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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

STEPHEN HALL #434965,

Plaintiff, Case No. 08-14709

vs. DISTRICT JUDGE AVERN COHN

MAGISTRATE JUDGE STEVEN D. PEPE

MILLICENT WARREN,

KATHERINE CORRIGAN,

GERALDINE WILSON,

MICHAEL MARKEE, FRED FOLTS,

and JOSEPH R. BURTCH, M.D.,

Defendant(s).

 /

REPORT AND RECOMMENDATION ON DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT (DKT. #18),

AND DEFENDANT’S MOTION TO DISMISS (DKT. #23)

This is a pro se prisoner lawsuit under 42 U.S.C. § 1983 alleging violation of the Eighth

Amendment. At all times relevant to this action, Plaintiff was incarcerated in Lapeer, Michigan

at the Thumb Correctional Facility (“TCF”) of the Michigan Department of Corrections

(“MDOC”). He was transferred to TCF from the Bellamy Creek Correctional Facility (“IBC”)

and is currently located at the Ryan Correctional Facility (“RRF”), both of which are part of the

MDOC. Plaintiff alleges that, while incarcerated at TCF, Defendants violated his rights by

unreasonably exposing him to environmental tobacco smoke (“ETS”) for three months, despite

an Accommodation Notice stating he required tobacco-free housing. Plaintiff seeks

compensatory damages of $50,000 and punitive damages of $500,000 from each Defendant

among other claims for relief (Complaint, p. 3).

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 While smoking is prohibited in all housing units at TCF, prisoners housed in a tobaccofree unit are not allowed to possess any smoking paraphernalia.

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On February 5, 2009, Defendants Warren, Corrigan, Wilson, Markee and Folts moved for

summary judgment pursuant to Fed. R. Civ. P. 56(b) asserting no violation of the Eighth

Amendment occurred, no personal involvement by Defendant Warren, and qualified immunity

(Dkt. #18). On February16, 2009, Defendant Burtch moved for dismissal pursuant to Fed. R.

Civ. P. 12(b)(6) asserting non-exhaustion of administrative remedies and failure to state a claim

(Dkt. #23). All pre-trial matters were referred under 28 U.S.C. § 636(b) (Dkt. #8). For the

reasons stated below, it is RECOMMENDED that Defendants Warren, Corrigan, Wilson and

Markee’s motion for summary judgment and Defendant Burtch’s motion to dismiss be

GRANTED, and Defendant Folts’ motion for summary judgment be DENIED.

I. BACKGROUND

On December 22, 2006, Plaintiff was transferred from IBC to TCF. Upon his arrival, he

received a health care screening and was placed in Cord Unit, which is not a tobacco-free unit.1

The transfer records from IBC indicate that Plaintiff had a Special Accommodation Notice for

housing dated May 18, 2006 (Dkt. #18, Ex. 1-B, p. 15).

Defendants are Warden Millicent Warren, Assistant Deputy Warden (“ADW”) Katherine

Corrigan, Resident Unit Manager (“RUM”) Geraldine Wilson, Assistant Resident Unit

Supervisor (“ARUS”) Michael Markee, ARUS Fred Folts, and Joseph R. Burtch, M.D. all of

whom are assigned to TCF.

On March 8, 2007, Plaintiff filed Grievance No. TCF-07-03-0175-03c, against Michael

Markee alleging that he had ignored Plaintiff’s requests to be moved into tobacco-free housing

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as required by his Special Accommodation Notice, and this had caused Plaintiff’s health

problems to worsen due to exposure to ETS (Dkt. #18, Ex. 1-A, p. 1). The Step I response,

signed by Geraldine Wilson, noted that all units at TCF were smoke-free, but that Plaintiff had

not been informed that his request for a transfer needed to go to Fred Folts, the ARUS for the

tobacco-free housing unit (Burns Unit) (id. at 2). RUM Wilson also noted that she spoke to

ARUS Folts, who stated he had received a kite from Plaintiff approximately two weeks earlier,

but that he did not have any empty bottom bunks at the time. Plaintiff also had a Special

Accommodation order, issued May 18, 2006, for a bottom bunk only. (Corrigan Feb. 4, 2009

affidavit, Dkt. #18, Ex. 1, ¶¶ 8, 12). Because of Plaintiff’s grievance, he was placed at the top of

the waiting list for a transfer to Burns Unit.

