The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MARIO WILLIAMS, )
)
Plaintiff, )
)
v. ) Case No. CIV-19-820-STE
)
FNU GRAY, et al., )
)
Defendants. )
MEMORANDUM OPINION AND ORDER
Plaintiff Mario Williams, a state inmate appearing and ,
has filed a lawsuit under 42 U.S.C. § 1983, alleging various constitutional violations. (ECF
No. 1). Previously, the Court ruled against Defendant Gray on a Motion for Summary
Judgment. ECF Nos. 37 & 40. Currently at issue before the Court is a second Motion
for Summary Judgment filed by Defendant Gray on the remaining claim against her—a
First Amendment retaliation claim in her individual capacity, limited to the recovery of
monetary damages. (ECF No. 70). The Court GRANTS Defendant Gray’s Motion for
Summary Judgment.
I. STANDARD OF REVIEW FOR SUMMARY JUDGMENT
Summary judgment shall be granted where the movant “shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). Parties may establish the existence or nonexistence
of a material disputed fact through:
● submission of “depositions, documents, electronically stored information,
affidavits or declarations, stipulations . . ., admissions, interrogatory
answers, or other materials; or”
● demonstration “that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.”
Fed. R. Civ. P. 56(c)(1)(A)-(B). The cited evidence should be viewed “in the light most
favorable to the non-moving party.”
, 431 F.3d 1241, 1255 (10th Cir. 2005) (citation omitted).
The burden of persuasion falls on the Plaintiff for the elements of a
case. , 41 F.3d 571, 573 (10th Cir. 1994). Because Defendant Gray
does not bear the burden of persuasion, her only obligation is to produce affirmative
evidence negating an essential element of the claims or to show that Plaintiff lacks
evidence to carry his burden. If Defendant Gray satisfies this burden of
production, Plaintiff can avoid summary judgment only if he presents evidence creating
“an inference of the existence of essential to the case with respect to which
[he] has the burden of proof.” ,
443 F.3d 1240, 1243 (10th Cir. 2006) (citations omitted) (emphasis added).
II. THE FIRST AMENDMENT RETALIATION CLAIM
Mr. Williams alleges that Defendant Gray impermissibly retaliated against him in
violation of the First Amendment. (ECF No. 1:7-10). Defendant Gray has filed a Motion
for Summary Judgment on this claim and Plaintiff has filed a response. (ECF Nos. 70 &
74). The Court grants Defendant Gray’s Motion for Summary Judgment.
A. Standard for Claims of Retaliation
Prison officials may not retaliate against prisoners for exercising their constitutional
rights, including filing internal prison grievances. 435 F.3d 1252,
1264 (10th Cir. 2006). “This principle applies even where the action taken in retaliation
would be otherwise permissible.” , 149 F.3d 1140, 1144 (10th Cir.
1998). “[W]hile a prisoner enjoys no constitutional right to remain in a particular
institution . . . , prison officials do not have the discretion to punish an inmate for
exercising his first amendment rights by transferring him to a different institution.”
, 922 F.2d 560, 561–62 (10th Cir. 1990). To succeed on a First Amendment
retaliation claim, Mr. Williams must demonstrate: “(1) that [he] was engaged in
constitutionally protected activity; (2) that the defendant’s actions caused the plaintiff to
suffer an injury that would chill a person of ordinary firmness from continuing to engage
in that activity; and (3) that the defendant’s adverse action was substantially motivated
as a response to the plaintiff's exercise of constitutionally protected conduct.”
, 510 F.3d 1196, 1203 (10th Cir. 2007). , 627 F.3d at 1189
(applying same test to prisoner claims under 42 U.S.C. § 1983). To satisfy the third prong
of this analysis, the inmate must allege that “but for the retaliatory motive, the incidents
to which he refers . . . would not have taken place.” , 149 F.3d at 1144 (10th
Cir. 1998) (internal quotation marks omitted).
