Garza v. Naples

          Hon. Gordon J. Quist U.S. District Judge.

          REPORT AND RECOMMENDATION

          MAARTEN VERMAAT U.S. MAGISTRATE JUDGE.

         Introduction

         This is 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^[1], 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.

         Garza 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.

         The 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 there.

         Gonzalez, 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.^[2]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.

         At some 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 protection.

         After 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.

         Garza filed this lawsuit in 2017. This Report and Recommendation addresses:

1) Defendants' motion for summary judgment (ECF No. 68) and,

2) Plaintiff's motion for summary judgment. (ECF No. 77.)

         I 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.

         Plaintiff's Factual Allegations

         Garza 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.)

         Garza 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. (Id.)

         Garza says that, on another occasion, Defendant Niemisto told Garza that he would investigate. (Id.)

         Garza 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. (Id.)

         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. (Id.)

         On 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 room. (Id.)

         Garza 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 surgery. (Id.)

         Garza 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. (Id.)

         Summary Judgment Standard

         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; 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).

         Qualified Immunity

         Defendants 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).

         “A 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).

         “The 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).

         Eighth Amendment Failure to Protect

         Defendants 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 MDOC database.

         Under 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.

         In 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.

         In 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 Amendment violation.

         1. Gonzalez, Jr.'s assault on Garza on ...