On March 22, 2007, Plaintiff filed a Step II appeal alleging that he was threatened with a

transfer to another facility for filing his initial grievance (id. at 3). The Step II response, signed

by Warden Millicent Warren, stated that Plaintiff had been moved to tobacco-free housing on

March 24, 2007, and the grievance was considered resolved (id. at 4).

On March 27, 2007, Plaintiff filed a Step III appeal alleging that because he had not been

assigned to tobacco-free housing upon his arrival at TFC, he had developed additional medical

problems (id. at 3). The Step III response indicated that the issue which led to the initial

grievance had been resolved, and that the responses at Step I and Step II were appropriate (id. at

5).

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II. ANALYSIS

A. Legal Standards

1. Summary Judgment

Under Fed. R. Civ. P. 56, summary judgment is to be entered if the moving party

demonstrates there is no genuine issue as to any material fact. The Supreme Court has

interpreted this to mean that summary judgment should be entered if the evidence is such that a

reasonable jury could find only for the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249 (1986). The moving party has “the burden of showing the absence of a genuine issue

as to any material fact.” Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970). See also Lenz

v. Erdmann Corp., 773 F.2d 62 (6th Cir. 1985). In resolving a summary judgment motion, the

Court must view the evidence in the light most favorable to the non-moving party. See Duchon

v. Cajon Co., 791 F.2d 43, 46 (6th Cir. 1986); Bouldis v. United States Suzuki Motor Corp., 711

F.2d 1319 (6th Cir. 1983). But as the Supreme Court wrote in Celotex Corp. v. Catrett, 477 U.S.

317, 322-23 (1986):

[T]he plain language of Rule 56(c) mandates the entry of summary

judgment, after adequate time for discovery and upon motion, against

a party who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which

that party will bear the burden of proof at trial. In such a situation,

there can be “no genuine issue as to any material fact,” since a

complete failure of proof concerning an essential element of the

nonmoving party’s case necessarily renders all other facts immaterial.

The moving party is “entitled to a judgment as a matter of law”

because the nonmoving party has failed to make a sufficient showing

on an essential element of her case with respect to which she has the

burden of proof.

Moreover, when a motion for summary judgment is filed, the adverse party may not merely rely

“upon the mere allegations or denials of the adverse party’s pleading, but . . . by affidavits or as

otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue

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for trial.” Fed. R. Civ. P. 56(e).

2. Dismissal

Fed. R. Civ. P 12(b)(6) permits dismissal for “failure to state a claim upon which 

relief can be granted.” “The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as

a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint

is true.” Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993). “[W]hen ruling on a defendant's

motion to dismiss, a judge must accept as true all of the factual allegations contained in the

complaint.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), Erickson v. Pardus, 127 S.Ct.

2197, 2200 (2007). “Rule 12(b)(6) does not countenance . . . dismissals based on a judge's

disbelief of a complaint's factual allegations,” Twombly, 550 U.S. at 556 (quoting Neitzke v.

Williams, 490 U.S. 319, 327 (1989)). 

“However, while liberal, this standard of review does require more than the bare

assertion of legal conclusions.” Columbia Natural Res., Inc. V. Tatum, 58 F.3d 1101, 1109 (6th

Cir. 1994). “In practice, a . . . complaint must contain either direct or inferential allegations

respecting all the material elements to sustain a recovery under some viable legal theory.” In re

DeLorean, 991 F.2d 1236, 1240 (6th Cir. 1993) (emphasis in original) (quoting Scheid v. Fanny

Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.1988)). See also, Morgan v. Church’s

Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987) (liberal Rule 12(b)(6) review is not afforded legal

conclusions and unwarranted factual inferences); Ana Leon T. v. Federal Reserve Bank, 823 F.2d

928, 930 (6th Cir. 1987) (per curiam) (mere conclusions are not afforded liberal Rule 12(b)(6)

review). 

