# Perry v. Warden Warren Correctional Institution

> District Court, S.D. Ohio · August 16, 2022

URL: https://www.frixlaw.com/law-library/cases/10380678

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** August 16, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI

MARQUEZ B. PERRY, : Case No. 1:20-cv-30
:
Plaintiff, :
: District Judge Algenon L. Marbley
vs. :
Magistrate Judge Peter B. Silvain, Jr.
:
WARDEN WARREN CORRECTIONAL :
INSTITUTION, et al., :
:
Defendants. :

REPORT AND RECOMMENDATIONS1

Plaintiff Marquez B. Perry, who is currently an inmate at the Southern Ohio Correctional
Facility (SOCF), filed this prisoner civil rights action pursuant to 42 U.S.C. § 1983 alleging that
Defendants violated his rights under state and federal law while he was confined at the Warren
Correctional Institution (WCI).
This case is before the Court upon Defendants’ Motion for Summary Judgment and
exhibits (Doc. #s 87-90, 92), Plaintiff’s Memorandum in Support of the Denial of Defendants’
Motion for Summary Judgment (Doc. #107), Defendants’ Reply (Doc. #109).2
I. BACKGROUND
After Plaintiff filed an amended complaint,3 United States Magistrate Judge Karen L.
Litkovitz conducted a sua sponte review under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l)
and concluded by Report and Recommendation that Plaintiff could proceed with his claims against

1 Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.
2 Plaintiff subsequently filed “Notice of Verified Complaint: Notice of Inmate Grievance: and Supplemental
Memorandum against Defendants’ Motion for Summary Judgment” with attached exhibits (Doc. #111) and “Notice
of Exhibits to Support Plaintiff Reply to Defendants’ Motion for Summary Judgment” with attached exhibits (Doc.
#120). Plaintiff’s exhibits are duplicates of the exhibits filed by Defendants (Doc. #s 87-90, 92). The undersigned
will cite to the exhibits filed by Defendants.
3 Plaintiff’s Amended Complaint was originally docketed as his Response to Order to Show Cause. (Doc. #12). After
rape by his cellmate in July 2019; against Defendants Burke, Little, C.O. John Doe, and Fournier
for denying Plaintiff medical and mental-health care following his alleged rape; against
Defendants Eulenburg and John Doe #25 for deliberate indifference to Plaintiff’s safety by
allegedly leaking Plaintiff’s confidential statement; against Defendant Eulenburg for allowing
Plaintiff’s alleged rapist to be placed in a cell directly across from Plaintiff; against Defendant
Sarwar for deliberate indifference to Plaintiff’s safety by failing to transfer him following his
alleged rape and the leaking of his confidential statement; against Defendants Combs, Sarwar, and
Luneke for failure to protect Plaintiff from attack from inmate Harris in November 2019; against
Defendant Teague for sexual assault in March 2020; against Defendants Back,6 Little and Teague

for retaliation, and against the Defendant Warden for failure to protect and deliberate indifference
on a failure-to-train theory. (Doc. #15, PageID #200). Magistate Judge Litkovitz recommended
that all of Plaintiff’s other claims be dismissed. Id. On July 16, 2020, the District Court adopted
the Report and Recommendation. (Doc. #22).
Plaintiff’s claims initially stem from his allegation that he was raped by his cellmate at
WCI on July 10, 2019. (Doc. #16, PageID #205). Prior to the alleged rape, Plaintiff alleges that
he reported to Defendants Burke, Ewen, McIntosh, Hill, and Fournier that he did not feel safe in
his cell with his cellmate and requested to move cells. Specifically, when Plaintiff was moved into
the cell with the inmate, Plaintiff repeatedly told Defendant Burke, his “1st shift regular,” that he
“felt in danger in the cell with this man and that [he] was being subject to unwanted sexual

situations.” Id. at 203; (Doc. #107, PageID #1776). In addition, Plaintiff went to the office of
Defendant Ewen, his block sergeant, and reported that his cellmate was a “sexual predator,” he

4 The correct spelling is “Fournier,” not “Fornier.” See Doc. #87-9.
5 Defendant John Doe #2 was previously identified as Defendant Miller. See Doc. #s 51, 75.
6 The correct spelling is “Back,” not “Bach.” (Doc. #87, PageID #549, n. 4)
this man.” (Doc. #16, PageID #204); (Doc. #107, PageID #1776). Defendant Ewen asked
Plaintiff if he had information or “dirt” on other inmates, and when Plaintiff responded that he did
not, Defendant Ewen refused to move him. (Doc. #16, PageID #204). Further, Plaintiff requested
a cell move from Defendant Fournier, the acting unit manager, on several occasions prior to the
rape. (Doc. #16, PageID #206); (Doc. #107, PageID #1776). Plaintiff had previously sent a kite
to Unit Manager Crosby requesting a move. (Doc. #16, PageID #206). Crosby approved the move
and instructed Plaintiff to contact Defendant Fournier about the move. Id. However, when
Plaintiff showed Defendant Fournier the kite approving the move, he did not move Plaintiff. Id.
On July 8, 2019, Plaintiff wrote to Defendant McIntosh in an informal complaint that he

had been moved into a cell “an openly gay person” and was “tryin to get out of the cell with man
due to all the probpems (sic) its (sic) gone (sic) cause (sic) ….” (Doc. #87-4, PageID #605).
Defendant McIntosh responded on July 9, 2010: “I spoke with Acting Unit Manager Fournier and
he said he spoke with you today and explained the local move policy. He also stated that you
understood and no problems existed….” Id.
On July 9, 2019, in Plaintiff’s grievance to Defendant Hill, he indicated that he was in a
cell with “an openly gay man which is causing me all type (sic) of problems.” (Doc. #87-4, PageID
#605). Specifically, Plaintiff wrote that “being in the cell with this openly gay man has caused the
gangs to turn against me and not let me on the phone[] and to threaten me wiht (sic) violence.” Id.
On July 22, 2019, Defendant Hill denied Plaintiff’s grievance. Id. She indicated that Plaintiff

moved cells two days after he filed his informal complaint. Id.
On the morning after his alleged rape, Plaintiff refused to allow his cellmate back into their
cell after breakfast. (Doc. #16, PageID #205). As a result, Plaintiff was placed in handcuffs and
Defendant Little was called to his unit. Id. Plaintiff alleges that he told Defendants Burke, Little,
PageID #1777). They told him to return to his cell and that “somebody would see [him].” (Doc.
#16, PageID #205). However, “this never happened.” Id. According to Plaintiff, he never
received medical or mental attention, and no evidence was collected. Id. at 204-07. Because this
evidence was not collected, Plaintiff’s rapist was not indicted. Id. at 205-06.
Plaintiff alleges that he was placed in the “hole” and that no one interviewed him. (Doc.
#16, PageID #207). After a few days, Plaintiff sent a kite to Defendant Mitchell, the warden, to
inform her that he needed to report a sexual assault and was being ignored. 16 at 207, 216; (Doc.
#90-2, PageID #1159). Plaintiff alleges that instead of informing the PREA (Prison Rape
Elimination Act) coordinator and sending investigators, Defendant Mitchell sent four corrections

officers led by Defendant Back. (Doc. #16, PageID #s 207-08, 216). Defendant Back and the
corrections officers lied to Plaintiff and scared him into keeping quiet. Id. at 208.
Plaintiff alleges that he eventually reported Defendant Back and the corrections officers to
the Investigator’s Office. Id. at 208. According to Plaintiff, this made Defendant Back “very
upset,” and he harassed Plaintiff and told him he would not be watching television anytime soon.
Id. at 208; (Doc. #107, PageID #1777). Plaintiff claims that he later found out that his TV screen
was shattered while in the custody of the captain’s office. (Doc. #16, PageID #208). Plaintiff
alleges that Defendant Little “participated in an attempt by [Defendant Back] to silence me even
though I clearly told them I had [an] assault to report.” Id. at 206.
On July 24, 2019, once Plaintiff realized that he was not going to get help from someone

inside the prison, he called an “outside hotline.” Id. at 208; (Doc. #90-2, PageID #1161). On July
25, 2019, the PREA investigation into Plaintiff’s claim began. (Doc. #90-2, PageID #1128).
Marty Jones, an investigator at WCI, conducted the investigation. Id. at 1102. As part of the
investigation, Plaintiff was asked to give a confidential statement and was assured that “only them
statement to Defendant Eulenburg, the PREA Coordinator at the time. Id. at 209. Jones concluded,
and noted in his written report, that Plaintiff’s allegations were substantiated. (Doc. #90-2, PageID
#1138).
On July 25, 2019, Plaintiff was moved into a cell with inmate Harris. (Doc. #89-4, PageID
#1047). Plaintiff alleges that two days after he gave his statement to Defendant Eulenburg, inmate
Harris was in possession of his statement. (Doc. #16, PageID #209). Inmate Harris used the
information from Plaintiff’s statement “to try to humiliate [him] and intimidate [him] into doing
sexual things to him.” Id.
On August 1, 2019, Plaintiff filed a grievance stating that Harris knew the contents of his

confidential statement and it was causing friction between them. 16 at 209; (Doc. #89-4, PageID
#s 1047-48); see Doc. #87-6, PageID #617. Plaintiff requested that he be moved. (Doc. #89-4,
PageID #1048). On August 2, 2019, Harris was moved to a different cell. (Doc. #89-4, PageID
#1048). However, during that week, it was “common knowledge” that Plaintiff had been raped
and snitched on a member of the “Blood gang.” (Doc. #16, PageID #209). Plaintiff alleges that
because the statement was leaked, he was beaten up three times, humiliated by inmates and staff,
and assaulted by a staff member. Id. at 209, 212.
According to Plaintiff, the inspector investigated how the statement was leaked and
determined that “it must have gotten passed down because ‘people talk.’” Id. at 209. Additionally,
an inmate told the inspector that he heard it from a C.O. Id. Plaintiff alleges Defendant John Doe

