UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTICT OF MICHIGAN

SOUTHERN DIVISION

ROMEL DAVIS-HUSSUNG,

Plaintiff, Civil Action No.: 14-14964

Honorable Bernard A. Friedman

v. Magistrate Judge Elizabeth A. Stafford

 

JEFFERY LEWIS, et al.

Defendants. 

__________________________________/

REPORT AND RECOMMENDATION THAT DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT [R. 30] BE GRANTED

I. INTRODUCTION

Plaintiff Romel Davis-Hussung brings this action pursuant to 18 

U.S.C. § 1983, alleging violations of his constitutional rights while he was 

detained in Saginaw Correctional Facility.1 Defendant Wayne M. Groat, 

Administrative Law Examiner, was granted summary judgment. [R. 41]. 

The remaining defendants now move for summary judgment, arguing that 

these claims should be dismissed based on qualified immunity. [R. 30]. The 

Court agrees and RECOMMENDS that the defendants’ motion be 

GRANTED.

 1 The Honorable Bernard A. Friedman referred the case to the undersigned 

to resolve all pretrial matters pursuant to 28 U.S.C. § 636(b)(1)(A) and (B). 

[R. 29].

2:14-cv-14964-BAF-EAS Doc # 42 Filed 01/21/16 Pg 1 of 16 Pg ID 240
2

II. BACKGROUND

Davis-Hussung’s allegations stem from an incident occurring on April 

9, 2014, in which he was cited for “sexual misconduct” after engaging in 

“horseplaying” with his cellmate and, after being directed to stop, 

exchanging insults with Corrections Officer Jeffrey Lewis. [R. 1, PgID 4]. He 

claims that Officer Lewis became angry and, together with Shareese 

Gillerson and an unnamed sergeant, escorted him to segregation and

wrote him a sexual misconduct ticket that falsely alleged that he and his 

cellmate were rubbing each other’s legs. [Id.]. He also claims that Assistant 

Resident Unit Supervisors (ARUS) Dean Potila and Todd McLean insulted 

him with comments regarding his sexual orientation; that Potila had him 

transferred to Chippewa Correctional Facility against his will; and that 

Corrections Officer Margret Anderson, along with Officers Gilerson and 

Lewis, distributed his sexual misconduct report among multiple inmates, 

which resulted in his being stabbed thirteen times by five inmates. [Id., 

PgID 5]. Defendants deny all claims. [R. 30-2 to 30-14].

III. ANALYSIS

Federal Rule of Civil Procedure 56 provides that “[t]he Court shall 

grant summary judgment if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a 

2:14-cv-14964-BAF-EAS Doc # 42 Filed 01/21/16 Pg 2 of 16 Pg ID 241
3

matter of law.” Fed. R. Civ. P. 56(a). The party seeking summary 

judgment bears the initial burden of informing the Court of the basis for its 

motion, and must identify particular portions of the record that demonstrate 

the absence of a genuine dispute as to any material fact. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). In deciding a summary judgment motion, 

the Court must view the factual evidence and draw all reasonable 

inferences in the light most favorable to the non-moving party. Matsushita 

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88(1986).

A. Vicarious Liability in § 1983 Suits

While the Court accords some leniency to pleadings drafted by pro se

litigants, “[t]he leniency granted to pro se [litigants] ... is not boundless.” 

Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004). Indeed, such 

complaints still must plead a plausible claim for relief. Davis v. Prison 

Health Services, 679 F.3d 433, 437-38 (6th Cir. 2012). When alleging a 

constitutional violation under 42 U.S.C. § 1983, a claimant must establish 

that each defendant is “personally involved” in the alleged violation, or that 

he or she “encouraged or condoned others in doing so.” Copeland v. 

Machulis, 57 F.3d 476, 481 (6th Cir. 1995). “A plaintiff must plead that each 

Government-official defendant, through the official's own individual actions, 

has violated the Constitution” in order to sustain a § 1983 claim. Ashcroft v. 

2:14-cv-14964-BAF-EAS Doc # 42 Filed 01/21/16 Pg 3 of 16 Pg ID 242
4

Iqbal, 556 U.S. 662, 676 (2009).