Conley v. Gibson, 355 U.S. 41, 46 (1957), spoke of “the accepted rule that a complaint

should not be dismissed for failure to state a claim unless it appears beyond doubt that the

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plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” 

Twombly notes that under a “literal reading of Conley’s ‘no set of facts’ standard, a wholly

conclusory statement of claim would survive a motion to dismiss whenever the pleadings left

open the possibility that a plaintiff might later establish some ‘set of [undisclosed] facts’ to

support recovery.” Twombly, 550 U.S. at 561. Twombly rejects this literal reading of Conley

and requires that pleadings state sufficient facts to show not just a possible, but a “plausible”

claim of relief. Instead of the ‘no set of facts’ standard of Conley, Twombly endorsed the

standard that a complaint be plausible to the extent that from the facts alleged there is a

“‘reasonably founded hope’ that a plaintiff would be able to make a case,” citing Dura

Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 347 (2005) and its quote from Blue Chip Stamps

v. Manor Drug Stores, 421 U.S. 723, 741 (1975).

The Supreme Court expanded upon its analysis in Twombly and described a two-pronged

approach to be used when considering a motion to dismiss. Ashcroft v. Iqbal, ---- U.S. ----, 129

S.Ct. 1937 (2009). First, a court can “begin by identifying pleadings that, because they are no

more than conclusions, are not entitled to the assumption of truth.” Id. at 1950. Second,

“[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then

determine whether they plausibly give rise to an entitlement of relief.” Id.

B. Factual Analysis

1. Exhaustion

Under the Prisoner Litigation Reform Act (“PLRA”) a prison inmate cannot maintain a

civil rights action challenging prison conditions if he did not first exhaust “such administrative

remedies as are available.” As noted above, the PLRA requires a prisoner to follow the state

corrections system’s procedures and properly exhaust all administrative remedies before he may

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bring a cause of action in federal court. Woodford v. Ngo, 548 U.S. 81 (2006). Proper

exhaustion requires “compliance with an agency’s deadlines and other critical procedural rules.” 

Id. at 90. The Woodford Court explained:

The benefits of exhaustion can be realized only if the prison

grievance system is given a fair opportunity to consider the

grievance. The prison grievance system will not have such an

opportunity unless the grievant complies with the system's critical

procedural rules. A prisoner who does not want to participate in the

prison grievance system will have little incentive to comply with the

system's procedural rules unless noncompliance carries a sanction .

. . . For example, a prisoner wishing to bypass available

administrative remedies could simply file a late grievance without

providing any reason for failing to file on time. If the prison then

rejects the grievance as untimely, the prisoner could proceed directly

to federal court. And acceptance of the late grievance would not

thwart the prisoner's wish to bypass the administrative process; the

prisoner could easily achieve this by violating other procedural rules

until the prison administration has no alternative but to dismiss the

grievance on procedural grounds. We are confident that the PLRA

did not create such a toothless scheme. 

Id. at 95. Thus, an untimely or otherwise improper grievance, even though appealed through all

steps of a grievance procedure, does not fulfill the PLRA exhaustion requirement.

Prisoners at MDOC facilities are given the right to “[seek] redress for alleged violations

of policy and procedures or unsatisfactory conditions,” but prisoners making grievances must

follow certain rules and deadlines. Policy Directive Preamble. These requirements are laid out

in MDOC Policy Directive, Prisoner/Parolee Grievances (the “Policy Directive” or “PD”). “[I]t

is the prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion.” 

Jones v. Bock, 549 U.S. 199, 218 (2007). The MDOC has specific administrative procedures

that prisoners must follow to exhaust their administrative remedies.

