Opinion
2:20-cv-00247
02-24-2023
VALIANT LEON WHITE #225440, JR., Plaintiff, v. UNKNOWN PERRON, et al., Defendants.
Hon. Janet T. Neff U.S. District Judge
REPORT AND RECOMMENDATION
MAARTEN VERMAAT U.S. MAGISTRATE JUDGE
I. Introduction
This Report and Recommendation (R&R) addresses summary judgment motions filed by Plaintiff (ECF No. 41) and the three remaining Defendants (ECF No. 47).
The Plaintiff in this case - state Prisoner Valiant Leon White - filed this civil rights action pursuant to 42 U.S.C. § 1983 for conduct that occurred while he was incarcerated at the Chippewa Correctional Facility (URF). (ECF No. 1.) White originally asserted claims against twelve Defendants, each of whom was employed by the Michigan Department of Corrections (MDOC). On August 30, 2021, the Court issued an opinion and order dismissing all of White's claims except for one First Amendment retaliation claim against URF Corrections Officers (COs) Behm and Perron and URF Hearings Investigator Durant. (ECF Nos. 3 and 4.) Plaintiff's verified complaint alleged that the two COs retaliated against him by working together to write a false sexual misconduct ticket. A portion of this allegedly false misconduct ticket is shown below.
(IMAGE OMITTED) (ECF No. 1-4, PageID.43.)
White also asserts that Hearings Investigator Durant retaliated against him after investigating the misconduct ticket by removing two type-written statements from the hearing package, forging his own handwritten statements, and forging witness signatures. (ECF No. 1, PageID.8.) White also says that Hearings Investigator Durant refused to provide him with a copy of the hearing packet. (Id., PageID.10.)
On March 1, 2019, White was found not guilty of the misconduct by the Hearing Officer because the Hearing Officer could not conclude who was more credible. The Hearing Officer explained his findings as follows:
(IMAGE OMITTED) (ECF No. 1-4, PageID.42.)
The undersigned respectfully makes the following recommendations. First, it is recommended that the Court dismiss White's retaliation claim against Durant because the record before the Court shows that Durant took no adverse action against White while conducting the misconduct ticket investigation. Second, it is recommended that the Court deny the motion as to COs Behm and Perron because they failed to establish the lack of genuine issues of material fact entitling them to summary judgment on White's retaliation claim. Third, it is recommended that the Court dismiss the official capacity claims asserted against all Defendants. Finally, it is recommended that the Court deny White's motion for summary judgment because White has failed to show that there exists no genuine issue of material fact entitling him to judgment against Defendants.
II. Summary Judgment Standard
Summary judgment is appropriate when the record reveals that there are no genuine issues as to any material fact in dispute and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Kocak v. Comty. Health Partners of Ohio, Inc., 400 F.3d 466, 468 (6th Cir. 2005). The standard for determining whether summary judgment is appropriate is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” State Farm Fire & Cas. Co. v. McGowan, 421 F.3d 433, 436 (6th Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The court must consider all pleadings, depositions, affidavits, and admissions on file, and draw all justifiable inferences in favor of the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Twin City Fire Ins. Co. v. Adkins, 400 F.3d 293, 296 (6th Cir. 2005).
III. Retaliation
Retaliation based upon a prisoner's exercise of his or her constitutional rights violates the Constitution. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). In order to set forth a First Amendment retaliation claim, a plaintiff must establish that: (1) he was engaged in protected conduct; (2) an adverse action was taken against him that would deter a person of ordinary firmness from engaging in that conduct; and (3) the adverse action was motivated, at least in part, by the protected conduct. Id.
After a prisoner establishes the first two elements, the prisoner must be able to prove that the exercise of the protected right was a substantial or motivating factor in the defendant's alleged retaliatory conduct. Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001) (citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).
