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Rayos v. Smith

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

March 4, 2019

MARCOS RAYOS, Plaintiff,
v.
WILLIE O. SMITH, et al., Defendants.

          REPORT AND RECOMMENDATION

          Ray Kent, United States Magistrate Judge

         I. Background

         This is 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. Plaintiff's complaint alleged that he was attacked by other prisoners at two different correctional facilities. The first incident occurred at Ionia Correctional Facility (ICF) on January 16, 2014. Compl. (ECF No. 1, PageID.4- 9). Plaintiff alleged that MDOC employees failed to protect him from the attack. Plaintiff sued MDOC Director Heidi Washington and the following employees at ICF: Warden Willie O. Smith; Inspector Khris Nevins; Assistant Resident Unit Supervisor (ARUS) Lloyd Thurlby; Sgt. John Kelley; Sgt. Shawn Ryske; Security Threat Group (STG) Coordinator Jill [Kerr] Salik; Assistant Deputy Warden (ADW) Huss; and Corrections Officers (CO's) Ben Guiles, Amy Scott, and Theresa [Sanders] Green.[1]

         The MDOC transferred plaintiff to Marquette Branch Prison (MBP) in April 2014. Id. at PageID.9. The second incident occurred several months later on December 14, 2014, when plaintiff alleged that ADW Huss, who was working at MBP, failed to protect him from an attack by a prisoner at that facility. Id. at PageID.9. ADW Huss was aware of plaintiff's situation, because she had interviewed plaintiff after the assault at ICF. Id. at PageID.8.

         Defendants Washington, Smith, Kelley, Ryske, Scott, and Thurlby have been dismissed from this action. See Orders (ECF Nos. 8, 119, and 219).[2] Five defendants remain: ADW Huss; Inspector Nevins; STG Coordinator Salik; CO Guiles; and CO Green (collectively referred to as the “MDOC defendants”). This matter is now before the Court on plaintiff's motion for partial summary judgment against defendants Sanders [Green] and Guiles (ECF No. 184), MDOC defendants' motion for summary judgment (ECF No. 196), and plaintiff's motion for partial summary judgment against defendants Huss and Nevins (ECF No. 202).

         II. Motions for summary judgment

         A. Legal standard for summary judgment

         “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), 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).

         In 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 plaintiff.

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. 2000). However, the Court is not bound to blindly adopt a non-moving party's version of the facts. “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).

         B. Plaintiff's claims

         1. Plaintiff's complaint

          Plaintiff's allegations are summarized as follows. In November and December 2013, plaintiff alerted ARUS Thurlby that he had received threats from gang members and wanted protection. Compl. at PageID.4. Thurlby denied plaintiff protection unless he “snitched” on prisoners with weapons or produced weapons. Id. On December 17, 2013, plaintiff sent a kite to Inspector Nevins stating that he feared an attack by gang members, but Nevins did not place him in protection or respond to the kite. Id. at PageID.5.

         On January 16, 2014, plaintiff was in the prison library when he was approached by two known gang members and “told to lock up or I would be stabbed.” Id. at Page ID.5. The librarian told the gang members to leave the library. Id. Plaintiff went back to his cell and told an unidentified corrections officer that he needed protection “now.” Id. At about 4:30 p.m., while in his cell, plaintiff wrote a kite to Inspector Nevins about the incident. Id. Plaintiff was told to report to work at the gym at 6:10 p.m. Id. Plaintiff placed the kite in the kite box and proceeded to the gym. Id.

         Plaintiff passed through the metal detector at the gym and was patted down by CO Guiles. Id. at PageID.6. As plaintiff began his work in the gym, he noticed CO Green in the office with the lights turned off, leaning in the chair with her feet on the desk. Id. at PageID.6. CO Guiles was in the hallway, leaving CO Green “to supervise the level 5 maximum security prisoners alone.” Id. CO Green was in the office snoring. Id. Plaintiff woke her up and was told to leave the office because she was working a double shift. Id. Sometime around 7:00 p.m., when plaintiff went to wipe down some benches, he was attacked from behind by an unknown prisoner who cut his face with a razor blade. Id. Plaintiff began to fight for his life. Id. CO's Green and Guiles entered the room and ordered the two prisoners to the floor. Id. Plaintiff was taken to segregation and received medical attention. Id. Plaintiff received a disciplinary misconduct from CO Green based on the video surveillance. Id. at PageID.7. Plaintiff claimed that there was no staff in the gym at the time of the attack. Id.

         Sometime after the attack, on January 26th or 27th, STG Coordinator Salik told plaintiff that she spoke to the assailant (later identified as prisoner Winston), who told her that he attacked plaintiff under the direction of gang members. Id. at PagerID.7. Salik told plaintiff that if he would corroborate the story, she would pull his misconduct and give him protection. Id. Plaintiff stated that he did not know the inmates but wanted protection. Id. Plaintiff had a major misconduct hearing on January 28th, and was called out by the Michigan State Police to give a recorded statement on February 28th. Id. On April 1st, ADW Huss held a Security Classification Committee (SCC) hearing. Id. Plaintiff's request for protective custody was denied and he was placed in the general population where he received new threats. Id.

         Plaintiff was transferred to MBP on April 23, 2014. Id. at PageID.9. Several months later, on December 13, 2014, plaintiff was attacked by an unknown prisoner at MBP. Id. Plaintiff later learned that prisoners riding into MBP had copies of the Michigan State Police Report containing plaintiff's statements regarding the attack at ICF. Plaintiff appears to contend ...


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