Grossman #621120 v. Federea et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SHAWN GROSSMAN #621120,
Plaintiff, 	Hon. Jane M. Beckering
v. 	Case No. 1:24-cv-623
UNKNOWN FEDEREA, et al.,
Defendants.
____________________________________/
REPORT AND RECOMMENDATION
Plaintiff, who is currently incarcerated with the Michigan Department of Corrections
(MDOC) at Macomb Correctional Facility, filed a complaint against several MDOC employees
on June 14, 2024, alleging claims pursuant to 42 U.S.C. § 1983 based on events that occurred at
the Bellamy Creek Correctional Facility (IBC) while Plaintiff was housed there in November and
December 2022. Plaintiff’s remaining claims in this case are his Eighth Amendment failure-to-
protect and state-law negligence claims against Prison Counselors (PC) Federau and Battle.1 This
matter is before me on Defendants’ Motion for Summary Judgment. (ECF No. 27.) Plaintiff has
failed to respond to the motion within the time permitted by Western District of Michigan Local
Civil Rule 7.2(c).2
1 Defendant Federau is identified as Federea in the complaint and on the docket report. However,
in their brief, Defendants refer to this Defendant as Federau. Because the summary judgment
materials, including MDOC timesheets, refer to Federau, I will use Federau herein.
2 Although Plaintiff is proceeding pro se, he is still expected to comply with the applicable court
rules. See Strohmeyer v. Chase Bank USA, N.A., No. 3:17-cv-443, 2018 WL 2669991, at *2 (E.D.
Tenn. June 4, 2018) (“It is correct that pro se parties are expected to comply with the rules of
procedure just as parties represented by counsel must do.”); Jones v. Graley, No. 2:05-cv-773,
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Pursuant to 28 U.S.C. § 636(b)(1)(B), I recommend that the Court GRANT the motion and
dismiss Plaintiff’s Eighth Amendment claim with prejudice. I further recommend that the Court
decline to exercise supplemental jurisdiction over Plaintiff’s state-law negligence claims.
I. 	Background
Plaintiff began sharing a cell with prisoner Schoening at the end of September 2022. (ECF
No. 28-6.) Plaintiff alleges that between November 1, 2022, and early December 2022, he
experienced issues with Schoening culminating in an in-cell assault by Schoening on December 5,
2022. (ECF No. 7 at PageID.28, 32–33.) These issues included being bullied, “slapped around,”
and “physically forced to do things [he did not want to] do.” Plaintiff alleges that Schoening stole
things from him, forced him to hand over his belongings, threatened him with “physical
confrontation.” (Id.) Plaintiff further alleges that Schoening exposed himself to Plaintiff and
sexually assaulted him by touching him in the buttocks and genital area. (Id. at PageID.29, 38.)
Plaintiff alleges that he told Defendants and other prison staff “all of what was going on
almost every day.” (Id. at PageID.28.) He alleges that he spoke to Defendants Federau and Battle
while doing his laundry porter job and “begged to be moved.” (Id.) Plaintiff claims that Schoening
told him that he was a gang member. Plaintiff alleges that Schoening “liked smoking K-2 and
doing Suboxone, stuff [Plaintiff did not] do.” (Id. at PageID.30.)
Plaintiff alleges that on November 17, 2022, while high on Suboxone, Schoening exposed
himself to Plaintiff and told Plaintiff to go down on him. Plaintiff told Schoening “no” and ignored
him, although Plaintiff felt “very uncomfortable” being in the same room with Schoening.
Afterwards, Schoening became physical with Plaintiff by smacking him around and punching him.
2006 WL 1697637, at *1 (S.D. Ohio June 20, 2006) (although federal courts have treated pro se
litigants more leniently, they “are still expected to comply with the procedural rules of the court”).
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(Id.) Plaintiff alleges that he told Defendant Federau about this incident, absent the “exposing”
details, the following day. Plaintiff claims that in response to his report of being bullied and
physically abused by Schoening, Federau told Plaintiff “to knock the piss out of him.” (Id. at
PageID.31.)