#2 told inmate Harris and other inmates about Plaintiff’s PREA statement. Id. at 212.
On October 28, 2019, Harris was moved back into a cell with Plaintiff. (Doc. #89-4,
PageID #1048). Plaintiff went to Defendant Sarwal’s office to tell him that he had made a mistake
Defendant Sarwal refused to move Plaintiff. (Doc. #16, PageID #213).
Plaintiff alleges that Defendant Luneke, the deputy warden, “was part of the move that
landed inmate Harris back into [his] cell.” (Doc. #16, PageID #215). More specifically, Plaintiff
claims that Defendant Luneke “personally approved for Inmate [H]arris to become my cellmate
after I wrote a grievance about his unwanted sexual advances.” (Doc. #107, PageID #1778).
Plaintiff told Defendant Luneke that he was in danger and asked him to transfer him. (Doc. #16,
PageID #215-16); (Doc. #107, PageID #1778). He also sent him a kite. (Doc. #16, PageID #216);
(Doc. #107, PageID #1778). Defendant Luneke ignored Plaintiff. (Doc. #16, PageID #216).
Plaintiff also went to Defendant Combs, the sergeant of his unit, and requested that either

he or inmate Harris be moved. (Doc. #16, PageID #212); (Doc. #107, PageID #s 1777-78).
Plaintiff informed Defendant Combs of his history with inmate Harris and that he had previously
threatened Plaintiff and tried to intimidate him into sexual things. (Doc. #16, PageID #212).
Defendant Combs refused to move Plaintiff. Id.
Plaintiff alleges that on November 4, 2019, inmate Harris attempted to rape Plaintiff and
beat him up. (Doc. #16, PageID #s 209, 212-13, 216). Plaintiff reported an injury on that day to
Timothy J. Trapp, a Corrections Officer at Warren Correctional Institution. (Doc. #89-7, PageID
#1058). Trapp completed an incident report detailing the event. Id. In the report, Trapp noted
that Plaintiff indicated that he hit his hand on the dresser and injured his hand. Id. Trapp observed
that Plaintiff had facial injuries as well. Id. Both Plaintiff and inmate Harris were escorted to

medical for an evaluation. Id. Vickey Bussey, RN, examined Plaintiff. Id. at 1066. He reported
to her that they were fighting about PREA. Id. He said he did not know how his finger was
scratched but that it hurt. Id. She cleaned his finger with saline solution and released him. Id.
Tripp noted that after their medical evaluations, both Plaintiff and inmate Harris signed voluntary
together. Id. at 1058, 1064-65. Plaintiff specifically wrote, “I’m not scared to cell with my
cellmate. My head injury and hand injury was (sic) not in a fight.” Id. at 1065. According to
Tripp, inmate Harris was moved out of the Plaintiff’s cell. Id. at 1058.
On January 7, 2020, Plaintiff completed an informal complaint regarding the alleged
assault by inmate Harris. (Doc. #89-7, PageID #1069). Brian Baker, an investigator at Warren
Correctional Institution, was assigned to investigate Plaintiff’s PREA claim on January 10, 2020.7
(Doc. #89-6, PageID #1052); (Doc. #89-7, PageID #1057). After an investigation, Baker
concluded, and indicated in his report, that Plaintiff’s allegation of sexual abuse was
unsubstantiated. (Doc. #89-7, PageID #1061).

Between December 19, 2019 and December 26, 2019, Plaintiff’s cell was across from the
cell of the inmate who sexually assaulted him in July 2019. (Doc. #87-6, PageID #629). Plaintiff
alleges that Defendant Eulenburg “never placed a separation on [him] and [his] rapist and as a
result [his] rapist was placed directly across from [him] in Unit 3D for 10 days before they realized
[their] mistake.” (Doc. #16, PageID #s 209-10).
On December 23, 2019, Investigator Jones informed Plaintiff that his investigation was
complete and he had substantiated Plaintiff’s claims. (Doc. #16, PageID #210). However, because
no evidence had been collected, the local county prosecutor refused to indict. Id. Plaintiff
informed Investigator Jones that his rapist slept across from him, and Investigator Jones called to
have him moved. Id. When he was moved, the inmate was “very upset” and started yelling

obscenities at Plaintiff in front of other inmates. Id.

7 Although the name of the inmate is redacted, Brian Baker’s declaration identifies the inmate as Harris. (Doc. #89-
6, PageID #1052).
physically and sexually assaulted. (Doc. #16, PageID #214); (Doc. #90-4, PageID #1221); (Doc.
#87-6, PageID #632). Specifically, Defendant Teague punched and kicked him in the face and
“stuck his finger or a object into my anal cavity.” (Doc. #16, PageID #214); (Doc. #90-4, PageID
#1221). Defendant Teague yelled, “sue this you PREA check in bitch.” Id.
II. STANDARD OF REVIEW
Summary judgment is appropriate “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). The party seeking summary judgment has the initial burden of informing the court of the
basis for its motion and identifying those portions of the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, that it believes demonstrate
the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106
S. Ct. 2548 (1986). Additionally, this initial burden may be satisfied by the moving party “pointing
out to the court that the [non-moving party], having had sufficient opportunity for discovery, has
no evidence to support an essential element of his or her case.” Barnhart v. Pickrel Schaeffer &
Ebeling Co., L.P.A., 12 F.3d 1382, 1389 (6th Cir. 1993).
The burden then shifts to the non-moving party, who “must set forth specific facts showing
that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)
(quoting Fed. R. Civ. P. 56(e)). Here, in opposing summary judgment, the non-moving party
cannot “simply show that there is some metaphysical doubt as to the material facts.” Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348 (1986). Indeed,
unverified pleadings and self-serving affidavits alone are not enough to create an issue of fact

8 Plaintiff alleges in his Complaint that this incident occurred on March 3, 2020. (Doc. #16, PageID #214). However,
the other evidence of record, including Plaintiff’s confidential statement, indicates that the alleged assault occurred on
March 4, 2020. (Doc. #90-4).
2d 779, 788 (S.D. Ohio 2013) (Marbley, D.J.).
Finally, in ruling on a motion for summary judgment, the court is “not required to speculate
on which portion of the record the nonmoving party relies, nor is it obligated to wade through and
search the entire record for some specific facts that might support the nonmoving party’s claim.”
InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989), cert. denied, 494 U.S. 1091,
110 S.Ct. 1839 (1990). Thus, in determining whether a genuine issue of material fact exists on a
particular issue, the court is entitled to rely upon the Rule 56 evidence specifically called to its
attention by the parties. See id.
III. DISCUSSION

Plaintiff brings this action pursuant to 42 U.S.C. § 1983. Section 1983 provides a civil
cause of action for persons “who are deprived of any rights, privileges, or immunities secured by
the Constitution or federal laws by those acting under color of state law.” Smith v. City of Salem,
378 F.3d 566, 576 (6th Cir. 2004). In order to state a claim under § 1983, a plaintiff must allege
the violation of a right secured by the federal Constitution or laws and must show that the
deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S.
42, 48, 108 S.Ct. 2250 (1988); Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996).
Further, because § 1983 is a method for vindicating federal rights as opposed to a source of
substantive rights itself, the first step in an action under § 1983 is to identify the specific
constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807

(1994).
In this case, Plaintiff alleges that Defendants violated his constitutional rights under the
First and Eighth Amendments. In response, Defendants assert that reasonable jurors could not
find in Plaintiff’s favor by a preponderance of the evidence and, accordingly, they are entitled to
each of these claims in turn.
A. Failure to Protect Claims
Under the Eighth Amendment’s prohibition on cruel and unusual punishment, “prison
officials have a duty … to protect prisoners from violence at the hands of other prisoners.” Farmer
v. Brennan, 511 U.S. 825, 833, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (citations and internal
quotation marks omitted). However, “[i]t is not … every injury suffered by one prisoner at the
hands of another that translates into constitutional liability for prison officials responsible for the
victim’s safety.” Id. at 834. A claim for violation of the duty to protect under the Eighth
Amendment has objective and subjective components. Id. To satisfy the objective component,

the plaintiff “must show that he is incarcerated under conditions posing a substantial risk of serious
harm.” Id. at 834. To satisfy the subjective component, the plaintiff must show that the prison
official acted with “deliberate indifference” to inmate health or safety. Id. at 837. “An official is
deliberately indifferent if he or she ‘knows of and disregards an excessive risk to inmate health or
safety; the official must both be aware of the facts from which the inference could be drawn that a
substantial risk of harm exists, and he must also draw the inference.’” Bishop v. Hackel, 636 F.3d
757, 766-67 (6th Cir. 2011) (quoting Farmer, 511 U.S. at 837).
Defendants McIntosh & Hill
Plaintiff asserts that Defendants McIntosh and Hill failed to protect him from the alleged
rape by his cellmate in July 2019. Specifically, Plaintiff wrote an informal complaint to Defendant

