Opinion
CASE NO. 00-CV-74179-DT.
August 28, 2001
OPINION AND ORDER
This matter is before the Court on Defendants' Motion for Summary Judgment and/or Dismissal. Plaintiff has responded and Defendants have replied. The Court finds that the facts and legal arguments are adequately presented in the parties' briefs and the decisional process would not be significantly aided by oral argument. Therefore, pursuant to E.D. MICH. LR 7.1(e)(2), it is hereby ORDERED that the motions be resolved on the briefs submitted. For the reasons set forth below, Defendants' Motion for Summary Judgment is GRANTED.
Pursuant to FED. R. Civ. P. 12, the Court will treat this motion as one for summary judgment under FED. It. Civ. P. 56 because it contains matters outside the pleadings. See FED. R. Civ. P. 12(c); see also Dayco Goodyear Tire Rubber Co., 523 F.2d 389, 392 (6th Cir. 1975).
II. BACKGROUND
This case involves a claim under 42 U.S.C. § 1983 by Plaintiff a former corrections officer employed by the Michigan Department of Corrections (hereinafter "MDOC"), that Defendants retaliated against him for exercising his rights of free speech and association under the First Amendment of the United States Constitution during his employment as a corrections officer.
Plaintiff commenced his employment with the MDOC in October 1986 and was eventually assigned to the Scott Correctional Facility that same year. The Scott Facility is a multi-level women's facility located in Plymouth, Michigan. Although Plaintiff avers that he enjoyed a "good work record" while at the Scott Facility, Defendants state that Plaintiff was formally disciplined on two occasions: a three-day suspension in October 1996 for sleeping on duty and a five-day suspension in July 1998 for failing to take a proper count. These prior disciplinary actions are not relevant to the merits of this case except to address Plaintiffs assertion that he has a "good work record."
Plaintiff alleges that he was subject to retaliation as a result of two specific instances involving the exercise of his First Amendment rights. First, Plaintiff was called as a witness in the criminal trial of former MDOC corrections officer John Sobkowiak. Sobkowiak was charged in 1998 with criminal sexual conduct involving a female inmate at the Scott Facility. It is Plaintiffs contention that the charges levied against Sobkowiak were "window dressing," and that Defendants were using Sobkowiak as a "scapegoat" to appease the United States Department of Justice, which was investigating alleged violations of the rights of women at the Scott Facility. The second protected activity in which Plaintiff was involved was a November 1999 legislative hearing convened by Congressman John Conyers where Plaintiff states that he testified as an outspoken critic of the maimer in which the MDOC has operated the Scott Correctional Facility.
As a result of his testimony in Sobkowiak's case and at the legislative hearing, Plaintiff contends that he became a "pariah in the eyes of the MDOC" and that Defendants began a campaign of harassment in retaliation of Plaintiffs activities critical of the MDOC. Specifically, Plaintiff briefly states that he received a phone call from Deborah Sharp, assistant to Scott Facility Warden Joan Yukins and Assistant Deputy Warden Cornell Howard, wherein Ms. Sharp inquired as to why Plaintiff helped a "nobody" and that he had jeopardized his career by assisting Mr. Sobkowiak. However, Ms. Sharp testified in a sworn affidavit that she was not aware of any assistance Plaintiff provided to Mr. Sobkowiak and that Plaintiff never contacted Ms. Sharp after Plaintiff assisted Sobkowiak at his trial.
Defendants raise, and subsequently discount, several other incidents involving Plaintiff that Defendants believed Plaintiff would try to label as retaliatory conduct in his response brief, The Court will only address the two incidents Plaintiff alleges in his response brief.