Plaintiff alleges that he spoke to Defendants Federeau and Battle on December 4, 2022,
and told them that “something was going to happen to [him].” (Id.) In the evening on December
5, 2022, Schoening had been drinking “spud juice” and was “yelling and screaming across the hall
to his gang member friends[,] being obnoxious.” (Id. at PageID.32.) Schoening left the cell for
about an hour for a legal mail callout and resumed drinking when he returned. Plaintiff was asleep
and woke up to Schoening screaming and yelling. Although Plaintiff turned on his TV and put his
headphones on to try to ignore Schoening, Schoening approached Plaintiff and tried to knock
Plaintiff’s player out of his hand. Plaintiff told Schoening to stop touching him and continued to
play on his tablet. However, a few minutes later, Schoening walked up to Plaintiff again and
slapped him and began punching Plaintiff in the face as Plaintiff screamed for help. The next thing
Plaintiff knew, he was waking up “in a pool of [his] own blood on the concrete floor.” (Id. at
PageID.33.) Plaintiff got up and hit the emergency button and tried to yell for help, but Schoening
struck Plaintiff again and threw him to the floor. (Id.) Schoening threatened Plaintiff if he snitched
on Schoening. (Id.)
During rounds, non-party Officer Henderson noticed signs of a physical altercation in
Plaintiff’s cell. The officer saw Plaintiff covered in blood and trying to clean himself and saw that
Schoening’s knuckles were bruised and had blood on them. (ECF No. 28-3 at PageID.196.)
Following interviews with Sgt. Gren, Plaintiff and Schoening were both issued misconduct reports
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for fighting. (Id. at PageID.189, 196, 202.) Following a misconduct hearing on December 13, 2022,
Plaintiff was found guilty of fighting. 3 (Id. at PageID.193–94.)
In his deposition, Plaintiff confirmed that between November 1 and December 4, 2022, he
spoke with Defendants Federeau and Battle on various occasions requesting a cell change due to
Schoening’s abusive and threatening behavior toward him. (ECF No. 28-2 at PageID.166–67.)
Plaintiff stated that both Defendants advised him to ask for protective custody, but he declined
because he only needed a cell change rather than protective custody. (Id. at PageID.161–62; 168–
69.) Plaintiff testified that he told Defendants that Schoening was a gang member and a drug addict
and was touching Plaintiff, being violent and threatening him, and taking his belongings. (Id. at
PageID.161.)
On November 13, 2022, Plaintiff sent Defendant Federau a letter requesting to be moved
to another cell. In his letter, Plaintiff told Federau that Schoening was a Vice Lord gang member,
did drugs, and had grabbed Plaintiff by the throat and threatened to kill him. Plaintiff also indicated
that Schoening had been going through his locker and stealing his hygiene and food items. Plaintiff
asked Defendant Federau to keep the information confidential. (Id. at PageID.162–63.) Plaintiff
also said that he spoke with Defendant Federeau on November 18, 2022, the day following the
November 17, 2022 incident with Schoening. (Id. at PageID.175–76.) Plaintiff spoke to Defendant
Battle on at least three or four occasions regarding his cell change request. (Id. at PageID.176.)
Plaintiff told Battle that Schoening had grabbed him by the throat and was using his hygiene
products. (Id. at PageID.178.) Plaintiff also wrote a letter to Battle on December 4, 2022, asking
3 During the investigation, Plaintiff gave several conflicting versions of the December 5, 2022
incident. The Administrative Law Judge discussed the different versions and found Plaintiff’s
claim that he did not strike Schoening not credible in light of Plaintiff’s inconsistent statements.
(Id. at PageID.194–95.)
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to be moved “before something serious happens to me.” Plaintiff also indicated that he was being
“kept in a hostile environment.” (Id. at PageID.165.)
In support of their motion for summary judgment, Defendants have submitted Defendant
Federau’s timesheet, which shows that he did not work on November 18, 2022—the date Plaintiff
claims he spoke with Defendant Federau about the November 17, 2022 incident with Schoening.
(ECF No. 28-7 at PageID.230.) Likewise, both Defendants submitted their timesheets for
December 4, 2022, which show that they did not work on that date, thus undercutting Plaintiff’s
claim that he spoke to both Defendants that day. (Id. at PageID.231–32.)
As noted, Plaintiff claims he submitted four grievances regarding his request for a cell
change. Plaintiff’s first grievance, IBC 22-11-1862-28I, listed an incident date of October 24,
2022, and concerned his indigent and order status. He also indicated that his lack of hygiene
products was causing “issues with inmates and bunkie.” (ECF No. 28-6 at Page ID.219.) This
grievance was rejected based on Plaintiff’s lack of attempt to resolve it with the involved staff
member. (Id.)
