Opinion
Case Number 01-10377-BC.
June 11, 2003.
This prisoner civil rights matter is before the Court on two reports filed by Magistrate Judge Charles E. Binder, to whom this matter had been referred to conduct pretrial proceedings. The first report, filed April 18, 2003, recommended that the defendants' dispositive motions be granted and the plaintiff's motion to compel discovery be denied. The second report, filed that same day, recommended that the plaintiff's most recent motion for injunctive relief be denied. The plaintiff has filed timely objections to both reports. After conducting a de novo review of the reports, the plaintiff's objections thereto, and the remaining papers on file, the Court concludes that the Magistrate Judge properly recommended dismissal of the complaint and denial of the plaintiff's remaining motions. Accordingly, the Court will adopt the recommendations, grant the defendants' dispositive motions, overrule the plaintiff's objections to the magistrate judge's Order denying him the right to conduct discovery, deny the plaintiff's motion for injunctive relief, and deny the remaining motions as moot.
I.
This case arises from a series of incidents that have occurred during the plaintiff's incarceration at the Standish Maximum Correctional Facility operated by the Michigan Department of Corrections ("MDOC"). The pro se civil rights complaint originally contained seven different claims pursuant to 42 U.S.C. § 1983, five of which were dismissed when this Court, in an Order filed August 28, 2002, adopted in part a Report and Recommendation filed by Magistrate Judge Binder after he conducted the screening process required by 28 U.S.C. § 1915(e)(2) and 1915A. The matter was returned to the Magistrate Judge for further proceedings upon the plaintiff's claims that defendant Kedron impermissibly retaliated against him for protected conduct, and that the remaining defendants improperly supervised the plaintiff while he was on suicide watch on two different occasions.
II.
A motion for summary judgment under Rule 56 presumes the absence of a genuine issue of material fact for trial. The Court must view the evidence and draw all reasonable inferences in favor of the non-moving party, and determine "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." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (internal quotes omitted). A fact is "material" if its resolution affects the outcome of the lawsuit. Lenning v. Commercial Union Ins. Co., 260 F.3d 574, 581 (6th Cir. 2001). "Materiality" is determined by the substantive law claim. Boyd v. Baeppler, 215 F.3d 594, 599 (6th Cir. 2000). An issue is "genuine" if a "reasonable jury could return a verdict for the nonmoving party." Henson v. Nat'l Aeronautics Space Admin., 14 F.3d 1143, 1148 (6th Cir. 1994) (quoting Anderson, 477 U.S. at 248). Irrelevant or unnecessary factual disputes do not create genuine issues of material fact. St. Francis Health Care Centre v. Shalala, 205 F.3d 937, 943 (6th Cir. 2000). When the "record taken as a whole could not lead a rational trier of fact to find for the nonmoving party," there is no genuine issue of material fact. Simmons-Harris v. Zelman, 234 F.3d 945, 951 (6th Cir. 2000). Thus a factual dispute which "is merely colorable or is not significantly probative" will not defeat a motion for summary judgment which is properly supported. Kraft v. United States, 991 F.2d 292, 296 (6th Cir. 1993); see also Int'l Union, United Auto., Aerospace and Agric. Implement Workers of Am. v. BVR Liquidating, Inc., 190 F.3d 768, 772 (6th Cir. 1999). The party bringing the summary judgment motion has the initial burden of informing the district court of the basis for its motion and identifying portions of the record which demonstrate the absence of a genuine dispute over material facts. Mt. Lebanon Pers. Care Home, Inc. v. Hoover Universal, Inc., 276 F.3d 845, 848 (6th Cir. 2002). The party opposing the motion then may not "rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact" but must make an affirmative showing with proper evidence in order to defeat the motion. Street v. J.C. Bradford Co., 886 F.2d 1472, 1479 (6th Cir. 1989). A party opposing a motion for summary judgment must designate specific facts in affidavits, depositions, or other factual material showing "evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252. If the non-moving party, after sufficient opportunity for discovery, is unable to meet his or her burden of proof, summary judgment is clearly proper. Celotex Corp., 477 U.S. at 322-23. The party who bears the burden of proof must present a jury question as to each element of the claim. Davis v. McCourt, 226 F.3d 506, 511 (6th Cir. 2000). Failure to prove an essential element of a claim renders all other facts immaterial for summary judgment purposes. Elvis Presley Enters., Inc. v. Elvisly Yours, Inc., 936 F.2d 889, 895 (6th Cir. 1991).