McIntosh and a grievance to Defendant Hill to inform them of the problems he was having with
his cellmate and the lack of help from other staff. (Doc. #16, PageID #205); (Doc. #107, PageID
#1776). In his informal complaint on July 8, 2019, Plaintiff wrote that he had been moved into a
cell “an openly gay person” and was “tryin to get out of the cell with man due to all the probpems
July 9, 2019, he indicated that he was in a cell with “an openly gay man which is causing me all
type (sic) of problems.” Id. He also wrote that “being in the cell with this openly gay man has
caused the gangs to turn against me and not let me on the phone. and to threaten me wiht (sic)
violence.” Id.
Plaintiff cannot meet the objective element of his failure-to-protect claim because he has
not shown that he was incarcerated under conditions posing a substantial risk of serious harm. In
order to prove the objective component of his claim, a plaintiff must do more than allege a
generalized concern for his safety and welfare. See Reedy v. West, 988 F.3d 907, 912-14 (6th Cir.
2021); Mosquera v. Delgado, No. 4:09CV1402, 2010 WL 2010973, at *4-5 (N.D. Ohio Apr. 30,

2010), report and recommendation adopted, No. 4:09CV1402, 2010 WL 2010969 (N.D. Ohio
May 20, 2010) (inmate who alleged that he repeatedly told defendants that he feared for his health
and safety due to “serious threats and conflict” with gang members did not show objective
conditions posing a substantial risk because inmate identified only general conflict and failed to
ask prison personnel for protection after notifying them of threat).
Plaintiff did not convey any specific threat of harm from his cellmate in his informal
complaint to Defendant McIntosh or his grievance to Defendant Hill. Indeed, Plaintiff did not
indicate in either that his cellmate threatened him at all. Accordingly, the undersigned does not
find that Plaintiff was incarcerated under conditions posing an objectively serious risk of harm.
Even if Plaintiff could meet the objective component of his claim, there is no genuine issue

of fact as to the subjective component—deliberate indifference. “An official is deliberately
indifferent if he or she ‘knows of and disregards an excessive risk to inmate health or safety; the
official must both be aware of the facts from which the inference could be drawn that a substantial
risk of harm exists, and he must also draw the inference.’” Bishop, 636 F.3d. at 766-67 (quoting
subjectively aware of a risk to Plaintiff’s health or safety. As explained above, Plaintiff did not
inform Defendant McIntosh or Hill that his cellmate threatened him in his informal complaint or
grievance.
Furthermore, there is no evidence in the record to suggest that Defendants McIntosh or Hill
were aware of any serious threat to Plaintiff’s safety. Plaintiff does not allege, and the record does
not show, that Defendants McIntosh and Hill had any interactions with Plaintiff outside his
informal complaint and grievance. There are no allegations that either Defendant McIntosh or
Defendant Hill witnessed Plaintiff receiving threats or received any substantiation of Plaintiff’s
concerns.

In his declaration, Defendant McIntosh stated that “[t]here is nothing in inmate Perry’s
informal complaint that would lead me to believe his health and safety were in danger due to his
cell assignment.” (Doc. #87-3, PageID #604). He also explained that after receiving Plaintiff’s
informal complaint, he spoke to the Acting Unit Manager, Michael Fournier, and responded to
Plaintiff’s informal complaint. Id. at 603; (Doc. #87-4, PageID #605). In his response, Defendant
McIntosh wrote that Fournier spoke to Plaintiff and explained the local move policy. (Doc. #87-
4, PageID #605). Fournier stated that Plaintiff “understood and no problems existed.” Id.
According to Defendant McIntosh, this was the “totality of his involvement” with Plaintiff’s
request for a new cell assignment. Id. at 603.
There is no evidence that Defendant Hill saw Plaintiff’s grievance before the alleged sexual

assault occurred. Indeed, she did not respond to Plaintiff’s grievance until July 22, 2019—thirteen
days after Plaintiff’s alleged sexual assault. Id. at 605.
Judgment on Plaintiff’s failure-to-protect claims against Defendants McIntosh and Hill be
GRANTED.
Defendants Burke, Ewen, and Fournier
Plaintiff asserts that Defendants Burke, Ewen, and Fournier failed to protect him from his
cellmate. Specifically, he alleges that he repeatedly told Defendant Burke that he “felt in danger
in the cell with this man and that [he] was being subject to unwanted sexual situations.” (Doc.
#16, PageID #203); (Doc. #107, PageID #1776). Further, he reported to Defendant Ewen that his
cellmate was a “sexual predator,” he was making unwanted sexual advances towards Plaintiff, and
Plaintiff “did not feel safe sleeping in the cell with this man.” (Doc. #16, PageID #204); (Doc.

#107, PageID #1776). Finally, Plaintiff alleges that he requested a cell move from Defendant
Fournier on two occasions. (Doc. #16, PageID #206). In his affidavit, Plaintiff stated that he
spoke to Defendant Fournier several times about his cellmate threatening him and making sexual
advances. (Doc. #107, PageID #1776).
In support of their Motion for Summary Judgment, Defendants Burke, Ewen, and Fournier
submitted declarations. Defendant Burke stated that he did not recall Plaintiff requesting to be
moved from his cell. (Doc. #87-1, PageID #587). In Defendant Ewan’s declaration, he noted that
Plaintiff requested a cell move because he was not comfortable sharing a cell with was a person
who “was not shy about being a homosexual.” (Doc. #87-2, PageID #600). According to
Defendant Ewan, “[s]imply being uncomfortable with a cellmate – without more – does not justify

an immediate cell move.” Id. Thus, he explained to Plaintiff that he did not meet any of the criteria
for requesting a new cell assignment. Id. Defendant Ewan noted that Plaintiff’s cellmate was not
categorized as a sexual predator or a potential sexual predator and Plaintiff was not categorized as
a victim or potential victim. Id. In Defendant Fournier’s declaration, he does not indicate whether
“that he was in danger of being sexually assaulted by his cellmate or felt threatened sexually by
his cellmate,” he would have followed PREA protocol and immediately separated Plaintiff from
his cellmate. Id. at 748.
In Reedy, the United States Court of Appeals for the Sixth Circuit addressed a prisoner’s
Eighth Amendment failure-to-protect claim based on a prison counselor’s alleged failure to take
measures to abate a brutal assault against the prisoner by his cellmate. 988 F.3d 907. In that case,
Reedy, a prisoner, was assaulted by his cellmate, Hensley. Id. at 911. Prior to the assault, Reedy
told prison counselor Michael West that Hensley had threatened him and requested to be moved.
Id. at 909-10. In affirming the dismissal of Reedy’s failure-to-protect claim, the Court concluded

that “Reedy was not, objectively speaking, incarcerated under conditions posing a substantial risk
of serious harm.” Id. at 912. The Court noted that according to Reedy, his relationship with
Hensley was generally good; “[p]rior to the assault, there is no evidence that Hensley ever harmed
Reedy; and there was no evidence Hensley had a violent criminal history or was ever involved in
a physical altercation in prison.” Id. at 913. Further, the Court recognized that “Reedy asserted in
his verified complaint that he told West ‘that [he] was in fear for [his] safety due to the threats
against [his] life, and to please move [him] to another cell’; testified later that his ‘bunkie had
threatened [him] and we needed to move or ... do something about the situation’; and simply agreed
with his counsel’s question about whether he ‘reiterate[d] [his] fear for [his] safety.’” Id.
However, the Court concluded, “these are conclusory statements unadorned by any supporting

facts.” Id. (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d
695 (1990); Alexander v. CareSource, 576 F.3d 551, 560 (6th Cir. 2009)).
With respect to the subjective element of the analysis, the Court likewise found Reedy’s
evidence lacking. The “only evidence of what West knew about Hensley and Reedy is limited to
Hensley’s statement that he was “going to do what he’s got to do” if he was not placed in a different
cell. Id. at 914-15. The Court observed that “threats between inmates are common” and do not
necessarily suffice to inform jail officials that there exists “a substantial risk of harm” to a prisoner.
Id. at 915. The Court emphasized that there was “no evidence that West was aware of any
information suggesting that Hensley had a propensity for violence, had assaulted anyone, or was
disciplined in prison.” Id. at 915.
In the present case, Plaintiff has failed to raise a genuine issue of fact as to the objective
and subjective components of his failure-to-protect claim. Plaintiff’s statements to Defendants
Burke, Ewen, and Fournier that his cellmate was threatening him and making sexual advances are

conclusory and not supported by any other evidence of record. See Reedy, 988 F.3d at 913-14
(“The purpose of summary judgment is to determine whether a material fact dispute exists for the
jury to resolve, ‘not to replace conclusory allegations of the complaint or answer with conclusory
allegations [in] an affidavit,’ verified complaint, or deposition.”) (quoting Lujan, 497 U.S. at 888,
110 S.Ct. 3177); (citing Alexander, 576 F.3d at 560; Tschappatt v. Crescent Metal Prods., 798 F.
App’x 887, 889 (6th Cir. 2020)). Plaintiff does not provide any additional information about when
those conversations occurred, what specific information he provided Defendants Burke, Ewen, and
Fournier, or how long the conversations lasted. Thus, Plaintiff’s statements fail to demonstrate
facts sufficient to show a genuine issue that he was incarcerated under conditions posing a
substantial risk of serious harm.