B. Defendant Gray is Entitled to Summary Judgment
While Plaintiff’s case manager at Lexington Correctional Center (LCC) in 2016,
Defendant Gray was suspended for one-day without pay after throwing a hole punch at
Mr. Williams. (ECF No. 70-4). Thereafter, Ms. Gray was removed from Plaintiff’s housing
unit to prevent further contact between the two. (ECF Nos. 1:7). However, in 2019, Ms.
Gray was moved back to Plaintiff’s unit where she served as his case manager for
approximately three weeks. (ECF No. 70-5). At that time, Plaintiff was allegedly “warned
by a confidential staff member to watch [his] back because [he] was still on C/M Gray’s
radar for the 2016 incident[.]” (ECF No. 1:7). While serving as Plaintiff’s case manager
Plaintiff alleges that Defendant Gray impermissibly retaliated against him by taking action
which resulted in his transfer to Lawton Correctional Facility (LCF). (ECF Nos. 1:7-9, 14-
15, 24; 33:3-4, 11-16). Defendant Gray contends that she is entitled to summary
judgment on the retaliation claim because Plaintiff cannot prove that “but for” a retaliatory
motive, Mr. Williams would not have been transferred. The Court agrees.
In the first Motion for Summary Judgment, Defendant Gray argued that Plaintiff’s
transfer was: (1) “due to his overfamiliarity with LCC and the amount of influence he had
over inmates at the facility” and (2) to facilitate programming needs at LCC. (ECF No. 24-
26). In support, Defendant Gray submitted a “Facility Assignment Form” (FAF) which was
processed in connection with Plaintiff’s transfer. (ECF No. 24-26). In Section II, the
“Description of Reason for Transfer,” the FAF stated:
Recommend transfer to another medium security facility due to over
familiarity with the facility. Inmate has been at LCC since 3/7/14 and has a
lot of influence over inmates.
(ECF No. 24-26). In Section V, the FAF stated: “Med GP Lat Make room fr Program.” (ECF
No. 24-26). As discussed in the Report and Recommendation, the Court concluded that
“The FAF provides clear evidence of the first rationale [overfamiliarity with the facility and
influence over inmates], but not of the second [to facilitate programming needs at LCC].”
(ECF No. 37:10). Discounting the rationale regarding programming needs,1 what
remained was the rationale that Plaintiff was transferred due to his “overfamiliarity with
the facility and influence on other inmates.” Although Defendant had given a facially valid
reason for the transfer, Mr. Williams presented evidence in the form of his sworn
statement that the rationale was mere pretext—as evidenced by other retaliatory actions
taken by Ms. Gray around the time of the transfer—namely that Defendant Gray had
improperly enhanced his security points by (4) for a disciplinary conviction which he did
not have. (ECF No. 37:11-13). The Court concluded that Plaintiff’s evidence, which
Defendant did not dispute, created a genuine issue of material fact regarding the motive
behind the “comments” placed in Defendant’s file, which ultimately served as the basis
for the transfer.
1 Previously, the Court determined that the FAF did not provide concrete evidence that Plaintiff
was transferred to LCF to facilitate programming needs at LCC because the section on the FAF
which indicated the same was written in a section completed by the receiving facility—LCF—not
the transferring facility—LCC. ECF No. 37:10.
Now, in Defendant Gray’s second Motion for Summary Judgment, she has once
again argued the absence of the third element of a retaliation claim—that “but for
the retaliatory motive, the incidents to which [Plaintiff] refers . . . would not have taken
place.” ECF No. 70; , .2 This time, however, Defendant Gray has
submitted additional and undisputed evidence regarding Plaintiff’s transfer which negates
involvement attributable to Ms. Gray as the party responsible for the transfer. First, Ms.
Gray has submitted an affidavit from Aaron Cosar—Fellowship Academy Program Director
at LCC. ECF No. 70-6. According to Mr. Cosar, “Unit 5” at LCC houses the participants
of the Prison Fellowship Program, in which Mr. Williams was enrolled. After the year-
long program ends, the participating inmates are transferred out of Unit 5 to make room
for new program participants. At times, inmates are asked to stay in Unit 5 after
graduating to serve as mentors to new program participants, but staying in Unit 5 is never
guaranteed. Under oath, Mr. Cosar states that Plaintiff graduated the program in
August 2018 and “[d]uring May and June 2019, we needed to transfer out 40 inmates
from Unit 5 to make room for new program participants.” As a result, Mr. Cosar states
that he contacted Unit Manager Diana Wesson to begin the transfer process.
