Opinion
CASE NO. 01-CV-71510-DT
February 1, 2002
REPORT AND RECOMMENDATION REGARDING DEFENDANTS' MOTION TO DISMISS OR FOR SUMMARY JUDGMENT (Doc. Ent. 21)
I. RECOMMENDATION: The Court should grant defendants' motion to dismiss or for summary judgment. (Doc. Ent. 21). Specifically, the Court should (1) grant defendants' motion to the extent it seeks dismissal of plaintiff's First Amendment retaliation claim unless plaintiff files an amended complaint as to that claim within a time set by the Court and (2) grant defendants' motion to the extent it seeks dismissal of plaintiff's due process claim.
II. REPORT:
Plaintiff has filed at least four other cases with this Court: 89-73166 (filed 10/26/89); 94-70115 (filed 01/11/94); 95-71476 (filed 04/20/95); and 96-10195 (filed 06/11/96).
On April 20, 2001, plaintiff filed a pro se, in forma pauperis civil rights complaint against defendants Bill Martin, Director of the Michigan Department of Corrections (MDOC); Dan Bolden, Deputy Director of MDOC's Correctional Facilities Administration; Chuck Zamiara, Department Specialist for MDOC's Correctional Facilities Administration; Jack Hall, Manager of MDOC's Internal Affairs Section; Dennis Straub, Warden at the G. Robert Cotton Correctional Facility (JCF); Debra Scutt, Assistant Deputy Warden at JCF; and Robert Taylor, a Resident Unit Manager at JCF. (Doc. Ent. 3 [Compl.]). Plaintiff's claims against these defendants stem from a cell transfer and an alleged increase in his security level, based upon fake information, in retaliation for helping prisoners with grievances and lawsuits. He claims these actions were taken in violation of his First and Fourteenth Amendment rights. Compl. "Preliminary Statement".
On April 20, 2001, Magistrate Judge Goldman entered an order granting plaintiff's application to waive prepayment of the filing fee. (Doc. Ent. 2).
At the time plaintiff filed his complaint, he was incarcerated at Riverside Correctional Facility (RCF). On May 25, 2001, plaintiff notified the Court that his address had changed to Muskegon Correctional Facility (MCF). (Doc. Ent. 12). On August 29, 2001, plaintiff notified the Court that his address had changed to Brooks Correctional Facility (LRF). (Doc. Ent. 25). The docket properly reflects this change.
On May 31, 2001, plaintiff filed a letter requesting the clerk's entry of default as to defendants Taylor, Scutt, Straub, flail, Zamiara, Bolden, and Martin. (Doc. Ent. 15). On June 4, 2001, plaintiff filed a motion for default judgment as to all defendants. (Doc. Ent. 16). However, on June 15, 2001, I entered an order striking plaintiff's motion. (Doc. Ent. 18).
B. Defendants' Motion to Dismiss or for Summary Judgment
On May 16, 2001, Judge Friedman entered an order referring all pretrial proceedings to me. (Doc. Ent. 10).
On July 24, 2001, defendants filed a motion to dismiss or for summary judgment. (Doc. Ent. 21 [Mtn.]) Defendants argue that (1) ". . . plaintiff cannot establish that . . . defendants conspired to retaliate against him based on his participation in constitutionally protected activities, or that . . . defendants conspired to violate his due process rights"; (2) "the complaint should be dismissed for plaintif[f]'s failure to establish each defendant's personal involvement in unconstitu[t]ional activity"; (3) "plaintiff cannot establish the existence of a conspiracy to violate his constitutional rights"; (4) "plaintiff's allegations that various p[e]rsons made `false statements' does not implicate his due process rights"; (5) "plaintiff is not entitled to injunctive relief, and defendants are entitled to dismissal or altern[a]tively to qualified immunity"; and (6) plaintiff's complaint should be dismissed under 42 U.S.C. § 1997e(a) because he did not exhaust his administrative [remedies] before filing his complaint". (Mtn. Br. at 5, 8, 10, 12, 13, 15).
On August 15, 2001, plaintiff filed a response to defendants' motion. (Doc. Ent. 24). Plaintiff argues that (1) "defendants are not entitled to summary judgment[;]" (2) "plaintiff has stated a sufficient claim upon which relief can be granted[;]" (3) "plaintiff has shown that . . . defendants conspired to retaliate against him based on his participation in constitutionally protected activities and that the defendants conspired to violate his due process rights"; (4) "plaintiff's complaint should not be dismissed because he has shown each defendant's personal involvement in the unconstitutional activity[;]" (5) "plaintiff has shown the existence of a conspiracy to violate his constitutional rights[;]" (6) "plaintiff's allegations that various persons made false statements does implicate violation of his due process rights[;]" (7) "defendants are not entitled to dismissal or a defense of qualified immunity[;]" and (8) "plaintiff did exhaust his administrative remedies as required by 42 U.S.C. § 1983 before filing his complaint." Mtn. Rsp. "Argument" at 1, 2, 3, 9, 15, 16, 20, 28.