Moreover, Plaintiff’s statements are insufficient to establish that Defendants Burke, Ewen,
or Fournier were subjectively aware of a risk to Plaintiff’s health or safety. See Reedy, 988 F.3d
at 914; Schwab v. DeVormer, No. 1:20-CV-485, 2021 WL 3553425, at *3–4 (W.D. Mich. June 2,
2021), report and recommendation adopted, No. 1:20-CV-485, 2021 WL 2883187 (W.D. Mich.
violence, had a history of assaulting inmates or staff, or had a history of misconduct, and Plaintiff
“does not belong to a class of prisoners particularly vulnerable to assault.” Reedy, 988 F.3d 907,
915 (citing Bishop, 636 F.3d at 761-62, 767, 771) (finding deliberate indifference based upon
consultant’s report regarding the vulnerability of a “small,” “mentally ‘slow,’” nineteen-year-old
plaintiff who had been sexually abused and an official’s testimony in another case that “small,
youthful prisoners are especially vulnerable to sexual pressure”) (citation omitted); Greene v.
Bowles, 361 F.3d 290, 294 (6th Cir. 2004) (citing testimony and forms signed by defendants
showing that they were aware transgender inmates were particularly at risk and that they knew that
plaintiff was a transgender inmate)).

Accordingly, the undersigned RECOMMENDS that Defendant’s Motion for Summary
Judgment on Plaintiff’s failure-to-protect claims against Defendants Burke, Ewen, and Fournier
be GRANTED.
Defendants Combs, Sarwar, and Luneke
Plaintiff contends that Defendants Combs, Sarwar, and Luneke failed to protect him from
inmate Harris. Specifically, in his affidavit, Plaintiff asserts that he spoke to Defendant Combs in
his office about the danger he was in from inmate Harris and requested that he be moved. (Doc.
#16, PageID #212); (Doc. #107, PageID #s 1777-78). Plaintiff further alleged that he informed
Defendant Combs of his history with inmate Harris, including that inmate Harris had previously
threatened Plaintiff and tried to intimidate him into sexual things. (Doc. #16, PageID #212).

Additionally, Plaintiff asserts that he spoke to Defendant Sarwar and sent him kites informing him
of the danger he was in from inmate Harris. (Doc. #107, PageID #1778). Finally, Plaintiff asserts
that he spoke to Defendant Luneke and sent him a kite to explain the “entire situation to him and
let him know the danger I was in.” Id. Plaintiff claims that Defendant Luneke “personally
sexual advances.” Id.
Defendants Combs, Sarwar, and Luneke filed declarations in support of their Motion for
Summary Judgment. Defendant Combs stated that he did not assign inmate Harris to cell with
Plaintiff. (Doc. #89-3, PageID #1045). Further, he does not recall Plaintiff requesting a cell move.
Id. Defendant Sarwar, in his declaration, explained that Plaintiff was first placed with Harris on
July 25, 2019. (Doc. #89-4, PageID #1047). On August 1, 2019, Plaintiff filed a grievance stating
that Harris knew the contents of his confidential statement and it was causing friction between
them. Id. at 1047-48; see Doc. #87-6, PageID #617. Plaintiff requested that he be moved. (Doc.
#89-4, PageID #1048). On August 2, 2019, Harris was moved to a different cell. Id. On October

28, 2019, Harris was moved into a cell with Plaintiff. Id. Defendant Sarwar noted that there was
no separation order between Plaintiff and Harris because there was no history of violence or an
investigation between them and no PREA complaint or investigation between them. Id. Defendant
Sarwar stated that he has “no memory” of Plaintiff approaching him about inmate Harris and did
not receive a kite from Plaintiff in 2019. Id. at 1048. Finally, in his declaration, Defendant Luneke
stated that he did not assign inmate Harris as a cellmate with Plaintiff in July 2019 or October
2019. (Doc. #89-8, PageID #1079). However, Defendant Luneke notes he reviewed both inmates’
records and “there would be nothing prohibiting them from being celled together.” Id. They
shared a cell for a brief period between late July 2019 to early August 2019 because the cell
Plaintiff was supposed to be housed in had a broken lock. Id. They were then assigned to a cell

together in late October 2019. Id. Defendant Luneke does not recall Plaintiff requesting a cell
move. (Doc. #89-8, PageID #1080). Further, a review of his kite log revealed that he did not
receive a kite from Plaintiff at any time in 2019 or 2020. Id. at 1079.
components of his failure-to-protect claim. Plaintiff’s statements to Defendants Combs, Sarwar,
and Luneke that Harris was a danger to him and was making sexual advances are conclusory and
not supported by any other evidence of record. See Reedy, 988 F.3d at 913-14. Plaintiff does not
provide any details regarding his conversations with Defendants. Plaintiff does not indicate when
the conversations occurred or how long they lasted. Additionally, there is no record of the kites
that Plaintiff stated he sent to Defendants Sarwar and Luneke. Thus, Plaintiff’s statements fail to
create a genuine issue that he was incarcerated under conditions posing a substantial risk of serious
harm. See Bishop, 636 F.3d at 761-62, 766.
Moreover, Plaintiff’s statements are insufficient to establish that Defendants Combs,

Sarwar, and Luneke were subjectively aware of a risk to Plaintiff’s health or safety. See Reedy,
988 F.3d at 914; Schwab, No. 1:20-CV-485, 2021 WL 3553425, at *3–4, report and
recommendation adopted, No. 1:20-CV-485, 2021 WL 2883187. As noted above, Defendant
Sarwar asserted that there was no separation order between Plaintiff and Harris, no history of
violence, and no PREA complaint. (Doc. #89-4, PageID #1048). Plaintiff has presented no
evidence that inmate Harris had a propensity for violence, had a history of assaulting inmates or
staff, or had a history of misconduct, and Plaintiff “does not belong to a class of prisoners
particularly vulnerable to assault.” Reedy, 988 F.3d 907, 915 (citing Bishop, 636 F.3d at 761-62,
767, 771).
Accordingly, the undersigned RECOMMENDS that Defendant’s Motion for Summary

Judgment on Plaintiff’s failure-to-protect claims against Defendants Combs, Sarwar, and Luneke
be GRANTED.
To establish a violation of his Eighth Amendment rights resulting from a denial of medical
care, Plaintiff must show that prison officials acted with “deliberate indifference to [his] serious
medical needs.” Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Brooks
v. Celeste, 39 F.3d 125, 127 (6th Cir. 1994). A constitutional claim for denial of medical care has
objective and subjective components. Farmer, 511 U.S. at 834, 114 S.Ct. 1970; Napier v. Madison
Cnty., 238 F.3d 739, 742 (6th Cir. 2001). The objective component requires the existence of a
“sufficiently serious” medical need. Blackmore v. Kalamazoo County, 390 F.3d 890, 895 (6th Cir.
2004) (quoting Fanner, 511 U.S. at 834, 114 S.Ct. 1970; Estelle, 429 U.S. at 104, 97 S.Ct. 285).
A medical need is “sufficiently serious” if it either “has been diagnosed by a physician as

mandating treatment” or “is so obvious that even a lay person would easily recognize the necessity
for a doctor's attention.” Gunther v. Castineta, 561 F. App’x 497, 499 (6th Cir. 2014) (quoting
Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008)).
The subjective component requires an inmate to show that prison officials had “a
sufficiently culpable state of mind” in denying medical care. Farmer, 511 U.S. at 834, 114 S.Ct.
1970. “[T]he 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.” Gunther, 561 F.
App’x at 500 (quoting Harrison, 539 F.3d at 518). “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 v. Madison Cnty.. Fiscal Court, 22 F.3d 653, 660 (6th Cir. 1994).