MDOC Policy Directive 03.02.130 lays out a three-step process that prisoners must

complete before they are deemed to have exhausted their claims (Dkt. #23, Ex. E, MDOC PD

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03.02.130 (Effective March 5, 2007)). The Policy Directive first requires that, within two

business days of becoming aware of a grievable issue, a prisoner must first make an informal

attempt to resolve it, unless he is prevented from doing so by circumstances outside of his

control. PD § P. If he is dissatisfied with the result of this attempt, he may proceed to Step I of

the grievance process. On a form supplied by MDOC, the prisoner must briefly describe the

facts of the issue being grieved. PD § R. This form must be filed with a designated Grievance

Coordinator within five business days of the prisoner’s informal attempt at resolution. PD § V.

If the prisoner is dissatisfied with the Step I response, he may appeal to Step II by

obtaining an appeal form within five business days of the response and submitting the appeal

within five business days of obtaining the form. PD § BB. The Step II respondent is designated

by the Policy Directive. PD § DD. If the prisoner is still dissatisfied after receiving the Step II

response, he may appeal to Step III using the same appeal form. The Grievance and Appeals

Section, on behalf of the MDOC Director, is the respondent for Step III appeals. PD § GG.

Failure to exhaust administrative remedies is an affirmative defense under the PLRA. 

Jones, 549 U.S. at 216. Only Defendant Burtch raised the issue of non-exhaustion, thus the

analysis applies solely to him. Plaintiff pursued his grievance through Step III of the process,

therefore it is necessary to determine if he followed all necessary procedures before it can be

deemed properly exhausted. Since its amendment effective December 19, 2003, a properly filed

grievance must include the “[d]ates, times, places, and names of all those involved.” PD § R. 

Plaintiff did not name Defendant Burtch in the grievance, thus he did not comply with the

procedures and did not properly exhaust his administrative remedies against Defendant Burtch. 

Plaintiff argues that he did not know Dr. Burtch’s name at the time he filed the grievance, and by

stating “I need to see the doctor” this was sufficient to have exhausted. The Policy Directive

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 As noted in the previous section Dr. Burtch is also entitled to dismissal for Plaintiff’s

failure to exhaust.

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states that “[g]rievances may be submitted regarding alleged violations of policy or procedure or

unsatisfactory conditions of confinement.” PD § E. Plaintiff’s argument that the statement “I

need to see the doctor” satisfies this requirement is not sufficient. The gist of the grievance was

about not being placed in a tobacco-free housing unit. His statement of “I need to see the doctor

and be moved immediately” makes no direct or implied assertion that Dr. Burtch or any doctor

did anything wrong. This cannot be treated as a grievance against some unidentified doctor. 

Therefore, Plaintiff has not exhausted his claim against Defendant Burtch, and he is entitled to

dismissal. Plaintiff’s claim against Defendants Warren, Corrigan, Wilson, Markee and Folts

involves his request to be reassigned to tobacco-free housing, which was effected on March 24,

2007, two days after he filed his Step II appeal.

2. Liability of Supervisory Personnel

Liability of supervisory personnel under 42 U.S.C. § 1983 must be based on more than

the right to control employees. Hays v. Jefferson County, 668 F.2d 869 (6th Cir. 1982). A

supervisory official can only be held liable if it is shown that the individual encouraged a

specific incident of misconduct or in some way directly participated. Bellamy v. Bradley, 729

F.2d 416, 421 (6th Cir. 1984). “[L]iability under § 1983 must be based on active

unconstitutional behavior and cannot be based upon a ‘mere failure to act.’ Salehpour v.

University of Tennessee, 159 F.3d 199, 206 (6th Cir. 1998), cert. denied, 526 U.S. 1115 (1999).” 

Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999).

Plaintiff has made no showing that Defendants Warren and Burtch actively participated

in a violation of Plaintiff’s constitutional rights.2

 He merely concludes that Defendant Warren

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“is responsible for whatever happens in her facility” (Dkt. #27, p. 32), and that Defendant Burtch

“was in complete charge of all matters and staff in the health care department that concerned

prisoners [sic] medical needs and their health related issues” (Dkt. #29, p. 6-7). Because

Plaintiff has failed to show personal involvement on the part of Defendants Warren and Burtch,

they are not subject to liability as supervisory officials under 42 U.S.C. § 1983.