C. Standard of Review for Summary Judgment
Before this Court is defendants' motion for dismissal under Fed.R.Civ.P. 12(b) or for summary judgment under Fed.R.Civ.P. 56(b). Because defendants rely on facts outside of the pleadings, the Court may treat defendants' motion solely as one for summary judgment under Fed.R.Civ.P. 56. Fed.R.Civ.P. 12(b).
Among the many attachments to defendants' July 24th motion are the July 23, 2001 affidavit of Dan Bolden; the June 27, 2001 affidavit of Robert Taylor; the June 27, 2001 affidavit of Debra Scutt; and the July 19, 2001 affidavit of Jack Hall.
"If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed.R.Civ.P. 12(b).
Summary judgment, pursuant to Fed.R.Civ.P. 56, may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
A fact is "material" and precludes grant of summary judgment if proof of that fact would have [the] effect of establishing or refuting one of [the] essential elements of a cause of action or defense asserted by the parties, and would necessarily affect [the] application of appropriate principle[s] of law to the rights and obligations of the parties.
Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984) (quoting BLACK'S LAW DICTIONARY 881 (6th ed. 1979)). "In evaluating a motion for summary judgment we view all evidence in the light most favorable to Plaintiff . . . and assess the proof to determine whether there is a genuine need for trial." Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1045 (6th Cir. 1998) (citations omitted).
The Sixth Circuit cited both Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) and Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) in support of this statement.
The movant bears the burden of demonstrating the absence of all genuine issues of material fact. See Gregg v. Allen-Bradley Co., 801 F.2d 859, 861 (6th Cir. 1986). The moving party need not produce evidence showing the absence of a genuine issue of material fact. Rather, "the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party discharges that burden, the burden shifts to the non-moving party to set forth specific facts showing a genuine triable issue. Fed.R.Civ.P. 56(e); Gregg, 801 F.2d at 861.
"Although the nonmoving party `may not rest upon the mere allegations or denials' of his pleading, Fed.R.Civ.P. 56(e), a verified complaint . . . satisfies the burden of the nonmovant to respond." Thaddeus-X v. Blatter, 175 F.3d 378, 385 (1999) "[A] verified complaint . . . would have the same force and effect as an affidavit and would give rise to genuine issues of material fact." Williams v. Browman, 981 F.2d 901, 905 (6th Cir. 1992). However, "[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed.R.Civ.P. 56 (e). See also Hamilton v. Roberts, No. 97-1696, 1998 WL 639158, *5 (6th Cir. Sept. 10, 1998) (unpublished) (personal knowledge required); Daniel v. Cox, No. 96-5283, 1997 WL 234615, *2 (6th Cir. May 6, 1997) (unpublished) (conclusory assertions are insufficient for purposes of surviving summary judgment); Wiley v. United States, 20 F.3d 222, 226 (6th Cir. 1994) (citing Daily Press, Inc. v. United Press Int'l, 412 F.2d 126, 133 (6th Cir. 1969)) (cannot consider hearsay evidence).
Plaintiff's complaint includes a "verified affidavit". See Doc. Ent. 3; 28 U.S.C. § 1746 ("Unsworn declarations under penalty of perjury").
"Demonstration of simply `metaphysical doubt as to the material facts' is insufficient." Kand Medical, Inc. v. Freund Medical Products, Inc., 963 F.2d 125, 127 (6th Cir. 1992) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). As the United States Supreme Court stated in Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986): "There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the [non-movant's] evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-250 (citations omitted); see Celotex Corp., 477 U.S. at 322-23; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986). The standard for summary judgment minors the standard for a directed verdict under Fed.R.Civ.P. 50(a). Anderson, 477 U.S. at 250. Consequently, a non-movant must do more than raise some doubt as to the existence of a fact; the non-movant must produce evidence that would be sufficient to require submission to the jury of the dispute over the fact.
D. Analysis
1. Whether the Eleventh Amendment bars plaintiff's claims against defendants in their official capacities?
Plaintiff sues defendants in their personal and official capacities. Compl. "Parties". Plaintiff's claims are not barred by the Eleventh Amendment to the extent the claims are brought against defendants in their personal capacities. "[S]tate officials, sued in their individual [or personal] capacities, are `persons' within the meaning of § 1983. The Eleventh Amendment does not bar such suits, nor are state officers absolutely immune from personal liability under § 1983 solely by virtue of the `official' nature of their acts." Hafer v. Melo, 502 U.S. 21, 31 (1991).
However, plaintiff's claims are barred by the Eleventh Amendment to the extent the claims are brought against defendants in their official capacities. "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. CONST. amend. XI. 42 U.S.C. § 1983 "does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties." Will v. Michigan Dep't of State Police, 491 U.S. 58, 66 (1989). Therefore, the Court should dismiss plaintiff's claims against defendants to the extent they are brought against them in their official capacities and seek money damages.
Notwithstanding the foregoing, plaintiff is permitted to seek injunctive relief from state officials sued in their official capacity. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 n. 10 (1989). In his complaint, plaintiff seeks a permanent injunction order against unconstitutional and unlawful acts. Compl. "Requested Relief" at 15.