In sum, to prove the subjective component, the plaintiff must show that the official: (a) subjectively
knew of a risk to the prisoner’s health: (b) drew the inference that a substantial risk of harm to the
prisoner existed; and (c) consciously disregarded that risk. Farmer, 511 U.S. at 837, 114 S.Ct.
1970.
Little, C.O. John Doe, and Fournier that he had been sexually assaulted by his cellmate. (Doc.
#16, PageID #205); (Doc. #107, PageID #1777). They told him to return to his cell and that
“somebody would see [him].” (Doc. #16, PageID #205). However, “this never happened.” Id.
According to Plaintiff, “[t]hey failed to take proper action and failed to get any medical attention.”
(Doc. #107, PageID #1777).
Defendants argue that Plaintiff cannot succeed on a claim of medical deliberate
indifference because he received, and continues to receive, medical and mental health treatment.
(Doc. #87, PageID #s 557-58, 575). In support, Defendants attached Plaintiff’s medical records
and a declaration from Meredyth McLaughlin, a healthcare administrator at Warren Correctional

Institute. (Doc. #s 88-2, 88-3, 92-2). Ms. McLaughlin explained that Plaintiff was going to be
placed in restrictive housing on July 11, 2019, because he refused to allow his cellmate into his
cell. (Doc. #88-2, PageID #832). However, before an inmate is placed in restrictive housing, the
inmate must undergo mental health screening. Id. Psychiatric assistant Wacus Harrison screened
Plaintiff on July 11, 2019. Id.; (Doc. #88-3, PageID #s 861-62). In response to Mr. Harrison’s
questions, Plaintiff reported that he had not been physically or sexually assaulted and did not have
a mental health concern. (Doc. #88-3, PageID #s 861). Mr. Harrison noted that Plaintiff’s
behavior and appearance were “[n]ormal for TPU.” Id. Furthermore, in accordance with ODRC
policy, Drew Ireland, LPCC, conducted a mental health assessment on July 18, 2019. Id. at 858.
This assessment was conducted out-of-cell, face-to-face, and in an area that provides

confidentiality. Id. Mr. Ireland indicated that Plaintiff’s appearance, motor behavior, affect, and
mood were within normal limits; his thought process was undisturbed; his thought content was
congruent; and his insight and judgment were good. Id. Mr. Ireland concluded that Plaintiff was
currently stable and that “[n]o mental health distress or decompensation assessed or reported.” Id.
Arentz, CNP. (Doc. #92-2, PageID #1526-26). Plaintiff reported that he had been sexually
assaulted on July 10, 2019. Id. at 1526. He denied pain or injury. Id. Upon examination, Ms.
Arentz noted no evidence of trauma to Plaintiff’s upper extremities, lower extremities, torso, back,
head, neck, or face. Id. William Harlan, M.D., also examined Plaintiff on July 25, 2019. (Doc.
#90-2, PageID #1125-26). Plaintiff reported that he had a little rectal bleeding after he was
sexually assaulted by his cellmate. Id. at 1125. Dr. Harlan noted no evidence of trauma to
Plaintiff’s head, face, chest, abdomen, back, or extremities. Id. Additionally, a rectal exam
revealed no evidence of tears, bleeding, or discharge. Id.
Although Plaintiff claims that Defendants denied him mental-health treatment, the

evidence of record establishes that Plaintiff received mental-health screening the same day he
reported the sexual assault to Defendants and underwent a mental-health assessment one week
later. (Doc. #88-3, PageID #s 858, 861-62).
The evidence fails to create a genuine issue about whether Defendants Burke, Little, C.O.
John Doe, and Fournier were deliberately indifferent to Plaintiff’s mental-heath treatment. See
Arflack v. Cnty. of Henderson, 412 F. App’x 829, 832-33 (6th Cir. 2011) (affirming grant of
summary judgment to defendant prison officials where prisoner’s medical records showed medical
personnel treated and examined prisoner); Apanovitch v. Wilkinson, 32 F. App’x 704, 707 (6th Cir.
2002) (affirming grant of summary judgment to defendant prison officials where prisoner’s
medical records showed that prisoner received follow-up care and medication, as such a claim

“amounts to a difference of opinion between [the prisoner] and the prison health care providers
and a dispute over the adequacy of his treatment”).
Although Defendants assert that Plaintiff also received, and continues to receive, medical
care, the evidence shows that he was not examined until July 25, 2019. (Doc. #92-2, PageID
objective and subjective components of Plaintiff’s claim.
As set forth above, to satisfy the objective component of an Eighth Amendment claim, the
plaintiff must allege that the medical need at issue is “sufficiently serious.” Farmer, 511 U.S. at
834, 114 S.Ct. 1970. “A serious medical need is ‘one that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay person would easily recognize the
necessity for a doctor’s attention.’” Baynes v. Cleland, 799 F.3d 600, 618 (6th Cir. 2015) (quoting
Harrison, 539 F.3d at 518). Plaintiff does not assert, and the evidence does not show, that a
physician diagnosed a serious medical need mandating treatment. Thus, this inquiry turns to
whether Plaintiff’s allegation of sexual assault indicates a serious medical need so obvious that

even a lay person would recognize the necessity for a doctor’s treatment.
Plaintiff asserts that he reported to Defendants he was sexually assaulted—not that he was
injured or the extent of those injuries. See Gennoe v. Washburn, No. 3:19-CV-00478, 2021 WL
3130834, at *12 (M.D. Tenn. July 23, 2021) (“The term ‘sexual assault’ covers a wide spectrum
of unwanted sexual conduct, not all of it violent or likely to result in physical harm.”); Cf. Myers
v. Montgomery Cnty. Bd. of Comm’rs, No. 3:18-CV-00409, 2019 WL 2567748, at *8 (S.D. Ohio
June 21, 2019) (“The Court finds that Myers’ allegations that she was raped, suffered physical
injuries caused by the rape, and then placed in a cell meet this component.”) (citing Langston v.
Peters, 100 F.3d 1235, 1240 (7th Cir. 1996)) (internal citations omitted). Plaintiff does not allege
he was injured, only that he did not receive medical care and that no evidence was collected.

Defendant Burke, in his declaration, stated that on the morning of July 11, 2019, he did not see
any marks, bruises, or cuts on Plaintiff. (Doc. #87-1, PageID #587). Although Plaintiff’s
allegations of sexual assault are undoubtedly serious, he has failed to create a genuine issue of
material fact regarding the existence or obviousness of his serious injury.
Judgment on Plaintiff’s Eighth Amendment denial of medical care claims against Defendants
Burke, Little, C.O. John Doe, and Fournier be GRANTED.
C. Deliberate Indifference to Plaintiff’s Safety
Plaintiff asserts that Defendants Eulenburg and John Doe #2 were deliberately indifferent
to his safety by leaking Plaintiff’s confidential statement.
In July 2021, Magistrate Judge Litkovitz granted Plaintiff’s Motion to Designate Defendant
Miller as John Doe #2. (Doc. #75). She instructed Plaintiff to file a motion requesting service of
process on this Defendant if and when he discovered John Doe #2’s identity. Id. Since that time,
Plaintiff has not identified John Doe #2. He has neither served John Doe #2 nor explained his

failure to do so. Consequently, “[a]n appropriate disposition of the claims against the unnamed
defendants is an order dismissing them without prejudice, so that Plaintiff’s ability to bring an
action within the limitations period is preserved, should he later learn their identities.” Dittmer v.
Corizon Health, Inc., No. 20-CV-12147, 2021 WL 243009, at *12 (E.D. Mich. Jan. 25, 2021)
(quoting Winburn v. Davis, No. 08-14996, 2009 WL 3004555, at *8 (E.D. Mich. Sept. 16, 2009)
(internal quotation marks omitted); (citing McPherson v. Caruso, No. 2:09-CV-11766, 2010 WL
846856, at *6 (E.D. Mich. Mar. 5, 2010) (dismissing without prejudice prisoner’s § 1983 claims
against John Doe defendants)).
Accordingly, the undersigned RECOMMENDS that Plaintiff’s claim against John Doe #2
be DISMISSED.

Plaintiff alleges that he gave his confidential statement concerning the sexual assault by
his cellmate to Defendant Eulenburg. (Doc. #16, PageID #209). Two days later, his cellmate,
inmate Harris, was in possession of his statement. Id. Plaintiff asserts that Defendant Eulenburg
“allowed my confidential statements [taken] in her presence to become known to unauthorized
statement was leaked and determined that “it must have gotten passed down because ‘people talk.’”
(Doc. #16, PageID #209). Additionally, an inmate told the inspector that he heard it from a C.O.
Id. at 209. Plaintiff alleges that because the statement was leaked, he was beaten up three times,
humiliated by inmates and staff, and assaulted by a staff member. Id. at 209, 212; (Doc. #107,
PageID #1780).
In her declaration, Defendant Eulenburg indicates that Plaintiff gave his statement to
Investigator Marty Jones out of her presence. (Doc. #90-6, PageID #1237). She asserts that she
did not speak to any inmate or third party about the contents of Plaintiff’s statement. Id.
To establish liability under the Eighth Amendment for a claim based on a failure to prevent

