Opinion
2:23-cv-00114
11-22-2024
ALLEN ATKINS #742687, Plaintiff, v. UNKNOWN MYERS, et al., Defendants.
Hon. Paul L. Maloney, U.S. District Judge
REPORT AND RECOMMENDATION
MAARTEN VERMAAT, U.S. MAGISTRATE JUDGE
I. Introduction
This Report and Recommendation (R&R) addresses Defendant's motion for summary judgment. (ECF No. 32.) Plaintiff has not filed a response.
Plaintiff state prisoner Allen Atkinsfile this lawsuit under 42 U.S.C. § 1983 against Defendants for events that allegedly occurred at the Chippewa Correctional Facility (URF). In his verified complaint, Atkins asserted that while he was incarcerated there, URF employeesutilized excessive force against him, in violation of his Eighth Amendment rights, and retaliated against him, in violation of his First Amendment rights. (ECF No. 1, PageID.12-13.) More specifically, Atkins alleged that after he engaged in a peaceful protest at URF by placing his hands through the slot of his cell door and refusing to remove them, Defendant CO Myers repeatedly slammed his hands in the cell slot. (Id., PageID.6.) Then, when Atkins threatened to file a grievance against CO Myers related to the alleged assault, Myers issued retaliatory misconduct tickets to Atkins and confiscated and destroyed his legal property and writing utensils. (Id., PageID.7-10.)
Plaintiff's name is listed as “Allen Atkins” on the Michigan Department of Corrections Offender Tracking Information System. MDOC Offender Tracking System, https://mdocweb.state.mi.us/otis2/otis2profile.aspx?mdocNumber=742687 (last visited November 1, 2024). Plaintiff uses Allen Aikens in his filings. For the sake of consistency, the undersigned refers to Plaintiff by the name reflected in the MDOC's system and the docket sheet: Allen Atkins.
The remaining Defendant is Corrections Officer (CO) Unknown Myers. Atkins had also named five more Defendants who have been dismissed from this action: (1) CO Unknown Peterman, (2) CO Unknown Jarvie, (3) Sergeant (Sgt.) Unknown Grondin, (4) CO Unknown Carruth, and (5) Grievance Coordinator Michael McLean. (ECF No. 1, PageID.3-4.)
The remaining claim is a retaliation claim against CO Myers. (ECF No. 14 (Opinion); ECF No. 26 (Order adopting R&R).) Atkins says that CO Myers issued him a retaliatory misconduct ticket despite his continued refusal to obey orders to remove his hands from the food slot, and CO Myers confiscated and destroyed his legal property and writing utensils. Atkins says that Myers wrote him the misconduct ticket only after Atkins asked Myers to call his supervisor and after he had threatened to file a grievance. Atkins says that he kept his hands in the food slot to force Myers to call his supervisor. Myers issued Atkins a class II minor misconduct ticket for disobeying a direct order to remove his hands from the food slot. A portion of that misconduct ticket is shown below:
(Image Omitted)(ECF No. 33-4, PageID.375.)
No hearing was held, and Atkins received no sanctions.
In the opinion of the undersigned, Atkins has failed to show that a genuine issue of material fact remains in the case. As a result, Myers is entitled to summary judgment. The record shows that Atkins was not engaged in protected conduct when he violated a legitimate prison order to remove his hands from the food slot. Furthermore, Atkins failed to show that he suffered an adverse action as a result of his alleged protected conduct because the issuance of the minor misconduct ticket was reasonable under the circumstances. Therefore, it is respectfully recommended that the Court grant CO Myers's motion for summary judgment and dismiss this case.
II. Factual Allegations
As set forth in this Court's September 12, 2023, screening opinion, Atkins's verified complaint contained the following factual allegations:
Plaintiff alleges that on August 31, 2022, Defendant Myers approached his cell, opened the food slot, and ordered Plaintiff to pass his property
through the slot so that Defendant Myers could pack them in a state-issued duffel bag pending Plaintiff's transfer. (Id., PageID.5.) Plaintiff told Defendant Myers that he had excess legal materials and asked to access his legal footlocker so that he could place his legal property inside it. (Id.) Defendant Myers refused Plaintiff's request and told Plaintiff that any property that could not fit inside one state-issued duffel bag would be destroyed. (Id., PageID.5-6.)
Plaintiff refused to give Defendant Myers his property and proceeded to “place both hands in the food [slot to] conduct[] a peaceful protest.” (Id., PageID.6.) Plaintiff told Defendant Myers that he would be keeping his hands in the slot until Defendant Myers called a sergeant. (Id.) Defendant Myers then repeatedly slammed Plaintiff's hands in the flood slot to try to end Plaintiff's “peaceful protest.” (Id.) Defendant Myers then walked away, stating “Atkins you're going to pay for this n*****.” (Id.)