The principal retaliatory conduct alleged by Plaintiff is the investigation of criminal sexual conduct charges lodged against Plaintiff by Scott Facility prisoner Lisa Klingenberg. In December 1999, Defendants Jay Bales and Inez Norris, inspectors for the MDOC, were asked by Warden Yukins to investigate a request by prisoner Klingenberg that she receive medical attention for a possible sexually transmitted disease. On December 3, 1999, prisoner Klingenberg stated that she had engaged in sexual intercourse with Plaintiff at various locations throughout the Scott Facility and that this relationship continued until approximately May 1999. Plaintiff alleges that Defendant Bales witnessed Plaintiff handing documents to Sobkowiak's attorney in court, which was allegedly part of the impetus for Defendants' retaliation — Bales's investigation of the Klingenberg matter. However, Defendant Bales testified in a sworn affidavit that he "never observed [Plaintiff] handing Mr. Sobkowiak's attorney any information, nor was [Bales] aware [Plaintiff] was assisting in Mr. Sobkowiak's defense." Defendant Bales's only involvement in the Sobkowiak case was as a witness, and was used in that capacity only to authenticate MDOC records. Bales states that he was not present throughout the trial and was not aware that Plaintiff was assisting Sobkowiak in his defense. Defendant Bales stated that he first became aware that Plaintiff was assisting Mr. Sobkowiak at an unrelated workers' compensation hearing involving Plaintiff on February 12, 2001.
On January 18, 2000, Plaintiff was placed on work restriction prohibiting prisoner contact pending completion of the Klingenberg investigation. Whenever a complaint is received from an inmate alleging sexual misconduct involving a corrections officer or any other MDOC employee, that employee is automatically placed on restriction. Plaintiff was still allowed to work assignments such as the Control Center, Information Desk, and gun towers. Defendants state that it is MDOC protocol to automatically refer all prisoner complaints alleging sexual assault or penetration involving a corrections officer to the Michigan State Police (hereinafter "MSP") for investigation. Defendants state that the MDOC only conducts its own investigation on matters not automatically referred to the MSP. Once the matter is referred to the MSP, the MDOC inspectors only act as a liaison for the MSP in accordance with the MSP's needs. Prisoner Klingenberg submitted to a polygraph examination during the MSP investigation where it was determined that Klingenberg was being truthful about her sexual relationship with Plaintiff. On March 16, 2000, at the request of the MSP, a felony warrant was issued by the Wayne County Prosecutor's Office charging Plaintiff with Criminal Sexual Conduct — Fourth Degree. On May 3, 2000, prisoner Klingenberg changed her testimony, claiming that she did not have sexual relations with Plaintiff and that she had lied on the polygraph examination. The warrant against Plaintiff was dismissed on May 11, 2000. Defendants emphasize the fact that Plaintiff never received any discipline from the MDOC as a result of this incident.
Plaintiff contends that prisoner Klingenberg brought the allegations against Plaintiff in retaliation for the assistance Plaintiff provided Sobkowiak. Defendants maintain that Plaintiffs allegations against Defendants are misplaced because of the MDOC's policy of referring all prisoner complaints alleging sexual assault or penetration involving a corrections officer to the MSP. Plaintiff responds by asserting that Defendants' referral policy is inconsistent and selective. See discussion infra Part IV.A.3 (detailing Plaintiffs allegations on this point).
Defendants also aver that Plaintiffs claims against Warden Yukins and Assistant Deputy Warden Howard under 42 U.S.C. § 1983 are based upon respondeat superior and are therefore barred. Further, Defendants argue that Plaintiffs claims against the remaining Defendants are barred by the doctrine of qualified immunity. Finally, Defendants argue that the Court should dismiss Plaintiffs complaint in its entirety pursuant to FED. R. Civ. P. 41(b) because Plaintiff "failed to provide or serve any witness list upon [D]efendants."
The scheduling order issued by the Court set the witness list deadline for April 2, 2001. Plaintiff filed his witness list on May 29, 2001. Defendants moved to strike Plaintiffs witness list on June 7, 2001. The Court referred Defendants' motion to a magistrate judge on June 12, 2001. On August 2, 2001, the magistrate judge granted Defendants' motion in part. Therefore, the Court will not address this issue as it has been adequately addressed by the magistrate judge.
III. STANDARD OF REVIEW
Summary judgment is appropriate only if the answers to interrogatories, depositions, admissions, and pleadings combined with the affidavits in support show that no genuine issue as to any material fact remains and the moving party is entitled to a judgment as a matter of law. See FED. R. CIV. P. 56(c). A genuine issue of material fact exists when there is "sufficient evidence favoring the non-moving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (citations omitted). In application of this summary judgment standard, the Court must view all materials supplied, including all pleadings, in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co., Ltd v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) "If the evidence is merely colorable or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).The moving party bears the initial responsibility of informing the Court of the basis for its motion and identifying those portions of the record that establish the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its burden, the nonmoving party must go beyond the pleadings and come forward with specific facts to demonstrate that there is a genuine issue for trial. See FED. R. Civ. P. 56(e); Celotex, 477 U.S. at 324. The non-moving party must do more than show that there is some metaphysical doubt as to the material facts. It must present significant probative evidence in support of its opposition to the motion for summary judgment in order to defeat the motion for summary judgment. See Moore v. Philip Morris Co., 8 F.3d 335, 339-40 (6th Cir. 1993).
