which were returned as
undeliverable. Id. The new grievance identified
Warden Kenneth Romanowski and Deputy Wardens George
Stephenson and Darrell Steward as responsible for
implementing a "policy or custom of deliberate
indifference and negligence" by allowing the staff to
"retaliate with overt impunity" against Annabel, by
awarding Erichsen "an unreasonable paid vacation for the
assault," and by encouraging and condoning the
staff's campaign of misconduct. Id. at 364
("Steece Grievance 5"). Plaintiff did not receive
grievance identifiers or Step I Responses from Steece or
Taylor for Steece Grievances 3, 4, or 5. Id. at 365.
That failure allegedly prevented any appeal. Steece did
receive a consent for medical information from Annabel to
investigate Annabel's placement in the suicide
observation cell. Id.
February 20, 2014, Annabel was transferred from WCF to Gus
Harrison Correctional Facility. ECF 58, PgID 36. Then, in May
2014, Annabel was transferred to Ionia Correctional Facility.
subsequent months, and throughout his transfers, Annabel
submitted inquiries to Taylor, Romanowski, and Steece. In
particular, Annabel sent Taylor six letters asking for Step
II Appeal forms and for updates on unprocessed grievances.
Id. Annabel's inquiries went largely unanswered.
filed suit and alleged the following claims:
Count I: Erichsen violated Annabel's Eighth Amendment
rights by using excessive force;
Count II: Brown violated Annabel's Eighth Amendment
rights by using excessive force;
Count III: Erichsen, Oden, Weberg, Jordan, Lebron, Loftis,
Robbinson, Haggerty, Taylor, Webster, and Stewart violated
Plaintiff's First Amendment rights by a campaign and
conspiracy to retaliate and violated the Eighth Amendment by
causing him physical and psychological pain;
Count IV: Weberg and Oden violated Plaintiff's Eighth
Amendment rights by creating an excessive risk of harm by
attempting to incite prisoner to assault Annabel by calling
him a "snitch";
Count V: Romanowski, Steward, Stephenson, Haggerty, and
Taylor violated Plaintiff's Eighth Amendment rights by
authorizing, approving, and encouraging their
subordinates' retaliatory campaign after Annabel filed
the Assault Grievance and ensured that subordinate
purposefully mishandled the grievance process;
Count VI: Romanowski, Steward, Stephenson, Haggerty, Taylor,
Erichsen, Brown, Jordan, Lebron, Oden, Weberg, Loftis,
Robbinson, Webster, and Stewart committed intentional
infliction of emotional distress and conspiracy;
Count VII: Erichsen committed state law assault and battery;
Count VIII: Brown committed state law assault and battery;
Count IX: Oden and Weberg committed the tort of slanderous
defamation by announcing Plaintiff that was a
Count X: Romanowski, Steward, Stephenson, and Taylor
committed the state law torts of negligence and gross
negligence by failing in their duties to supervise and
investigate, and mishandling the grievance process.
judgment is proper if 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). A fact is
material for purposes of summary judgment if its resolution
would establish or refute an "essential element of a
cause of action or defense asserted by the parties[.]"
Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.
considering a motion for summary judgment, the Court must
view the facts and draw all inferences in the light most
favorable to the non-moving party. Stiles ex rel. D.S. v.
Grainger Cty., 819 F.3d 834, 848 (6th Cir. 2016). The
Court must then determine "whether the evidence presents
a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986). And although the
Court may not make credibility judgments or weigh the
evidence, Moran v. Al Basit LLC, 788 F.3d 201, 204
(6th Cir. 2015), a mere "scintilla" of evidence is
insufficient to survive summary judgment; "there must be
evidence on which the jury could reasonably find for the
plaintiff," Anderson, 477 U.S. at 252.
to the Prison Litigation Reform Act ("PLRA"), a
prisoner must exhaust administrative remedies before filing
suit. 42 U.S.C. § 1997e(a); Woodford v. Ngo,
548 U.S. 81, 90 (2006). But a prisoner is not required to
plead exhaustion; rather, a prison must raise failure to
exhaust administrative remedies as an affirmative defense. 42
U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199,
212 (2007). At summary judgment, the prison must prove that
no reasonable jury could find that the plaintiff exhausted
his administrative remedies. Surles v. Andison, 678
F.3d 452, 455-56 (6th Cir. 2012).
PLRA "requires proper exhaustion."
Woodford, 548 at 93. A federal exhaustion standard
does not exist. So, a prisoner properly "exhausts his
remedies when he complies with the grievance procedures put
forward by his correctional institution." Mattox v.
Edelman, 851 F.3d 583, 590 (6th Cir. 2017) (citing
Jones, 549 U.S. at 217-19); see also
Woodford, 548 U.S. at 90 (describing proper exhaustion
in administrate law as requiring "compliance with an
agency's deadlines and other critical procedural
rules"); see further Napier v. Laurel Cty., 636
F.3d 218, 224 (6th Cir. 2011) (stating "a prisoner must
do what is required by the grievance policy").
A prisoner's "[f]ailure to file an administrative
grievance within proper time limits precludes proper
exhaustion and thus bars the claim in federal court."
Reynolds-Bey v. Harris-Spicer, 428 Fed.Appx. 493,
500 (6th Cir. 2011) (citing Woodford, 548 U.S. at
93); see also Pool v. Klenz, No. 17-3426, 2018 WL
1989637, at *2 (6th Cir. Jan. 17, 2018) (citing Scott v.
Ambani, 577 F.3d 642, 647 (6th Cir. 2009)
("Woodford makes clear that a prisoner cannot
satisfy the [Prison Litigation Reform Act] exhaustion
requirement by filing an untimely or otherwise procedurally
defective administrative grievance.")).
exhaust his administrative remedies, therefore, a prisoner
must comply with the prison's grievance procedures. If a
prisoner fails to do so, courts typically dismiss unexhausted
claims and address the merits of exhausted claims.
Jones, 549 U.S. at 220- 24.
PLRA's exhaustion requirement accomplishes three ends.
Exhaustion "allow[s] prison officials a fair opportunity
to address grievances on the merits, to correct prison errors
that can and should be corrected[, ] and to create an
administrative record for those disputes that eventually end
up in court." Mattox, 851 F.3d at 591.
courts may address unexhausted claims in two situations,
however. First, courts may consider unexhausted prisoner
claims if a prison declined to enforce its "own
procedural requirements and opt[ed] to consider
otherwise-defaulted claims on the merits[.]"
Reed-Bey v. Pramstaller, 603 F.3d 322, 325 (6th Cir.
courts may excuse a prisoner's failure to exhaust if the
administrative remedies were not available. Before addressing
whether administrative procedures were unavailable, the
prisoner must present evidence of his affirmative efforts to
comply with the procedures. Rivers v. Turner, No.
16-4241, 2017 WL 9249945 (citing Napier, 636 F.3d at
224). The prisoner's affirmative efforts, even if
unsuccessful, must be "sufficient under the