Defendants argue that plaintiff is not entitled to injunctive relief. They cite Edelman v. Jordan, 415 U.S. 651 (1974) and Green v. Mansour, 474 U.S. 64 (1985) in support of their argument that prospective injunctive relief requires proof of "a continuing violation of federal statutory or constitutional law." Mtn. Br. at 13. According to defendants, "plaintiff cannot show that the named [d]efendants in this action have engaged or are engaging in any constitutional conduct." Mtn. Br. at 13. However, defendants have misconstrued the holdings in Edelman and Green. In Edelman, the Court noted that although "a § 1983 action may be instituted by public aid recipients, a federal court's remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective injunctive relief, and may not include a retroactive award which requires the payment of funds from the state treasury." Edelman, 415 U.S. at 677 (internal citations omitted). The Court held that "the Eleventh Amendment did constitute a bar to . . . [an order of] retroactive payment of benefits found to have been wrongfully withheld." Id. at 678. In Green, the issue was "whether federal courts may order the giving of notice of the sort approved in [Quern v. Jordan, 440 U.S. 332 (1979)] or issue a declaratory judgment that state officials violated federal law in the past when there is no ongoing violation of federal law." Green, 474 U.S. at 67. The Court held that "neither the `notice' proposed by petitioners nor a declaratory judgment should have issued in a case of this type." 474 U.S. at 74. In any event, plaintiff's request for injunctive relief is not retroactive in nature. Compl. "Requested Relief" ¶ 1. In fact, his request for relief contains several requests for monetary damages from defendants' "individual pockets". Compl. "Requested Relief" ¶¶ 5-7.
In Quern, the issue was "whether [a] federal court may, consistent with the Eleventh Amendment, order state officials to send a mere explanatory notice to members of the plaintiff class advising them that there are state administrative procedures available by which they may receive a determination of whether they are entitled to past welfare benefits." Quern, 440 U.S. at 334. The Court concluded that "neither the reasoning of Monell or of our Eleventh Amendment cases subsequent to Edelman, nor the additional legislative history or arguments set forth in Mr. Justice BRENNAN's concurring opinion, justify a conclusion different from that which we reached in Edelman." 440 U.S. at 341.
2. Exhaustion of administrative remedies ( 42 U.S.C. § 1997e)
Defendants argue that "plaintiff's complaint should be dismissed under 42 U.S.C. § 1997e(a) because he did not exhaust his administrative remedies before filing his complaint[.]" Mtn. Br. at 15. The Prison Litigation Reform Act ("PLRA") is codified in part at 42 U.S.C. § 1997e, in a section entitled "Suits by Prisoners." Subsection (a), entitled "Applicability of administrative remedies," states that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted."
The record contains evidence of the following grievances and grievance appeals:
• JCF-00-12-04329-029-A: On December 11, 2000, plaintiff completed a Step I grievance form regarding TABE testing and plaintiff's representation that he has a GED. The grievance was responded to by Maystead and reviewed by McNamara in early January 2001. On January 23, 2001, plaintiff completed a Step II grievance appeal. D. Straub responded to plaintiff's grievance appeal on January 25, 2001. Mtn. Ex. 1.
• JCF-01-01-00029-027A: On December 19, 2000, plaintiff completed a Step I grievance form concerning Michelle Robinson, the School Principal, and N. Lareau, the Pre-Release Teacher. (JCF-01-01-00029-027A). B. Schmeltz reviewed plaintiff's grievance on January 2, 2001. Mtn. Ex. 1.
• **JCF-01-01-00386-28b. On January 18, 2001, plaintiff completed a Step I grievance form alleging that he was wrongfully moved from the A unit to the C unit, and, therefore, was wrongfully removed from his A unit representative position, because he stood up for prisoners' rights. Allegedly, plaintiff was told this move was Scutt and Taylor's decision. B. Schmeltz rejected plaintiff's grievance on January 23, 2001. On January 31, 2001, plaintiff completed a Step II grievance form. Dennis Straub responded to plaintiff's appeal on February 8, 2001. Plaintiff appealed his grievance to step III. The third step grievance response is dated March 1, 2001. Mtn. Rsp. Ex. D.
• **JMF-01-02-00262-021C: Plaintiff completed a Step I grievance form alleging that Zamiara made false statements about plaintiff and permitted these statements to be used against him to raise his placement level to IV. Plaintiff's grievance was responded to by prisoner counselor Shears and reviewed by RUM Hill on March 1, 2001. On March 19, 2001, plaintiff completed a Step II grievance appeal. S.L. Burt responded to plaintiff's grievance appeal on March 28, 2001. Plaintiff completed a Step III grievance appeal on or about April 8, 2001. Plaintiff's third step grievance response is dated May 6, 2001. Mtn. Rsp. Ex. D.