A.
The plaintiff first objects to the recommendation that defendant Kedron's motion for summary judgment be granted. As the Magistrate Judge explained, this claim arose from the plaintiff's insistence that Kedron wrote a false misconduct ticket against him on May 6, 2001 in retaliation for the plaintiff having written two grievances against her in the past. The Magistrate Judge concluded that neither grievance could form the basis of a proper retaliation claim, the first because Defendant Kedron was never mentioned therein, and the second because its assertion that the plaintiff had a right not to be patted down by persons of the opposite sex was frivolous, and therefore not protected conduct.As the Magistrate Judge explained, a successful First Amendment retaliation claim must prove three elements: (1) the prisoner's engagement in protected conduct; (2) adverse action taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in said conduct; and (3) a causal connection between the first two elements. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). It is well-established that prisoners have no right to file frivolous grievances, and that frivolous grievances therefore cannot constitute protected conduct. See Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000). The Sixth Circuit has also found, as the Magistrate Judge noted, that the mere receipt of a major misconduct ticket is sufficient to meet the second element of the Thaddeus framework, even if the inmate is later acquitted of the charge. Brown v. Crowley, 312 F.3d 782, 789 (6th Cir. 2002).
The plaintiff alleged in the first grievance, filed on September 7, 2000, complained that he had experienced a shakedown conducted in bad faith by a female corrections officer named Hatton. The grievance does not mention defendant Kedron, and the Magistrate Judge accordingly concluded that there was no basis upon which a jury could find any causal connection between this grievance and the misconduct ticket written by Kedron eight months later. The plaintiff's objections do not address this portion of the Magistrate Judge's finding, instead alleging generally that the affidavit Kedron filed with her motion was in "bad faith." The basis for discounting the first grievance, however, was based on the lack of evidence of a causal connection, not Kedron's testimony that there was no connection. The Court concludes, therefore, that the Magistrate Judge correctly rejected the September 7 grievance as a basis for a retaliation claim.
The second grievance, filed December 15, 2000, stated that the plaintiff was searched on one occasion by defendant Kedron when he was brought out of his cell to see the chaplain. The extent of the search is not entirely clear from this record. Ziegler refers to it as a "shakedown," but the Step I grievance response indicated that "a patdown search need not be conducted by staff members of the same sex." The plaintiff, however, does not dispute that a pat-down search is what actually occurred on that date.
The Magistrate Judge concluded that the retaliation claim failed on the first Thaddeus prong with respect to this grievance, because the plaintiff's assertion that he had a right to a pat-down search by an officer of the same sex was frivolous. See Herron, 203 F.3d at 415 (holding that the submission of a grievance is considered "protected conduct only to the extent that the underlying claims had merit"); Neitzke v. Williams, 490 U.S. 319, 325 (1989) (explaining that a claim is frivolous if it lacks an arguable basis either in law or fact). The breadth of the Herron Court's holding in this regard is arguably open to question. In Bell v. Johnson, 308 F.3d 594, 607 n. 5 (6th Cir. 2002), a subsequent panel noted that the Supreme Court case on which Herron relied, Lewis v. Casey, 518 U.S. 343, 353 n. 3 (1996), distinguished between "frivolous" and "arguable" claims, the latter of which have value because they can be "settled, bought, and sold." Accordingly, Bell found, the mere fact that a claim lacked ultimate merit does not render its making unprotected for the purposes of a First Amendment retaliation claim. That said, the Court observes that because Bell had already concluded that the specific conduct at issue in Bell was protected, its subsequent discussion of Herron was arguably dicta.
