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Robinson v. Sholtz

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

May 31, 2019

RODRICK TIMOTHY ROBINSON, a.k.a. Timothy Rodrick Robinson, Plaintiff
v.
RAY SHOLTZ, LAURA MCCORMICK, YOLANDA BUSH, STEVEN RIVARD, MARK MCCULLICK, ROBERT VASHAW, ROBERT STONE, SUSAN HAVELKA and JOHN DOES, Defendants.

          Robert H. Cleland District Judge

          REPORT AND RECOMMENDATION TO DENY DEFENDANTS SHOLTZ, McCORMICK AND BUSH'S MOTION FOR SUMMARY JUDGMENT (DE 34) AND DISMISS THE JOHN DOE DEFENDANTS WITHOUT PREJUDICE

          ANTHONY P. PATTI UNITED STATES MAGISTRATE JUDGE

         I. RECOMMENDATION:

         The Court should DENY Defendants Sholtz, McCormick, and Bush's motion for summary judgment (DE 34) and dismiss the John Doe Defendants without prejudice.

         II. REPORT:

         A. Background

         Rodrick Timothy Robinson is currently incarcerated at the Michigan Department of Corrections (MDOC) Chippewa Correctional Facility (URF).[1] On August 15, 2017, while incarcerated at the St. Louis Correctional Facility (SLF), Robinson filed a pro se, verified prisoner civil rights complaint against eight named Defendants: (1) Ray Sholtz, (2) Laura McCormick, (3) Yolanda Bush, (4) Steven Rivard, (5) Mark McCullick, (6) Robert Vashaw, (7) Robert Stone, and (8) Susan Havelka. (DE 1 at 5; see also DE 17.) In addition, Plaintiff lists as defendants “Unit 2 Correctional Officers at St. Louis Correctional Facility working on [August 14, 2016] at approximately [10 a.m.][.]” (Id.) The factual allegations underlying Plaintiff's claims begin with a June 8, 2016 grievance against Defendant Sholtz and continue with the August 14, 2016 theft of Plaintiff's personal property, an August 17, 2016 attack by another inmate, and the related August 25, 2016 hearing. (DE 1 at 6, 8.) Plaintiff seeks injunctive relief, in the form of transfer to another facility, and a jury trial “to deter future prisoner safety deprivation[, ]” and “to reasonabl[y] reward [him] for the pain, suffering, and rights deprivation.” (DE 1 at 11.)

         Judge Cleland referred this case to me for all pretrial matters. On June 27, 2018, Defendants Mark McCullick, Robert Vashaw, Robert Stone, Susan Havelka and Steven Rivard were dismissed. (DE 26.) Plaintiff's claims against Defendants Sholtz, McCormick and Bush remain, as do those against the yet to be identified John Doe “Unit 2 Correctional Officers” at St. Louis Correctional Facility. (Id.)[2]

         B. Pending Dispositive Motion

         Currently before the Court is Defendants Sholtz, McCormick, and Bush's motion for summary judgment. (DE 34.) Defendants concurrently filed two exhibits under seal: (1) the Prison Rape Elimination Act (PREA) Investigation regarding the events of June 8, 2016 (DE 35); and, (2) a video of the August 17, 2016 altercation (DE 36). (See also DE 40.)

         Plaintiff filed a timely response under the Prisoner Mailbox Rule. (DEs 37, 41.) Houston v. Lack, 487 U.S. 266, 270 (1988). Although it is single-spaced, the Court will still consider it; however, Plaintiff is cautioned that future filings must comply with the formatting and type size requirements of E.D. Mich. LR 5.1 (“Filing of Papers”).

         C. Standard

         Under Federal Rule of Civil Procedure 56, “[t]he 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). A fact is material if it might affect the outcome of the case under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court “views the evidence, all facts, and any inferences that may be drawn from the facts in the light most favorable to the nonmoving party.” Pure Tech Sys., Inc. v. Mt. Hawley Ins. Co., 95 Fed.Appx. 132, 135 (6th Cir. 2004) (citation omitted).

         “The moving party has the initial burden of proving that no genuine issue of material fact exists . . . .” Stansberry v. Air Wis. Airlines Corp., 651 F.3d 482, 486 (6th Cir. 2011) (internal quotations omitted); cf. Fed.R.Civ.P. 56 (e)(2) (providing that if a party “fails to properly address another party's assertion of fact . . . [, ]” then the court may “consider the fact undisputed for the purposes of the motion[.]”). “Once the moving party satisfies its burden, ‘the burden shifts to the nonmoving party to set forth specific facts showing a triable issue.'” Wrench LLC v. Taco Bell Corp., 256 F.3d 446, 453 (6th Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). The nonmoving party must “make an affirmative showing with proper evidence in order to defeat the motion.” Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (citation omitted); see also Metro. Gov't of Nashville & Davidson Cnty., 432 Fed.Appx. 435, 441 (6th Cir. 2011) (“The nonmovant must, however, do more than simply show that there is some metaphysical doubt as to the material facts . . . . [T]here must be evidence upon which a reasonable jury could return a verdict in favor of the non-moving party to create a genuine dispute.”) (internal quotation marks and citations omitted).

