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Glenn v. Apol

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

July 19, 2019

Laron Glenn, # 373892, Plaintiff,
v.
James Apol, et al., Defendants.

          Honorable Robert J. Jonker

          AMENDED REPORT AND RECOMMENDATION

          PHILLIP J. GREEN, UNITED STATES MAGISTRATE JUDGE

         This is 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 Bowerman.

         Plaintiff 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.[1]

         The 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 plaintiff's claims.

         Summary Judgment Standard

         When 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)).

         Summary 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 Cir. 2016).

         When 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).

         A 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 (1999).

         Qualified Immunity

         Defendants 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)).

         “A 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).

         A 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).

         In Brosseau v. Haugen, the Supreme Court examined the underlying purpose of the requirement that the law be clearly established:

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 (2014).

         The 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).

         “The 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).

         Preliminary Matters

         Plaintiff's 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. 2008).

         Plaintiff's 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. ...


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