Adams v. Lewis

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT CHATTANOOGA

CHRISTOPHER ADAMS, )

)

Plaintiff, )

)

v. ) No.: 1:22-CV-125-SKL

)

RANDALL LEWIS, )

LUKE BURNS, )

FRANK STRADA, and )

SHAWN PHILLIPS, )

)

Defendants. )

MEMORANDUM AND ORDER

Plaintiff Christopher Adams, a prisoner in the custody of the Tennessee Department of

Correction (“TDOC”) was permitted to proceed in this pro se civil rights action under 42 U.S.C.

§1983 on a claim that Defendants Randall Lewis and Luke Burns had him transferred to a different

prison in retaliation for exercising his First Amendment rights1 [See generally Docs. 88, 89].

Before the Court are the parties’ cross-motions for summary judgment [Docs. 103, 108] and

Plaintiff’s motion to defer adjudication of Defendants’ summary judgment motion and reopen

discovery [Doc. 117]. Upon consideration of the parties’ pleadings, the summary judgment

evidence, and the applicable law, the Court finds that genuine issues of material fact preclude the

grant of summary judgment. Thus, the summary judgment motions of both parties and Plaintiff’s

motion to defer adjudication and reopen discovery will be denied.

I. BACKGROUND

1 Defendants Frank Strada and Shawn Phillips are “sued in [their] official capacit[ies] only

for prospective injunctive relief” [Doc. 89 ¶¶ 15, 16].

Plaintiff, an inmate in TDOC custody since 2004, was housed at the Bledsoe County

Correctional Complex (“BCCX”) continuously from February 4, 2010, to October 4, 2021 [Doc.

104-1 p. 56 ¶ 2; Doc. 109-4 p. 3 ¶ 12]. BCCX is a programming institution that offers various

training and programs to reduce inmate’s sentences and prepare them for release [Doc. 109-3 p. 2

¶ 5; Doc. 109-4 p. 2 ¶ 7]. Around the beginning of October 2021, Acting Warden of Treatment

(“AWT”) Brett Cobble contacted Defendant Unit Manger Randall Lewis and other officials to

request a list “of any non-Annex eligible inmates or inmates not currently enrolled in educational,

vocational training, or early release programs” [Doc. 109-3 p. 3 ¶ 10]. BCCX commonly transfers

inmates who have either finished their programming or have no need of any to make room for

inmates with programming needs [Doc. 109-3 p. 2 ¶ 9; Doc. 109-4 p. 2 ¶ 11]. Thereafter,

Defendant Lewis discussed the issue with multiple members of correctional staff, including

Defendant Sergeant Luke Burns, with whom Lewis shared an office [Doc. 109-8 p. 2 ¶¶ 6-7; Doc.

109-9 p. 2 ¶¶ 5-6; Doc. 125-1 p. 12 ¶ 25]. Defendant Burns asked Lewis to place Plaintiff’s name

on the transfer list [Doc. 122 p. 6 ¶ 15; Doc. 109-9 p. 2 ¶ 6]. AWT Cobble received the transfer

list, which included Plaintiff’s name, and Plaintiff’s transfer was ultimately approved by BCCX

Warden Shawn Phillips [Doc. 109-4 pp. 3-4 ¶¶ 20-23]. So on October 4, 2021, Plaintiff and

approximately thirty other prisoners were transferred from the BCCX to the Trousdale Turner

Correctional Center (“TTCC”) [Doc. 109-4 pp. 3-4 ¶¶ 20-23; Doc. 122 p. 6 ¶ 15; Doc. 124 p. 14 ¶

31].

Plaintiff contends that Defendants transferred him to a different prison, at least in part, “to

retaliate and punish him for exercising” his First Amendment rights [Doc. 892 ¶ 85]. Plaintiff

2 Plaintiff’s “Verified Amended Complaint[,]” the operative pleading in this case, is not

competent summary judgment evidence, as it is not sworn under penalty of perjury. See El Bey v.