         Summary judgment is appropriate if the evidence favoring the nonmoving party is merely colorable or is not significantly probative. City Management Corp. v. United States Chem. Co., 43 F.3d 244, 254 (6th Cir. 1994). In other words, summary judgment is appropriate when “a motion for summary judgment is properly made and supported and the nonmoving party fails to respond with a showing sufficient to establish an essential element of its case[.]” Stansberry, 651 F.3d at 486 (referencing Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986)).

         The fact that Plaintiff is pro se does not lessen his or her obligations under Rule 56. Rather, “[t]he liberal treatment of pro se pleadings does not require lenient treatment of substantive law, and the liberal standards that apply at the pleading stage do not apply after a case has progressed to the summary judgment stage.” Johnson v. Stewart, No. 08-1521, 2010 WL 8738105, at *3 (6th Cir. May 5, 2010) (internal citations omitted). The Sixth Circuit has made clear that, when opposing summary judgment, a party cannot rely on allegations or denials in unsworn filings and that a party's “status as a pro se litigant does not alter [this] duty on a summary judgment motion.” Viergutz v. Lucent Techs., Inc., 375 Fed.Appx. 482, 485 (6th Cir. 2010) (emphasis added); see also United States v. Brown, 7 Fed.Appx. 353, 354 (6th Cir. 2001) (affirming grant of summary judgment against a pro se plaintiff because he “failed to present any evidence to defeat the government's motion”).

         D. Discussion

         1. The record contains evidence of events that precede the scope of Plaintiff's complaint but provide helpful background.

         a. The December 2015 Class I Misconduct for Smuggling

         In December 2015, Inspector Vashaw issued Plaintiff a misconduct report for smuggling. (DE 41 at 11.) On January 13, 2016, Plaintiff was put in administrative segregation for an inability to be managed with general population privileges. (DE 41 at 16, 45, 47.)

         It seems that, on February 11, 2016, Plaintiff received a “30 day continuance” in administrative segregation. (DE 41 at 13.) On February 14, 2016, Plaintiff sought reconsideration of this decision and a “second chance to be housed in ge[ne]ral population.” (DE 41 at 13-14.) By way of a March 9, 2016 segregation behavior review, Inspector Vashaw and Warden Rivard recommended reclassification to general population. (DE 41 at 16.)

         b. Plaintiff's May and June 2016 Kites to Defendant McCormick regarding Defendant Scholtz

         On May 19, 2016, Plaintiff wrote to McCormick seeking assistance with C/O Sholtz and noting the “fear of other inmates joining in the torment.” (DE 41 at 59.) Plaintiff again wrote to McCormick on June 2, 2016, wherein he requested a separation or protective custody from C/O Sholtz and stated that “C/O Sholtz has exposed me as a homosexual and thus put my life in danger. I need protection from C/O Sholtz and other gang members[.]” (DE 41 at 60.) (See also DE 41 at 66 ¶¶ 3-6.)

         2. The factual allegations underlying Plaintiff's complaint begin on June 8, 2016 and continue through August 1, 2017.

         a. The June 2016 Grievance against Defendant Sholtz (SLF-16-06-0579-17a)

         On June 8, 2016, Plaintiff completed a grievance regarding Defendant Sholtz. (DE 1 at 6.) SLF-16-06-0579-17a was received at Step I on June 15, 2016. (DE 34-2 at 2.) In particular, the grievance states:

On the above date at approx[imately] 1205 hours, lunch was being served in G-Unit and I approached the tray serving line[, ] at which time C/O Scholtz ordered me to “get my tray and lock-down.” I told C/O Scholtz why do I gotta eat in my cell and I didn't do anything to warrant his order. C/O Scholtz told me to stop speaking and lock my “fagot” ass down or he'll send me to the box. I followed orders and filed this grievance. I would like it duly noted that I've previously informed RUM McCormick of C/O Scholtz's abusive, threatening, and degrad[ing] comments and his discrimination, ordering me to eat in the cell. . . . I have no current or pending tickets that would justify C/O Scholtz's orders, which he has been ordering me to eat in my cell for over a month. Also, C/O Scholtz's use of the word “fagot” in reference to me was highly disrespectful, unprofessional, degrading, and humiliating. In direct conflict with MDOC PREA. Also, I feel very afraid of reprisal from C/O Scholtz. He is very unpredictable and has threatened my saf[et]y.

(Id.) (See also DE 41 at 66 ¶ 7.)

         Plaintiff attests that, in response to his grievance, he spoke with McCormick and “showed her the kite I rec[ei]ved from gang members and Defendant Sholt[z's] continued behavior and my need of protection.” (DE 41 at 66 ¶ 8.) It appears that ARUS L. McCormick responded to the grievance on June 29, 2016. This was reviewed by RUM Havelka. (DE 34-2 at 2-4, DE 41 at 27-28.) Among other things, McCormick wrote:

I explained to C/O Sholtz instead of making Robinson eat in his cell if he is disruptive he should use the disciplinary process instead of making him eat in his cell. I do not find any ...

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