• JCF-01-03-01083-028A: On February 4, 2001, plaintiff completed a Step I grievance form concerning Michelle Robinson and N. Lareau. B. Schmeltz reviewed plaintiff's grievance on March 26, 2001 and rejected it as duplicative to JCF-01-01-00315-029-Z. On March 31, 2001, plaintiff filed a Step II grievance appeal form claiming that his grievance is not duplicative to JCF-01-01-00315-029-Z. Plaintiff further mentioned the preparation of an allegedly false January 12, 2001 evaluation and Warden's Straub's alleged representation that plaintiff was looked at as unemployable and would be susceptible to false records until plaintiff stopped filing grievances and assisting other prisoners with their grievances. On or about April 25, 2001, plaintiff completed a Step III grievance appeal, alleging that the warden's office's failed to respond to his appeal within the time permitted by MDOC PD 03.02.130. Mm. Rsp. Ex. B.
• JMF-01-02-00350-007B: On February 23, 2001, plaintiff completed a Step I grievance form to request an SCC hearing. Hill responded to plaintiff's grievance in February and Boles reviewed plaintiff's grievance in March. On April 12, 2001, plaintiff filed a Step II grievance appeal. On or about June 1, 2001, plaintiff completed a Step III grievance appeal, alleging that the warden's office had failed to respond within the appropriate time frame. Mtn. Rsp. Ex. D.
On January 24, 2001, plaintiff was transferred from JCF to JMF Level IV. Zamiara Affid. Attach.
Plaintiff stated that he was "not grieving a particular right of placement [but instead was] grieving [Zamiara's] waiving [his] custody level on evidence not supported in [his] record or file[.]"
Grievances JCF-01-01-00386-28b and JMF-01-02-00262-021C, the two grievances marked with "* * *" are those with which plaintiff claims he exhausted his administrative remedies. Compl. "Facts" at 9.
Defendants advance several reasons in support of their argument that plaintiff has failed to exhaust his administrative remedies. First, they contend that plaintiff's claims should be dismissed because he failed to attach copies of his grievances to his complaint. Mtn. Br. at 15-16. In support of this argument, they cite Aja v. Bureau of Prisons Staff, No. 98-4558, 1999 WL 1336093 (6th Cir. 1999). In Aja, plaintiff filed his complaint after his appeal to the general counsel but before the general counsel's response was due. The existence of a response from the general counsel was at issue, and, given plaintiff's failure to attach such a decision, the Court affirmed the district court's dismissal of plaintiff's case. However, in the case at bar, the existence of Step III responses to JCF-01-01-00386-28b and JMF-01-02-00262-021C are not at issue. They are attached to both defendants' motion and plaintiff's response.
Second, defendants argue that dismissal is warranted because plaintiff failed to exhaust his administrative remedies before filing his complaint. Mtn. Br. at 16. Claims based upon grievances which were not exhausted prior to bringing suit are barred by the Sixth Circuit's cases. Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999) (citing Brown v. Toombs, 139 F.3d 1102 (6th Cir. 1998), cert. denied, 525 U.S. 833, 119 (1998)) ("The plain language of the statute makes exhaustion a precondition to filing an action in federal court[.]"). The Step III grievance response for JCF-01-01-00386-28b is dated March 1, 2001, before the April 20, 2001 filing of plaintiff's complaint. Clearly, exhaustion occurred on that grievance before the filing of plaintiff's lawsuit. However, the Court should conclude that exhaustion had not occurred as to JMF-01-02-00262-021C. Plaintiff filed his Step III grievance appeal on or about April 8, 2001 — about 12 days before he filed his complaint. However, merely sending in a Step III appeal is not exhaustion per se. Where, as in the case at bar, the Step III response was not received before the filing of the complaint, the Court should consider the amount of time plaintiff waited before filing his lawsuit to determine whether exhaustion occurred before the Step III response (May 6, 2001). Although paragraph II of MDOC PD 03.02.130 ("Prisoner/Parolee Grievances") does not give the respondent of the Step III grievance appeal a deadline by which to respond, the Court should be persuaded by the fact that responses to Step I and Step II grievances must be returned to the grievant within 15 days from the date of receipt unless an extension is granted. Id. at 5 ¶ CC, 6 ¶ FF. Plaintiff's failure to wait even the period of time permitted for Step I and Step II responses supports a conclusion that JMF-01-02-00262-021C was not exhausted when plaintiff filed his complaint. If the Court agrees with this conclusion, then it should dismiss the due process claim arising out of this grievance on the basis that it has not been exhausted. If the Court does not agree with this conclusion, then it should deny plaintiff's due process claim on the merits (see Section II.D.3.b).
The attachment to plaintiff's Step III grievance appeal is dated April 8, 2001. Mtn. Rsp. Ex. D.
This conclusion is also supported by the several dates which appear on plaintiff's complaint, including: (1) two stamps on the front of plaintiff's complaint which show it was received by the Clerk's Office of the U.S. District Court on April 2, 2001 and on April 16, 2001; (2) plaintiff's signature under his demand for jury trial dated March 20, 2001; and (3) plaintiff's signature on his complaint brief dated March 20, 2001.
