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Annabel v. Erichsen

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

July 17, 2018

JORG ERICHSEN, et al., Defendants.



         On 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 The Court later rescinded the order of reference as to dispositive motions.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.


         I. Procedural History and the Parties

         Annabel 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.

         Then, 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.

         In sum, 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 Romanowski.[1]

         During 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 60.

         On 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.

         Second, 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.

         Third, 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.

         On 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[2] 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. ECF 106.

         II. Facts of the Case[3]

         On 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 359.

         After 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.

         Then, 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.

         One 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.

         On 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.

         Then, 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 Steece. Id.

         Sergeant 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. Id.

         On 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 forms. Id.

         On 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.[4] The next day, Annabel requested grievance forms from CO Brown[5] 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. Id.

         On 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.

         Soon 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.[6] 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.

         Annabel 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 return. Id.

         The 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.

         Less 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.

         On 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. Id.

         In the 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.

         Annabel filed suit and alleged the following claims:[7]

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 "snitch"; and
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.


         Summary 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).[8] 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. 1984).

         In 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.


         I. Exhaustion

         A. Legal Standard

         Pursuant 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).

         The 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.")).

         To 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.

         The 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.

         Federal 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. 2010).

         Second, 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 ...

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