United States District Court, W.D. Michigan, Northern Division
Gordon J. Quist U.S. District Judge.
REPORT AND RECOMMENDATION
MAARTEN VERMAAT U.S. MAGISTRATE JUDGE.
a civil rights action brought by state prisoner Dimas Garza
pursuant to 42 U.S.C. § 1983. Garza claims that the
eight Defendants - Warden Naples, Assistant Deputy Wardens
Alexander and Schroeder, Inspectors Niemisto and Tasson,
Resident Unit Manager (RUM) Viitala, Asst. Resident Unit
Supervisor (ARUS) Cesarek, and Security Threat Group (STG)
Sergeant Lee - failed to protect him from assaults by two
inmates at the Marquette Branch Prison (MBP) in 2016 after
Garza reported the threats to his safety.
asserts constitutional violations under the First, Fourth,
Fifth, Eighth, Ninth, and Fourteenth Amendments, and asserts
state law violations of ethnic intimidation, assault, abuse
of process, and libel and slander.
factual scenario in this case requires a brief introduction.
Part of Garza's current case has its roots in 1998. That
year, Garza was sentenced to a life sentence for
felony-murder arising out of a robbery. Garza drove the
get-away vehicle while his co-defendants entered the home of
Nelson Gonzalez. One of Garza's accomplices, Anthony
Martinez, shot and killed Nelson Gonzalez during the robbery.
Gonzalez's thirteen-month old son - Nelson Gonzalez, Jr.
- was injured in the shooting. Nelson Gonzalez, Jr.
recovered, grew up, and eventually committed a crime that
landed him in MBP at the same time that Garza was
Jr., however, was not the only prisoner in MBP who was mad at
Garza. Prior to the first assault at issue in this case,
which took place in October 2016, Garza was involved in an
attempted scheme to smuggle suboxone strips into the prison.
MDOC officials learned of Garza's involvement after
investigating Inmate Korte and his mother Stacey Dolson. The
investigation ultimately revealed Garza's involvement in
the smuggling. Garza was found guilty of a misconduct for
attempted smuggling and was placed in administrative
segregation for 30 days.After 30 days, Garza was interviewed and
reclassified to general population. Garza signed the
reclassification form without expressing safety concerns.
Although the facts are a bit confusing, it appears that
Garza's involvement in smuggling into or within the
prison caused Korte to hold some animosity for Garza.
point, Nelson Gonzalez, Jr., who was incarcerated at MBP,
learned that Garza was also being incarcerated at MBP. When
the opportunity arose, he stabbed Garza multiple times with a
makeshift knife. Garza suffered a collapsed lung and was
rushed to Marquette General Hospital, where he received
treatment. Garza recovered from his injuries and returned to
MBP. Garza initially was placed in MBP quarantine for his
recovering from his injuries, Garza agreed to his release to
the general population. Once in general population, prisoner
Korte assaulted Garza by repeatedly punching Garza in the
head. Garza suffered with bruising around his eyes.
filed this lawsuit in 2017. This Report and Recommendation
1) Defendants' motion for summary judgment (ECF No. 68)
2) Plaintiff's motion for summary judgment. (ECF No. 77.)
respectfully recommend that Defendants' motion for
summary judgment be granted in part and denied in part, and
that Plaintiff's motion for summary judgment be denied.
stated that he arrived at MBP in April of 2016, and was
confined in G-block, because he had enemies in B-block. (ECF
No. 9, PageID.162.) Garza moved into administrative
segregation during August 2016, after the smuggling attempt
discussed above. (Id.) Garza says he then learned
that Gonzalez, Jr., who resided at MBP, wanted to kill him to
get revenge for his father's murder. (Id.) On
August 28, 2016, Garza kited Defendant Naples and requested
protection. (Id. at PageID.163.)
says that Defendants Viitala and Lee stopped at his cell on
or about September 1, 2016, to discuss the kite.
(Id.) When Garza informed him of the threat,
Defendant Viitala allegedly stated, “ain't no one
going to do nothing to ‘Big D', you run the
operation.” (Id.) Garza states that he is
known as “Big D” among prisoners. (Id.)