Third, defendants argue that plaintiff has not filed grievances regarding the claims in his complaint against defendants Martin, Bolden, or Hall. Mtn. Br. at 16. Defendants admit that plaintiff filed grievances against Zamiara as it related to plaintiff's transfer and against Scutt and Taylor as it related to plaintiff's cell move. Id. In Curry v. Scott, 249 F.3d 493 (6th Cir. 2001), the Sixth Circuit affirmed the trial court's dismissal of plaintiff's claims against a defendant named Howard because he was not mentioned in plaintiff's grievances. Curry, 249 F.3d at 505. Defendants Scutt and Taylor are mentioned in the Step I portion of JCF-01-01-00386-28b. Defendant Taylor is mentioned again in the Step II appeal, and defendant Straub responded to plaintiff's Step II appeal. Defendants Straub and Scutt are mentioned in the Step III appeal. Also, defendants Zamiara and Bolden are mentioned in the Step I portion of JMF-01-02-00262-021C. Therefore dismissal on the basis that they are not mentioned in or didn't participate in plaintiff's grievance is inappropriate.
Although plaintiff requested a "Director's investigation" at Step III (JCF-01-01-00386-28b), Martin (MDOC Director) and Hall (Manager of MDOC Internal Affairs) are not specifically mentioned in JCF-01-01-00386-28b or JMF-01-02-00262-021C. Plaintiff provides copies of correspondence with Martin and Hall, but these letters do not establish the exhaustion of a grievance. In any event, plaintiff's legal claims against Martin and Hall appear to be based on supervisory liability or a failure to respond once notified of plaintiff's issue. Compl. "Legal Claims" ¶¶ 35, 37, 38. For the reasons discussed below, the Court need not reach the question of whether plaintiff's claims against Martin and Hall have been exhausted.
Plaintiff's correspondence with Martin and Hall includes (1) a November 27, 2000 letter from plaintiff to Hall regarding Robinson and Lareau and plaintiff's concern that Straub would not be objective; (2) a December 1, 2000 letter from Hall to plaintiff directing plaintiff to address his issue through the grievance process; and (3) a December 22, 2000 letter to Martin from plaintiff regarding visitation over the holiday. Compl. Attachments. Also, plaintiff provides copies of (1) a January 29, 2001 letter from plaintiff to Martin asking him to review an original grievance as it involved Zamiara of the BCF (instead of institutional staff); (2) a February 1, 2001 letter from Dotson of Martin's Office to plaintiff directing plaintiff to address his concern at the facility level; (3) a February 15, 2001 letter from Dotson of Martin's Office to plaintiff directing plaintiff to address his concern at the facility level; (4) an April 25, 2001 letter from plaintiff to Martin requesting Step III review of grievance appeal JCF-01-03-00833-028A (likely JCF-01-03-01083-028A); and (5) a June 1, 2001 letter from Plaintiff to Martin requesting Step III review of grievance appeal JMF-01-02-00350-007B. Mtn. Rsp. Attachments.
3. Whether plaintiff has stated constitutional claims upon which relief may be granted?
The facts set forth in plaintiff's complaint date from August 2000 through January 23, 2001. Compl. "Facts" ¶¶ 10-24. However, in light of plaintiff's representation that he pursued his claims through JCF-01-01-00386-28b (based upon the January 18, 2001 cell transfer) or JMF-01-02-00262-021C (based upon the January 24, 2001 placement level increase and prison transfer), Compl. "Facts" ¶ 21, the Court should construe plaintiff's claims as arising only out of those incidents.
In the first of those grievances, plaintiff claims that he was arbitrarily and unjustly transferred from A unit to C unit, thereby removing him from his A unit representative position, because he stood up for prisoners' rights. JCF-01-01-00386-028B (Step I). He claims that on January 18th the issues he had submitted for the January 23rd meeting (issues which had been approved by the entire warden's Forum Representatives) were forwarded to the Warden for review. JCF-01-01-00386-028B (Step II). Plaintiff claims this was done to end the issues he placed on the January agenda and "was a direct purposeful act of retaliation for [his] exercise of [his] First Amendment right to assist prisoners in relation to conditions of their confinement and [c]ourt claim[s] against this facility[.]" JCF-01-01-00386-028B (Step II cont'd). According to plaintiff, "moving Representatives out of their unit just to get them off the forum because they were making change as a retaliatory means is unl[a]wful." JCF-01-01-00386-028B (Step III cont'd). The Court should construe this grievance as alleging a claim of First Amendment retaliation for representing other prisoners' rights.
In an effort to prove that this cell transfer was arbitrary, unjust, and done in order to rescind his status as a representative, plaintiff cites an example of a white prisoner who was moved out of the unit he represented but was permitted to move back to maintain his representative status. JCF-01-01-00386-028B (Step II cont'd). Because this issue is not framed as an Equal Protection claim, this report does not address it as such.