3. Plaintiff’s Eighth Amendment Claim

In the context of medical care, a prisoner’s Eighth Amendment right to be free of cruel

and unusual punishment is violated only when a prisoner can demonstrate that a “deliberate

indifference” has been shown to his serious medical need. Estelle v. Gamble, 429 U.S. 97, 104

(1976). To demonstrate a “deliberate indifference” to his medical needs, a prisoner must show

that Defendant’s actions rise to the level of an “unnecessary and wanton infliction of pain.” Id. at

104. Mere negligence in identifying or treating a medical need does not rise to the level of a

valid mistreatment claim under the Eighth Amendment. Id. at 106. Additionally, a prisoner

seeking to prevail on an Eighth Amendment claim under 42 U.S.C. § 1983 must also show that

his medical need is “serious.” Wilson v. Steiner, 501 U.S. 294, 297 (1991).

The Sixth Circuit has held that mere exposure to ETS, without more, does not constitute

an Eighth Amendment violation. Hunt v. Reynolds, 974 F.2d 734, 735 (6th Cir. 1992). The test

for determining deliberate indifference based on exposure to ETS has both objective and

subjective components. Helling v. McKinney, 509 U.S. 25, 35 (1993). To satisfy the objective

component, a prisoner must show a medical need that is “sufficiently serious.” Hunt at 735. The

exposure to ETS must cause more than “mere discomfort or inconvenience.” Id. To satisfy the

subjective component, a prisoner must show that prison authorities knew of, and manifested

deliberate indifference to, his serious medical needs. Helling at 32. The Supreme Court has

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consistently held that the denial of adequate medical care can violate the Eighth Amendment. 

See, e.g., DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189, 198-99 (1989).

In Talal v. White, the Sixth Circuit found that the plaintiff had sufficiently alleged a

deliberate indifference claim. 403 F.3d 423 (6th Cir. 2005). In that case, the plaintiff satisfied

the objective component of the Helling test by providing documentation showing that he was

allergic to ETS. Additionally, medical staff had recommended that he be placed in a nonsmoking unit. Id. at 427. He satisfied the subjective component of the Helling test by including

medical records and a limited activity notice that referenced his allergy and his need for a nonsmoking cell mate. He also alleged that, although there was a non-smoking policy in place, it

was not enforced. Id. at 427-28.

Here, Plaintiff has provided medical records that indicate he was treated for shortness of

breath and tightness in his chest due to exposure to second-hand smoke, and was prescribed

Albuterol (Dkt. #31, Ex. 1-B, p. 5). He also attached a copy of the Special Accommodation

Notice dated April 15, 2005, indicating he was to have a “permanent” assignment to tobacco-free

housing (Dkt. #27, Ex. 1-B, p. 6). 

Defendant Folts alleges that this Special Accommodation was superceded by one dated

May 18, 2006, which did not mention that Plaintiff required tobacco-free housing and only

mentioned special accommodations for a bottom bunk and a heat-related illness (Dkt. #18, Ex. 1-

B, p. 19, and Folts Feb. 4, 2009 affidavit, Ex. 4, ¶ 5). Yet, according to MDOC Policy Directive

04.06.160, which covers medical details and special accommodation notices (Effective 1/10/00 -

the version in effect at the time Plaintiff’s Special Accommodation Notices were issued), a

Special Accommodation Notice that is labeled “permanent” does not expire. PD § F. A

currently valid Special Accommodation Notice can only be cancelled with approval from an

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appropriate medical service provider after examination of the prisoner. PD § K. Defendants

have not furnished any proof that Plaintiff’s Special Accommodation Notice dated April 15,

2005, was ever cancelled, thus Plaintiff should have been assigned to tobacco-free housing upon

his arrival at TCF. Yet, the only Special Accommodation Order that was listed on Plaintiff’s

medical transfer form was that dated May 18, 2006, that did not mention tobacco-free housing,

and, inexplicably, Plaintiff refers specifically to this medical transfer for the proposition that

Defendants knew of his permanent tobacco-free Special Accommodation when he arrived at

TCF (Dkt. #27, p. 29). This situation differs from Talal, however, because in that case the

facility was not designated as non-smoking, and there were units in which the inmates were

allowed to smoke. Here, however, all of TCF is designated as non-smoking; the tobacco-free

housing unit is just a further restriction on the non-smoking policy.