Plaintiff wrote his next grievance on November 27, 2022, regarding an incident on
November 23, 2022. In this grievance, IBC 22-11-2044-03B, Plaintiff complained of “having
serious issues with [his] bunkie” and “being kept in a hostile environment.” He suggested being
moved to a cell with one of his friends in 112T, 202T or 202B. (Id. at PageID.220.) Defendant
Battle responded to the grievance, summarizing it as Plaintiff’s complaint “that he should choose
who he wants to lock with and he doesn’t like his bunky and wants to lock with his friends.” (Id.
at PageID.221.) In denying the grievance, Defendant Battle noted that Plaintiff and Schoening had
“been residing in the sam[e] []cell (sic) since 9/28/2022 without issues and prisoners do not get to
decide nor dictate who they reside with.” (Id.)
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Plaintiff wrote his third grievance on December 4, 2022, regarding a December 1, 2022
incident. In this grievance, IBC 22-12-2107-28A, Plaintiff requested “a room change no matter
where it is,” and complaining of “being kept in a hostile environment even after making staff aware
that my life was threaten (sic), several times[;] almost physical confrontation.” (Id. at PageID.222.)
This grievance was rejected by a non-party MDOC employee as duplicative of the previous
grievance. (Id.) Plaintiff wrote his last grievance on December 12, 2022, after the date of the
altercation with Schoening. (Id. at PageID.224.)
II. 	Motion Standard
Summary judgment is appropriate if there is no genuine issue as to any material fact, and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Material facts
are facts that are defined by substantive law and are necessary to apply the law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if a reasonable jury could return
judgment for the non-moving party. Id.
The court must draw all inferences in a light most favorable to the non-moving party but
may grant summary judgment when “the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party.” Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th
Cir. 1992) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
Generally, where the non-moving party fails to respond to a motion for summary judgment,
“the district court must, at a minimum, examine the moving party’s motion for summary judgment
to ensure that it has discharged its initial burden.” Miller v. Shore Fin. Servs., Inc., 141 F. App’x
417, 419 (6th Cir. 2005) (citing Stough v. Mayville Cmty. Sch., 138 F.3d 612, 614 (6th Cir. 1998)).
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III. 	Discussion
Plaintiff’s failure-to-protect claim is governed by essentially the same standards as a claim
for deliberate indifference to an inmate’s serious medical needs. That is, a plaintiff must establish
that the defendant was deliberately indifferent to “a substantial risk” that he might suffer “serious
harm.” Greene v. Bowles, 361 F.3d 290, 294 (6th Cir. 2004) (quoting Farmer v. Brennan, 511 U.S.
825, 828 (1994)). The claim has both an objective and a subjective component. To satisfy the
objective component, the plaintiff must show that, absent reasonable precautions, he was exposed
to a substantial risk of serious harm. Farmer, 511 U.S. at 836. To satisfy the subjective component,
the plaintiff must show that the defendant acted with deliberate indifference. That is, the plaintiff
must demonstrate that the defendant was “subjectively aware of the risk,” but failed “to take
reasonable measures to abate it.” Greene, 361 F.3d at 294 (quoting Farmer, 511 U.S. at 829, 847).
More specifically, the plaintiff must demonstrate that: (1) the defendant was aware of facts from
which the inference could be drawn that a substantial risk of harm would exist if reasonable
measures were not taken; (2) the defendant actually drew the inference; and (3) the defendant
disregarded that risk. Id. at 837. To prevail on the specific claim that a defendant failed to protect
him from an assault by another inmate, the plaintiff must establish: (1) the defendant had reason
to believe another inmate would assault plaintiff; and (2) the defendant had both the opportunity
and means to prevent the assault. See, e.g., Burgess v. Fischer, 735 F.3d 462, 475 (6th Cir. 2013).
A. 	Misconduct Findings
Defendants contend that Plaintiff’s failure-to-protect claim is barred by the Administrative
Law Judge’s (ALJ) findings in the major misconduct proceeding, which have preclusive effect. I
disagree that the findings, even if given preclusive effect, bar Plaintiff’s claim. In Peterson v.
Johnson, 714 F.3d 905 (6th Cir. 2013), the Sixth Circuit held that an ALJ’s findings from a major
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misconduct hearing may be given preclusive effect where: (1) the state agency acted in a judicial
capacity; (2) the hearing officer resolved a disputed fact that was properly before him; (3) the party
to be precluded had an adequate opportunity to litigate the factual dispute; and (4) if the other three
criteria are satisfied, the finding is given the same preclusive effect as it would be given in state
courts. Id. at 912–13.
While I find that the Peterson factors are satisfied because the misconduct hearing
materials show that the ALJ acted in a judicial capacity and resolved a disputed issue of fact, i.e.,
whether Plaintiff had fought with Schoening, and Plaintiff had an adequate opportunity to litigate
the factual dispute, the ALJ’s finding that Plaintiff engaged in fighting does not answer the
question of whether Defendants failed to protect Plaintiff from Schoening’s assault. Board v.
