United States District Court, W.D. Michigan, Southern Division
Honorable Robert J. Jonker
AMENDED REPORT AND RECOMMENDATION
PHILLIP J. GREEN, UNITED STATES MAGISTRATE JUDGE
a civil rights action brought pro se by a state
prisoner under 42 U.S.C. § 1983.
Plaintiff is an inmate at the Gus Harrison Correctional
Facility. His complaint arises out of conditions of his
confinement in 2016 at the Ionia Correctional Facility. The
defendants are Social Workers James Apol and Elizabeth Meier,
and Corrections Officers Daniel Mygrants and Nicholas
alleges that defendants violated his Eighth Amendment rights.
He alleges that Ms. Meier was deliberately indifferent to the
risk that he would attempt suicide, and that Corrections
Officers Mygrants and Bowerman used excessive force against
him under the direction of Mr. Apol. Plaintiff seeks an award
of damages and declaratory and injunctive relief.
matter is before the Court on cross-motions for summary
judgment. (ECF No. 77, 91). For the reasons set forth herein,
I recommend that the Court dismiss plaintiff's claims for
damages against defendants in their official capacities with
prejudice because they are barred by Eleventh Amendment
immunity. I recommend that the Court deny plaintiff's
motion for summary judgment (ECF No. 91), and that the Court
grant defendants' motion for summary judgment (ECF No.
77) and enter judgment in defendants' favor on all
reviewing cross-motions for summary judgment, the court must
assess each motion on its own merits. See Federal Ins.
Co. v. Hartford Steam Boiler Inspection & Ins.
Group, 415 F.3d 487, 493 (6th Cir. 2005). “
‘[T]he filing of cross-motions for summary judgment
does not necessarily mean that an award of summary judgment
is appropriate.' ” Spectrum Health Continuing
Care Group v. Anna Marie Bowling Irrevocable Trust, 410
F.3d 304, 309 (6th Cir. 2005) (quoting Beck v. City of
Cleveland, 390 F.3d 912, 917 (6th Cir. 2004)).
judgment is appropriate when the record reveals that there
are no genuine issues as to any material fact in dispute and
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a); McKay v. Federspiel, 823 F.3d
862, 866 (6th Cir. 2016). The standard for determining
whether summary judgment is appropriate is “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.' ”
Rocheleau v. Elder Living Const., LLC, 814 F.3d 398,
400 (6th Cir. 2016) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986)). The Court must
consider all pleadings, depositions, affidavits, and
admissions on file, and draw all justifiable inferences in
favor of the party opposing the motion. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986); France v. Lucas, 836 F.3d 612, 624 (6th
the party without the burden of proof seeks summary judgment,
that party bears the initial burden of pointing out to the
district court an absence of evidence to support the
nonmoving party's case, but need not support its motion
with affidavits or other materials “negating” the
opponent's claim. See Morris v. Oldham Cty. Fiscal
Court, 201 F.3d 784, 787 (6th Cir. 2000); see also
Minadeo v. ICI Paints, 398 F.3d 751, 761 (6th Cir.
2005). Once the movant shows that “there is an absence
of evidence to support the nonmoving party's case,
” the nonmoving party has the burden of coming forward
with evidence raising a triable issue of fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). To sustain
this burden, the nonmoving party may not rest on the mere
allegations of his pleadings. See Huff v. TeleCheck
Servs., Inc., 923 F.3d 458, 462 (6th Cir. 2019). The
motion for summary judgment forces the nonmoving party to
present evidence sufficient to create a genuine issue of fact
for trial. Street v. J.C. Bradford & Co., 886
F.2d 1472, 1478 (6th Cir. 1990); see AES-Apex Employer
Servs., Inc. v. Rotondo, 924 F.3d 857, 866 (6th Cir.
2019) (“[C]asting only [a] ‘metaphysical
doubt' is insufficient to survive summary
judgment.”) (quoting Matsushita, 475 U.S. at
586). “A mere scintilla of evidence is insufficient;
‘there must be evidence on which a jury could
reasonably find for the [non-movant].' ”
Dominguez v. Correctional Med. Servs., 555 F.3d 543,
549 (6th Cir. 2009) (quoting Anderson, 477 U.S. at
252)); see Lossia v. Flagstar Bancorp, Inc., 895
F.3d 423, 428 (6th Cir. 2018).
moving party with the burden of proof faces a
“substantially higher hurdle.” Arnett v.
Myers, 281 F.3d 552, 561 (6th Cir. 2002); Cockrel v.
Shelby Cty. Sch. Dist, 270 F.3d 1036, 1056 (6th Cir.
2001). The moving party without the burden of proof needs
only show that the opponent cannot sustain his burden at
trial. “But where the moving party has the burden - the
plaintiff on a claim for relief or the defendant on an
affirmative defense - his showing must be sufficient for the
court to hold that no reasonable trier of fact could find
other than for the moving party.” Calderone v.
United States, 799 F.2d 254, 259 (6th Cir. 1986)
(citation and quotation omitted). The Court of Appeals has
repeatedly emphasized that the party with the burden of proof
faces “a substantially higher hurdle” and
“must show that the record contains evidence satisfying
the burden of persuasion and that the evidence is so powerful
that no reasonable jury would be free to disbelieve
it.” Arnett, 281 F.3d at 561; see Surles
v. Andison, 678 F.3d 452, 455-56 (6th Cir. 2012);
Cockrel, 270 F.2d at 1056. Accordingly, summary
judgment in favor of the party with the burden of persuasion
“is inappropriate when the evidence is susceptible of
different interpretations or inferences by the trier of
fact.” Hunt v. Cromartie, 526 U.S. 541, 553
argue that they are entitled to summary judgment on the basis
of qualified immunity. “Once [an] official[ ] raise[s]
the qualified immunity defense, the plaintiff bears the
burden to ‘demonstrate that the official [is] not
entitled to qualified immunity.' ” LeFever v.