Here, Davis-Hussung has made no allegations against the following 

defendants: ARUS Kelly Buczek, Prison Counselor Yvonne Gorton, 

Resident Unit Manager (RUM) James Zummer, Corrections Program 

Coordinator Daniel Hoffman, Manager Richard Russell, Assistant Deputy 

Director Lloyd Rapelje, Warden O’Bell Thomas Winn, and Deputy Warden 

Donald Ricumstrict. [R. 1]. Davis-Hussung may be attempting to assert

respondeat superior or vicarious liability for these defendants; however, 

such claims cannot be the basis for liability under § 1983. Skinner v. 

Govorchin, 463 F.3d 518, 525 (6th Cir. 2006). Therefore, summary 

judgment should be granted to these defendants, and claims relating to 

Davis-Hussung’s allegations in this matter should be dismissed with 

prejudice against these defendants.

B. Exhaustion

A prisoner bringing an action with respect to prison conditions under 

42 U.S.C. § 1983 must exhaust all “available” administrative remedies prior 

to bringing suit. 42 U.S.C. § 1997e(a). See Jones v. Bock, 549 U.S. 199, 

218-20 (2007); Porter v. Nussle, 534 U.S. 516, 532 (2002); Booth v. 

Churner, 532 U.S. 731 (2001). Requiring exhaustion allows prison officials 

an opportunity to resolve disputes concerning the exercise of their 

2:14-cv-14964-BAF-EAS Doc # 42 Filed 01/21/16 Pg 4 of 16 Pg ID 243
5

responsibilities before being haled into court and produces a useful 

administrative record. Jones, 549 U.S. at 204. Defendant bears the burden 

of production and persuasion on the issue of exhaustion. Surles v. 

Andison, 678 F.3d 452, 458 (6th Cir. 2012). 

The PLRA requires proper exhaustion, meaning that a prisoner must 

comply with the applicable grievance system. Woodford v. Ngo, 548 U.S. 

81, 93 (2006); Jones, 549 U.S. at 218. The content of the grievance must 

be adequate to give prison officials fair notice of the alleged misconduct or 

mistreatment about which the prisoner complains. Bell v. Konteh, 450 F.3d 

651, 654 (6th Cir. 2006). “[T]he primary purpose of a grievance is to alert 

prison officials of a particular problem.” Newson v. Steele, No. 09-10346, 

2010 WL 3123295, at *4 (E.D. Mich. July 1, 2010), report and 

recommendation adopted, 2010 WL 3123288 (E.D. Mich. Aug. 9, 2010).

The Michigan Department of Corrections (“MDOC”) Policy Directive 

03.02.130 sets forth a three-step procedure that prisoners must follow in 

order to exhaust grievances. See Policy Directive 03.02.130 (effective July 

9, 2007).2

 Defendants have provided a record of Davis-Hussung’s Step III 

grievance report. [R. 30-16]. It lists five grievances, two of which are 

 2 The Policy Directive is available at: 

https://www.michigan.gov/documents/corrections/03_02_130_200872_7.pd

f

2:14-cv-14964-BAF-EAS Doc # 42 Filed 01/21/16 Pg 5 of 16 Pg ID 244
6

resolved and three of which are unresolved. [Id., PgID 181-82]. Defendants 

also include records of the two Step III grievances which have been 

resolved. [Id., PgID 183-95]. Those grievances are unrelated to the 

allegations here. Thus, defendants conclude, Davis-Hussung cannot have 

exhausted his available administrative remedies before bringing suit.

Davis-Hussung argues that he has attempted to file multiple 

grievances while confined in segregation, and that they went unanswered 

[R. 35, PgID 205-06]. He provides copies of Step I grievances that may or 

may not have been filed. [Id., PgID 213-15]. Interestingly, he has provided 

the same number of grievances that defendants’ records show as 

unresolved grievances at the Step III stage, but the dates listed as being 

received at Step I do not match the dates on Davis-Hussung’s records.