Second, Defendant Gray submitted an affidavit from Diana Wesson regarding her
role in the transfer. According to Ms. Wesson, upon Mr. Cosar’s request to transfer 40
2 Defendant Gray also argues that she is entitled to summary judgment on grounds of qualified
immunity, but the Court need not address this proposition, as summary judgment is appropriate
on other grounds. ; , 2015 WL 6438901,
at *3 (W.D. Okla. Sept. 29, 2015).
inmates, she informed Defendant Gray by giving her a list of the inmates to be
transferred, which included Mr. Williams. (ECF No. 70-9). Ms. Wesson also told Ms. Gray
that Plaintiff was “causing disruptions within the facility, that he had a mentality that he
was staff and was inappropriately acing as staff, and that he had a lot of influence over
other inmates.” On this basis, Ms. Wesson asked Defendant Gray to submit a transfer
request to transfer Mr. Williams from the facility. According to Ms. Wesson, Ms. Gray did
not participate in creating the transfer list, nor did she suggest that Plaintiff be
transferred.
Previously, the Court had decided: (1) there had existed only one rationale for the
transfer—comments placed in Plaintiff’s file by Defendant Gray regarding his
“overfamiliarity with the facility and influence on inmates” and (2) other evidence existed
which raised a factual dispute regarding Defendant’s Gray’s motive for placing those
comments in Plaintiff’s file. However, the new evidence submitted by Defendant Gray
demonstrates that the transfer was based on: (1) a need for space in Unit 5 to
accommodate new participants in the Prison Fellowship Academy Program and (2)
Plaintiff’s overfamiliarity with the facility and influence on inmates—which had been
observed and noted as a concern by Ms. Wesson, not Defendant Gray. Although it had
initially appeared as though Defendant Gray had placed the “comments” in Plaintiff’s file,
as evidenced by the FAF,3 it is clear now that the source of the comments was Ms.
Wesson, not Defendant Gray.
3 ECF No. 24-26.
Previously, the Court had stated that Defendant Gray’s improperly assessing Mr.
Williams with additional security points based on a disciplinary conviction which Plaintiff
did not have provided evidence that Defendant Gray had acted with a retaliatory motive
in placing the “comments” in Plaintiff’s file—comments which the parties agreed had
provided the basis for the transfer. ECF No. 37. But the additional evidence submitted
by Ms. Gray with the current Motion for Summary Judgment demonstrates otherwise.
. In light of this additional evidence, the evidence regarding the assessment of
security points is irrelevant because the bases for the transfer are now clear.
Defendant Gray has produced affirmative evidence negating the third element of
a First Amendment retaliation claim—that “but for” her actions in placing the comments
in Plaintiff’s file, he would not have been transferred. The comments were only one of
two reasons for the transfer and Defendant Gray has produced evidence that the
comments were not even attributable to her. Because Defendant Gray has satisfied her
burden of production, Plaintiff can avoid summary judgment only if he presents evidence
creating “an inference of the existence of essential to the case with respect
to which [he] has the burden of proof.” , Plaintiff has failed
in this regard, instead only arguing that that Defendant Gray’s evidence is insufficient and
the misconduct points served as proof of the retaliatory intent. ECF No. 74. The Court
concludes: (1) that the affidavit evidence submitted by Defendant Gray is sufficient,
, Fed. R. Civ. P. 56(a); and (2) the misconduct points are irrelevant to the transfer,
as previously discussed.
ORDER
Based on the forgoing, the Court GRANTS summary judgment to Defendant Gray
on the First Amendment retaliation claim.
ENTERED on October 18, 2022.
SHON T. ERWIN
UNITED STATES MAGISTRATE JUDGE