Roop, 530 F.3d 407, 414 (6th Cir. 2008) (citing 28 U.S.C. § 1746) (holding complaint signed under

penalty of perjury carries the same weight as an affidavit for purposes of summary judgment).

points to five separate incidents that “culminat[ed]” to form the basis of his claim [See Doc. 105

pp. 9-10; Doc. 109-2 p. 28]. First, Plaintiff filed and won a lawsuit, Adams v. Baker, No. 1:16-

CV-335 (E.D. Tenn. Aug. 15, 3019) (“Baker lawsuit”), against David Baker, his former Tennessee

Rehabilitative Initiative in Correction (“TRICOR”) supervisor [Doc. 104-1 p. 60 ¶13; Doc. 109-2

pp. 20-21, 22]. Defendant Burns’ father had to respond to Plaintiff’s public records requests in that

lawsuit [Doc. 104-1 p. 60 ¶ 13; Doc. 109-2 pp. 21-22].

Second, Plaintiff and twelve other inmates filed an unsuccessful lawsuit, Adams v. Parker,

No. 1:19-cv-296 (E.D. Nov. 27, 2019) (“Parker lawsuit”) regarding TDOC’s requirement that

inmates wear plastic identification wristbands [Doc. 109-2 pp. 15-17].

Third, Plaintiff had a conversation with Defendant Burns in which he complained that

Burns had approved an ineligible inmate’s membership in the Lifer’s Club, a philanthropic prison

organization that Burns sponsored at the time [Doc. 109-2 pp. 8-9, 11, 29-31; Doc. 104-1 pp. 60-

61 ¶¶ 14-15]. Plaintiff, the president of the organization, kicked the ineligible inmate out of the

club [Doc. 109-2 p. 31]. Plaintiff maintains that Defendant Burns stopped sponsoring the club

thereafter due to the “drama” involved [Doc. 109-2 p. 31; Doc. 104-1 p. 61 ¶ 15].

Fourth, Plaintiff advised Inmate Trusty that he could file a grievance about a cell transfer

initiated by Defendant Burns [Doc. 109-2 pp. 25-27].3 Instead of filing a grievance, Inmate Trusty

told Defendant Burns about Plaintiff’s advice [Doc. 104-1 pp. 61-62 ¶ 16]. According to Plaintiff,

Defendant Burns spoke with Plaintiff and told Plaintiff that he “d[id]n’t need to be telling people

they could file grievances on [Burns]” [Doc. 109-2 p. 27].

3 Plaintiff concedes this instance is not protected conduct but argues that it should be

protected “under the umbrella” of Trusty’s right-to-access rights [Doc. 125 p. 11].

Fifth, in September 2021, Plaintiff made a verbal grievance to Defendant Lewis concerning

his missing commissary, which he believed was stolen by inmate volunteer worker, John Bennett,

a friend of Defendants Burns and Lewis who routinely spent time in Defendants’ office and ate

meals with Defendant Burns [Doc. 104-1 p. 62 ¶ 17; Doc. 109-2 pp. 6-7, 24-25].

Conversely, Defendants deny any retaliatory motive and maintain that Plaintiff’s transfer

was motivated by three separate, legitimate concerns [See Doc. 109-8 p. 3 ¶¶ 12-15; Doc. 109-9

p. 3 ¶¶ 8-10]. One, they state that it was part of a routine population management transfer to make

room for inmates arriving at BCCX needing and eligible for programming [Doc. 109-4 p. 2 ¶ 21].

Specifically, Defendants claim that Plaintiff had completed all his required programming at

BCCX, that he was not recommended for any other BCCX programs, and that he had not requested

to be placed in any education or programming classes [Doc. 109-4 p. 3 ¶¶ 13, 1-17]. Second, they

maintain that Plaintiff was a candidate for transfer because he was not eligible to be housed in the

annex area of BCCX, which houses “minimum direct or trustee inmates” whose sentences are set

to expire within ten4 years [Doc. 109-3 p. 2 ¶¶ 6-8; Doc. 109-4 pp. 2, 3 ¶¶ 8-10, 19]. And third,

Defendants contend that Plaintiff was transferred because of his “lengthy pattern of disrespectful

behavior and conduct directed toward institutional staff,” “his treatment of other inmates[,]” his

“comfort[] disregarding the rules regarding dress attire,” the “overall deterioration in his respect

toward prison authority[,]” and the fact that his “overfamiliarity with staff” raised “security

concerns about [Plaintiff’s] proper adherence to proper TDOC policy and facility rules” [Doc. 109-

8 pp. 2-3 ¶¶ 8, 10; Doc. 109-9 p. 2 ¶ 6; Doc. 104 p. 51 ¶ 6].

