Cary v. Leffler

BRYAN CARY, Plaintiff,

v.CORRECTIONS OFFICER LEFFLER, et al., Defendants.

CASE NO. 2:11-cv-13767

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: July 13, 2012

JUDGE PATRICK J. DUGGAN

MAGISTRATE JUDGE PAUL KOMIVES

REPORT AND RECOMMENDATION ON DEFENDANTS' MOTIONS FOR

SUMMARY JUDGMENT (docket #10 and #28)

I. RECOMMENDATION: The Court should grant defendants' motions for summary judgment.

II. REPORT:

A. Background

Plaintiff Bryan Cary is a state prisoner who, at the times relevant to this action, was incarcerated at the Gus Harrison Correctional Facility in Adrian, Michigan. Plaintiff commenced this action on August 29, 2011, by filing a pro se civil rights complaint pursuant to 42 U.S.C. § 1983. Plaintiff's complaint raises retaliation claims under the First Amendment and medical claims under the Eighth Amendment against 16 defendants, prison officials at the Gus Harrison Correctional Facility. On October 27, 2011, the Court summarily dismissed a number of the claims and defendants pursuant to 42 U.S.C. § 1997e(c) and 28 U.S.C. §§ 1915(e)(2)(B), 1915A. Remaining before the Court are two claims: (1) plaintiff's medical care claim against defendants Leffler, Downard, McMurtrie, King, Howard, Wensko, Gibbs, and an unknown officer; and (2)plaintiff's retaliation claim against defendants Leffler, Downard, and McMurtrie.

With respect to the remaining claims, plaintiff alleges that on April 12, 2011, he went to the officer desk to request medical care for a 1-inch "gash" on his arm that was bleeding. Defendant Leffler told him to return to his cell, because he was on loss of privilege ("LOP") status. After meal time, plaintiff requested assistance from defendant Howard, who also told him to return to his cell. Plaintiff was eventually allowed to go to medical at 1:30 a.m. The nurse who treated plaintiff told him that the cut was "down to the meat," but that she could not stitch the wound. The nurse taped the cut. Plaintiff further alleges that when he returned from work on April 13 (at about 3:30 p.m.), the cut was bleeding again. He requested medical care, and defendant Leffler again told him to return to his cell. After he did so, he removed the dressing from his wound and the cut began to "gush" blood. Plaintiff again attempted to seek medical attention following dinner, but was prevented from obtaining care by defendants Downard, McMurtrie, Wensko, Howard, King, Gibbs, and unknown officer. See Compl., at 3. Plaintiff alleges that defendant McMurtrie filed a false misconduct against him regarding this incident. See id. He further alleges that he filed numerous grievances against defendants, and that in retaliation for these grievances defendants McMurtrie and Leffler, with the "assistance" of defendant Downard, filed several misconduct tickets against him. Finally, he alleges that his hand was slammed in a door, his property taken, and a claim of self-harm resulting in a psychological evaluation fabricated, all in retaliation for his grievances. See id. at 4.

The matter is currently before the Court on two motions for summary judgment filed by defendants. On December 20, 2011, defendants Howard, McMurtrie, Downard, Gibbs, Wensko, and King filed a motion for summary judgment, in which they argue that they are entitled to dismissal because: (1) plaintiff failed to exhaust his administrative remedies; (2) plaintiff's Eighth Amendmentclaim fails as a matter of law; (3) plaintiff's retaliation claim fails as a matter of law; and (4) they are entitled to qualified immunity. Plaintiff filed a response to the motion on January 17, 2012. Second, on May 7, 2012, defendant Leffler filed a motion for summary judgment, raising the same arguments as the other defendants. Plaintiff filed a response to this motion on May 16, 2012.

B. Legal Standard

Under Rule 56, summary judgment should be granted "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). "An issue of fact is 'genuine' if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Hedrick v. Western Reserve Care Sys., 355 F.3d 444, 451 (6th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "A fact is material only if its resolution will affect the outcome of the lawsuit." Hedrick, 355 F.3d at 451-52 (citing Anderson, 477 U.S. at 248). In deciding a motion for summary judgment, the Court must view the evidence in a light most favorable to the non-movant as well as draw all reasonable inferences in the non-movant's favor. See Sutherland v. Michigan Dep't of Treasury, 344 F.3d 603, 613 (6th Cir. 2003); Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003).