Defendant Myers returned with [former] Defendant Grondin. (Id.) Plaintiff asked [former] Defendant Grondin to call the Michigan State Police (MSP) with respect to Defendant Myers' assault; [former] Defendant Grondin refused to do so. (Id.) Plaintiff asked that [former] Defendant Grondin call [former] Defendant McLean to seek permission for Plaintiff to file a grievance despite being on modified access; [former] Defendant Grondin refused to do that as well. (Id., PageID.7.)
Plaintiff told [former] Defendant Grondin that his hands and wrists were swollen, and [former] Defendant Grondin had a nurse come to Plaintiff's cell. (Id.) Plaintiff asked for bandages and ointment, and the nurse said that he would get those items if Plaintiff allowed [former] Defendant Grondin to escort him to the segregation unit's medical office. (Id.) During this time, Plaintiff refused to exit his cell, and Defendant Myers threatened to throw away Plaintiff's legal and personal property “during a retaliatory cell search.” (Id.) Defendant Myers and Grondin also refused Plaintiff's request for a grievance form. (Id.) Plaintiff told them that after he was transferred, he would grieve the matter and “seek state [and] federal criminal and civil prosecution in courts.” (Id., PageID.8.) [Former] Defendant Grondin told Plaintiff “that n****** don't have rights in court and that she didn't give a f*** about Plaintiff filing a grievance or federal lawsuit.” (Id.) [Former] Defendant Grondin then directed Defendant Myers to destroy any personal and legal property that Plaintiff had stored in the housing unit's property room. (Id.)
Later that evening, [former] Defendant Carruth conducted security rounds and asked Plaintiff to allow officers to pack his property for the transfer. (Id.) Plaintiff told [former] Defendant Carruth that he had excess legal property that needed to be placed in his legal footlocker. (Id.) Plaintiff told [former] Defendant Carruth that “the Steamboat Unit property room contained one grey personal footlocker, one blue legal footlocker, [and one] green state duffel bag that was 85 percent full of property.” (Id.) [Former] Defendant Carruth told Plaintiff that he would be ordering [former] Defendants Jarvie and Peterman to pack Plaintiff's property, and that he would be supervising the packing. (Id., PageID.9.)
On September 1, 2022, [former] Defendants Jarvie and Peterman came to Plaintiff's cell and ordered him to turn over his property for packing. (Id.) Plaintiff was strip searched, chained, and escorted to the unit base. (Id.) At that time, Defendants Myers, [and former Defendants] Jarvie, and Carruth were at the officers' station. (Id.) Defendant Myers told Plaintiff “to enjoy his sanctions for the retaliatory misconduct report he wrote against Plaintiff for reporting him to his supervisor [former] Defendant Grondin.” (Id.) [Former] Defendant Carruth told Plaintiff that he would not be filing any lawsuits “without any paper, ink pens[,] and legal property.” (Id., PageID.10.) When Plaintiff asked him what he meant, [former] Defendant Carruth told Plaintiff that he had ordered [former] Defendants Jarvie and Peterman to destroy Plaintiff's legal and writing materials “since Plaintiff wants to sue, grieve[,] and make police statements against his co-workers.” (Id.) When Plaintiff responded that he would be mailing a grievance upon arrival at his transfer location, [former] Defendant Carruth told Plaintiff that he would be ordering [former] Defendant McLean to deny Plaintiff access to the grievance system. (Id.)
Plaintiff was subsequently transferred to the G. Robert Cotton Correctional Facility (JCF) later that day. (Id.) He was still on modified access, and wrote to [former] Defendant McLean to request a Step I grievance form to use against Defendants Myers, [and former Defendants] Jarvie, Peterman, Grondin, and Carruth. (Id.,
PageID.11.) Plaintiff also asked that the MDOC Internal Affairs and Ombudsman, as well as the MSP, be contacted “for criminal and civil prosecution against Defendant Myers for assault.” (Id.) [Former] Defendant McLean never responded to Plaintiff's request. (Id.) Subsequently, non-party JCF Resident Unit Manager Fumihiko Yuki told Plaintiff that his Step I grievance had been denied because he “sought to obtain [MSP assistance] against co-worker Defendant Myers.” (Id.)(ECF No. 14, PageID.60-63.)
III. 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).
When, as here, the non-movant fails to respond to a motion for summary judgment, the Court must “examine the movant's motion for summary judgment to ensure that he has discharged his initial burden.” Stough v. Mayville Cmty. Sch., 138 F.3d 612, 614 (6th Cir. 1998) (citing Carver v. Bunch, 946 F.2d 451, 455 (6th Cir. 1991)).
IV. 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 establish a First Amendment retaliation claim, a plaintiff must show 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 by the protected conduct. Id.