But according to Plaintiff, Defendants found an opportunity to subject Plaintiff to a

retaliatory transfer under the guise of an otherwise normal population management transfer when

4 Plaintiff contends that inmates convicted of a sex offense must be within seven years of

their release eligibility date to be assigned to the annex [Doc. 124 pp. 2-3 ¶ 5].

they were contacted for a list of eligible inmates [Doc. 109-2 pp. 28-29]. In support of this

assertion, Plaintiff notes that TDOC policy is to allow inmates to remain at their assigned

institutions unless there is a valid reason for transfer, and he states that some inmates have been

permanently housed at BCCX for up to forty years [Doc. 122 pp. 9-10 ¶¶ 19, 20, 31, 32].

Additionally, on September 17, 2021, two weeks before his transfer, Plaintiff received his annual

reclassification hearing, where it was determined that Plaintiff would remain a minimum-security

inmate at BCCX and continue participation in the TRICOR Prison Industry Enhancement

Certification Program (“PIE”) [Doc. 104 p. 24 ¶¶ 3, 4]. Sergeant Burns was a member of

classification panel and did not recommend Plaintiff to be transferred at that time [Doc. 104-1 p.

5 ¶¶ 4, 5]. Plaintiff also challenges the assertion that he had completed his programming and had

not requested any additional classes, stating that at the time of his transfer he was a participant in

the TRICOR PIE and the Take One programs, he was on the register to take the Cognitive

Behavioral Intervention Program (“CBIP”), and he begun the enrollment process for Chattanooga

State Community College’s sponsored associate degree program [Doc. 104 p. 26 ¶ 13; Doc. 125-

1 p. 2-3 ¶¶ 5-7].

As to the contention that Plaintiff’s transfer was prompted by the need to occupy the facility

with annex-eligible inmates, Plaintiff notes that the annex area of BCCX is a separate compound

from where he was housed, and thus, his transfer did not impact the space available for annex-

eligible inmates [Doc. 125-1 pp. 7-8 ¶ 17; see also Doc. 109-4 p. 4 ¶ 22]. Plaintiff also points out

that, as to his purported conduct, he has no disciplinary convictions and no contact notes indicating

he has engaged in any improper conduct, such as “defiance,” “dress code violation,” “solicitation

of staff,” or “violation of TDOC/institutional policies” [Doc. 104-1 p. 5 ¶ 7; Doc. 104-2 pp. 44-

46, 53-55, 63, 67-69, 99-102, 105-08]. He further buttresses his claim of retaliatory motivation

with the declarations of Inmates Bruce Tuck and James Roysdon, who aver that Sergeant Burns

admitted to them on separate occasions that he submitted Plaintiff’s name for transfer because of

the Baker lawsuit and the negative effect that lawsuit had on Burns’ father [Doc. 104-1 pp. 37, 41].

Plaintiff asserts that because of his transfer to TTCC, he lost his lucrative TRICOR job

assignment; approximately $10,000 worth of leather craft supplies; “reasonable” law library

access; a much safer prison environment; and liberal faith, recreational, and higher education

opportunities [Doc. 122 pp. 7-8 ¶¶ 21-26; Doc. 125-1 ¶ 16; Doc. 104-1 pp. 43-44, 46-48, 50-51,

53-54, 57-59 ¶¶ 4-9, 62-63 ¶ 18].

II. SUMMARY JUDGMENT STANDARD

Summary judgment is proper only when the pleadings and evidence, viewed in a light most

favorable to the nonmoving party, illustrate that no genuine issue of material fact exists and the

movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a),(c); Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986). To establish an entitlement to summary judgment, the

moving party must demonstrate that the nonmoving party cannot establish an essential element of

his case for which he bears the ultimate burden of proof at trial. Celotex, 477 U.S. at 322. Once

the motion is properly supported with competent evidence, the nonmovant must show that

summary judgment is inappropriate by setting forth specific facts showing there is a genuine issue

for trial. Id. at 323. That is, to successfully oppose a motion for summary judgment, “the non-

moving party . . . must present sufficient evidence from which a jury could reasonably find for

him.” Jones v. Muskegon Cnty., 625 F.3d 935, 940 (6th Cir. 2010).