IV. ANALYSIS
The Court finds that although Plaintiff engaged in conduct protected under the First Amendment any adverse action taken by Defendants against Plaintiff was not caused by Plaintiff engaging in the protected conduct. Therefore, the Court need not address Defendants' affirmative defenses of qualified immunity and respondeat superior.
A. First Amendment Retaliation
The threshold inquiry in evaluating whether Defendants have violated Plaintiffs First Amendment rights as a public employee is to determine whether Plaintiffs testimony during Sobkowiak's case and the legislative hearing addressed a matter of public concern. See Connick v. Myers, 461 U.S. 138, 147 (1983); see also Thaddeus-X v. Blatter, 175 F.3d 378, 388 (6th Cir. 1999). If Plaintiffs testimony touched upon a matter of public concern, the Court must determine whether
(1) plaintiff was engaged in a constitutionally protected activity; (2) . . . the defendant[s'] adverse action caused the plaintiff to suffer an injury that would likely chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the adverse action was motivated at least in part as a response to the exercise of the plaintiffs constitutional rights.Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998) (citing Mt Healthy City Sch. Dist Bd. of Educ. v. Doyle, 429 U.S. 274 (1977)).
1. Public Concern/Protected Activity
In determining whether Plaintiffs testimony at the legislative hearing or at Sobkowiak's trial addressed matters of public concern, the Court must analyze the content, form, and context of the testimony as revealed by the entire record. See Connick, 461 U.S. at 147-48. A matter of public concern is generally described as ""a matter of political, social, or other concern to the community.'" See Jackson v. Leighton, 168 F.3d 903, 909 (6th Cir. 1999) (quoting Connick, 461 U.S. at 146)). However, it is entirely inappropriate for the Court to pass upon the propriety of Defendants' actions if Plaintiffs speech concerned solely personal matters or internal office polities and not matters relating to political, social, or other concern to the community. See Id. at 909-10. Even if Plaintiffs testimony did address matters of public concern, Defendants' alleged harassment because of Plaintiffs protected speech may be justified if Defendants' interest in maintaining effective and efficient organization are sufficiently strong when compared to Plaintiffs interest in testifying. See Id. at 910.
The purpose of Plaintiffs testimony at the legislative hearing was to assist in examining the treatment of female inmates within Michigan's correctional system; Plaintiff is a self-described "outspoken critic" of the manner in which the MDOC has operated the Scott Correctional Facility. There exists no doubt that Plaintiffs statements at a legislative hearing critical of his employer's policies and operation of a publicly-funded state prison is a matter of public concern. See, e.g., Perry v. Sindermann, 408 U.S. 593, 598 (1972) (holding that public employer's alleged retaliation for plaintiffs testimony before legislative committee critical of his employer's policies is a matter of public concern). However, the extent to which Plaintiffs testimony at the legislative hearing touched upon matters of public concern is mooted by the fact that Plaintiff relies almost exclusively on his testimony given in the Sobkowiak case as the protected conduct that forms the basis of his First Amendment claim.
Although the mere fact that public monies are involved in operating the MDOC cannot alone qualify Plaintiffs speech a matter of public concern, see Jackson, 168 F.3d at 909-10, Defendants concede that Plaintiffs statements to the committee also contained references to safety and security issues.
It has also been stated that the First Amendment protects a public employee's right to testify in the trial of his co-worker. See, e.g., Hudson v. Norris, 227 F.3d 1047, 1051 (8th Cir. 2000) (finding a matter of public concern where Arkansas Department of Correction ("ADC") employee testified adversely to the ADC in a lawsuit between a former co-worker and the ADC); Smith v. Hightower, 693 F.2d 359, 368 (9th Cir. 1982) ("[T]he [F]irst [A]mendment protects the right to testify truthfully at trial.").