The Sixth Circuit has also employed a burden-shifting approach with respect to the causation element:
Once the plaintiff has met his burden of establishing that his protected conduct was a motivating factor behind any harm, the burden of production shifts to the defendant. If the defendant can show that he would have taken the same action in the absence of the protected activity, he is entitled to prevail on summary judgment.Thaddeus-X, 175 F.3d at 399.
a. Protected Conduct
Defendants first argue that White failed to engage in protected conduct by threatening to write a grievance on CO Behm for her use of the internet at work to conduct personal business. White complained that this conduct jeopardized his personal safety and cost taxpayers' money.
The Sixth Circuit has explained that “protected conduct includes a prisoner's ‘undisputed First Amendment right to file grievances against prison officials on his own behalf.'” Hill v. Lappin, 630 F.3d 468, 472 (6th Cir. 2010) (quoting Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000)). “If the grievances are frivolous, however, this right is not protected.” Id. Prisoners “cannot exercise that right in a manner that violates legitimate prison regulations or penological objectives.” Smith v. Campbell, 250 F.3d 1032, 1037. “‘Abusive or manipulative use of a grievance system [is] not ... protected conduct,' and prison officials may take action in response to the prisoner's improper use of the grievance process as long as the response aligns with a legitimate penological goal.” Griffin v. Berghuis, 563 Fed.Appx. 411, 416 (6th Cir. 2014) (quoting King v. Zamiara, 680 F.3d 686, 699 (6th Cir. 2012)).
Beyond the general acknowledgment that grievances used to abuse or manipulate the grievance system are frivolous, limited authority exists as to what renders a grievance frivolous. As acknowledged by the Sixth Circuit in Maben v. Thelen, “cases in this Circuit appear to suggest that a prisoner's grievance is frivolous when the underlying grievance itself is de minimis.” 887 F.3d 252, 264-65 (6th Cir. 2018) (collecting cases). This Court has also found grievances involving “verifiably untrue” allegations to be frivolous. Chrzan v. Mackay, No. 1:19-cv-116, 2020 WL 7774741, at *3 (W.D. Mich. Nov. 30, 2020) (finding that the plaintiff's grievance was frivolous where a video recording of the underlying event contradicted the allegations in the grievance), report and recommendation adopted, No. 1:19-cv-116, 2020 WL 7773419 (W.D. Mich. Dec. 30, 2020). Similarly, the Sixth Circuit held that a prisoner's grievance complaining about conduct that had no impact on the prisoner was frivolous. Thaddeus-X v. Love, No. 98-2211, 2000 WL 712354, at *2-3 (6th Cir. May 22, 2000) (finding that a grievance complaining about a prison employee eating at his desk was “patently frivolous as the defendant's conduct had no adverse impact on [the plaintiff]”).
For example, in White-Bey v. Griggs, the Sixth Circuit found that a prisoner's grievance that he was provided a typewriter rather than a computer was frivolous. 43 Fed App'x 792 794 (6th Cir 2002)
Similarly, in the opinion of the undersigned, White's threat to file a grievance against CO Behm for using the internet had no impact on White and would not be considered protected conduct because it would be a frivolous grievance.
White, however, alleged that he had filed several other grievances. Defendants did not address allegations regarding White's other grievances in their motion. As shown below, White's complaint alleges that the Defendants' adverse action was based upon multiple grievances that he had filed, and not just because he had threatened to file a grievance due to CO Behm's use of the internet:
(IMAGE OMITTED) (ECF No. 1, PageID.8.)
In the opinion of the undersigned, White asserted sufficient allegations in his complaint showing that he had engaged in protected conduct by filing several grievances before he received the allegedly false misconduct ticket. Those claims are not disputed in Defendants' motion.
b. Adverse Action
1. CO Behm and CO Perron
Defendants CO Behm and CO Perron do not contest that the misconduct ticket satisfies the adverse action element of a retaliation claim.
2. Investigator Durant
White claims that Investigator Durant discussed the misconduct ticket with Prisoner Day and Prisoner Alexander. White says that Investigator Durant received typed statements from these witnesses, but that he omitted the typed statements in his hearing report and instead provided the Hearing Officer with forged handwritten statements that he had signed.