In the second of those grievances, plaintiff claims that Zamiara made false statements, allowed false statements to be used against plaintiff, and approved statements — resulting in the increase in his security level from II to IV. JMF-01-02-00262-021C (Step I). Plaintiff claims that Zamiara's actions deprive him of his "fundamental right not to have [Zamiara] make or allow false statements about [him] be received, while such evidence is secured by deliberate deception to deprive [him] of [his] level II status [he] worked hard for, without due process of law[.]" JMF-01-02-00262-021C (Step I cont'd). Plaintiff grieves Zamiara's "waiving [his] custody level on evidence not supported in [his] record or file and where no past or present history in 27 years." JMF-01-02-00262-021C (Step I cont'd). Specifically, plaintiff claims he has "a protected liberty interest in having staff not make false purposeful statements about [him]." JMF-01-02-00262-021C (Step II). The Court should construe this grievance as alleging a due process claim.
Plaintiff claims that Zamiara acted on information received via telephone. JMF-01-02-00262-021C (Step III cont'd).
Plaintiff claims that being a level III in a level IV facility places him in danger of serious physical harm. JMF-01-02-00262-021C (Step III cont'd). While this is arguably an adverse action, plaintiff does not fashion this grievance as retaliatory in nature. Therefore, this report does not address plaintiff's facility transfer within the context of a First Amendment claim.
a. First Amendment retaliation:
As previously stated, the Court should construe grievance JCF-01-01-00386-028B as alleging a claim of First Amendment retaliation for representing other prisoners' rights. The elements of a retaliation claim under [the First Amendment] standard are ". . . (1) the plaintiff engaged in protected conduct; (2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) there is a causal connection between elements one and two — that is, the adverse action was motivated at least in part by the plaintiff's protected conduct." Thaddeus-X v. Blatter, 175 F.3d at 394, citing Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998); Lewis v. ACB Business Services, Inc., 135 F.3d 389, 406 (6th Cir. 1998); Penny v. United Parcel Serv., 128 F.3d 408, 417 (6th Cir. 1997); and Yellow Freight Sys., Inc. v. Reich, 27 F.3d 1133, 1138 (6th Cir. 1994). "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 at 399.
The First Amendment provides for a ". . . right of the people . . . to petition the Government for a redress of grievances." U.S. Const. amend. I. "[T]he First Amendment right to petition for redress of grievances includes redress under established prison grievance procedures." Dixon v. Brown, 38 F.3d 379, 379 (8th Cir. 1994), citing Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989). See also Rhodes v. Alameda County Sheriff's Department, No. C95-3346-MJJ, 1999 WL 551193, *3 (N.D.Cal. 1999), citing Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995) ("The right to file a grievance is subsumed under the First Amendment right to petition the government for redress of grievances and protects both the filing and content of prison grievances."). Therefore, the Court should find that plaintiff engaged in protected conduct when he filed his grievances.
Plaintiff does not necessarily engage in protected conduct by participating in other prisoners' lawsuits (specifically Louis Ross v. Bill Martin, et al., 00-CV-74658-DT (Civil Rights Complaint), filed on November 14, 2000 and assigned to Judge Tarnow, see JCF-01-01-00386-028B appeal), or representing prisoners on the Warden's Forum. As the Sixth Circuit recognized in Thaddeus-X, "[i]t is clear . . . that an inmate does not have an independent right to help other prisoners with their legal claims." Thaddeus-X 175 F.3d at 395; see also, Shaw v. Murphy, 532 U.S. 223, 121 S.Ct. 1475, 1479 (2001) (prisoners possess no special First Amendment right to provide legal assistance to fellow inmates). The Sixth Circuit has also explained, however, that "[s]uch assistance is protected . . . when the inmate receiving the assistance would otherwise be unable to pursue legal redress. Assistance is then protected as a derivative of the complainant's right of access to the courts." Herron v. Harrison, 203 F.3d 410, 415-16 (6th Cir. 2000); see also, Thaddeus-X, 175 F.3d at 395. The question, then, is whether plaintiff has alleged sufficient facts to show that Ross and other prisoners would have "otherwise be[en] unable to pursue" their claims without plaintiff's assistance. Plaintiff has made no allegations which, if proven, would show that Ross did not have other avenues for pursuing his federal civil rights claims. Compl. ¶¶ 25-39 ("Legal Claims"). For example, in Thaddeus-X, the assisting inmate was deemed to be engaging in protected conduct because the inmate whom he was assisting "had no knowledge of the law, was being held in administrative segregation, and could only access legal books by requesting them by title." Herron, 203 F.3d at 416 (discussing Thaddeus-X 175 F.3d at 395-96). Here, by contrast, plaintiff "does not assert in his complaint that [Ross] would have been unable to obtain access to the courts without him," and thus he has failed to adequately allege that he was engaged in protected conduct. Herron, 203 F.3d at 416. Even if plaintiff's representation of the prisoners in unit A on the Warden's Forum involved legally viable issues, there is no suggestion that the prisoners would be unable to elect someone other than plaintiff to represent them.