Unfortunately, defendants did not reply to the allegations in DavisHussung’s response, specifically that he had attempted to and was 

prevented from filing grievances on three separate occasions relating to the 

alleged constitutional violations in this matter. Because Davis-Hussung 

provides evidence of grievances that were filed on this matter from April, 

2014 that do not seem to appear on his Step III grievance report, and 

because he alleges to have been interfered with in filing these grievances, 

a genuine dispute exists as to the whether Davis-Hussung was denied 

2:14-cv-14964-BAF-EAS Doc # 42 Filed 01/21/16 Pg 6 of 16 Pg ID 245
7

access to the grievance process. “If Plaintiff were improperly denied 

access to the grievance process, the process would be rendered 

unavailable, and exhaustion would not be a prerequisite for initiation of a 

civil rights action.” Hawkins v. Norwood, 2010 WL 3398793, at *10 (W.D. 

Mich. Aug. 25, 2010) (citing Lewis v. Casey, 518 U.S. 343 (1996). 

Therefore, summary judgment should be denied on the matter of 

exhaustion.

C. Qualified Immunity

The defendants against whom specific allegations were made by 

Davis-Hussung are entitled to qualified immunity and summary judgment 

should be entered in their favor. Determining the applicability of qualified 

immunity requires a two-step inquiry into whether the facts, when viewed in 

the light most favorable to the plaintiff, would permit a reasonable juror to 

find that: (1) the defendant violated a constitutional right; and (2) the right 

was clearly established. Estate of Carter v. City of Detroit, 408 F.3d 305, 

311 (6th Cir. 2005). “A clearly established constitutional violation requires 

on-point, controlling authority or a robust consensus of cases of persuasive

authority.” Ortega v. U.S. Immigration and Customs Enforcement, 737 F.3d 

435, 439 (6th Cir. 2013). In the Sixth Circuit, a constitutional violation is 

established by binding precedent from the Supreme Court or this circuit, 

2:14-cv-14964-BAF-EAS Doc # 42 Filed 01/21/16 Pg 7 of 16 Pg ID 246
8

and a court should look beyond those precedents only in extraordinary 

cases. Walton v. City of Southfield, 995 F.2d 1331, 1336 (6th Cir. 1993)

superseded by statute on other grounds as stated in Livermore ex rel. 

Rohm v. Lubelan, 476 F.3d 397, 407–08 (6th Cir.2007). 

“The burden of convincing a court that the law was clearly established 

‘rests squarely with the plaintiff.’” Key v. Grayson, 179 F.3d 996, 1000 (6th 

Cir. 1999) (quoting Cope v. Heltsley, 128 F.3d 452, 459 (6th Cir.1997)).

This analysis is not rigid and inflexible, and a court may begin and end its 

inquiry with an analysis of the “clearly established” prong if this would lead 

to a conservation of judicial resources. Pearson v. Callahan, 555 U.S. 223

(2009). Here, defendants are entitled to qualified immunity on each claim 

either because Davis-Hussung has not stated a violation of a constitutional 

right or such a right was not clearly established.

1. False Misconduct Ticket

Davis-Hussung cannot sustain his claim that he was falsely cited for 

“sexual misconduct” because “[f]alse accusations of misconduct filed 

against an inmate do not constitute a deprivation of constitutional rights 

where the charges are adjudicated in a fair hearing.” Jackson v. Madery, 

158 F. App'x 656, 662 (6th Cir. 2005). Here, Davis-Hussung acknowledges 

that he had a hearing before a hearing officer and was found guilty. [R. 1, 

2:14-cv-14964-BAF-EAS Doc # 42 Filed 01/21/16 Pg 8 of 16 Pg ID 247
9

PgID 4]. 

Davis-Hussung does claims that the hearing officer treated him 

unfairly by cutting off his testimony, being disrespectful and showing bias, 

[Id.], but he does not allege any facts or provide any evidence to show that 

he was treated in a manner that denied him due process. For prison 

disciplinary matters, due process requires: “(1) advance written notice of 

the disciplinary charges; (2) an opportunity, when consistent with 

institutional safety and correctional goals, to call witnesses and present 

documentary evidence in his defense; and (3) a written statement by the 

factfinder of the evidence relied on and the reasons for the disciplinary 

action.” Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, 472 

U.S. 445, 454 (1985). Davis-Hussung does not allege that any of these 

requirements were unmet.