To prevail on a retaliation claim, retaliatory motive “must be a ‘but-for' cause [of the injury], meaning that the adverse action against the plaintiff would not have been taken absent the retaliatory motive.” Nieves v. Bartlett, 139 S.Ct. 1715, 1721 (2019). CO Myers says that Atkins did not engage in protected conduct because he did not have a legitimate grievance, and he violated prison policy in his attempt to address his grievance with CO Myers's supervisor.
Protected conduct generally includes a prisoner's pursuance of oral and written grievances, Maben v. Thelen, 887 F.3d 252, 265 (6th Cir. 2018), as well as his efforts to access the courts in “direct appeals, habeas corpus applications, and civil rights claims,” Thaddeus-X, 175 F.3d at 391. However, prisoners “cannot exercise [the right to file grievances] in a manner that violates legitimate prison regulations or penological objectives.” Smith v. Campbell, 250 F.3d 1032, 1037 (citing Ward v. Dyke, 58 F.3d 271, 274 (6th Cir. 1995)). “‘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) (alteration in original) (quoting King v. Zamiara, 680 F.3d 686, 699 (6th Cir. 2012)). This includes the filing of frivolous grievances. Hill v. Lappin, 630 F.3d 468, 472 (6th Cir. 2010).
First, Atkins does not contest that he refused CO Myers's order to remove his hands from the food slot. Atkins concedes that he refused to move his hands from the food slot because he wanted CO Myers to call his supervisor. Atkins demanded to speak to a supervisor because he alleges that CO Myers refused to pack up his legal property pending his transfer to a new facility. Myers called Sgt. Grondin to Atkins's cell. Atkins presents no evidence to support his claim that CO Myers destroyed Atkins's legal property. The MDOC Prisoner Personal Property Receipt shows that Plaintiff did not have legal property on August 31, 2022. (ECF No. 335.) Second, both Myers and Grondin filed affidavits stating that Plaintiff never discussed his legal property with them. (ECF No. 33-2, PageID.364 (Myers affidavit); ECF No. 33-6, PageID.380 (Grondin affidavit).) Third, Atkins had already complained on three different occasions that someone else had confiscated and destroyed his legal property. (ECF No. 33-7 (March 31, 2022); ECF No. 33-8 (August 12, 2022); and ECF No. 33-9 (August 18, 2022).) These facts are uncontested. Any complaint that Atkins could have made to a supervisor or by a grievance regarding his allegations against CO Myers on August 31, 2022, would be frivolous and unprotected.
Moreover, in the opinion of the undersigned, Atkins's attempt to get CO Myers to call his supervisor by refusing to remove his hands from the food slot, in violation of a direct order, was not protected conduct because Atkins violated a legitimate order by refusing to remove his hands from the food slot. Smith, 250 F.3d at 1037. (ECF No. 33-10, PageID.406 (MDOC Policy Directive 03.03.105B Disobeying a Direct Order).)
Myers argues that Atkins did not suffer adverse action. Here, Atkins received no sanctions and never had a hearing on the misconduct ticket. Atkins was in the same position as he would have been in had no minor misconduct issued. In the opinion of the undersigned, Atkins has failed to show that he suffered any adverse conduct.
CO Myers also argues that Atkins cannot prove the causation element of his retaliation cause of action. Assuming that a prisoner can establish 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 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. It is uncontested that Atkins refused CO Myers's direct order to remove his hands from the food slot. Atkins admitted that he refused the order so Myers would have to summon Sergeant Grondin to address the incident. (ECF No. 50-4, PageID.402 (Atkin's deposition).) Atkins's admission that he violated a legitimate prison order simply to manipulate the officer is fatal to his retaliation claim. In the opinion of the undersigned, the minor misconduct ticket for disobeying a direct order was reasonable under the circumstances and Plaintiff has failed to show that CO Myers retaliated against him.
V. Qualified Immunity
Defendant argues that he is entitled to dismissal of the complaint against him based upon qualified immunity. “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).
It is the opinion of the undersigned that there exists no genuine issue of material fact on Plaintiff's retaliation claim against CO Myers, because CO Myers did not violate Atkins's First Amendment rights. It is the recommendation of the undersigned that the Court rule that Myers is entitled to qualified immunity.
The undersigned acknowledges that at least one Magistrate Judge in this circuit has recommended that a prisoner's right to file frivolous or de minimis grievances is not clearly established, nor are the contours of a frivolous or de minimis grievance. Harp v. Hallett, No. 5:19-cv-13789, 2023 WL 8710575, at *8-9 (E.D. Mich. July 26, 2023) (observing that “[n]o reasonable officer could confidently say whether Harp's grievances were protected as the Sixth Circuit has poorly defined the line between legitimate and frivolous grievances”, and concluding that “Harp's First Amendment right to file his grievances was not clearly established under existing precedent”).
VI. Recommendation
Accordingly, it is respectfully recommended that the Court grant Defendant Myers's motion for summary judgment and dismiss this case.
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).