Investigator Durant attests that White provided names of the two prisoner witnesses and he spoke with those witnesses as part of his investigation. (ECF No. 48-4, PageID.355 (Affidavit of Investigator Durant).) Investigator Durant states that he was not provided with type-written statements from either Prisoner Day or Prisoner Alexander. (Id.) Investigator Durant did, however, include a type written statement he received from Prisoner Stanton in the hearing packet. (Id.)
White, however, says that Prisoner Day provided the following type-written statement dated February 18, 2019, on February 22, 2019:
(IMAGE OMITTED) (ECF No. 56-3, PageID.443, ECF No. 1-4, PageID.49.)
White says that Investigator Durant wrote the following statement after interviewing Prisoner Day:
3. Were you at the scene of the Incident or violation [Redacted]
4. Exactly what did you see, hear, or have to do with [Redacted](ECF No. 56-3, PageID.439, ECF No. 1-4, PageID.45.)
White says that Prisoner Alexander submitted the following type-written statement, dated February 19, 2019, on February 22, 2019:
(IMAGE OMITTED) (ECF No. 56-3 PageID.444 ECF No. 1-4 PageID.50.)
And White says that Investigator Durant wrote the following report after interviewing Prisoner Alexander:
3. Were you af the scene of the incident or violation [Redacted]
4. Exactly what did you see, hear, or have to do with [Redacted](ECF No. 56-3, PageID.440, ECF No. 1-4, PageID.46.)
In the opinion of the undersigned, White has failed to establish a genuine issue of fact regarding whether Investigator Durant took adverse actions against him by investigating the misconduct ticket and submitting an investigation packet to the Hearing Officer. White's specifically says that Durant removed type-written statements by Day and Alexander, “forged” replacement statements for them and forged their signatures. (ECF No. 1, PageID.10.) As an initial matter, it is undisputed that Durant interviewed Prisoners Day and Alexander. In addition, the reports submitted by Durant are not forgeries; they are what Durant says they are: his own reports of his interviews with Day and Alexander, which, as shown, bear his signature. So White is simply wrong when he says that Durant forged the two reports he submitted. But the more significant logical problem White faces is that Durant's interview reports are still favorable to White. White fails to explain why a favorable interview report still constitutes an adverse action. Indeed, the undersigned cannot read Durant's reports of his interviews with Day and Alexander and conclude that these reports constituted an adverse action taken against White that would deter a person of ordinary firmness from engaging in some form of protected conduct. Thus, the undersigned concludes that White has failed to establish a genuine issue of material fact with regard to his retaliation claim against Durant. It is respectfully recommended that the Court dismiss Investigator Durant from this action.
c. Causation - CO Behm and CO Perron
CO Behm says that she would have issued the misconduct ticket regardless of whether White had engaged in protected conduct. CO Behm asserts that on February 14, 2019, she observed White when he “smiled, winked and licked his lips while having his hand over his groin area.” (ECF No. 1-4, PageID.43; ECF No. 48, PageID.337.) CO Behm argues that she has demonstrated that she would have written the misconduct ticket regardless of White's protected activity. Conversely, White denies this conduct and as set forth above he was found not guilty of the misconduct ticket after a hearing.
CO Perron asserts that he never encouraged CO Behm to write a false misconduct ticket and never wrote a false misconduct ticket during his career as a corrections officer. (ECF No. 48-3, PageID.352 (Affidavit of CO Perron).) CO Behm confirms that CO Perron never encouraged her to file false misconduct tickets. (ECF No. 48-2, PageID.348 (Affidavit of CO Behm).) White claims that CO Perron solicited CO Behm to issue a false sexual misconduct ticket against him to have him placed into segregation due to his grievance submissions. (ECF No. 56-6, PageID.453 (Affidavit of White).)
In the opinion of the undersigned, Defendants Behm and Perron's denials of White's allegations that they were both involved in submitting a false misconduct ticket against him, fail to establish that no genuine issue of fact exists on the retaliation element of causation.
IV. Qualified Immunity
Alternatively, Defendants argue that they are entitled to the defense of qualified immunity. Defendants argue that they are entitled to qualified immunity for the exact same reasons that they argue that no genuine issue of fact exists to support White's retaliation claims against them.
