Brockman #243449 v. Beseau et al, No. 2:2008cv00263 - Document 32 (W.D. Mich. 2010)
Court Description: OPINION ; signed by Judge R. Allan Edgar (EDTN Judge R. Allan Edgar, cam)
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UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION TIMOTHY BROCKMAN #243449, ) ) Plaintiff, ) ) v. ) ) JOE BESEAU, et al., ) ) Defendants. ) ____________________________________) Case No. 2:08-cv-263 HON. R. ALLAN EDGAR OPINION I. Facts Plaintiff Timothy Brockman #243449, an inmate currently confined at the Ionia Maximum Correctional Facility, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against Defendants Resident Unit Officer Joe Beseau, Resident Unit Officer Unknown Volz, Resident Unit Officer Unknown Jenkins, Inspector Unknown McDonald, and Deputy Warden John Boynton. Plaintiff s complaint alleges that on July 9, 2008, while he was confined to the Chippewa Correctional Facility (URF), he was sexually assaulted by Defendant Beseau. Plaintiff states that during a shakedown, Defendant Beseau grabbed his penis, testicles, and buttock area and pulled. Defendant Beseau was assisted by Defendant Jenkins. Plaintiff filed a grievance and was subsequently set up on July 19, 2008, by Defendant Beseau s co-worker, Defendant Volz. Defendant McDonald and Deputy Warden Boynton refused to do a thorough investigation and let the harassment continue. Plaintiff wrote to the Director of the MDOC and the URF Warden, to no avail. On September 3, 2008, Defendant Volz continued the assaults on Plaintiff by slamming the cell door on him. Plaintiff told the Security Classification Committee (SCC) that he 1 was afraid of the Defendants and was subsequently taken out of the hole and placed back in the same unit as Defendants. Finally, Plaintiff claims that Defendants lied to cover up staff corruption. Plaintiff claims that defendants actions violated his rights under the Eighth Amendment to the United States Constitution. Plaintiff is seeking nominal, compensatory and punitive damages, as well as equitable relief. II. Analysis A. Standard of Review Presently before the Court is the Defendants Motion for Summary Judgment, pursuant to Fed. R. Civ. P. 56. (Docket #16.) The time for filing a response has elapsed and the matter is ready for decision. Summary judgment is appropriate only if the moving party establishes that there is no genuine issue of material fact for trial and that he is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). If the movant carries the burden of showing there is an absence of evidence to support a claim or defense, then the party opposing the motion must demonstrate by affidavits, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue of material fact for trial. Id. at 324-25. The nonmoving party cannot rest on its pleadings but must present specific facts showing that there is a genuine issue for trial. Id. at 324 (quoting Fed. R. Civ. P. 56(e)). The evidence must be viewed in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Thus, any direct evidence offered by the plaintiff in response to a summary judgment motion must be accepted as true. Muhammad v. Close, 379 F.3d 413, 416 (6th Cir. 2004) (citing Adams v. Metiva, 31 F.3d 375, 382 (6th Cir. 1994)). However, a mere scintilla of evidence in support of the nonmovant s position will be insufficient. Anderson, 477 U.S. at 251-52. Ultimately, the court must determine whether there is sufficient evidence on which the jury could reasonably find for the 2 plaintiff. Id. at 252. See also Leahy v. Trans Jones, Inc., 996 F.2d 136, 139 (6th Cir. 1993) (single affidavit, in presence of other evidence to the contrary, failed to present genuine issue of fact); cf. Moore, Owen, Thomas & Co. v. Coffey, 992 F.2d 1439, 1448 (6th Cir. 1993) (single affidavit concerning state of mind created factual issue). B. Failure to exhaust administrative remedies Initially, Defendants Jenkins, Volz, McDonald, and Boynton state that they are entitled to summary judgment because Plaintiff failed to exhaust his administrative remedies. A prisoner s failure to exhaust his administrative remedies is an affirmative defense, which Defendants have the burden to plead and prove. Jones v. Bock, 127 S. Ct. 910, 919-21 (2007). A moving party without the burden of proof need show only that the opponent cannot sustain his burden at trial. See Morris v. Oldham County Fiscal Court, 201 F.3d 784, 787 (6th Cir. 2000); see also Minadeo v. ICI Paints, 398 F.3d 751, 761 (6th Cir. 2005). 