harm to a prisoner, Plaintiff must show that the prison officials acted with “deliberate indifference”
to a substantial risk. Farmer, 511 U.S. at 834; Woods v. Lecureux, 110 F.3d 1215, 1222 (6th Cir.
1997); Curry v. Scott, 249 F.3d 493, 506 (6th Cir. 2001). “Lack of due care for a prisoner’s safety
by prison officials is insufficient to support a claim of an Eighth Amendment violation.” Gibson
v. Foltz, 963 F .2d 851, 853 (6th Cir. 1992).
Plaintiff does not explain how Defendant Eulenburg “allowed” his statement to be leaked
to others. Furthermore, there is a conflict between Plaintiff’s allegation that Defendant Eulenburg
leaked Plaintiff’s confidential statement and his allegation that another inmate heard the contents
of his statement from a C.O. This conflict is not resolved or explained by Plaintiff in his affidavit.
At best, Plaintiff claims that Defendant Eulenburg was negligent in allowing Plaintiff’s statement

to be leaked. Allegations of negligence fall short of the deliberate indifference required to state an
Eighth Amendment claim. See Farmer, 511 U.S. at 835 (holding that an Eighth Amendment
violation requires a “state of mind more blameworthy than negligence”).
there must be some resulting harm stemming from a prison official’s statements about a prisoner.
See Thompson v. Mich. Dep’t of Corr., 25 F. App’x 357, 359 (6th Cir. 2002) (affirming district
court’s dismissal where “[plaintiff’s] claim that he was endangered by being labeled a snitch was
unsupported by any allegation of resultant harm”); Gibbs v. Ball, No. 07–CV–15462–DT, 2009
WL 331604, at *4 (E.D. Mich. Feb. 11, 2009) (no Eighth Amendment violation where plaintiff
was labeled a “rat,” but did not show actual physical injury). Although Plaintiff asserts that he
was beaten up by other inmates and assaulted by staff as result of his statement being leaked,
Plaintiff does not allege, and the record does not show, that he sustained any injuries.
Plaintiff also asserts that Defendant Eulenburg, “by her negligence allowed my rapist to be

housed in 3d with me where he verbally abused me.” (Doc. #107, PageID #1777). However,
negligence “is not enough to establish a violation of Plaintiff’s constitutional rights.” Young v.
Campbell Cnty., 846 F. App’x 314, 323 (6th Cir. 2021) (citing Farmer, 511 U.S. at 835) (“Eighth
Amendment liability requires ‘more than ordinary lack of due care for the prisoner’s interests or
safety.’”) (quoting Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)).
Accordingly, the undersigned RECOMMENDS that Defendant’s Motion for Summary
Judgment on Plaintiff’s failure-to-protect claims against Defendant Eulenburg be GRANTED.
D. Retaliation
Retaliation based upon a prisoner’s exercise of his constitutional rights violates the
Constitution. See Thaddeus–X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999). To state a retaliation

claim, a plaintiff must allege three elements: (1) that he was engaged in protected conduct; (2) an
adverse action was taken against him that would deter a person of ordinary firmness from
continuing to engage in that conduct; and (3) the adverse action was motivated at least in part by
the plaintiff’s protected conduct. Id.
With regard to the first element, Plaintiff asserts that Defendant Back retaliated against him
because Plaintiff reported him and other corrections officers to the investigator’s office or captain’s
office. (Doc. #16, PageID #208); (Doc. #107, PageID #1777). Plaintiff alleges that Defendant
Little also retaliated against him for reporting him. 16 at 206. Prison inmates have a protected
First Amendment “right to file grievances against prison officials on his own behalf.” Maben v.
Thelen, 887 F.3d 252, 264 (6th Cir. 2018); Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000)
(“An inmate has an undisputed First Amendment right to file grievances against prison officials
on his own behalf.”); see also Clark v. Johnston, 413 F. App’x 804, 814 (6th Cir. 2011)
(recognizing that inmates enjoy a First Amendment right to file grievances against prison staff).

Accordingly, Plaintiff’s conduct is sufficient to establish the first element of a retaliation claim.
The second element that Plaintiff must establish for his retaliation claim is that the
defendants took an adverse action against him. Hill v. Lappin, 630 F.3d 468, 472 (6th Cir. 2010)
(citing Thaddeus–X, 175 F.3d at 396). “[A]n adverse action is one that would ‘deter a person of
ordinary firmness’ from the exercise of the right at stake.” Thaddeus–X, 175 F.3d at 396.
However, “some adverse actions are so de minimis that they do not rise to the level of a
constitutionally cognizable injury.” Maben, 887 F.3d at 266 (citing Thaddeus–X, 175 F.3d at 396).
“[T]his threshold is intended to weed out only inconsequential actions, and is not a means whereby
solely egregious retaliatory acts are allowed to proceed past summary judgment.” Thaddeus–X,
175 F.3d at 396. Indeed, “unless the claimed retaliatory action is truly ‘inconsequential,’ the

plaintiff’s claim should go to the jury.” Bell, 308 F.3d at 603. (citing Thaddeus–X, 175 F.3d at
398).
action. First, Plaintiff asserts that Defendant Back harassed him. (Doc. #16, PageID #208); (Doc.
#107, PageID #1777). Second, Plaintiff asserts that Defendant Back shattered his television. Id.
In some circumstances, harassment by corrections officers can constitute adverse action.
For example, “a pattern of harassment by corrections officers that included ‘physical threats’
would be sufficient to deter a prisoner of ordinary firmness from engaging in protected conduct.”
Parker v. Reddin, No. 20-1106, 2020 WL 8415084, at *5 (6th Cir. Aug. 5, 2020) (citing Thaddeus-
X, 175 F.3d at 398). Furthermore, “even harassment that is ‘trivial in detail’ can be ‘substantial in
gross,’ and thus sufficient to amount to an adverse action.” Id. (quoting Thaddeus-X, 175 F.3d at
398); (citing Williams v. Gen. Motors Corp., 187 F.3d 553, 563 (6th Cir. 1999) (holding, in the

employment discrimination context, that “where individual instances of sexual harassment do not
on their own create a hostile environment, the accumulated effect of such incidents may result in
a Title VII violation”)).
Although Plaintiff asserts that Defendant Back harassed him, he does not provide any
additional details about the harassment. He does not indicate what Defendant Back said or did to
him nor does he specify how often the alleged harassment occurred. He has not presented any
evidence that Defendant Back threatened him. Without more, the undersigned cannot conclude
that the alleged harassment amounted to adverse action.
The undersigned finds that damage to Plaintiff’s television could rise to the level of adverse
action and deter a prisoner of “ordinary firmness” from continuing to file grievances. See Bell v.

Johnson, 308 F.3d 594, 606-07 (6th Cir. 2002) (cell search and confiscation of legal papers and
medical snacks was sufficient to establish adverse action); Clark, 413 F. App’x at 814-15
(“Because deprivation of personal and legal property can be considered an adverse action, Clark
adequately pleaded facts and allegations sufficient to establish the second element of this
July 13, 2012), report and recommendation adopted, No. 2:11-CV-12824, 2012 WL 4165656
(E.D. Mich. Sept. 18, 2012) (“Thus, the breaking of plaintiff’s MP3 player can also constitute
adverse conduct.”).
Defendants, however, contend that the evidence does not support Plaintiff’s claim that his
television was broken. In support, they provided a declaration from Isaac Bullock, an Institutional
Inspector at Warren Correctional Institution; the contraband log; and Plaintiff’s complaint,
grievance, and appeal regarding the television. (Doc. #92-1, PageID #1253); (Doc. #89-10,
PageID #1083-85). In his declaration, Bullock states that Plaintiff’s television was taken as
contraband on July 10, 2019 because Plaintiff was in LPH housing and was not permitted to have

a television. (Doc. #92-1, PageID #1253). The television was stored in the Major’s vault in
accordance with policy until it was returned to Plaintiff on August 9, 2019. Id. According to
Bullock, the television would not have been issued back to Plaintiff if it was not in working order.
Id. The contraband log indicates that when the television was taken, it worked. (Doc. #89-10,
PageID #1085). On August 21, 2019, Plaintiff wrote an appeal indicating that when he received
his television, it was broken. (Doc. #89-10, PageID #1083). He noted that his contraband receipt
indicates that his television was working when it was taken. Id. Further, although he was given
another television, it was also broken. Id.
Construing the evidence in the light most favorable to Plaintiff, the undersigned finds that
there is a genuine issue of material fact regarding whether the television was broken. However,

there is no evidence in the record that Defendant Back broke Plaintiff’s television. See Heyerman
v. Cty. of Calhoun, 680 F.3d 642, 647 (6th Cir. 2012) (“Persons sued in their individual capacities
under § 1983 can be held liable based only on their own unconstitutional behavior.”). The
contraband log indicates that Defendant Burke confiscated the television and Defendant Ewen
established that Defendant Back broke his television, Plaintiff’s retaliation claim fails.
Plaintiff does not assert that Defendant Little took adverse action against him. At best, he
alleges that Defendant Little assisted Defendant Back in attempting to silence Plaintiff. (Doc. #16,
PageID #206). However, to the extent Defendant Little did assist Defendant Back, this conduct
occurred before Plaintiff reported Defendants to the investigator’s officer or captain’s office.
Thus, Plaintiff has not established that Defendant Little took adverse action against him, and his
claim for retaliation against Defendant Little fails.
Accordingly, the undersigned RECOMMENDS that Defendant’s Motion for Summary
Judgment on Plaintiff’s retaliation claims against Defendants Back and Little be GRANTED.