Defendants argue that even if Plaintiffs testimony at Sobkowiak's trial was a matter of public concern and Defendants' referred prisoner Klingenberg's allegations to the MSP because of Plaintiffs testimony against the MDGC, Defendants' legitimate security and safety interest in fully investigating all allegations of improper conduct by MDOC employees outweighs Plaintiffs First Amendment right to testify at trial. Balancing the parties' respective interests is a difficult task, see Connick, 461 U.S. at 150, especially in light of Plaintiffs weighty constitutional right to testify truthfully in a court of law. Therefore, the Court will err on the side of protecting Plaintiffs First Amendment right to testify — Plaintiff was engaged in a constitutionally protected activity.
2. Adverse Action
An adverse action by Defendants is "one that would "deter a person of ordinary firmness' from the exercise of the right at stake." Thaddeus-X v. Blatter, 175 F.3d 378, 396 (6th Cir. 1999) (quoting Bart v. Tetford, 677 F.2d 622, 625 (7th Cir. 1982)). Although not limited in definition, examples of adverse action include failure to promote, demotions, discharge, refusal to hire, and nonrenewal of contracts. See Id. (citing Pickering v. Bd. of Educ. of Township High Sch. Dist. 205, 391 U.S. 563 (1968)).
See Blatter, 175 F.3d at 398 ("[T]he definition of adverse action is not static across contexts.").
Although never discharged or formally disciplined by Defendants for prisoner Klingenberg's allegations, Plaintiff alleges that he was subjected to scrutiny, harassment, and baseless investigations resulting from the Klingenberg accusations, which has allegedly caused Plaintiff stress-related disorders. The Sixth Circuit has held that personal humiliation, impairment of reputation, and Plaintiffs claims of mental anguish and suffering can constitute a compensable injury as a result of adverse action in a First Amendment retaliation claim. See Bloch, 156 F.3d at 679. Assuming arguendo that Plaintiff can establish that Defendants' action of referring prisoner Klingenberg' s charges of sexual misconduct to the MSP was somehow adverse and allegedly caused Plaintiff stress-related injury, Plaintiff cannot establish that Defendants' adverse action was caused by, or in response to, Plaintiffs protected conduct in Sobkowiak's trial — Defendants have demonstrated that they would have taken the same action in the absence of Plaintiffs protected activity. See Blatter, 175 F.3d 378, 399 (6th Cir. 1999).
In footnote of his brief, Plaintiff asserts that he was constructively discharged because of Defendants' conduct. See Easter v. Jeep Corp., 750 F.2d 520, 522-23 ("`[A] finding of constructive discharge requires the determination that . . . working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign.'" (quoting Held v. Gulf Oil Co., 684 F.2d 427 (6th Cir. 1982) (quoting Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61, 65 (5th Cir. 1980)))). Plaintiffs allegations of mental distress comport with the Sixth Circuit's description of compensable injury resulting from an employer's adverse action. See Bloch, 156 F.3d at 679. Therefore, the Court need not address whether Plaintiff was constructively discharged.
3. Causation
To support his allegation that the Klingenberg allegations of December 1999 were fabricated and subsequently referred to the MSP specifically to retaliate against him, Plaintiff avers that Klingenberg's allegations of sexual abuse against Plaintiff "had already been investigated" in December 1998 and January 1999. Plaintiff refers to a statement made by Defendant Bales during the course of investigating a January 1999 allegation by another prisoner, Janice Glover, that Plaintiff had inappropriately touched her during a shakedown. In the statement, Defendant Bales reports that Defendant Norris had investigated a 1998 allegation that Plaintiff was having a "sexual relationship" with Klingenberg. Immediately following this statement and placed in parentheses is the word "Unfounded." From this Plaintiff infers that the only reason Defendants pursued Klingenberg's allegations in December 1999 was to retaliate against Plaintiff for assisting Sobkowiak.
However, Defendant Bales was investigating allegations by prisoner Glover of inappropriate touching by Plaintiff not sexual penetration; Bales was not investigating allegations relating to prisoner Klingenberg. Defendant determined that Glover's allegations of inappropriate touching were unsubstantiated and the matter was closed. In his deposition testimony of March 2001, Defendant Norris could not recall the specifics of the 1998 investigation of Klingenberg that Bales had mentioned in his January 1999 report involving prisoner Glover, saying only that the complaint pertained to alleged sexual conduct.