“Under the doctrine of qualified immunity, ‘government officials performing discretionary functions generally are shielded 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.'” Phillips v. Roane Cty., 534 F.3d 531, 538 (6th Cir. 2008) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Once a defendant raises the qualified immunity defense, the burden shifts to the plaintiff to demonstrate that the defendant officer violated a right so clearly established “that every ‘reasonable official would have understood that what he [was] doing violate[d] that right.'” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The analysis entails a two-step inquiry. Martin v. City of Broadview Heights, 712 F.3d 951, 957 (6th Cir. 2013). First, the court must “determine if the facts alleged make out a violation of a constitutional right.” Id. (citing Pearson v. Callahan, 555 U.S. 223, 232 (1982)). Second, the court asks if the right at issue was “‘clearly established' when the event occurred such that a reasonable officer would have known that his conduct violated it.” Id. (citing Pearson, 555 U.S. at 232). A court may address these steps in any order. Id. (citing Pearson, 555 U.S. at 236). A government official is entitled to qualified immunity if either step of the analysis is not satisfied. See Citizens in Charge, Inc. v. Husted, 810 F.3d 437, 440 (6th Cir. 2016).
In applying the first step of the qualified immunity analysis, a court must identify “the specific constitutional right allegedly infringed” and determine whether a violation occurred. Graham v. Connor, 490 U.S. 386, 394 (1989). The court considers the state of the law at the second step. As the Supreme Court has observed, “this Court's case law does not require a case directly on point for a right to be clearly established, [but] existing precedent must have placed the statutory or constitutional question beyond debate.” White v. Pauly, 137 S.Ct. 548, 551 (2017) (internal quotation marks and original brackets omitted) (quoting Mullenix v. Luna, 136 S.Ct. 305, 308 (2015)). As explained by the Supreme Court:
To be clearly established, a legal principle must have a sufficiently clear foundation in then-existing precedent. The rule must be “settled law,” Hunter v. Bryant, 502 U.S. 224, 228, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam), which means it is dictated by “controlling authority” or “a robust ‘consensus of cases of persuasive authority,' ” al-Kidd, supra, at 741-742, 131 S.Ct. 2074 (quoting Wilson v. Layne, 526 U.S.
603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)). It is not enough that the rule is suggested by then-existing precedent. The precedent must be clear enough that every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply. See Reichle, 566 U.S., at 666, 132 S.Ct. 2088. Otherwise, the rule is not one that “every reasonable official” would know. Id., at 664, 132 S.Ct. 2088 (internal quotation marks omitted).
The “clearly established” standard also requires that the legal principle clearly prohibit the officer's conduct in the particular circumstances before him. The rule's contours must be so well defined that it is “clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). This requires a high “degree of specificity.” Mullenix v. Luna, 577 U.S.___,___ 136 S.Ct. 305, 309, 193 L.Ed.2d 255 (2015) (per curiam). We have repeatedly stressed that courts must not “define clearly established law at a high level of generality, since doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced.” Plumhoff, supra, at 2023 (internal quotation marks and citation omitted). A rule is too general if the unlawfulness of the officer's conduct “does not follow immediately from the conclusion that [the rule] was firmly established.” Anderson, supra, at 641, 107 S.Ct. 3034. In the context of a warrantless arrest, the rule must obviously resolve “whether ‘the circumstances with which [the particular officer] was confronted ... constitute[d] probable cause.'” Mullenix, supra, at 309 (quoting Anderson, supra, at 640-641, 107 S.Ct. 3034; some alterations in original).D.C. v. Wesby, 138 S.Ct. 577, 589-90 (2018).
For the reasons discussed above, it is recommended that Investigator Durant is alternatively entitled to qualified immunity because no genuine issue of fact exists to establish that he engaged in retaliatory action against White. Additionally, for the reasons stated, it is recommended that the Court deny Behm and Perron's argument that they are entitled to qualified immunity because they have failed to show that there exists a lack of a genuine issue of fact on White's retaliation claim against them.