2. Mistreatment for Perceived Homosexuality

Davis-Hussung faces similar factual and legal barriers to his claim 

that he was mistreated due to the officers’ belief that he was in fact 

homosexual. Factually, Davis-Hussung has never claimed to be 

homosexual. In fact, he claims just the opposite in the affidavit in support 

of his motion for a court ordered polygraph test, stating that he is a “full 

Heterosexual.” [R. 37, PgID 224]. Legally, although the Fourteenth 

2:14-cv-14964-BAF-EAS Doc # 42 Filed 01/21/16 Pg 9 of 16 Pg ID 248
10

Amendment provides protections for members of protected classes, 

homosexuals have not been recognized as one. Ondo v. City of Cleveland, 

795 F.3d 597, 609 (6th Cir. 2015). The Supreme Court was recently asked 

to declare homosexuals a protected class, and it declined. Id. (citing 

Obergefell v. Hodges, 135 S. Ct. 2584, 2602 (2015)).

3. Harassing Remarks

Defendants ARUS Potila and ARUS McLean are also entitled to 

qualified immunity for claims that they insulted and made derogatory 

remarks to Davis-Hussung. In Johnson v. Unknown Dellatifa, the Sixth 

Circuit stated that the Eighth Amendment was not implicated where a guard 

banged on the plaintiff’s cell door, threw food trays, made aggravating and 

insulting remarks, and behaved in a racially prejudicial manner toward the 

plaintiff. 357 F.3d 539, 545-46 (6th Cir. 2004). Such “harassment and 

verbal abuse, such as Johnson has described, do not constitute the type of 

infliction of pain that the Eighth Amendment prohibits.” Id. The same 

analysis applies to the allegations against Potila and McLean.

4. Segregation and Transfer

Davis-Hussung complains about being placed in segregation and 

transferred to Chippewa Correctional Facility. These claims fail to establish

the violation of clearly established rights because mere changes in the 

2:14-cv-14964-BAF-EAS Doc # 42 Filed 01/21/16 Pg 10 of 16 Pg ID 249
11

conditions of confinement do not violate due process rights. Neal v. Ellis, 

2010 WL 5467485, at *7 (W.D. Mich. Dec. 30, 2010) (citing Meachum v. 

Fano, 427 U.S. 215, 225 (1976)). A prisoner’s Fourteenth Amendment due 

process rights are violated only when “the sanction ‘will inevitably affect the 

duration of his sentence’ or when a deprivation imposes an ‘atypical and 

significant hardship on the inmate in relation to the ordinary incidents of 

prison life.’” Id. (quoting Sandin v. Conner, 515 U.S. 472, 486–87). Here, 

the segregation is not alleged to have affected the duration of DavisHussung’s sentence, and it is not an atypical or significant hardship. As to 

the transfer, it is clearly established that “prisoners do not have a 

constitutional right to be incarcerated in any particular institution.” Id., citing 

Meachum. The expectation a prisoner may have in remaining at one 

particular institution is “too ephemeral and insubstantial” to rise to the level 

of a constitutional right. Meachum, 427 U.S. at 228. Consequently, DavisHussung has not established that a clearly established due process right 

has been violated.

5. Retaliation

Davis-Hussung’s allegations also fail to state a clearly established 

First Amendment claim of retaliation. “A retaliation claim essentially entails 

three elements: (1) the plaintiff engaged in protected conduct; (2) an 

2:14-cv-14964-BAF-EAS Doc # 42 Filed 01/21/16 Pg 11 of 16 Pg ID 250
12

adverse action was taken against the plaintiff that would deter a person of 

ordinary firmness from continuing to engage in that conduct; and (3) there 

is a causal connection between elements one and two—that is, the adverse 

action was motivated at least in part by the plaintiff's protected conduct.” 

Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999). Here, DavisHussung alleges that he was retaliated against by receiving a sexual 

misconduct ticket and being placed in segregation, transferred and 

slandered because he told Officer Lewis, “Don’t fucking play with me, bring 

your wife in here and I’ll throw the sheet up.” [R. 1, PgID 4; R. 35, PgID 

213-14]. That statement constitutes “insolence” under MDOC policies, and 

is not protected by the First Amendment. Lockett v. Suardini, 526 F.3d 

866, 874 (6th Cir. 2008) (words or actions that are intended to “harass, 

degrade, or cause alarm in an employee” constitute insolent behavior that 

is not protected under Thaddeus-X).