Despite this inadequacy in plaintiff's complaint, however, defendants are not entitled to dismissal on this basis without the Court first affording plaintiff an opportunity to amend. As the court explained in Herron, "a pro se plaintiff's complaint should only be dismissed . . . if it is clear that relief would not be appropriate under any set of facts that could be proved." Herron, 203 F.3d at 416 (citing Estelle v. Gamble, 429 US. 97, 106 (1976)). Thus, in a case such as this, plaintiff "`should be allowed to amend his complaint to properly allege'" that Ross was unable to pursue his legal remedies without plaintiff's assistance. Herron, 203 F.3d at 416 (quoting Gibbs v. Hopkins, 10 F.3d 373, 379 (6th Cir. 1993)).
b. Due process: As previously noted, the Court should construe grievance JMF-01-02-00262-021C as alleging a due process claim. To the extent plaintiff attempts to bring a substantive due process claim, "[a] prison inmate has no constitutionally guaranteed immunity from being falsely or wrongly accused of conduct which may result in the deprivation of a protected liberty interest." Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986); accord Riley v. Church, 874 F. Supp. 765, 768 (E.D. Mich. 1994), aff'd, 81 F.3d 161 (6th Cir. 1996). Rather, plaintiff merely has a right to due process before being disciplined with respect to such charges.
To the extent plaintiff sought to bring a procedural due process claim, the Due Process Clause provides that no state shall "deprive any person of life, liberty, or property, without due process of law." U.S. CONST. amend. XIV, § 1. By its terms, the Clause does not prohibit any and all actions by state actors undertaken without due process of law; rather, it prohibits deprivations only of life, liberty, or property without due process of law. Here, even assuming that defendants' procedures were deficient, or were arbitrarily ignored, plaintiff cannot succeed because he has not been deprived of any "liberty" interest protected by the Due Process Clause. The Supreme Court's decision in Sandin v. Connor, 515 U.S. 472 (1995), is directly on point. In Sandin, a prisoner brought a procedural due process claim alleging that the imposition of disciplinary segregation against him in connection with misconduct tickets violated his due process rights because the prison officials failed to follow state mandated procedures. See id. at 475. The Supreme Court rejected the prisoner's claim.
The Court reasoned that, in the prison context, "liberty" interests may arise in one of two ways. First, a liberty interest may arise by virtue of the Due Process Clause itself, where the confinement imposed is "`qualitatively different' from the punishment characteristically suffered by a person convicted of crime[.]" Id. at 479 n. 4 (discussing Vitek v. Jones, 445 U.S. 480 (1980) (transfer to state mental hospital implicates liberty interest) and Washington it Harper, 494 U.S. 210 (1990) (involuntary administration of psychotropic drugs implicates liberty interests)). Absent this type of qualitative change in punishment, a liberty interest may arise under state law. However, "these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484. Thus, under Sandin a plaintiff must show both (1) that a state statute or regulation creates a liberty interest in mandatory terms; and (2) that he suffered a restraint which imposed an atypical and significant hardship. See Rimmer-Bey v. Brown, 62 F.3d 789, 790-91 (6th Cir. 1995); see also, Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996).
Under this framework, plaintiff's due process claim must fail. Plaintiff claims he has a "fundamental right not to have [Zamiara] make or allow false statements about [him] be received, while such evidence is secured by deliberate deception to deprive [him] of [his] level II status [he] worked hard for, without due process of law[.]" JMF-01-02-00262-021C (Step I cont'd). However, the increase of one's security level does not impose an atypical and significant hardship in relation to the ordinary incidents of prison life. See Sandin, 515 U.S. at 486 ("We hold that Connor's discipline in segregated confinement did not present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest."); Rimmer-Bey, 62 F.3d at 791; Jones v. Baker, 155 F.3d 810, 812 (6th Cir. 1998) (citing Rimmer-Bey v. Brown, 62 F.3d 789, 790-91 (6th Cir. 1995); Mackey v. Dyke, 111 F.3d 460, 463 (6th Cir. 1997)) ("administrative segregations have repeatedly been held not to involve an `atypical and significant' hardship implicating a protected liberty interest without regard to duration."). Nor does a temporary loss of privileges. See, e.g., Higgason v. Farley, 83 F.3d 807, 809 (7th Cir. 1996) (denial of access to privileges such as social and rehabilitative activities not an atypical and significant hardship); Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996) (loss of commissary, recreation, package, and telephone privileges not an atypical and significant hardship); Christianson v. Clarke, 932 F. Supp. 1178, 1182 (D. Neb. 1996) (temporary restriction of privileges such as free access to law library, circulating library, yard, and central dining area not atypical and significant hardship). Furthermore, "under Sandin a liberty interest determination is to be made based on whether it will affect the overall duration of the inmate's sentence and there is no evidence here that the segregation will impact plaintiff's sentence." Jones, 155 F.3d at 812. Accordingly, the Court should grant defendants' motion for summary judgment with respect to plaintiff's due process claims.
In the "Administrative Remedies" section of plaintiff's form complaint, he claims he was "unable to appeal any major tickets without a due process hearing to appeal from [.]" Form Compl. at 3. Presumably, this is his explanation regarding why he did not seek State Circuit court review of a misconduct hearing. Id. This report does not address this as a separate due process claim, as misconduct hearings were not the subject of plaintiff's due process grievance.