Defendant Viitala stated that he would investigate, but
Defendant Lee told Garza that he (Lee) did not believe Garza.
says that, on another occasion, Defendant Niemisto told Garza
that he would investigate. (Id.)
also says that during rounds in mid-September, he told
Defendants Alexander and Schroeder about his concerns. They
allegedly stated that they would tell the Inspector and STG
Sergeant to investigate the matter and speak with Garza.
says that he asked each Defendant for protection and for a
transfer to a different facility. (Id. at
PageID.164.) Garza had his family speak with Defendants to
address his concerns for protection. (Id.) Garza
informed Defendants that the victim's son (Gonzalez, Jr.)
was in B-block with Garza, but Garza did not know what he
looked like. (Id.) Defendants told Garza that
nothing would happen and that he should stop writing and
requesting protection. (Id.) Defendants told Garza
that there was no room in segregation and that a transfer was
possible, but that he needed to stop making requests because
it would only get worse for him. (Id.) Garza says
that this conversation caused other prisoners to believe that
he was a “rat-informant.” Garza says that
Defendants refused to place Garza in protective custody, and
placed his life in danger by calling him a snitch.
October 6, 2016, Garza visited the “Security Threat
Group yard” with all the violent and dangerous
gang-members. (Id. at PageID.165.) Garza went into
the unsupervised kiosk room, which is where, according to
Garza, ninety-five percent of all inmate assaults occur.
(Id.) There, Garza was assaulted and stabbed nine
times by Gonzalez, Jr. (Id.) Garza asserts that the
Corrections Officers watched the assault take place and did
nothing to intervene until the Gonzalez, Jr. left the kiosk
states that he was rushed to the hospital and almost died
from his injuries. (Id.) Garza suffered multiple
stab wounds and a punctured lung, and was saved by emergency
returned to MBP on October 11, 2016, and was placed in
quarantine until he was released into the general population
on October 27, 2016. (Id. at PageID.166.) Garza was
housed in the same unit with Inmate Korte, whose mother
Stacey Dolson, was arrested for her involvement with Garza in
the attempted smuggling scheme. (Id.) Garza visited
the “Security Threat Group yard” again on October
28, 2016. (Id.) Garza says that, within five minutes
of being in the yard, he was assaulted. (Id.)
Defendant Lee visited Garza in quarantine after the second
assault to inform Garza that they had arrested the son of the
mother involved in the smuggling scheme for the assault.
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; Kocak v. Comty. Health Partners of Ohio,
Inc., 400 F.3d 466, 468 (6th Cir. 2005). 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.” State Farm Fire & Cas. Co. v.
McGowan, 421 F.3d 433, 436 (6th Cir. 2005) (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. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986); Twin City Fire Ins.
Co. v. Adkins, 400 F.3d 293, 296 (6th Cir. 2005).
argue that they are entitled to qualified immunity on each of
Garza's federal claims because Garza has failed to
establish that each Defendant violated clearly established
federal law. “Under the doctrine of qualified immunity,
‘government officials performing discretionary
functions generally are shielded from liability from civil
damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.'” Phillips
v. Roane County, 534 F.3d 531, 538 (6th Cir. 2008)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). Determining whether the government officials in this
case are entitled to qualified immunity generally requires
two inquiries: “First, viewing the facts in the light
most favorable to the plaintiff, has the plaintiff shown that
a constitutional violation has occurred? Second, was the
right clearly established at the time of the
violation?” Id. at 538-39 (citing
Silberstein v. City of Dayton, 440 F.3d 306, 311
(6th Cir. 2006).
right is ‘clearly established' for qualified
immunity purposes if ‘it would be clear to a reasonable
officer that his conduct was unlawful in the situation he
confronted.'” Humphrey v. Mabry, 482 F.3d
840, 847 (6th Cir. 2007) (quoting Saucier v. Katz,
533 U.S. 194, 202, (2001)). The inquiry whether the right was
clearly established “must be undertaken in light of the
specific context of the case, not as a broad general
proposition.” Saucier, 533 U.S. at 201;
see also Plumhoff v. Rickard, 572 U.S. 765, 779
(2014) (directing courts “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”) (internal quotation marks and citations
omitted). Thus, the doctrine of qualified immunity
“protects all but the plainly incompetent or those who
knowingly violate the law.” Humphrey, 482 F.3d
at 847 (internal quotation marks omitted).
relevant inquiry is whether existing precedent placed the
conclusion” that the defendant violated the
plaintiff's rights “in these circumstances
‘beyond debate.'” Mullenix v. Luna,
36 S.Ct. 305, 309 (2015), citing Ashcroft v.
al-Kidd, 563 U.S. 731, 741 (2011).