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 County Sch. Dist., 270 F.3d 1036, 1056 (6th Cir. 2001). 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) (quoting W. SCHWARZER, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 487-88 (1984)). The United States Court of Appeals for the Sixth Circuit repeatedly has emphasized that the party with the burden of proof must show 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 (quoting 11 JAMES WILLIAM MOORE , ET AL., MOORE S FEDERAL PRACTICE § 56.13[1], at 56-138 (3d ed. 2000); Cockrel, 270 F.2d at 1056 (same). Accordingly, 3 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). Pursuant to the applicable portion of the Prison Litigation Reform Act (PRLA), 42 U.S.C. § 1997e(a), a prisoner bringing an action with respect to prison conditions under 42 U.S.C. § 1983 must exhaust his available administrative remedies. See Porter v. Nussle, 534 U.S. 516, 532 (2002); Booth v. Churner, 532 U.S. 731, 733 (2001). A prisoner must first exhaust available administrative remedies, even if the prisoner may not be able to obtain the specific type of relief he seeks in the state administrative process. See Porter, 534 U.S. at 520; Booth, 532 U.S. at 741; Knuckles El v. Toombs, 215 F.3d 640, 642 (6th Cir. 2000); Freeman v. Francis, 196 F.3d 641, 643 (6th Cir. 1999). In order to properly exhaust administrative remedies, prisoners must complete the administrative review process in accordance with the deadlines and other applicable procedural rules. Jones v. Bock, 127 S. Ct. 910, 922-23 (2007); Woodford v. Ngo, 126 S. Ct. 2378, 2386 (2006). Compliance with prison grievance procedures, therefore, is all that is required by the PLRA to properly exhaust. Jones, 127 S. Ct. at 922-23. MDOC Policy Directive 03.02.130 (effective July 9, 2007), sets forth the applicable grievance procedures for prisoners in MDOC custody at the time relevant to this complaint. Inmates must first attempt to resolve a problem orally within two business days of becoming aware of the grievable issue, unless prevented by circumstances beyond his or her control Id. at ¶ P. If oral resolution is unsuccessful, the inmate may proceed to Step I of the grievance process and submit a completed grievance form within five business days of the attempted oral resolution. Id. at ¶ P. The Policy Directive also provides the following directions for completing grievance forms: The issues shall be stated briefly. Information provided shall be limited to the facts involving the issue being 4 grieved (i.e., who, what, when, where, why, how). Dates, times, places and names of all those involved in the issue being grieved are to be included. Id. at ¶ R (emphasis in original). The inmate submits the grievance to a designated grievance coordinator, who assigns it to a respondent. Id. at ¶ X. If the inmate is dissatisfied with the Step I response, or does not receive a timely response, he may appeal to Step II by obtaining an appeal form within ten business days of the response, or if no response was received, within ten days after the response was due. Id. at ¶¶ T, DD. The respondent at Step II is designated by the policy, e.g., the regional health administrator for a medical care grievances. Id. at ¶ GG. If the inmate is still dissatisfied with the Step II response, or does not receive a timely Step II response, he may appeal to Step III. Id. at ¶ FF. The Step III form shall be sent within ten business days after receiving the Step II response, or if no Step II response was received, within ten business days after the date the Step II response was due. Id. at ¶ FF. The Grievance and Appeals Section is the respondent for Step III grievances on behalf of the MDOC director. Id. at ¶ GG. Time limitations shall be adhered to by the inmate and staff at all steps of the grievance process. Id. at ¶ X. The total grievance process from the point of filing a Step I grievance to providing a Step III response shall be completed within 90 calendar days unless an extension has been approved . . . . Id at ¶ HH. Defendants Jenkins, Volz, McDonald, and Boynton assert that Plaintiff filed a single grievance in connection with the allegations made in his complaint. Defendants refer to grievance number URF 2008-07-1329-17g, received on July 10, 2008, in which Plaintiff complains that he was sexually assaulted by Defendant Beseau. (Defendants Exhibit B.) Plaintiff fails to name Defendants Jenkins, Volz, McDonald, or