Radtke, No. 2:20-cv-126, 2020 WL 5651796 (W.D. Mich. Sept. 23, 2020), which, Defendants
point out, involved substantially similar facts, is distinguishable because the claim at issue there
was retaliatory issuance of a false misconduct. Id. at *6–8. Here, Plaintiff does not assert a
retaliation claim based on a false misconduct ticket. Had the ALJ determined that Plaintiff initiated
the fight with Schoening, Defendants’ argument would be more persuasive regarding Plaintiff’s
failure-to-protect claim. This was the situation in Martin v. Randall, No. 1:22-cv-123, 2025 WL
2496096, at *5–6 (W.D. Mich. Aug. 5, 2025), report and recommendation adopted, 2025 WL
2495618 (W.D. Mich. Aug. 29, 2025), where the court found the ALJ’s finding that the plaintiff
had a weapon and initiated an attack on the other prisoner preclusive of the plaintiff’s failure-to-
protect claim. Thus, this argument lacks merit.
B. 	Deliberate Indifference
I find that Defendants have carried their summary judgment burden on both the objective
and subjective components of Plaintiff’s claim. The Sixth Circuit’s decision in Reedy v. West, 988
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F.3d 907 (6th Cir. 2021), is instructive on the instant set of facts. In Reedy, the plaintiff had issues
with his cellmate. After speaking with his assistant resident unit supervisor about threats to his life
that his cellmate had made, the plaintiff spoke to the defendant prison counselor about the threats.
The defendant allegedly said, “I’ll get back with you.” Id. at 910. Six days later, the plaintiff and
his cellmate spoke with the defendant in his office, where the plaintiff heard the defendant tell his
cellmate, “do what you got to do.” When the plaintiff had his turn to speak with the defendant, he
responded “yes” to the defendant’s inquiry whether he feared for his safety. The defendant
allegedly replied that the cellmate was not going to do anything and that if the cellmate wanted a
transfer, he should “hit me and I’ll send him so far up north with paperwork up his . . . .” Id. The
defendant testified that he met with the plaintiff and his cellmate and told them they were adults
and needed to figure this out. Id. at 911. Then, the plaintiff returned to the defendant’s office and
told him that he and his cellmate had talked, and everything was good. Id. Shortly thereafter, the
plaintiff’s cellmate assaulted him with a softball-sized rock in a laundry bag while the plaintiff was
asleep. Id.
In discussing the objective component of the plaintiff’s claim—whether the plaintiff was
“incarcerated under conditions posing a substantial risk of serious harm,” id. at 912 (quoting
Farmer, 511 U.S. at 834)—the court indicated that there was no evidence suggesting that the
plaintiff was particularly vulnerable to an assault, due to either his physical characteristics or his
specific circumstances, id. at 913. The court further noted that the plaintiff had testified that his
relationship with his cellmate was generally good and there was no evidence that prior to the
assault, the cellmate had harmed the plaintiff, had a violent criminal history, or was ever involved
in a physical altercation in prison. Id. As to the plaintiff’s allegations that he told the defendant
that his cellmate had threatened him and he and/or his cellmate needed to move or do something
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about the situation, the court found that these were simply conclusory statements unadorned by
supporting facts. Id. In short, the court noted that the issue between the plaintiff and his cellmate
was simply that they “were just too different to live with each other,” which was insufficient to
demonstrate the objective component of a failure-to-protect claim. Id. at 914.
Regarding the subjective component, the court found the evidence lacking because the
plaintiff was not assigned to the defendant and only spoke to him about the issue in two brief
instances. The court found that these brief exchanges were insufficient to render the defendant
subjectively aware of the risks that the cellmate posed to the plaintiff’s safety. Id. As to the
cellmate’s statements to the defendant that “[y]ou guys got to move this motherfucker out of my
cell” or “whatever happens . . . is going to be onto [you],” and that he was “going to do what he’s
got to do[,]” the court found them insufficient to show subjective awareness because “‘threats
between inmates are common and do not, under all circumstances, serve to impute actual
knowledge of a substantial risk of harm.’” Id. at 915 (quoting Varmado-El v. Martin, 52 F. App’x
764, 765–66 (6th Cir. 2002)). The court also noted that the defendant’s response to the cellmate’s
statement directing the two prisoners to “get this figured out” showed that the defendant did not
perceive a substantial risk of harm. Id. Finally, the court observed that the plaintiff did not belong
to a class of prisoners particularly vulnerable to assault, that the defendant was unaware of any
information suggesting that the cellmate had a propensity for violence, had assaulted anyone, or
was disciplined in prison, and that was no evidence of “a substantial risk that was ‘longstanding,
pervasive, well-documented, or expressly noted by prison officials in the past.’” Id. at 915–16
(quoting Farmer, 511 U.S. at 842).