6. Distribution of Misconduct Report

The allegations that are most troubling to the Court, if true, are those 

that Davis-Hussung’s sexual misconduct report was distributed to inmates 

at various facilities, ultimately resulting in Davis-Hussung being stabbed 

multiple times while interred at Kinross Correctional Facility. Defendants 

deny these allegations with affidavits. As much as these allegations trouble 

2:14-cv-14964-BAF-EAS Doc # 42 Filed 01/21/16 Pg 12 of 16 Pg ID 251
13

the Court, it cannot find that they violate a clearly established constitutional 

right.

It is well established that prison officials have a duty to “protect 

prisoners from violence at the hands of other prisoners.” Farmer v. 

Brennan, 511 U.S. 825, 833 (1994). However, Davis-Hussung has not 

shown and the Court has been unable to find binding precedent from the 

Supreme Court or Sixth Circuit establishing that a prison official violates an 

inmate’s constitutional rights by distributing inflammatory information, even 

when that acts results in the inmate being harmed by other inmates.

Additionally, this is not an extraordinary case such that the Court should 

look beyond Supreme Court and Sixth Circuit precedent, because the 

courts finding a violation for these type of allegations are few.

In Thomas v. D.C., 887 F. Supp. 1, 3 (D.D.C. 1995), an inmate 

alleged that an officer spread rumors that the inmate was a homosexual 

and a snitch, causing him to be confronted and threatened by other 

inmates. In finding that this violated the plaintiff’s Eighth Amendment rights, 

the court stated, “[i]n the prison context in which Mr. Thomas was required 

to live, one can think of few acts that could be more likely to lead to 

physical injury than spreading rumors of homosexuality and informing on 

one’s co-defendants.” Id. at 4. 

2:14-cv-14964-BAF-EAS Doc # 42 Filed 01/21/16 Pg 13 of 16 Pg ID 252
14

This decision has been cited approvingly by some lower courts (see 

e.g., Montero v. Crusie, 153 F. Supp. 2d 368, 377 (S.D.N.Y. 2001)), but the 

rule has not been widely adopted, cited by any federal circuit court, cited by 

any district court in this circuit, or referred to by any court as a clearly 

established right. Thus, it should not be recognized as one here. As DavisHussung has failed to establish the violation of any clearly established 

right, summary judgment should be granted to the defendants.

D. CONCLUSION

For the foregoing reasons, it is recommended that the defendants’

motion for summary judgment based on qualified immunity be GRANTED.

 

s/Elizabeth A. Stafford

ELIZABETH A. STAFFORD

United States Magistrate Judge

Dated: January 21, 2016

NOTICE TO THE PARTIES REGARDING OBJECTIONS

Either party to this action may object to and seek review of this 

Report and Recommendation, but must act within fourteen days of service 

of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and Fed. R. Civ. 

P. 72(b)(2). Failure to file specific objections constitutes a waiver of any 

further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. 

2:14-cv-14964-BAF-EAS Doc # 42 Filed 01/21/16 Pg 14 of 16 Pg ID 253
15

Secretary of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 

638 F.2d 947 (6th Cir. 1981). Filing objections which raise some issues but 

fail to raise others with specificity will not preserve all objections that party 

might have to this Report and Recommendation. Willis v. Secretary of 

HHS, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers 

Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). A copy of any objection 

must be served upon this Magistrate Judge. E.D. Mich. LR 72.1(d)(2).

Each objection must be labeled as “Objection #1,” “Objection #2,” 

etc., and must specify precisely the provision of this Report and 

Recommendation to which it pertains. Not later than fourteen days after 

service of objections, the non-objecting party must file a response to 

the objections, specifically addressing each issue raised in the objections in 

the same order and labeled as “Response to Objection #1,” “Response to 

Objection #2,” etc. The response must be concise and proportionate in 

length and complexity to the objections, but there is otherwise no page 

limitation.

2:14-cv-14964-BAF-EAS Doc # 42 Filed 01/21/16 Pg 15 of 16 Pg ID 254
16

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s ECF 

System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on January 21, 2016.

s/Marlena Williams 

MARLENA WILLIAMS

Case Manager

2:14-cv-14964-BAF-EAS Doc # 42 Filed 01/21/16 Pg 16 of 16 Pg ID 255