At summary judgment, “[t]he evidence of the non-movant is to be believed, and all

justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986). But “[w]hen opposing parties tell two different stories, one of which is blatantly

contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that

version of the facts for the purposes of ruling on a motion for summary judgment.” Scott v. Harris,

550 U.S. 372, 380 (2007). “The blatantly contradictory standard is a difficult one to meet and

requires opposing evidence that is largely irrefutable[.]” Amerson v. Waterford Twp., 562 F. App’x

484, 489 (6th Cir. 2014); see also Jones v. Garcia, 345 F. App’x 987, 990 (6th Cir. 2009)

(observing that if the non-moving party’s version of events “does not require such a suspension of

reality that no reasonable juror could accept it . . . that is enough to allow a jury to hear the claim”).

Objective evidence, such as video footage, can satisfy this standard. See Scott, 550 U.S. at 380-

81 (finding that unambiguous video footage blatantly contradicted the plaintiff’s account).

However, evidence that is not objective, such as “deposition testimony, affidavits, and prison

records” generally does not. Oliver v. Greene, 613 F. App’x 455, 458 (6th Cir. 2015).

Once the court has “determined the relevant set of facts and drawn all inferences in favor

of the nonmoving party to the extent supportable by the record, . . . [the ultimate decision becomes]

. . . a pure question of law.” Scott, 550 U.S. at 381 n.8 (emphasis in original). But if the “evidence

is such that a reasonable jury could return a verdict for the nonmoving party,” then there is a

genuine dispute as to a material fact. Anderson, 477 U.S. at 248. If no proof is presented, however,

the Court does not presume that the nonmovant “could or would prove the necessary facts.” Little

v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citing Lujan v. Nat’l Wildlife Fed’n., 497

U.S. 871, 889 (1990)).

III. ANAYLSIS

Retaliation against a prisoner for exercising his constitutional rights violates the

Constitution. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999). To establish a First

Amendment retaliation claim, a plaintiff must prove that (1) he engaged in protected conduct; (2)

the defendant took an adverse action against him “that would deter a person of ordinary firmness

from continuing to engage in that conduct”; and (3) the adverse action was at least partially

motivated because of the protected conduct. Id. Plaintiff “has burden of proof on all 3 elements.”

Murray v. Unknown Evert, 84 F. App’x 553, 556 (6th Cir. 2003). If a plaintiff can make this

showing, then the burden shifts to the defendant to “show that he would have taken the same action

in the absence of the protected activity[.]” Thaddeus-X, 175 F.3d at 399.

Plaintiff argues that he is entitled to summary judgment because he satisfies all three

elements of a prima facie case of retaliation [Doc. 103]. Defendants contend that they are entitled

to summary judgment because Plaintiff’s conduct is mostly unprotected, a prison transfer is not a

sufficiently adverse action, and there is no evidence to suggest that Plaintiff’s conduct motivated

any action taken by Defendants [Doc. 109].

A. Protected Conduct

Plaintiff maintains he engaged in protected conduct when he filed the Baker lawsuit; filed

the Parker lawsuit; gave advice to an inmate regarding his grievance opportunities; complained to

Defendant Lewis regarding his stolen commissary; and confronted Defendant Burns regarding

another inmate’s membership in the Lifer’s Club. The parties agree that Plaintiff engaged in

protected conduct when he filed the Baker and Parker lawsuits [See, e.g., Doc. 129 p. 8]. See

Bounds v. Smith, 430 U.S. 817, 821 (1977) (holding it “established beyond doubt that prisoners

have a constitutional right of access to the courts”), overruled in part on other grounds by Lewis

v. Casey, 518 U.S. 343 (1996).

However, the parties disagree whether Plaintiff’s verbal complaints and conversations

constitute protected conduct [Compare Doc. 105 with Doc. 109]. It is well settled that a prisoner

has a right to file non-frivolous grievances “on his own behalf.” Herron v. Harrison, 203 F.3d

410, 415 (6th Cir. 2000). But a prisoner must exercise this right in accordance with “the legitimate

penological objectives of the corrections system” for the conduct to be protected. Smith v.