Amendment Failure to Protect
argue that they are entitled to qualified immunity on
Garza's Eighth Amendment claims because they were not
aware of any conflicts between Garza and Gonzalez, Jr. or
between Garza and Korte. Garza argues that he informed each
Defendant personally by asking for protection from inmate
Gonzalez, Jr. and by sending duplicate kites to each
Defendant. Additionally, Garza says that his family members
telephoned the prison and spoke to Defendants about the risk
of assault, and that each Defendant should have known of the
risk of assault by reviewing his records contained within the
the Eighth Amendment, a prison official has a duty to protect
an inmate from violence caused by other prisoners. Wilson
v. Sieter, 501 U.S. 294, 303 (1991); Nelson v.
Overberg, 999 F.2d 162, 165 (6th Cir. 1993); Walker
v. Norris, 917 F.2d 1449, 1453 (6th Cir. 1990);
Roland v. Johnson, 856 F.2d 764 (6th Cir. 1988);
McGhee v. Foltz, 852 F.2d 876, 880-81 (6th Cir.
1988). “A prison official's ‘deliberate
indifference' to a substantial risk of serious harm to an
inmate violates the Eighth Amendment.” Farmer v.
Brennan, 511 U.S. 825, 828 (1994) (citations omitted).
Recognizing that a prison official has an obligation to
protect an inmate from assault by another inmate, the Supreme
Court defined deliberate indifference as requiring a showing
that the prison official consciously disregarded a
substantial risk of serious harm to plaintiff. Id.
at 839. The court stated:
We hold instead that a prison official cannot be found liable
under the Eighth Amendment for denying an inmate humane
conditions of confinement unless the official knows of and
disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference. . . . But an
official's failure to alleviate a significant risk that
he should have perceived but did not, while no cause for
commendation, cannot under our cases be condemned as
infliction of punishment.
Id. at 837. Thus, in order to support a claim that a
prison official failed to protect plaintiff, two conditions
must be satisfied: (1) the inmate must show that a
substantial risk of harm was present and (2) that the
defendants, having knowledge of that risk, possessed a
culpable state of mind. Id.
order to support an Eighth Amendment claim, Garza must
establish “something more than a lack of ordinary due
care, inadvertence, or error; the conduct must instead be
‘obdurate' or ‘wanton'--exhibiting
recklessness or callous neglect.” Id. at 165.
See also Gibson v. Foltz, 963 F.2d 851, 853 (6th
Cir. 1992); Walker v. Norris, 917 F.2d 1449 (6th
Cir. 1990); McGhee v. Foltz, 852 F.2d 876, 881 (6th
Cir. 1988). An error of judgment does not subject a prison
official to liability. Jeffers v. Heavrin, 10 F.3d
380, 381 (6th Cir. 1993) (errors of judgment are shielded by
qualified immunity); Marsh v. Arn, 937 F.2d at 1069.
Stewart v. Love, 696 F.2d 43 (6th Cir. 1982), the
Sixth Circuit affirmed the dismissal of a prisoner's
complaint that prison officials failed to protect him. In
that case, prison officials transferred plaintiff for a
period of six months to another prison cell after plaintiff
informed the officials that he feared for his safety.
Plaintiff was then transferred back to his original cell.
Plaintiff informed his counselor that he feared for his
safety, because he had heard rumors regarding a planned
attack. The court noted that plaintiff made only general
allegations that someone was going to hit him on the head.
Plaintiff was subsequently assaulted. In dismissing the
claim, the court found that defendants were not deliberately
indifferent to a known risk of harm to plaintiff and
concluded that defendants, at most, were guilty of mere
negligence which failed to rise to the level of an Eighth
Gonzalez, Jr.'s assault on Garza on ...