Boynton in his step I grievance. In order to properly exhaust Michigan Department of Corrections grievance procedures, a prisoner must raise each of his claims for the first 5 time at Step I. Burton v. Jones, 321 F.3d 569, 574 (6th Cir. 2003). However, where a prisoner has set forth a claim in his Step I grievance, he may present additional factual detail at Steps II and III that clarify his allegations at Step I, as a means of justifying his appeal. Id. Raising allegations against a particular defendant for the first time at Step II or III is insufficient to demonstrate exhaustion. Id. at 576 n.4. Therefore, Defendants Jenkins, Volz, McDonald, and Boynton are entitled to summary judgment for lack of exhaustion. C. Eighth Amendment claims Defendants also claim that they are entitled to summary judgment because the evidence shows that they did not violate Plaintiff s Eighth Amendment rights. [B]ecause the sexual harassment or abuse of an inmate by a corrections officer can never serve a legitimate penological purpose and may well result in severe physical and psychological harm, such abuse can, in certain circumstances, constitute the unnecessary and wanton infliction of pain forbidden by the Eighth Amendment. Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir. 1997) (quoted cases omitted). To prevail on a constitutional claim of sexual harassment, an inmate must therefore prove, as an objective matter, that the alleged abuse or harassment caused pain and, as a subjective matter, that the officer in question acted with a sufficiently culpable state of mind. Freitas, 109 F.3d at 1338 (citing Hudson v. McMillian, 503 U.S. 1, 8 (1992)). Circuit courts consistently have held that sexual harassment, absent contact or touching, does not satisfy the objective requirement because such conduct does not constitute the unnecessary and wanton infliction of pain. See Morales v. Mackalm, 278 F.3d 126, 132 (2d Cir. 2002) (allegations that prison guard asked prisoner to have sex with her and to masturbate in front of her and other female staffers did not rise to level of Eighth Amendment violation); Barney v. Pulsipher, 143 F.3d 1299, 1311 n.11 (10th Cir. 1998) (allegations that county jailer subjected female 6 prisoners to severe verbal sexual harassment and intimidation was not sufficient to state a claim under the Eighth Amendment); Howard v. Everett, No. 99-1277EA, 2000 WL 268493, at *1 (8th Cir. March 10, 2000) (sexual comments and gestures by prison guards did not constitute unnecessary and wanton infliction of pain); cf. Seltzer-Bey v. Delo, 66 F.3d 961, 962-63 (8th Cir. 1995) (allegations that prison guard conducted daily strip searches, made sexual comments about prisoner s penis and buttocks, and rubbed prisoner s buttocks with nightstick were sufficient to withstand motion for summary judgment); Zander v. McGinnis, No. 97-1484, 1998 WL 384625, at *2 (6th Cir. June 19, 1998) (verbal abuse of mouthing pet names at prisoner for ten months failed to state an Eighth Amendment claim); Murray v. United States Bureau of Prisons, No. 95-5204, 1997 WL 34677, at *3 (6th Cir. Jan. 28, 1997) (magistrate judge correctly held that verbal abuse in the form of offensive remarks regarding a transsexual prisoner s bodily appearance, transsexualism, and presumed sexual preference cannot state an Eighth Amendment claim). Other courts have held that even minor, isolated incidents of sexual touching coupled with occasional offensive sexual remarks do not rise to the level of an Eighth Amendment violation. See, e.g., Jackson v. Madery, 158 F. App x 656, 661 (6th Cir. 2005) (correction officer s conduct in allegedly rubbing and grabbing prisoner s buttocks in degrading manner was isolated, brief, and not severe and so failed to meet Eighth Amendment standards); Johnson v. Ward, No. 99-1596, 2000 WL 659354, at *1 (6th Cir. May 11, 2000) (male prisoner s claim that a male officer placed his hand on the prisoner s buttock in a sexual manner and made an offensive sexual remark did not meet the objective component of the Eighth Amendment); Berryhill v. Schriro, 137 F.3d 1073, 1075 (8th Cir. 1998) (where inmate failed to assert that he feared sexual abuse, two brief touches to his buttocks could not be construed as sexual assault); accord Boxer X v. Harris, 437 F.3d 1107, 1111 (11th Cir. 2006); Boddie v. Schneider, 105 F.3d 857, 859-61 (2d Cir. 1997) (court dismissed as inadequate prisoner s claim that female corrections officer made 7 a pass at