As for the subjective component of the test, Plaintiff has provided copies of numerous

“kites” he sent to Defendants between December 23, 2006, and March 1, 2007 (Dkt. #27, Ex. 1-

B, pp. 8-21). On December 23, 2006, Plaintiff sent kites to Defendants Markee and Folts

specifically mentioning his Special Accommodation and asking to be moved. On December 29,

2006, Plaintiff sent kites to Defendants Warren, Corrigan, Wilson, Markee and Folts again

mentioning his Special Accommodation and asking to be moved. On January 4, 2007, Plaintiff

sent kites to Defendants Wilson, Markee and Folts requesting that he be moved to the tobaccofree unit. On February 28, 2007, Plaintiff sent kites to Defendants Wilson and Folts stating he

needed to get out of the Unit to which he was currently assigned. On March 1, 2007, Plaintiff

sent kites to Defendants Corrigan and Wilson stating he would not be sending any further kites

because he had not received any responses, and complaining that he could not breathe.

In their affidavits, Defendants deny ever receiving most of the kites, but in the Step I

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response to Plaintiff’s grievance dated March 15, 2007, there is an indication that Defendant

Folts received a kite from Plaintiff “approximately 2 weeks ago” (Dkt. #18, Ex. 1-A, p. 2). 

Defendant Folts acknowledged this in his affidavit as well. (Folts Feb. 4, 2009 affidavit, Dkt.

#18, Ex. 3, ¶ 6). Additionally, in his affidavit, Defendant Markee avers that on January 3, 2007,

he reviewed Plaintiff’s file and saw the April 15, 2005, Special Accommodation Notice and

“assumed that [it] was current and valid” (Markee Feb. 4, 2009 affidavit, Dkt. #18, Ex. 2, ¶ 5). 

Defendant Markee notified Defendant Folts of the Special Accommodation on January 9, 2007,

but was told that Plaintiff could not be moved to the top of the waiting list, and the facility’s

smoke-free policy mitigated the need for an immediate transfer. This is a significant difference

from Defendant Folts’ affidavit, in which he avers that he did not become aware of Plaintiff’s

request to move until early March, 2007 (Folts Feb. 4, 2009 affidavit, Dkt. #18, Ex. 3, ¶ 6). 

Although Plaintiff’s kites raise some questions (e.g., if he sent kites to five individuals and none

of them responded, why did he name only ARUS Markee in his grievance?), they, along with the

discrepancy between Markee’s and Folts’ affidavits – viewed in the light most favorable to

Plaintiff – raise enough of a genuine issue of material fact such that summary judgment would be

inappropriate, at least as to Defendant Folts. Defendant Markee’s affidavit establishes that

Defendant Folts became aware of Plaintiff’s Special Accommodation no later than January 9,

2007, yet he apparently took no remedial action until after Plaintiff filed his grievance on March

8, 2007. The unrebutted evidence is that ARUS Folts of Burns Unit was the appropriate

decision-maker for a move to that unit.

Defendant ARUS Markee’s affidavit notes Plaintiff as assigned to Markee’s Cord Unit

by Control Center staff, and Markee notified Folts about Plaintiff’s April 15, 2005, Special

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Accommodation for tobacoo-free housing, but Folts said he could not move Plaintiff to the top

of the Burns Unit waiting list. Apparently Folts did precisely that once Plaintiff filed his

grievance. Thus, it appears Markee took appropriate remedial action such that no reasonable fact

finder could find Markee deliberately indifferent. The same cannot be said with regard to

Defendant Folts. Viewed in the light most favorable to Plaintiff, a reasonable jury could

conclude that Folts was aware of Plaintiff’s Special Accommodation Notice for tobacco-free

housing on January 9, 2007, and failed to move him to the top of the waiting list for his tobaccofree unit until early March when he became aware of the grievance. This could be found to be

deliberate indifference to Plaintiff’s serious medical need.