However, even under Bell's more generous standard, the Court concludes that the plaintiff's grievance was frivolous. It could be a different matter if the search in question was a strip search, or if the pat-down search had included the plaintiff's genital area. Instead, however, the plaintiff alleges a generalized right to a non-invasive pat-down search by an officer of the same sex, a rule that would not only be impractical, but also has no support in the jurisprudence. See Smith v. Fairman, 678 F.2d 52 (7th Cir. 1982) (finding no prisoner right to freedom from pat-down, non-genital searches). As one court in this district has noted, ordinary citizens have no right to such a practice: "To find otherwise would require every police car to carry two officers, one male and one female, so that misdemeanants would be searched by officers of the same sex." Martin v. Swift, 781 F. Supp. 1250, 1254 (E.D. Mich. 1992). Given the well-established principle that individuals residing in a correctional setting, not to mention a maximum security prison, have less right to privacy than the general citizenry, see Bell v. Wolfish, 441 U.S. 520, 556-560 (1979), the plaintiff's contention in his grievance that he was entitled to a personalized, same-sex pat-down search cannot be viewed as having even arguable merit for the purposes of his retaliation claim. While the plaintiff was certainly free to complain about the search he experienced in the hope of changing MDOC policy for future searches, he cannot rely on a grievance devoid of constitutional merit to furnish the basis of a retaliation claim.
In his objections, the plaintiff summarily asserts that this grievance was "meritorious," but does not explain why this is true. As the foregoing discussion demonstrates, the plaintiff's contention is erroneous.
The Magistrate Judge correctly recommended that defendant Kedron's motion for summary judgment be granted, and the Court will adopt that recommendation.
B.
In his other remaining claim, the plaintiff asserts that the remaining defendants exhibited deliberate indifference to his serious medical needs when they chose to monitor his status while on suicide watch from April 26, 2001 to May 15, 2001 by camera, not in person, and when they failed to take prompt action to protect him from taking suicidal actions.
Under the Eighth Amendment, prisoners have a constitutional right to medical care. Estelle v. Gamble, 429 U.S. 97, 103 (1976). That right is violated when corrections officials are deliberately indifferent to the prisoner's serious medical needs. Id. at 104. A detainee's psychological needs may constitute serious medical needs, especially when they result in suicidal tendencies. Horn v. Madison County Fiscal Court, 22 F.3d 653, 660 (6th Cir. 1994).
Eighth Amendment claims have both an objective and a subjective component. To satisfy the objective component, the plaintiff must allege that the medical need asserted is "sufficiently serious." Farmer v. Brennan, 511 U.S. 825, 834 (1994). "To satisfy the subjective component, the plaintiff must allege facts which, if true, would show that the official being sued subjectively perceived facts from which to infer substantial risk to the prisoner, that he did in fact draw the inference, and that he then disregarded that risk." Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001) (citing Farmer, 511 U.S. at 837). The Comstock Court reiterated the Supreme Court's caution that "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 the infliction of punishment." Id. (citing Farmer, 511 U.S. at 838). Nonetheless, a custodial official may " not escape liability if the evidence showed that he merely refused to verify underlying facts that he strongly suspected to be true, or declined to confirm inferences of risk that he strongly suspected to exist." Farmer, 511 U.S. at 843 n. 8. Officials also may be shown to be deliberately indifferent to serious medical needs without evidence of conscious intent to inflict pain. Molton v. City of Cleveland, 839 F.2d 240, 243 (6th Cir. 1988).
However, the conduct for which liability attaches must be more culpable than mere negligence; it must demonstrate deliberateness tantamount to intent to punish. Knowledge of the asserted serious needs or of circumstances clearly indicating the existence of such needs, is essential to a finding of deliberate indifference.Horn, 22 F.3d at 660 (internal citations omitted). Furthermore, although the Supreme Court has found that deliberate indifference to serious medical needs of prisoners does constitute an unnecessary and wanton infliction of pain in violation of the Eighth Amendment, the fact that a prisoner disagrees with a course of treatment that was prescribed, or even that the treatment he did receive was negligently administered, does not rise to a constitutional violation. See Estelle, 429 U.S. at 105-06.
The grievance in question, SMF-01-05-1412-28a, recites that as a result of poor supervision and deliberate indifference to his medical needs, the plaintiff attempted to hang himself on April 28, 2001, and again on May 3, 2001, with underwear that prison officials had failed to confiscate. The plaintiff argues that these attempts would not have been possible without the camera's blind spot, something that would not have been an issue had he been provided direct, personal supervision while on suicide watch.