Campbell, 250 F.3d 1032, 1036 (6th Cir. 2001); see also Thaddeus-X, 175 F.3d at 395 (holding

prisoner violating “legitimate prison regulation” is not engaged in protected conduct). Defendants

have presented evidence that TDOC implemented a formal inmate grievance procedure that

defines a “grievance” as a “written complaint” about a “condition or incident” that “personally

affects the inmate complainant” [Doc. 109-4 p. 2 ¶ 5; Doc. 109-5 p. 2; Doc. 109-6 p. 2; Doc. 109-

8 p. 2 ¶ 4; Doc. 109-9 p. 2 ¶ 4; Doc. 124 p. 3 ¶¶ 6-7]. They maintain that Plaintiff did not engage

in any protected conduct by merely holding conversations with officers [Doc. 121 p. 4-5]. And

while Defendants concede that oral grievances may constitute protected conduct under some

circumstances, they argue that this right is limited to the threat to file a non-frivolous grievance,

see Pasley v. Conerly, 345 F. App’x 981, 985 (6th Cir. 2009), and the filing of oral grievances at

an institution with an informal grievance policy, Maben v. Thalen, 887 F.3d 252, 265-66 (6th Cir.

2018), neither of which are applicable in Plaintiff’s case [Doc. 109 p. 10]. Plaintiff, meanwhile,

argues that essentially any expression of complaint satisfies a dictionary definition of “grievance”

and constitutes protected conduct [Doc. 124 p. 3 ¶¶ 6, 7].

The Court declines to adopt either Defendants’ narrow view or Plaintiff’s expansive one.

Instead, verbal grievances that would be protected if memorialized in writing constitute protected

conduct. Holzemer v. City of Memphis, 621 F.3d 512, 521 (6th Cir. 2010) (“Nothing in the First

Amendment itself suggests that the right to petition for redress of grievances only attaches when

the petitioning takes a specific form.” (quoting Pearson v. Welborn, 471 F.3d 732, 741 (7th Cir.

2006) (“We decline to hold that legitimate complaints lose their protected status simply because

they are spoken.”))); Maben, 887 F.3d at 265 (holding “prison officials [are not] allowed to

retaliate against [an inmate] for making an oral grievance”). Thus, the Court asks whether

Plaintiff’s verbal complaints or interactions were made as “part of his attempt to access” redress

for his grievance. Siggers-El v. Barlow, 412 F.3d 693, 699 (6th Cir. 2005); Maben, 887 F.3d at

264-65. If so, that conduct is protected under the First Amendment.

First, Plaintiff alleges that he engaged in protected conduct when he advised Inmate Trusty

that Trusty could file a grievance concerning a cell transfer conducted by Defendant Burns [Doc.

109-2 p. 25-27].5 But any right Plaintiff had to assist Inmate Trusty is limited to assistance

necessary to vindicate Trusty’s right of access to legal redress. See, e.g., Thaddeus-X, 175 F.3d at

395. And there is no evidence that Inmate Trusty would have been unable to file a grievance or

pursue legal redress absent Plaintiff’s assistance. See Cromer v. Dominguez, 103 F. App’x 570,

573 (6th Cir. 2004) (finding the inmate plaintiff did not engage in protected conduct by

representing inmates in presenting grievances where the plaintiff did not show that the inmates

receiving the assistance would otherwise be unable to pursue legal redress (citing Herron, 203

F.3d at 415)). Therefore, Plaintiff did not engage in protected conduct within the meaning of the

First Amendment when he advised Inmate Trusty regarding his grievance rights.

Second, Plaintiff maintains that he engaged in protected conduct when he complained to

Defendant Burns, sponsor of the Lifer’s Club, that he permitted an ineligible inmate to place

membership in the organization [Doc. 105 p. 10]. Plaintiff argues that he “had an interest as

president of the Lifer’s Club to ensure that it operated within the parameters of department policy

and their bylaws” [Id.] But his verbal complaint to Defendant Burns was not lodged to remedy

anything that affected Plaintiff’s own rights. See Herron, 203 F.3d at 415. And, in fact, Plaintiff’s

5 Plaintiff never submitted a verbal or written grievance over the matter [Doc. 109-2 p. 32].

conversation with Defendant Burns was not an attempt to petition for redress, as Plaintiff had the

authority to unilaterally remove the ineligible inmate from the roster and did so [Doc. 109-2 p. 31].

Therefore, Plaintiff’s verbal complaint regarding the Lifer’s Club does not constitute protected

conduct.