"The moving party has the initial burden of showing the absence of a genuine issue of material fact as to an essential element of the non-moving party's case." Hedrick, 355 F.3d at 451 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). To meet this burden, the moving party need not produce evidence showing the absence of a genuine issue of material fact. Rather, "the burden on the moving party may be discharged by 'showing' -- that is, pointing out to the district court -- that there is an absence of evidence to support the non-moving party's case." Celotex Corp., 477 U.S. at 325; see also, FED. R. CIV. P. 56(c)(1) (moving party may meet its burden by "citing toparticular parts of materials in the record" or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact."). "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)); see also, FED. R. CIV. P. 56(e). To create a genuine issue of material fact, however, the non-movant must do more than present some evidence on a disputed issue. As the Supreme Court has explained:

There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the [non-movant's] evidence is merely colorable, or is not significantly probative, summary judgment may be granted.

Anderson, 477 U.S. at 249-50. (citations omitted); see Celotex Corp., 477 U.S. at 322-23; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Thus, "[t]he existence of a mere scintilla of evidence in support of the non-moving party's position will not be sufficient; there must be evidence on which the jury could reasonably find for the non-moving party." Sutherland, 344 F.3d at 613.

C. Eighth Amendment Claims

Plaintiff first claims that defendants denied him timely medical care in violation of his rights under the Eighth Amendment. The Court should conclude that defendants are entitled to summary judgment on this claim.

1. Governing Law

To state a viable § 1983 claim, a plaintiff must allege that: (1) he was deprived of a right, privilege, or immunity secured by the Federal Constitution or the laws of the United States; and (2)the deprivation was caused by a person while acting under color of state law. Doe v. Wigginton, 21 F.3d 733, 738 (6th Cir. 1994). Thus, "[t]he first step in any such claim is to identify the specific constitutional [or statutory] right allegedly infringed." Albright v. Oliver, 510 U.S. 266, 271 (1994) (plurality op.); see also, Graham v. Connor, 490 U.S. 386, 394 (1989). Here, Plaintiff alleges that Defendants violated his Eighth Amendment right to be free from cruel and unusual punishment.

The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. CONST. amend. VIII. In its purest sense, the Eighth Amendment proscribes cruel and unusual punishment meted out in a penal or disciplinary sense. In its application by the courts, the amendment actually protects a wide assortment of interests. It proscribes disproportionate punishments, see Weems v. United States, 217 U.S. 349, 366-67 (1910), "unnecessary and wanton infliction of pain," Gregg v. Georgia, 428 U.S. 153, 173 (1976) (plurality opinion), and conduct repugnant to "evolving standards of decency," Trop v. Dulles, 356 U.S. 86 (1958) (plurality opinion). See generally, Parrish v. Johnson, 800 F.2d 600, 609 (6th Cir. 1986). The Constitution "does not mandate comfortable prisons." Rhodes v. Chapman, 452 U.S. 337, 349 (1981). On the other hand, it does not permit inhumane ones, and it is clear that "the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment." Helling v. McKinney, 509 U.S. 25, 31 (1993); see also, Farmer v. Brennan, 511 U.S. 825, 832 (1994). The amendment imposes affirmative duties on prison officials, "who must provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter and medical care, and must 'take reasonable measures to guarantee the safety of the inmates.'" Id. (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). If the offending conduct is not a criminal penalty, then itmust reflect an "'unnecessary and wanton infliction of pain'" to come within the Eighth Amendment's prohibition on cruel and unusual punishment. Ingraham v. Wright, 430 U.S. 651, 670 (1977) (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)). Such claims must satisfy both an objective and a subjective test. See Farmer, 511 U.S. at 834; Wilson v. Seiter, 501 U.S. 294, 297-300 (1991). Under this analysis, what constitutes "unnecessary and wanton infliction of pain" will vary depending on the nature of the alleged constitutional violation. Hudson v. McMillian, 503 U.S. 1, 5 (1...