Defendant Teague
Plaintiff asserts that on March 3, 2020, Defendant Teague entered his cell and physically
and sexually assaulted him in retaliation for filing a lawsuit and making a PREA complaint. (Doc.
#16, PageID #214); (Doc. #107, PageID #1778). In his affidavit, Plaintiff asserts that Defendant
Teague was “very upset I sued his colleagues and was very upset I filed PREA.” (Doc. #107,
PageID #1778).
At the time of the alleged assault by Defendant Teague, Plaintiff had filed two PREA
complaints. First, he filed a PREA complaint against his then cellmate on July 25, 2019. (Doc.
#90-2, PageID #1138). The investigation was completed on December 26, 2019. Id. Second, he
filed a PREA complaint against a different cellmate on January 10, 2020. (Doc. #89-7, PageID

#1061). That investigation concluded on February 26, 2020. Id. Plaintiff does not specify which
PREA complaint he refers to in his claim against Defendant Teague.
Plaintiff similarly does not specifically identify the lawsuit to which he refers. Defendants
assume that Plaintiff is referring to the informal complaint against Defendant Teague, not the
complaint until October 29, 2020—seven months after he allegedly assaulted Plaintiff. (Doc. #87,
PageID #563) (citing Doc. #43, PageID #377). Defendant Teague asserts that he could not
retaliate against Plaintiff for an act he had not yet committed. Id.
Plaintiff specifically states that Defendant Teague retaliated against him for suing his
colleagues and filing his lawsuit. Accordingly, the undersigned will not assume that Plaintiff
referred to an informal complaint.
With regard to the first retaliation element, filing a PREA complaint qualifies as protected
conduct. “The pursuit of a prison grievance—including, presumably, a complaint under PREA—
is protected conduct, so long as the grievance is not frivolous.” Jackson v. Wicking, No. 3:20-CV-

00249, 2020 WL 6874963, at *3 (M.D. Tenn. Nov. 23, 2020) (citing Gennoe, No. 3:19-cv-00478,
2019 WL 5693929, at *6; Herron, 203 F.3d at 415); see Treadwell v. King, No. 2:20-CV-10280,
2020 WL 815589, at *2 (E.D. Mich. Feb. 19, 2020) (finding nonfrivolous PREA filing to be
protected conduct)). Filing a lawsuit likewise constitutes protected conduct. Bell, 308 F.3d at 607
(“protected conduct, for the purposes of a First Amendment retaliation claim, encompasses a
prisoner’s efforts to access the courts in direct appeals, habeas corpus actions, and civil rights
claims.”); see also Thaddeus–X, 175 F.3d at 391.
Turning to the second element, Plaintiff asserts that Defendant Teague’s physical and
sexual assault constitutes adverse actions. The undersigned finds that the alleged assaults
constitute adverse actions because they would deter a person of ordinary firmness from filing

PREA complaints and lawsuits and, therefore, the second element is met. See Cook v. Greenleaf
Twp., No. 16-CV-14060, 2018 WL 2219642, at *5 (E.D. Mich. May 15, 2018) (“Where Plaintiffs
have provided evidence of an actual assault and battery, there can be no doubt that they have
established a question of fact regarding whether Keller engaged in adverse actions against them.).
subjective motivation of the defendants is at issue.” Thaddeus-X, 175 F.3d at 399. Notably,
“conclusory allegations of retaliatory motive ‘unsupported by material facts will not be sufficient
to state ... a claim under § 1983.’” Harbin–Bey, 420 F.3d at 580 (quoting Gutierrez v. Lynch, 826
F.2d 1534, 1538–39 (6th Cir. 1987)). “[A]lleging merely the ultimate fact of retaliation is
insufficient.” Murphy v. Lane, 833 F.2d 106, 108 (7th Cir. 1987).
Plaintiff asserts that Defendant Teague retaliated against him because he filed a PREA
complaint and a lawsuit. There is no evidence to suggest that because Plaintiff filed a PREA
complaint (against another inmate), Defendant Teague possessed a retaliatory motive to assault
Plaintiff. See Lewis v. Jarvie, 20 F. App’x 457, 459 (6th Cir. 2001) (“His claims rely solely on the

assumption that because he filed grievances against the defendants and some time later they took
actions against him, they had improper motives. Lewis’s bare allegations of malice on the
defendants’ parts are not enough to establish retaliation claims against them.”) (citing Crawford–
El v. Britton, 523 U.S. 574, 588, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998); Thaddeus–X, 175 F.3d
at 399).
Likewise, apart from his conclusory allegations that he was retaliated against for filing a
lawsuit, Plaintiff’s Complaint and affidavit otherwise include no particular factual allegations
suggesting that Defendant Teague was motivated by protected conduct. See Murray v. Unknown
Evert, 84 F. App’x 553, 556 (6th Cir. 2003) (“Conclusory allegations of retaliatory motive with
no concrete and relevant particulars fail to raise a genuine issue of fact for trial”) (internal quotation

marks and citations omitted). Indeed, at the time of the alleged assault, there is no evidence that
Defendant Teague was aware of this lawsuit. Although Plaintiff first filed his Motion for Leave
to Proceed in forma pauperis (Doc. #1) on January 10, 2020, Magistrate Judge Karen L. Litkovitz
alleged assault. (Doc. #17).
Therefore, viewing all the evidence in the best light for Plaintiff, he has not shown the
existence of a genuine dispute as to any material fact with respect to the third element of his
retaliation claim against Defendant Teague.
Accordingly, the undersigned RECOMMENDS that Defendant’s Motion for Summary
Judgment on Plaintiff’s retaliation claims against Defendant Teague be GRANTED.
E. Warden
Plaintiff asserts that the warden, Defendant Wanza Jackson Mitchell failed to protect him
and was deliberately indifferent. (Doc. #107, PageID #1780). In his Complaint, Plaintiff

explained that he sent a kite to Defendant Mitchell, informing her that he had been sexually
assaulted. (Doc. #16, PageID #216). She did not inform the PREA coordinator or institutional
investigators. Id. Instead, she sent Defendant Back and four corrections officers. Id. at 208.
According to Plaintiff, her policy of only reporting sexual assaults to “white shirts” is contrary to
the PREA. Id. at 216. He alleged in his Complaint that she “failed to properly train all the officials
named herein who are in her prison.” (Doc. #107, PageID #1780). Plaintiff asserts that Defendant
Mitchell’s failure to properly train her staff violated his Eighth Amendment rights. Id. at 1780.9
To hold a supervisory official personally liable under § 1983, a plaintiff must demonstrate
that the official actively engaged in some unconstitutional behavior. Ashcroft v. Iqbal, 556 U.S.
662, 676, 129 S. Ct. 1937, 1948, 173 L. Ed. 2d 868 (2009) (“Because vicarious liability is

inapplicable to ... § 1983 suits, a plaintiff must plead that each Government-official defendant,
through the official’s own individual actions, has violated the Constitution.”); Heyerman, 680 F.3d

9 In her initial screening of Plaintiff’s Complaint, Magistrate Judge Litkovitz concluded, “In an abundance of caution,
and based on Plaintiff’s allegations that he was sexually assaulted by two inmates within a four-month period and by
a corrections official four months later, the complaint may also proceed at this juncture against the Warden for failure
to protect and deliberate indifference on a failure-to-train theory.” (Doc. #15, PageID #193).
their own unconstitutional behavior.”). This means “the supervisor must have abdicated his
specific job responsibility, with the ‘active performance of the supervisor’s individual job function
... directly resulting in the constitutional injury.’” Winkler v. Madison Cnty., 893 F.3d 877, 898-
99 (6th Cir. 2018) (quoting Gregory v. City of Louisville, 444 F.3d 725, 752 (6th Cir. 2006).
Personal involvement requires “at a minimum” that a state actor “at least implicitly authorized,
approved, or knowingly acquiesced” to the underlying constitutional violation. Graves v. Malone,
810 F. App’x 414, 420 (6th Cir. 2020) (quotation omitted); Bellamy v. Bradley, 729 F.2d 416, 421
(6th Cir. 1984) (“At a minimum, a § 1983 plaintiff must show that a supervisory official at least
implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the

offending subordinate.”). Similarly, a supervisor’s failure to act, without more, is insufficient to
establish supervisory liability. See Peatross v. City of Memphis, 818 F.3d 233, 241 (6th Cir. 2016)
(“[A] mere failure to act will not suffice to establish supervisory liability.”) (citations omitted).
Plaintiff’s broad assertion that Defendant Mitchell failed to properly train her staff is
insufficient to state an Eighth Amendment claim against her in her individual capacity based on a
failure-to-train theory. Plaintiff has not alleged that Defendant Mitchell encouraged any instance
of misconduct related to Plaintiff or was otherwise directly involved in it. Further, Plaintiff has
not established that Defendant Mitchell “at least implicitly authorized, approved, or knowingly
acquiesced in the unconstitutional conduct” of any Defendant. Bellamy, 729 F.2d at 421.
To the extent Plaintiff contends that Defendant Mitchell violated his Eighth Amendment

rights based on violations of PREA training requirements, his claim fails. As Magistrate Judge
Litkovitz observed, PREA does not create a private right of action. (Doc. #15, PageID #197)
(citing Montgomery v. Harper, No. 5:14CV-P38-R, 2014 WL 4104163, at *3 (W.D. Ky. Aug. 19,
2014)).
Judgment on Plaintiff’s failure to train and failure to protect claims against Defendant Mitchell be
GRANTED.
F. Sexual Assault
Plaintiff contends that his Eighth Amendment rights were violated when he was physically
and sexually assaulted by Defendant Teague. The Eighth Amendment imposes a constitutional
limitation on the power of the states to punish those convicted of crimes. Punishment may not be
“barbarous” nor may it contravene society’s “evolving standards of decency.” Rhodes v.
Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392 (1981). Thus, the Eighth Amendment prohibits
conduct by prison officials that involves the “unnecessary and wanton infliction of pain.” Ivey v.