A second theory of potential liability against the other Defendants could potentially relate

to their failure to take steps to stop illicit tobacco use in Cord Unit where Plaintiff was housed

from December 2006, to March 24, 2007, and where he asserts he was exposed to ETS. 

Defendant Folts, ARUS of Burns Unit, could not be found liable for any non-enforcement of

smoking bans in Cord Unit. All of the Defendants in their affidavits attest to the fact that the

smoking ban in the units is strictly enforced.

In his affidavit, Plaintiff claims that the ETS in his housing unit was “intolerable at

times” (Dkt. #25, ¶ 9). This allegation of disregard for the non-smoking policy in place at TCF

does not rise to the same level of specificity in Talal, where the plaintiff was able to show

numerous specific examples of disregard for the non-smoking policy by the defendants, and the

plaintiff had filed several grievances on smoking violations that had received no responses from

officials. 403 F.3d at 428. The facts in Talal on this issue are in stark contrast to those of the

present case, where Plaintiff’s sole grievance was acted upon resulting in his reassignment to

tobacco-free housing. The Sixth Circuit has held that there is no deliberate indifference where a

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prisoner fails to allege a single incident where a named defendant had knowledge of a smoking

violation and failed to act. Wilson v. Hofbauer, 113 Fed. App’x. 651, 653 (6th Cir. 2004)

(unpublished). See also Moorer v. Price, 83 Fed. App’x. 770, 773 (6th Cir. 2003) (unpublished)

(imperfect enforcement of MDOC Policy Directive 01.03.140 regarding smoking in Department

occupied buildings does not equate to deliberate indifference). In Hofbauer, the plaintiff alleged

that certain prison officials had violated his Eighth Amendment rights by not enforcing the

prison’s non-smoking policy and by not moving him into smoke-free housing. 113 Fed. App’x.

at 652. The Court held that even if the plaintiff had a serious medical need, he failed to show a

deliberate indifference to that need because he did not allege a single instance where the

defendants ignored violations of the non-smoking policy. Id. at 653. Here, Plaintiff does not list

specific instances of violations of TCF’s non-smoking policy, nor does he state which of the

Defendants had knowledge of violations. Plaintiff simply states that “smoking was, is, and has

been permitted”; “smoking continued to be widespread throughout the residential areas within

(TCF), this is a well known fact”; “there was a problem with (ETS) throughout the units . . . at

every facility in Michigan”; “[i]t is clear smoking was permitted within (TCF) and the

defendants knew”; and “in this particular instance ‘ALL’ the defendants knew smoking was

permitted in the units” (emphasis in original) (Dkt. #27, pp. 9-10, 27, 32-33). As in Hofbauer,

Plaintiff has fallen short of sustaining a claim of deliberate indifference based on disregard for a

non-smoking policy. Conclusory allegations of unconstitutional conduct are insufficient to state

a claim for relief. See Chapman v. City of Detroit, 808 F.2d 459, 465 (6th Cir. 1986). Therefore,

Plaintiff has not satisfied the subjective component of the Helling test as to Defendants Warren,

Corrigan, Wilson and Markee.

4. Qualified Immunity

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Government officials who perform discretionary functions are also generally entitled to

qualified immunity from individual liability for civil damages so long as their conduct does not

violate clearly established statutory or constitutional rights of which a reasonable person would

have known. Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997); Noble v. Schmitt, 87 F.3d 157,

160 (6th Cir. 1996); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity is an

affirmative defense and the plaintiff need not anticipate it in the complaint. Gomez v. Toledo,

446 U.S. 635, 640 (1980). Once a defense of qualified immunity is asserted, the plaintiff must

respond with “specific, non-conclusory allegations of fact that will enable the district court to

determine that those facts, if proved, will overcome the defense of qualified immunity.” Veney

v. Hogan, 70 F.3d 917, 922 (6th Cir. 1995). A Court may find it beneficial to answer two

questions when ruling upon a qualified immunity issue. One inquiry is whether, considered in

the light most favorable to the party claiming injury, the facts establish that the officer’s conduct

violated a constitutional right. Saucier v. Katz, 522 U.S. 194, 201 (2001) (citing Siegert v.