There is no dispute that prisoner Klingenberg's allegations in December 1999 involved sexual activities, including sexual intercourse, between Plaintiff and prisoner Klingenberg that continued from October 1997 until approximately May 1999. Defendant Bales was simply following MDOC protocol by referring the current allegation of sexual penetration between prisoner Klingenberg and Plaintiff to the MSP. Even if Defendant Bales or Defendant Norris knew that Plaintiff was assisting Sobkowiak at his trial, which they testify they did not, the record indicates that Defendants would have referred Klingenberg's December 1999 allegations of sexual penetration to the MSP pursuant to MDOC protocol. Defendants' action of referring Klingenberg's complaint to the MSP seems especially justified due to the impending investigation and litigation instituted by the United States Department of Justice against the MDOC regarding the violation of the rights of female prisoners at the Scott Correctional Facility. Therefore, Plaintiff has failed to make the requisite showing that Defendants' referral of prisoner Klingenberg's allegations of criminal sexual conduct to the MSP were motivated by Plaintiffs protected speech. See Leary v. Daeschner, 228 F.3d at 739.
The crux of Plaintiffs claim is that the allegations themselves, not their ultimate referral to the MSP, were fabricated and brought against Plaintiff in retaliation for his assistance to Sobkowiak. Indeed, Plaintiff states that the Klingenberg allegations were "unfounded" and that "[I]t can be readily inferred that the Klingenberg allegations were brought against [Plaintiff] in retaliation for his having associated with and assisted Officer Sobkowiak. . . ." However, Plaintiff has produced no evidence tending to establish that Defendants had anything to do with prisoner Klingenberg bringing the sexual misconduct charges against Plaintiff Plaintiff even admits in his deposition testimony that prisoner Kungenberg's allegations were made on her own accord and that Defendants did not pressure or coerce Klingenberg to make statements against Plaintiff. Again, Plaintiff has failed to establish that Defendants were involved in any way with the Klingenbcrg allegations or that the allegations were in response to, or motivated by, Plaintiffs testimony in Sobkowiak's case. Consequently, Plaintiffs First Amendment retaliation claim must fail.
Plaintiff also finds suspicion in the fact that Defendants never asked Plaintiff for a statement before referring the Klingenberg allegations to the MSP for investigation. However, whether the MDOC obtains a statement from Plaintiff is irrelevant if the MDOC policy requires all allegations of sexual penetration to be referred to the MSP for investigation. Plaintiff also finds fault with Defendants not checking the time cards "to see whether [Plaintiff] was present prior to turning the case over to the Michigan State Police." However, the Klingenberg allegations spanned a time period from October 1997 to May 1999. Further, Defendant Norris stated in her deposition testimony that coordinating Plaintiffs time cards with Klingenberg's allegations was not a priority in the initial investigation. Coupled with the fact that allegations of sexual intercourse are automatically referred to the MSP for a detailed investigation, the fact that Defendants did not check Plaintiffs time cards for allegations spanning over nineteen months does not weigh heavily in favor of Plaintiff.
The Court finds that although Plaintiff engaged in conduct protected under the First Amendment, any adverse action taken by Defendants against Plaintiff was not caused by Plaintiff engaging in the protected conduct.
B. Qualified Immunity/Respondeat Superior
In order to successfully establish qualified immunity, the Court must first determine whether Defendants violated a clearly established constitutional right. See Bloch, 156 F.3d at 678; see also Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). If the Court finds that Defendants have violated such a right, the Court must then "consider whether the public official acted "objectively unreasonable in light of [the] clearly established constitutional right.'" Id. (quoting Adams v. Metiva, 31 F.3d 375, 387 (6th Cir. 1994)). Because the Court has ruled that Defendants did not violate Plaintiffs clearly established First Amendment right to testify, it need not address the remaining qualified immunity analysis. Further, the Court need not address Defendants' affirmative defense of respondeat superior for the same reason.
V. CONCLUSION
Accordingly, for the reasons stated above, Defendants' Motion for Summary Judgment GRANTED.
IT IS SO ORDERED.