Third, Plaintiff contends he engaged in protected conduct when he complained to

Defendant Lewis in September 2021 that his commissary was stolen, ostensibly by volunteer

worker John Bennett [Doc. 104 p. 7; Doc. 109-2 pp. 23-25; Doc. 124 pp. 22-23 ¶¶ 53-54]. This

verbal complaint was made on Plaintiff’s own behalf, Herron, 203 F.3d at 415, and it was a

conversation Plaintiff initiated to seek relief about a prison issue, Maben, 887 F.3d at 265 [See

Doc. 109-2 p. 24]. Therefore, the Court finds Plaintiff engaged in protected conduct when he made

a verbal complaint to Defendant Lewis concerning his commissary.

B. Adverse Action

The second element of a retaliation claim is whether “an adverse action was taken against

the plaintiff that would deter a person of ordinary firmness from continuing to engage in that

[protected] conduct[.]” Thaddeus-X, 175 F.3d at 394. Defendants argue that prison transfers that

do not involve a change in security level (like Plaintiff’s) are “ordinary incidents of prison life”

that do not give rise to a retaliation claim absent Defendants’ knowledge of “foreseeable, negative

consequences” that “inextricably followed” as a result of the transfer [Doc. 109 pp. 13-14, citing

Jones v. Caruso, 421 F. App’x 550, 553 (6th Cir. 2011) (citations and internal quotation marks

omitted)].

“Since prisoners are expected to endure more than the average citizen, and since transfers

are common among prisons, ordinarily a transfer would not deter a person of ordinary firmness

from continuing to engage in protected conduct.” Siggers-El, 412 F.3d at 701. Defendants contend

that the consequences suffered by Plaintiff as a result of his transfer, such as the loss of his job,

educational opportunities, etc., are not adverse under the First Amendment, as Plaintiff has no

vested constitutional interest in such things [Doc. 109 pp. 14-17]. But “[t]he lack of entitlement

to a particular privilege does not free prison administrators to grant or withhold the privilege for

impermissible reasons.” Newsom v. Norris, 888 F.2d 371, 377 (6th Cir. 1989); see also Brown v.

Johnson, No. 2:10-CV-965, 2012 WL 3237198, at *3 (S.D. Ohio Aug. 7, 2012) (“The law with

respect to retaliation simply does not require that every act taken by a prison official in retaliation

for an inmate’s exercise of his constitutional rights be an independent constitutional violation. If

that were the case, the retaliation claim would always be superfluous, because the inmate could

simply proceed on the underlying constitutional violation.”). Moreover, because “there is no

justification for harassing people for exercising their constitutional rights,” the deterrent effect

“need not be great to be actionable.” Thaddeus-X, 175 F.3d at 398 (citation omitted); see also

Zilich v. Longo, 34 F.3d 359, 364 (6th Cir. 1994) (“[R]etaliation by public officials against the

exercise of First Amendment rights is itself a violation of the First Amendment.”) (citation

omitted).

Here, Plaintiff has presented evidence that that his transfer led to a number of foreseeable

consequences, such as the loss of property; loss of a high-wage job; loss of participation in

rehabilitative, vocational, and educational programs; loss of more lenient access to recreation and

the law library; and transfer to an institution housing more violent, higher-classification inmates

[Doc. 104-1 pp. 39, 43-44, 46-48, 50-51, 53-54, 57-59 ¶¶ 4-9, 62-63 ¶ 18; Doc. 122 pp. 7-8 ¶¶ 21-

26; Doc. 125-1 ¶ 16]. Such consequences could constitute an adverse action. See, e.g., Hill, 630

F.3d at 474 (finding transfer to facility with more restrictions and fewer privileges constituted

adverse action); Siggers-El, 412 F.3d at 701-02 (finding transfer adverse where it caused prisoner

loss of high-paying job); Bell v. Johnson, 308 F.3d 594, 604 (6th Cir. 2002) (finding confiscation

of property and legal papers sufficient to support the adverse action element of retaliation claim);

Clark v. Johnston, 413 F. App’x 804, 815 (6th Cir. 2011) (finding “deprivation of personal . . .

property can be considered an adverse action”); Reynolds v. Green, 25 F. App’x 256, 261 (6th Cir.