Wilson, 832 F.2d 950, 954 (6th Cir. 1987) (per curiam) (quoting Rhodes, 452 U.S. at 346).
In order to prevail on an Eighth Amendment claim, a plaintiff must satisfy both objective
and subjective components: that the harm was “sufficiently serious” and that the official acted with
a “sufficiently culpable state of mind,” respectively. See Rafferty v. Trumbull Cnty., 915 F.3d
1087, 1094 (6th Cir. 2019) (quoting Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011); Farmer,
511 U.S. at 834, 114 S.Ct. 1970). With regard to the objective prong, “[f]ederal courts have long
held that sexual abuse is sufficiently serious to violate the Eighth Amendment .... This is true
whether the sexual abuse is perpetrated by other inmates or by guards.” Rafferty, 915 at 1095
(citing Farmer, 511 U.S. at 848-49 (discussing inmate abuse); Washington v. Hively, 695 F.3d
641, 642 (7th Cir. 2012) (discussing abuse by guards). However, such allegations must be

“sufficiently serious” to implicate the constitution. Id. “‘[I]solated, brief, and not severe’ instances
of sexual harassment do not give rise to Eighth Amendment violations.” Id. at 1095 (quoting
Jackson v. Madery, 158 F. App’x 656, 662 (6th Cir. 2005), abrogated on other grounds by Maben
v. Thelen, 887 F.3d 252 (6th Cir. 2018)). To satisfy the subjective prong, an officer who cannot
requisite deliberate indifference or malice. See Rafferty, 915 F.3d at 1096.
Here, Plaintiff has alleged that Defendant Teague entered his cell and physically and
sexually assaulted him. (Doc. #16, PageID #214). Specifically, Defendant Teague punched and
kicked him in the face and “stuck his finger or a object into my anal cavity.” Id. He yelled, “sue
this you PREA check in bitch.” Id. Plaintiff’s allegations are supported by his confidential
statement from March 6, 2020. (Doc. #90-4, PageID #1221). Plaintiff’s statement mirrors his
allegations. This alleged conduct was not merely “isolated, brief, and not severe.”
Defendants assert that Plaintiff’s claims against Defendant Teague are not supported by
the acts and investigation of his PREA complaint. (Doc. #87, PageID #563). In support, they

point to Defendant Teague’s declaration. He stated that he entered Plaintiff’s cell on March 4,
2020, because Plaintiff refused to leave his cell and attempted to “board up” his cell window.
(Doc. #90-5, PageID #1237-38). Upon entering the cell, Defendant Teague placed Plaintiff in
restraints and removed him. Id. Defendant Teague denies physically or sexually assaulting
Plaintiff. Id. He noted that Lt. Kendrick, CO O’Connor, and CO Herzog all witnessed the
interaction. Id. In their declarations, CO O’Connor, and CO Herzog assert that Defendant Teague
did not use force on Plaintiff. Id. at 1239-42. Defendants also point to the declaration of Brian
Baker, who was assigned to investigate Plaintiff’s PREA complaint, and the PREA investigation
report. (Doc. #90-3, PageID #1206); (Doc. #90-4). Baker concluded that Plaintiff’s allegations
were unsubstantiated. (Doc. #90-3, PageID #1206); (Doc. #90-4, PageID #1213).

Although Defendants have presented evidence that conflicts with Plaintiff’s claims, the
undersigned finds that, when examining the evidence in the light most favorable to Plaintiff,
Plaintiff has raised a genuine issue of material fact that he has suffered a sufficiently serious harm.
assault.
Accordingly, the undersigned RECOMMENDS that Defendant’s Motion for Summary
Judgment on Plaintiff’s sexual assault claim against Defendants Teague be DENIED.
G. Qualified Immunity
Defendants also contend that they are entitled to summary judgment on the issue of
qualified immunity for Plaintiff’s claims of deliberate indifference under a failure-to-protect theory
and as to his medical and mental health care. (Doc. #87, PageID #s 583-84). Specifically,
Defendants assert, “even accepting Plaintiff’s allegations as true, he has not adequately alleged a
claim of deliberate indifference under a failure to protect theory, not as to his medical and mental

health care, that rise to the level of constitutional violations.” Id. at 584. The undersigned
construes this statement as limiting Defendants’ argument on qualified immunity to the failure-to-
protect claims against Defendants McIntosh, Hill, Burke, Ewen, Fournier, Combs, Sarwar,
Luneke, and Mitchell; the deliberate indifference claims against Defendant Eulenburg; and the
medical deliberate indifference claims against Defendants Burke, Little, C.O. John Doe, and
Fournier.10
Qualified immunity protects government officials “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.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727
(1982). In so doing, “qualified immunity balances two important interests—the need to hold

10 Defendants also assert that “none of the Defendants would believe that their actions violated a clearly established
right ….” (Doc. #87, PageID #584). To the extent that Defendants are arguing that they are all entitled to qualified
immunity on all of the remaining claims, the undersigned finds Defendants’ conclusory statement to be insufficient
and, therefore, waived. See McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) (“[I]ssues adverted to in a
perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived. It is not
sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to put flesh on its
bones.”).
from harassment, distraction, and liability when they perform their duties reasonably.” Pearson
v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808 (2009).
A governmental official is entitled to immunity if the facts alleged do not make out a
violation of a constitutional right, or if the alleged constitutional right was not clearly established
at the time of the defendant’s alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 129 S. Ct.
808 (2009). Additionally, while a defendant bears the initial burden of pleading the defense of
qualified immunity, it is the plaintiff who “bears the ultimate burden of proof to show that
[government officials] are not entitled to qualified immunity.” Cockrell v. City of Cincinnati, 468
F. App’x 491, 494 (6th Cir. 2012) (quoting Garretson v. City of Madison Heights, 407 F.3d 789,

798 (6th Cir. 2005)).
Defendants maintain that they are entitled to qualified immunity on some of Plaintiff’s
claims. (Doc. #87, PageID #584). Thus, the burden shifts to Plaintiff to establish that Defendants
are not entitled to this defense. However, as explained above, Plaintiff has failed to demonstrate
that his constitutional rights have been violated, even when viewed in the light most favorable to
him. As such, Plaintiff is unable to carry his burden of to show that Defendants are not entitled to
qualified immunity.
Accordingly, the undersigned RECOMMENDS that the Court find that Defendants
McIntosh, Hill, Burke, Ewen, Fournier, Combs, Sarwar, Luneke, Mitchell, Eulenburg, Burke,
Little, C.O. John Doe, and Fournier are immune from Plaintiff’s failure-to-protect claims,

deliberate indifference claims, and medical deliberate indifference claims. Therefore, these
Defendants are entitled to summary judgment as a matter of law.
For all the foregoing reasons, the undersigned RECOMMENDS that:
1. Defendants’ Motion for Summary Judgment (Doc. #87) be
GRANTED, in part, as to all claims against Defendants
Burke, Ewen, McIntosh, Hill, Little, Fournier, C.O. John
Doe, Eulenburg, Combs, Sarwar, Luneke, Back, and
Mitchell and as to Plaintiff’s retaliation claim against
Defendant Teague, and DENIED, in part, as to Plaintiff’s
sexual assault claim against Defendant Teague; and

2. Plaintiff’s claim against John Doe #2 be DISMISSED
without prejudice.

August 16, 2022 s/Peter B. Silvain, Jr.
Peter B. Silvain, Jr.
United States Magistrate Judge
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections
to the proposed findings and recommendations within FOURTEEN days after being served with
this Report and Recommendations. Such objections shall specify the portions of the Report
objected to and shall be accompanied by a memorandum of law in support of the objections. If
the Report and Recommendation is based in whole or in part upon matters occurring of record at
an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or
such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless
the assigned District Judge otherwise directs. A party may respond to another party’s objections
within FOURTEEN days after being served with a copy thereof.

Failure to make objections in accordance with this procedure may forfeit rights on appeal.
See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.
1981).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10380678. Public record. Not legal advice.