The Magistrate Judge concluded that no Eighth Amendment claim was stated because none of the actions taken by MDOC personnel suggests a conscious decision to ignore the plaintiff's serious medical needs. The Court agrees. Records have been submitted demonstrating that the plaintiff was observed 24 hours a day by camera and that his suicide attempt on May 3, 2001 was immediately spotted and thwarted within minutes, with no injuries suffered by the plaintiff. The plaintiff in fact does not allege that he was ever able to hang himself or cause himself serious injury through any oversight while on suicide watch. The behavior complained of does not constitute the deliberate indifference required to assign liability under the Eighth Amendment.
The plaintiff raises several objections. First, he claims that the defendants' records only addressed his second suicide attempt on May 3, 2001, not his first suicide attempt on April 28, 2001. Second, he says that the defendants' omissions in regard to his first suicide attempt are telling, as it was the MDOC's failure to remove his underwear and otherwise properly respond to the first attempt that gave rise to the second attempt. Third, he argues that if he is permitted to conduct discovery, he will be able to demonstrate that the records the defendants have submitted are false and that he did not receive adequate medical care after the May 3, 2001 incident. Finally, he argues at length that the observation he received was contrary to MDOC procedures.
The final objection will be addressed first. The defendants' alleged violations of MDOC procedures are not probative to the plaintiff's constitutional claims. Violations of state statutes or administrative regulations do not themselves rise to a claim under 42 U.S.C. § 1983. See Baker v. McCollan, 443 U.S. 137, 146-47 (1979). As for the other allegations, the Court finds that the plaintiff's claim still cannot withstand summary judgment. Even if discovery demonstrated what the plaintiff asserts — that he attempted to commit suicide twice, not once, that MDOC officials failed to confiscate all of his underwear, and that they did not always respond immediately to his suicide threats — deliberate indifference would not be shown. A decision to leave the plaintiff with some clothing would not be objectively unreasonable in light of the twenty-four hour observation he was receiving. If anything, the plaintiff's placement on twenty-four hour observation indicates that the defendants were aware of the plaintiff's suicidal tendencies and were making an effort to stop it. To the extent that the plaintiff felt his medical care was subpar, he may have a state-law cause of action for medical malpractice. However, the plaintiff's personal belief, however vehement, that his experience on suicide watch was substandard is not a basis for federal constitutional relief.
C.
The Magistrate Judge also addressed two other matters. First, because the defendants have conceded that a video-monitoring system was used, the Magistrate Judge found that the plaintiff's motion for discovery seeking the names of the individuals operating the system and the video tapes of that observation sought information not reasonably calculated to lead to relevant evidence. This Court so held in its Order filed January 23, 2003, and the same result obtains here.
Second, the plaintiff has also filed a second motion seeking preliminary injunctive relief. In a separate report, the Magistrate Judge recommended that this motion be denied because it seeks relief arising from claims outside of this lawsuit, because the conduct in question has not been exhausted, and because the Sixth Circuit has explicitly found that being placed on modified grievance access status does not violate a prisoner's rights to seek redress. In his objections, the plaintiff ignores all of these findings, insisting instead that he would otherwise be entitled to an injunction.
The Court disagrees. The Prison Litigation Reform Act explicitly precludes the Court from entertaining any concerns regarding prison conditions that have not already been grieved through the MDOC grievance system. See 42 U.S.C. § 1997e(a). The plaintiff may not use an ongoing lawsuit over past events to circumvent the grievance process for subsequent perceived wrongs.
III.
The plaintiff has failed to come forward with evidence and allegations sufficient to warrant a jury trial on his claims of unlawful retaliation and deliberate indifference to his serious medical needs. Furthermore, for the reasons stated, his motions seeking discovery and preliminary injunctive relief are not well taken.
Accordingly, it is ORDERED that the previously-referenced reports and recommendations [dkt #s92 and 93] are ADOPTED.
It is further ORDERED that the defendant's motions for summary judgment [dkt #s31 and 64] are GRANTED.
It is further ORDERED that the plaintiff's motions for orders compelling discovery and for injunctive relief [dkt #s82 and 86] are DENIED.
It is further ORDERED that the remaining motions in this suit are DENIED AS MOOT.