him, squeezed his hand, touched his penis, called him a sexy black devil, pressed her breasts against his chest, and pressed against his private parts). In this case, Plaintiff claims that he was subjected to a single unwanted touching on one occasion. In the step III response to Plaintiff s grievance, the following finding was made: The grievance was thoroughly investigated by Ian McDonald, Inspector, Chippewa Correctional Facility. The Grievant was examined by Health Care staff because he alleged his testicles and penis were injured during the pat down search. The Inspector interviewed the Grievant and collected statements from [Corrections Officer] J. Chisholm, [Assistant Resident Unit Supervisor] T. McKee, and [Resident Unit Officer] Joe Beseau concerning the pat search. The Grievant was found to have several contraband items. When the Investigator asked where he got the items, the Grievant said, Man that was a months worth of Hustle Beseau took from me. The investigation found the allegations of sexual assault to be unfounded. The grievance was denied at the Step One level. (Defendants Exhibit B, p. 1.) The step III respondent further noted that Plaintiff failed to provide any evidence to corroborate his own story or to cast doubt on the word of staff. The Defendants also offer a copy of the investigation report related to Plaintiff s claim of sexual assault, which includes statements from the witnesses listed in the step III grievance response and supports Defendants assertion that Plaintiff was not assaulted. (Defendants Exhibit B, pp. 10-14.) The court concludes that the evidence does not support Plaintiff s claim of assault. In addition, even if Plaintiff was subjected to a brief unwanted touch, he was examined and was found to be uninjured. Such a brief touch, without more, does not rise to the level of an Eighth Amendment violation. Therefore, Plaintiff s allegation of sexual assault fails to state an Eighth Amendment claim and Defendants are entitled to summary judgment. 8 With regard to the alleged September 3, 2008, door slamming incident, Defendant Volz attests that the incident actually occurred on September 8, 2008, one day after he wrote two major misconduct tickets on Plaintiff for disobeying a direct order and being out of place. Defendant Volz states that on September 8, 2008, the cell doors, which are controlled from the officer s desk, were opened for prisoners to receive medication. After two to four minutes, Defendant Volz observed that prisoners were starting to hang out in their doorways and were passing items to one another. Defendant Volz then began to shut the doors from the officer s desk. As he was doing so, he heard Plaintiff yelling that he was caught in the door. Defendant Volz immediately opened the doors. Defendant Volz states the doors close very slowly, so that Plaintiff would have had time to get out of the way. Therefore, Defendant Volz asserts that Plaintiff s claim that he was caught in the doors for 15 to 20 seconds is not credible. (Defendants Exhibit G.) An investigation was conducted by Defendants McDonald, and Plaintiff s claims were found to be without merit. (Defendants Exhibit C, Attachment 2.) The court concludes that based on the record, there is no genuine issue of material fact that Plaintiff was assaulted by Defendant Volz. Moreover, even if Plaintiff were briefly caught in the door, such an incident does not rise to the level of an Eighth Amendment violation. Every malevolent touch by a prison guard does not give rise to an Eighth Amendment cause of action, see Hudson v. McMillian, 503 U.S. 1, 9 (1992), and the prisoner must allege that he sustained more than de minimis injury in order to state a viable excessive force claim. See id. at 9-10; Thaddeus-X v. Blatter, 175 F.3d 378, 402 (6th Cir. 1999) (en banc). The approximately fifteen seconds of physical discomfort suffered by Plaintiff while he was allegedly caught in the door is not sufficient to state an Eighth Amendment claim. See Benson v. Carlton, No. 99-6433, 2000 WL 1175609, at *1 (6th Cir. Aug. 9, 2000) (whirling sensation in prisoner s head after fear of guard caused him to skip supper constituted 9 a de minimis injury and did not support claim for mental or emotional suffering under the Eighth Amendment); Scott v. Churchill, No. 97-2061, 2000 WL 519148, at *2 (6th Cir. April 6, 2000) (plaintiff s claim that guard grabbed his neck and threatened him did not rise to the level of an Eighth Amendment