Ferguson, 645 Fed.Appx. 438, 442 (6th Cir. 2016)
(quoting Silberstein v. City of Dayton, 440 F.3d
306, 311 (6th Cir. 2006)).
government official sued under section 1983 is entitled to
qualified immunity unless the official violated a statutory
or constitutional right that was clearly established at the
time of the challenged conduct.” Carroll v.
Carman, 135 S.Ct. 348, 350 (2014); see Taylor v.
Barkes, 135 S.Ct. 2042, 2044 (2015). The first prong of
qualified immunity analysis is whether the plaintiff has
alleged facts showing that defendant's conduct violated a
constitutional or statutory right. See Saucier v.
Katz, 533 U.S. 194, 201 (2001). The second prong is
whether the right was “clearly established” at
the time of the defendant's alleged misconduct.
Id. Trial courts are permitted to exercise their
sound discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first.
See Pearson v. Callahan, 555 U.S. 223, 236 (2009).
qualified immunity defense can be asserted at various stages
of the litigation, including the summary judgment stage.
See English v. Dyke, 23 F.3d 1086, 1089 (6th Cir.
1994). The qualified immunity inquiry at the summary judgment
stage is distinguished from the Rule 12(b)(6) stage in that
generalized notice pleading no longer suffices, and the
broader summary judgment record provides the framework within
which the actions of each individual defendant must be
evaluated. At the summary judgment stage, “the
plaintiff must, at a minimum, offer sufficient evidence to
create a ‘genuine issue of fact,' that is,
‘evidence on which a jury could reasonably find for the
plaintiff.' ” Thompson v. City of Lebanon,
Tenn., 831 F.3d 366, 370 (6th Cir. 2016).
Brosseau v. Haugen, the Supreme Court examined the
underlying purpose of the requirement that the law be clearly
Qualified immunity shields an officer from suit when she
makes a decision that, even if constitutionally deficient,
misapprehends the law governing the circumstances she
confronted. . . . Because the focus is on whether the officer
had fair notice that her conduct was unlawful, reasonableness
is judged against the backdrop of the law at the time of the
conduct. If the law at the time did not clearly establish
that the officer's conduct would violate the
Constitution, the officer should not be subject to liability
or, indeed, even the burdens of litigation.
543 U.S. 194, 198 (2004); see also Mullenix v. Luna,
136 S.Ct. 305, 308 (2015) (“The dispositive question is
whether the violative nature of the particular conduct is
clearly established.”) (citation and quotation
omitted); City & County of San Francisco, Calif. v.
Sheehan, 135 S.Ct. 1765, 1774 (2015) (“An officer
cannot be said to have violated a clearly established right
unless the right's contours were sufficiently definite
that any reasonable official in his shoes would have
understood that he was violating it, meaning that existing
precedent placed the statutory or constitutional question
beyond debate.”) (citations and quotations omitted).
“This demanding standard protects all but the plainly
incompetent or those who knowingly violate the law.”
District of Columbia v. Wesby, 138 S.Ct. 577, 589
(2018) (citation and quotation omitted). Qualified immunity
is an immunity from suit rather than a mere defense to
liability. Plumhoff v. Rickard, 134 S.Ct. 2012, 2019
Supreme Court has repeatedly held that the second prong of
the qualified immunity analysis “ ‘must be
undertaken in light of the specific context of the case, not
as a broad general proposition.' ” Brosseau v.
Haugen, 543 U.S. at 198 (quoting Saucier v.
Katz, 533 U.S. at 201); see City of Escondido, Calif
v. Emmons, 139 S.Ct. 500, 503 (2019) (per curiam).
Moreover, courts are “not to define clearly established
law at a high level of generality, since doing so avoids the
crucial question whether the official acted reasonably in the
particular circumstances that he or she faced.”
Plumhoff v. Rickard, 134 S.Ct. at 2023 (citations
and quotations omitted); see White v. Pauly, 137
S.Ct. 548, 552 (2017).
burden of convincing a court that the law was clearly
established ‘rests squarely with the plaintiff.'
” Key v. Grayson, 179 F.3d 996, 1000 (6th Cir.
1999) (quoting Cope v. Heltsley, 128 F.3d 452, 459
(6th Cir. 1997)); see Stevens-Rucker v. City of Columbus,
Ohio, 739 Fed.Appx. 834, 839 (6th Cir. 2018)
(“Plaintiff bears the burden of showing that defendants
are not entitled to qualified immunity.”). The burden
applies to each claim. See Johnson v. Moseley, 790
F.3d 649, 653 (6th Cir. 2015).
complaint is verified under penalty of perjury. (Compl., ECF
No. 1, PageID.28). It is considered as an affidavit in
opposition to defendant's motion for summary judgment.
See El Bey v. Roop, 530 F.3d 407, 414 (6th Cir.
briefs are not considered as affidavits. Although a
verification appears at the end of each brief, plaintiff
added limitations that his statements were “true to the
best of his information, knowledge, and belief.” (Plf.
Brief, 12, ECF No. 84, PageID.631; Plf. Brief, 7, ECF No. 91,
PageID.700). “[S]tatements made on belief or on
information and belief, cannot be utilized on a
summary-judgment motion.” Ondo v. City of
Cleveland,795 F.3d 597, 605 (6th Cir. 2015).
“Verified” arguments and legal conclusions are
not evidence. Legal conclusions, whether asserted in an
affidavit or verified complaint, do not suffice to create a
genuine issue of material fact for trial. See Medison Am.