4. Qualified immunity
Defendants argue that they are entitled to dismissal on the ground of qualified immunity. (Mtn. Br. at 13). The Supreme Court has stated that "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." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citing Procunier v. Navarette, 434 U.S. 555, 565 (1978) and Wood v. Strickland, 420 U.S. 308, 322 (1975)) (footnote omitted). "[Q]ualified immunity would be defeated if an official `knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury. . . .'". Harlow, 457 U.S. at 815 (citing Wood, 420 U.S. at 322).
The defense of qualified immunity should only be addressed after determining whether plaintiff has stated a constitutional claim upon which relief could be granted. "[T]he better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged a deprivation of a constitutional right at all. Normally, it is only then that a court should ask whether the right allegedly implicated was clearly established at the time of the events in question." County of Sacramento v. Lewis, 523 U.S. 833, 842 n. 5 (1998), citing Siegert it Gilley, 500 U.S. 226, 232 (1991).
The purpose behind qualified immunity is to protect public officials "from undue interference with their duties and from potentially disabling threats of liability." Id. at 806. The Sixth Circuit has described the qualified immunity analysis:
The first step in a qualified immunity analysis is whether, based on the applicable law, a constitutional violation occurred. If we find a constitutional violation, we examine whether it involved clearly established constitutional rights of which a reasonable person would have known. In determining whether a constitutional right is clearly established at the time of the actions in question we look first to decisions of the Supreme Court, then to decisions of this Court and other courts within our circuit, and finally to decisions of other circuits. The standard for qualified immunity depends substantially on the level of generality at which the relevant legal rule is to be identified. Therefore, for a plaintiff to make a successful . . . claim, the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. Although it need not be the case that the very action in question has previously been held unlawful, in the light of pre-existing law the unlawfulness must be apparent.
Once it is determined that the right is clearly established, the court must determine whether the plaintiff has alleged sufficient facts supported by sufficient evidence to indicate what the officer allegedly did was objectively unreasonable in light of the clearly established constitutional rights. Summary judgment is not appropriate if there is a genuine factual dispute relating to whether the defendants committed acts that allegedly violated clearly established rights.
Dickerson v. McClellan, 101 F.3d 1151, 1157-58 (6th Cir. 1996) (internal citations, quotations, and alterations omitted). Thus, as Dickerson makes clear, the qualified immunity inquiry requires a three-step analysis: (1) has plaintiff alleged a violation of a constitutional right?; (2) if so, was that right clearly established at the time of the alleged conduct?; and (3) if the right was clearly established, has plaintiff alleged and sufficiently supported that the official's actions were objectively unreasonable in light of this clearly established right? Ultimately, "the burden of proof is on the plaintiff to show that the defendant is not entitled to qualified immunity." Gardenhire v. Schubert, 205 F.3d 303, 311 (6th Cir. 2000) (citing Wegener v. City of Covington, 933 F.2d 390, 392 (6th Cir. 1991)).
If the Court accepts my foregoing recommendations, then it need not address defendants' alternate argument that they are entitled to qualified immunity.
5. Summary
The Court should find that plaintiff's claims are not barred by the Eleventh Amendment to the extent the claims are brought against defendants in their personal capacities; however, they are barred by the Eleventh Amendment to the extent the claims are brought against defendant in their official capacities. Notwithstanding the foregoing, the Court should find that plaintiff is permitted to seek injunctive relief from state officials sued in their official capacities. See Section II.D.1.
The Court should also find that, of the two grievances with which plaintiff claims he exhausted his administrative remedies, JCF-01-01-00386-28B ( First Amendment retaliation claim) and JMF-01-02-00262-021C (due process claim), the former is exhausted. However, the Court should also find that the latter is not exhausted. If the Court agrees with this conclusion, then it should dismiss plaintiff's due process claim for failure to exhaust. If the Court does not agree with this conclusion, then it should deny plaintiff's due process claim on the merits. See Section II.D.2.
The Court should find that plaintiff's grievance JCF-01-01-00386-28B attempts to raise a claim of First Amendment retaliation for representing other prisoners' rights; however, the Court should find that plaintiff did not engage in protected activity as described in his grievance. The Court should permit plaintiff to amend this claim in his complaint. If plaintiff does not amend his First Amendment retaliation claim, then it should be dismissed. See Section II.D.3.a.
The Court should find that plaintiff's grievance JMF-01-02-00262-021C attempts to raise a due process claim. If the Court reaches the merits of this claim, then it should dismiss plaintiff's due process claim on the basis that he has a right to due process before being disciplined with respect to charges which put a protected liberty interest on the line but has not shown that he has been deprived of any "liberty" interest protected by the Due Process Clause. See Section II.D.3.b.
III. NOTICE TO PARTIES REGARDING OBJECTIONS:
The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636 (b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Am, 474 U.S. 140 (1985); Howard v. Secretary of Health Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Filing of objections which raise some issues but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.
Within ten (10) days of service of any objecting party's timely filed objections, the opposing party may file a response. The response shall be not more than five (5) pages in length unless by motion and order such page limit is extended by the Court. The response shall address specifically, and in the same order raised, each issue contained within the objections.