violation). Plaintiff does not allege or show that he suffered physical injury from the incident or required medical attention. Further, any claim for emotional injuries is barred by 42 U.S.C. § 1997e(e), which precludes any claim by a prisoner for mental or emotional injury suffered while in custody without a prior showing of physical injury. Id. See also Hardin-Bey v. Rutter, 524 F.3d 789, 795-96 (6th Cir. 2008); Taylor v. United States, 161 F. App x 483, 486-87 (6th Cir. 2007); Jarriett v. Wilson, 162 F. App x 394, 400 (6th Cir. 2005); Oliver v. Sundquist, No. 00-6372, 2001 WL 669994, at *1 (6th Cir. June 7, 2001); Siller v. Dean, No. 99-5323, 2000 WL 145167, at *2 (6th Cir. Feb. 1, 2000). Plaintiff alleges no physical injury. As a consequence, his claim for emotional damages is barred. D. Personal Involvement Defendants McDonald and Boynton claim that they are entitled to summary judgment because they were not personally involved in the alleged misconduct. Liability under Section 1983 must be based on more than merely the right to control employees. Polk Co. v. Dodson, 454 U.S. 312, 325-26 (1981); Monell v. New York City Department of Social Services, 436 U.S. 658 (1978). Thus, Section 1983 liability cannot be premised upon mere allegations of respondeat superior. Monell, 436 U.S. at 691; Polk, 454 U.S. at 325. A party cannot be held liable under Section 1983 absent a showing that the party personally participated in, or otherwise authorized, approved or knowingly acquiesced in, the allegedly unconstitutional conduct. See e.g. Leach v. Shelby Co. Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989), cert. denied, 495 U.S. 932 (1990); Hays v. Jefferson, 668 F.2d 10 869, 874 (6th Cir.), cert. denied, 459 U.S. 833 (1982). See also Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.), cert. denied 469 U.S. 845 (1984). Supervisory officials can be held liable for the acts of their subordinates only if plaintiff establishes that the supervisor failed to appropriately discharge his supervisory duties, and that this failure resulted in a denial or deprivation of plaintiff s federal rights. See e.g. Leach, 891 F.2d at 1246; Hayes v. Vessey, 777 F.2d 1149, 1154 (6th Cir. 1985). However, the failure of a supervisor to supervise, control or train the offending employee is not actionable absent a showing that the official implicitly encouraged, authorized, approved or knowingly acquiesced in, or in some other way directly participated in, the offensive conduct. Leach, 891 F.2d at 1246. Such a claim requires, at a minimum, that the official had knowledge of the offending employee s conduct at a time when the conduct could be prevented, or that such conduct was otherwise foreseeable or predictable. See e.g. Gibson v. Foltz, 963 F.2d 851, 854 (6th Cir. 1992). In addition, plaintiff must show that defendant had some duty or authority to act. See e.g. Birrell v. Brown, 867 F.2d 956, 959 (6th Cir. 1989) (lower level official not liable for shortcomings of building); Ghandi v. Police Dept. of City of Detroit, 747 F.2d 338, 351 (6th Cir. 1984) (mere presence at the scene is insufficient grounds to impose Section 1983 liability in the absence of a duty to act); accord Hall v. Shipley, 932 F.2d 1147 (6th Cir. 1991). In addition, merely bringing a problem to the attention of a supervisory official is not sufficient to impose such liability. See Shelly v. Johnson, 684 F. Supp. 941, 946 (W.D. Mich. 1987) (Hillman, C.J.), aff d 849 F.2d 228 (6th Cir. 1988). Finally, supervisory liability claims cannot be based on simple negligence. Leach, 891 F.2d at 1246; Weaver v. Toombs, 756 F. Supp. 335, 337 (W.D. Mich. 1989), aff d 915 F.2d 1574 (6th Cir. 1990). Defendants McDonald and Boynton assert that the only roles they had in this action involve the denial of administrative grievances or the failure to act. Defendants McDonald and 11 Boynton cannot be liable for such conduct under § 1983. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999), cert. denied, 530 U.S. 1264, 120 S. Ct. 2724 (2000). Accordingly, the Court concludes that Defendants McDonald and Boynton are entitled to summary judgment for lack of personal involvement. E. Defendant Jenkins Defendant Jenkins asserts that Plaintiff s claim against him is entirely conclusory, so that he is entitled to summary judgment. While a complaint need not contain detailed factual allegations, a plaintiff s allegations must include more than labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The court must determine whether the complaint contains enough facts to state a claim to relief that is plausible on its face. Twombly, 550 U.S. at 570. The court need not accept threadbare recitals of the elements of a cause of action, supported by mere conclusory statements . . . . Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ashcroft, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 556). [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged but it has not show[n] that the pleader is entitled to relief. Ashcroft, 129 S. Ct. at 1950 (quoting FED . R. CIV . P. 8(a)(2)). The court agrees that Defendant Jenkins is entitled to dismissal because Plaintiff s claims against him are entirely conclusory. F. Eleventh Amendment Defendants assert that they are entitled to summary judgment on Plaintiff s official capacity claims against them because such claims are barred by the Eleventh Amendment. Any claims against the individually-named Defendants in their official capacities do not state a claim upon 12 which relief can be granted. See Will v. Michigan Department of State Police, 491 U.S. 58 (1989) (claims against a state agency or an official in his/her official capacity are claims against the state, and are not claims against a person subject to Section 1983 liability); Frederick v. Abramajtys, No. 941935, 1995 WL 564321, **1 (6th Cir. Sept. 21, 1995) (unpublished). Moreover, the Eleventh Amendment bars suit against the State or one of its agencies in federal court unless the state has given express consent, regardless of the relief sought. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100 (1984), overruled in part on other grounds, Will, 491 U.S. 58; Alabama v. Pugh, 438 U.S. 781, 782 (1978) (State and Board of Corrections).1 The State of Michigan has not consented to civil rights suits in the federal courts. See Abick v. Michigan, 803 F.2d 874, 877 (6th Cir. 1986). The Eleventh Amendment therefore bars official-capacity suits for damages against its employees. Therefore, any official capacity claims are properly dismissed. G. Qualified immunity Defendants also claim Plaintiff s individual capacity claims are barred by qualified immunity because Plaintiff has failed to show a violation of clearly established law. Government officials, performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Dietrich v. Burrows, 167 F.3d 1007, 1012 (6th Cir. 1999); Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997); Noble v. Schmitt, 87 F.3d 157, 160 (6th Cir. 1996); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). An "objective reasonableness test is used to determine whether the official could reasonably have believed his conduct was lawful. Dietrich, 167 1 The Sixth Circuit has held that since an official capacity suit for retroactive relief, such as monetary damages, is deemed to be against the State, whose officers are the nominal Defendants, the claim is barred by the Eleventh Amendment. Doe v. Wigginton, 21 F.3d 733, 736-737 (6th Cir. 1994). 13 F.3d at 1012; Anderson v. Creighton, 483 U.S. 635, 641 (1987). Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. Pearson v. Callahan, 129 S. Ct. 808, 815 (2009). In making a qualified immunity determination the court must decide whether the facts as alleged or shown make out a constitutional violation or whether the right that was allegedly violated was a clearly established right at the time of the alleged misconduct. Id. at 816. If the court can conclude that either no constitutional violation occurred or that the right was not clearly established, qualified immunity is warranted. The court may consider either approach without regard to sequence. Id. As previously discussed, because Plaintiff cannot establish that his constitutional rights were violated with regard to his access to courts claims or his conspiracy claims, Defendants are entitled to qualified immunity with regard to those claims. III. Conclusion In light of the foregoing, the court concludes that Defendants are entitled to summary judgment in this case. As noted above, Defendants Jenkins, Volz, McDonald, Boynton are entitled to summary judgment for lack of exhaustion, and in the alternative, on the merits. In addition, Defendant Beseau is entitled to summary judgment on the merits. A Judgment consistent with this Opinion will be entered. Dated: /s/ R. Allan Edgar R. ALLAN EDGAR UNITED STATES DISTRICT JUDGE 2/16/2010 14
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