Gilley, 500 U.S. 226, 232 (1991)). The other question is whether that constitutional right was

clearly established at the time. Id.; Summar v. Bennet, 1957 F.3d 1054, 1058 (6th Cir. 1998). 

Under Saucier, it was mandated that these questions be addressed in order, but that requirement

has since been relaxed. See Pearson v. Callahan, ---- U.S. ----, 129 S.Ct. 808, 818 (2009) (“On

reconsidering the procedure required in Saucier, we conclude that, while the sequence set forth

there is often appropriate, it should no longer be regarded as mandatory.”)

The question whether an official is protected by qualified immunity does not turn on the

subjective good faith of the defendants, but rather turns on the “objective legal reasonableness”

of the action, assessed in light of the legal rules that were clearly established at the time it was

taken. Harlow, 457 U.S. at 818-19; Mackay v. Dyke, 29 F.3d 1086, 1094 (6th Cir. 1994). 

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Qualified immunity is appropriate either on the basis that the right allegedly violated was not at

the time “clearly established,” or if “clearly established,” was one that a “reasonable” person in

the defendant’s position could have failed to appreciate would be violated by his conduct. Pray

v. Sandusky, 49 F.3d 1154, 1157 (6th Cir. 1995) (quoting Anderson v. Creighton, 483 U.S. 635,

640 (1987)). Thus, even where the general rule is clearly established, it may be open to question

whether the defendant’s specific action comes within the scope of the general rule. Officials

may be entitled to qualified immunity when their decision is reasonable, even though mistaken,

in determining that their action did not fall within the scope of a clearly established general rule. 

Id.

Because, as explained above, Defendants Burtch and Warren are already entitled to

dismissal and summary judgment, respectively, qualified immunity need only apply to

Defendants Corrigan, Wilson, Markee and Folts. Based on the above analysis, there is not

sufficient evidence to support a finding of deliberate indifference by Defendants Corrigan,

Wilson and Markee, thus they did not violate Plaintiff’s Eighth Amendment rights. Therefore,

Defendants Corrigan, Wilson and Markee are entitled to qualified immunity. Yet, Defendant

Folts’ course of action, or inaction, cannot as a matter of law be found as reasonable under the

circumstances. When he first became aware of Plaintiff’s Special Accommodation on January 9,

2007, he did nothing to remedy the situation. It was not until two months later, when Plaintiff

filed his grievance, that Defendant Folts moved Plaintiff to the top of the waiting list for

tobacco-free housing. The Talal case clearly established the law in the Sixth Circuit in 2005. 

Thus, Defendant Folts’ actions could be found to have violated Plaintiff’s clearly established

Eighth Amendment rights. Therefore, Defendant Folts is not entitled to qualified immunity.

III. RECOMMENDATION

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For the reasons indicated above, it is RECOMMENDED that Defendants Warren, Corrigan,

Wilson, Markee and Burtch’s motions be GRANTED, and Defendant Folts’ motion be DENIED. 

The parties to this action may object to and seek review of this Report and Recommendation, but

are required to file any objections within ten (10) days of service of a copy hereof as provided

for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(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. Sec’y of Health and Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v.

Walters, 638 F.2d 947 (6th Cir. 1981). Filing of objections which raise some issues but fail to

raise others with specificity, will not preserve all the objections a party might have to this Report

and Recommendation. Willis v. Sec’y of Health and Human Servs., 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). 

Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this

Magistrate Judge.

Within ten (10) days of service of any objecting party’s timely filed objections, the

opposing party may file a response. The response shall be not more than twenty (20) pages in

length unless by motion and order such page limit is extended by the Court. The response shall

address specifically, and in the same order raised, each issue contained within the objections.

Date: August 7, 2009 s/Steven D. Pepe 

Ann Arbor, Michigan United States Magistrate Judge

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CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing Report and Recommendation was served

on the attorneys and/or parties of record by electronic means or U.S. Mail on August 7, 2009.

s/Deadrea Eldridge 

Generalist Deputy Clerk

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