Here, Plaintiff fails to meet the objective component because he presents no evidence
showing that he was confined in conditions giving rise to a substantial risk of serious harm. As in
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Reedy, there is no evidence that Plaintiff was particularly vulnerable to assault or that Schoening
had a propensity for violence. Although Plaintiff alleges that Schoening was a gang member,
Plaintiff has not responded to the motion with evidence showing that Schoening had a history of
assaulting other prisoners or had engaged in otherwise violent behavior while a prisoner in the
MDOC system. Defendants also have presented Plaintiff’s testimony that in response to his
requests to move to a different cell, Defendants advised him to request protective custody, but he
declined to do so. This is further evidence indicating that Plaintiff was not facing a substantial risk
of serious harm.
Turning to the subjective prong, Plaintiff’s contact with Defendant Federau, and to a lesser
degree, with Defendant Battle, was more substantial than the plaintiff’s contact with the defendant
in Reedy. Plaintiff alleges that he spoke to Defendants regularly about a cell change while he was
performing his laundry porter job. (ECF No. 28-2 at PageID.23.) But Plaintiff’s multiple requests
for a cell change, even when coupled with his reports to Defendants that Schoening had grabbed
him by the throat and threatened to kill him, are not alone sufficient to show that Defendants were
deliberately indifferent. See Hall v. Cole, No. 2:23-cv-28, 2025 WL 2318472, at *3 (W.D. Mich.
Aug. 12, 2025) (“An inmate’s mere insistence of danger, even if expressed to Defendants, does
not show that Defendants ‘subjectively perceive[d]’ a real threat.”) (quoting Reedy, 988 F.3d at
915). Other than his own statements to Defendants, Plaintiff offers no evidence—such as
Schoening’s record of prior assaults or fights with other prisoners—showing that Defendants were
aware that Schoening presented a substantial risk of serious harm to Plaintiff. Furthermore,
Defendants could rightfully infer from Plaintiff’s decision not to request protective custody that
any risk of harm Schoening posed was not serious. In fact, as noted above, Defendant Battle
investigated Plaintiff’s November 27, 2022 grievance and found that Plaintiff and Schoening had
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been housed together since late September 2022 without any issue. In short, the evidence shows
that while Defendants were aware that Plaintiff was having issues with Schoening, it does not
create a genuine issue of fact for a jury that Defendants were subjectively aware that housing
Plaintiff with Schoening created a substantial risk of harm.
C. 	State-Law Claims
Finally, if the Court agrees with the foregoing recommendation to grant summary judgment
on Plaintiff's Eighth Amendment claims, I recommend that it exercise its discretion to decline
supplemental jurisdiction and dismiss Plaintiff’s state-law negligence claims against Defendants
without prejudice pursuant to 28 U.S.C. § 1367(c)(3). Generally, the Court should decline to hear
state-law claims when all federal claims are dismissed before trial. See Musson Theatrical, Inc. v.
Federal Express Corp., 89 F.3d 1244, 1254–55 (6th Cir. 1996) (“When all federal claims are
dismissed before trial, the balance of considerations usually will point to dismissing the state law
claims, or remanding them to state court if the action was removed.”) (citing Carnegie–Mellon v.
Cohill, 484 U.S. 343, 350 n.7 (1988)). Because no federal claims will remain, the state-law claims
are properly dismissed.
IV. 	Conclusion
For the foregoing reasons, I recommend that the Court grant Defendants’ motion for
summary judgment (ECF No. 27), dismiss Plaintiff’s Eighth Amendment claims with prejudice,
and dismiss Plaintiff’s state-law negligence claims without prejudice.
I further recommend that an appeal of this matter would not be taken in good faith. See
McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997); 28 U.S.C. § 1915(a)(3).
Dated: December 1, 2025 	/s/ Sally J. Berens
SALLY J. BERENS
U.S. Magistrate Judge
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NOTICE
OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court
within 14 days of the date of service of this notice. 28 U.S.C. § 636(b)(1)(C). Failure to file
objections within the specified time waives the right to appeal the District Court’s order. See
Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
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