Opinion
Case No. 2:03-CV-272.
December 3, 2010
OPINION AND ORDER
On October 18, 2010, this Court granted Defendants' Motion for Summary Judgment, Doc. No. 344, which addressed the claims asserted by Plaintiffs Eberle, Mann and Swint. Opinion and Order, Doc. No. 431. This matter is now before the Court, with consent of the parties pursuant to 28 U.S.C. § 636(c), for consideration of Plaintiff Eberle's Motion for Clarification of that Opinion and Order. Motion for Clarification, Doc. No. 436.
I.
As outlined in the Court's Opinion and Order, Plaintiffs Eberle, Mann and Swint alleged that they were engaged in protected conduct on the recreation yard of the Warren Correctional Institution on August 15, 2002 when they were "arrested" and placed in segregation. Opinion and Order, Doc. No. 431, at 2. These Plaintiffs were charged with engaging in "unauthorized group activity," although they claimed that they had been placed in segregation only because they share a similar tattoo and religious beliefs. In granting Defendants' Motion for Summary Judgment, the Court concluded that the evidence supported the unauthorized group activity charge. The Court also concluded that the evidence did not support Plaintiffs' claims that their First Amendment rights had been violated as a result of the incident on the prison recreation yard.
Plaintiff Eberle now inquires whether his claim for "selective prosecution" and "disparate treatment" in violation of the Fourteenth Amendment to the United States Constitution remains pending following the Court's Opinion and Order.
Plaintiffs Mann and Swint did not join in this motion.
II.
The Complaint alleges in pertinent part as follows:
Plaintiffs . . . were selectively prosecuted in this matter, based upon free speech (tattoo) and their religious and political beliefs (revealed by tattoo), while other similarly situated inmates were not prosecuted. . . . In short, the prohibited conduct was only prohibited [ sic] to those with the same or similar tattoo, and was not prohibited conduct for any inmate not possessing the tattoo.
The alleged prohibition of five or more inmates per group is a racially based prohibition applied only to white inmates, as it is only white groups that are told to disban [ sic] or are punished. Black inmates routinely gather in groups of 15 or more to sing "gansta rap" on the recreation yard and are never told to disperse nor are they punished.Complaint, Doc. No. 1, at ¶¶ 17-18.
In their Motion for Summary Judgment, Defendants did not expressly address a claim of selective prosecution or disparate treatment under the Fourteenth Amendment. It appears that Defendants interpreted the allegations set forth supra as asserting a retaliation claim; the reply in support of the Motion for Summary Judgment paraphrased the Complaint as alleging that Defendants had "selectively enforced" the unauthorized group activity regulation in order to retaliate against Plaintiffs for their exercise of their First Amendment rights. See Reply Memorandum, Doc. No. 360, at 13.
In opposing Defendants' Motion for Summary Judgment, Plaintiffs again argued that the regulation prohibiting unauthorized group activity had been selectively enforced. Plaintiffs' Memorandum contra, Doc. No. 351, at 5-6. Plaintiffs did not address their claim in depth, however, since "Defendants have not moved for summary judgment on that claim. . . ." Id., at 6.
Although it was not entirely clear — even to the Court — that the Complaint was intended to assert a claim of selective enforcement in violation of the Fourteenth Amendment, the Court will entertain that claim and will permit Defendants to file a motion, if they determine to do so, addressing that claim.
WHEREUPON Plaintiff Eberle's Motion for Clarification, Doc. No. 436, is GRANTED. Defendants may file a motion for summary judgment addressing the claim of selective enforcement in contravention of the Fourteenth Amendment within forty-five (45) days of the date of this Order. Plaintiff Eberle shall have twenty one (21) days to file a response to that motion, and Defendants may have fourteen (14) days to reply.
December 3, 2010
DATE