V. Official Capacity Claim
To the extent that White seeks damages based on claims against Defendants in their official capacities, his claims are barred by the Eleventh Amendment. The Supreme Court has held “that neither a State nor its officials acting in their official capacities are ‘persons' under § 1983.” Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989).
A suit against a state official in his or her official capacity for damages cannot be maintained pursuant to § 1983 because that official has Eleventh Amendment immunity. This is true because “a suit against a state official in her or her official capacity is not a suit against the official but rather is a suit against the official's office.” As such, a suit against a state official in his or her official capacity is no different than a suit against the state.Clark v. Chillicothe Corr. Inst., No. 2:19-CV-954, 2020 WL 1227224, at *3 (S.D. Ohio Mar. 13, 2020) (citations omitted).
The Sixth Circuit, in interpreting Will, has held “that plaintiffs seeking damages under § 1983 [must] set forth clearly in their pleading that they are suing the state defendants in their individual capacity for damages, not simply in their capacity as state officials. Wells v. Brown, 891 F.2d 591, 592 (6th Cir. 1989). To the extent that White seeks money damages, costs, and fees from Defendants in their official capacity, that part of his lawsuit is barred by sovereign immunity.
“There are three exceptions to a State's sovereign immunity: (a) when the State has consented to suit; (b) when the exception first set forth in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), applies; and (c) when Congress has properly abrogated a State's immunity.” S' & M Brands, Inc. v. Cooper, 527 F.3d 500, 507 (6th Cir. 2008). Only the second exception is potentially at issue here. “Under the Ex parte Young exception, a federal court can issue prospective injunctive and declaratory relief compelling a state official to comply with federal law” Id. White's requests for injunctive relief against Defendants involve alleged violations of state law and requests to issue felony complaints under state law. (ECF No. 1, PageID.27.) White's state law claims have been dismissed and these requests are no longer pending in this case (ECF No 3 and 4)
VI. White's Motion for Summary Judgment White argues that there is no dispute that CO Behm and CO Perron filed a false misconduct ticket against him and that he is therefore entitled to summary judgment. (ECF No. 41, PageID.284.) White further argues that Defendants are precluded from arguing otherwise based upon the Hearing Officer's finding that he was not guilty of the misconduct. First, as set forth above, there are unresolved factual issues on White's retaliation claims against CO Behm and CO Perron. Second, White's claim that Defendants are precluded from arguing that the misconduct ticket was not false based upon the Hearings Officer's findings is not supported by fact or law. The Hearing Officer concluded only that the issue was in dispute and the evidence did not support either White's claim of innocence or Defendant's claim that he had engaged in sexual misconduct. (ECF No. 1-4, PageID.42.) In other words, the Hearing Officer made no factual findings on any issues involving the factual accuracy or inaccuracy of the misconduct ticket. For the reasons explained, White has failed to show that there exists no genuine issue of fact entitling him to summary judgment.
VII. Recommendation
It is respectfully recommended that the Court grant in part and deny in part Defendants CO Behm, CO Perron, and Investigator Durant's motion for summary judgment as follows:
1) deny CO Behm's and CO Perron's motion for summary judgment because genuine issues of material fact exist on White's retaliation claim against them,
2) grant Investigator Durant's motion for summary judgment because no genuine issue of material fact exists on the retaliation claim against him because he took no adverse action against White, and
3) grant the motion against CO Behm, CO Perron, and Investigator Durant with respect to claims against them in their official capacities.
It is further respectfully recommended that the Court deny White's motion for summary judgment because White failed to show that no genuine issue of material fact exists which would entitle him to judgment as a matter of law.
NOTICE TO PARTIES: Objections to this Report and Recommendation must be served on opposing parties and filed with the Clerk of the Court within fourteen (14) days of receipt of this Report and Recommendation. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b); W.D. Mich. LCivR 72.3(b). Failure to file timely objections constitutes a waiver of any further right to appeal. United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See also Thomas v. Arn, 474 U.S. 140 (1985).