2001) (finding adverse action where prisoner was transferred from facility where he could “come

and go with permission” to one where he could not). And because a reasonable jury could find (or

decline to find) the consequences suffered by Plaintiff would be sufficient to deter a person of

ordinary firmness from continuing to pursue lawsuits or lodge complaints regarding his prison

conditions, summary judgment is not warranted as to the second element of Plaintiff’s retaliation

claim. See Bell, 308 F.3d at 603 (finding that “unless the claimed retaliatory action is truly

inconsequential, the plaintiff’s claim should go to the jury”) (citation and internal quotation marks

omitted).

C. Causal Connection

The third element of a retaliation claim–causation– is typically a factual issue. Maben, 887

F.3d at 267. It considers whether the defendants’ subjective motivation for the adverse action was,

at least partially, to retaliate against the plaintiff for engaging in protected conduct. Hill, 630 F.3d

at 475. The causation inquiry requires a plaintiff to show both: (1) “that the adverse action was

proximately caused by an individual defendant’s acts” and (2) “the individual taking those acts

was motivated in substantial part by a desire to punish an individual for exercise of a constitutional

right[.]” King v. Zamiara, 680 F.3d 686, 695 (6th Cir. 2012) (citations and internal quotation

marks omitted). This standard “includes liability for acts giving rise to the ultimate harm, even if

the harm is executed by someone else.” Id. (citation omitted). Because of the difficulty in proving

an individual’s motive, circumstantial evidence, such as “the disparate treatment of similarly

situated individuals or the temporal proximity between the [plaintiff’s] protected conduct and the

official’s adverse action” may be sufficient to “create an inference of retaliatory motive.” Hill,

630 F.3d at 475-76 (citations omitted). If a plaintiff can make this showing, the defendants then

has the burden of showing that they would have taken the same action even absent the protected

conduct. Thaddeus-X, 175 F.3d at 399.

Defendants argue that there is no evidence to suggest that Plaintiff’s conduct motivated

Defendants’ actions, and the temporal proximity between the lawsuits and Defendants’ conduct is

too tenuous to impose liability [See Doc. 109 pp. 17-18, 22; Doc. 129 pp. 5-7]. They note, for

example, that the evidence establishes that Plaintiff never filed a grievance about his missing

commissary or discussed it with Defendant Burns [Doc. 109-2 p. 24]; the Parker lawsuit was

dismissed almost two years before Plaintiff’s transfer, and Defendants were not parties in that suit

[Doc. 109-2 pp. 16-17; Doc. 109-8 p. 4 ¶17; Doc. 109-9 p. 3 ¶12; Doc. 124 p. 17 ¶ 40]; and the

Baker lawsuit took place in 2015, judgment issued in 2019, and Defendants were not parties or

personally involved in that suit [Doc. 109-2 pp. 20-21; Doc. 109-8 p. 3 ¶ 16; Doc. 109-9 p. 3 ¶ 11;

Doc. 124 p. 15 ¶ 37]. Defendants otherwise argue that they have demonstrated that Plaintiff would

have been transferred even in the absence of any protected activity by Plaintiff, as the evidence

makes it clear that Plaintiff was transferred as part of a standard procedure based on the legitimate

needs of the prison [Doc. 109 p. 23; see also Doc. 109-4 p. 3 ¶¶ 12-19].

But Plaintiff has presented declarations from Bruce Tuck and James Roysdon, both of

whom maintain that Defendant Burns stated on separate occasions that Plaintiff was transferred

because of the effect the Baker lawsuit had on Burns’ father [Doc. 104-1 p. 37, 41]. Specifically,

Bruce Tuck maintains that Defendant Burns “state[d] that he had [Plaintiff] moved in a bragging

manner[,]” and that although he “advised Lewis that he wanted [Plaintiff] placed on the list because

he had become ‘too comfortable with staff, calling staff members by their first names and

demanding that things be done on behalf of the Lifer’s Club, but the real reason was due to the

lawsuit that [Plaintiff] filed against TRICOR,’ because Burn[]s’ father was working for TRICOR

at the time that the lawsuit was filed” [Doc. 104-1 p. 37 ¶ 2]. James Roysdon avers that he was

present in Defendants’ office when Defendant Burns told Defendant Lewis to place Plaintiff’s

name on the transfer list, and that Defendant Burns stated that the “reason for it” was “to get a little

pay-back” “because of a lawsuit that [Plaintiff] had filed on TRICOR” that caused Burns’ “father

[to] pace the floors worrying” [Doc. 104-1 p. 41 ¶¶ 3-4]. Defendant Burns denies this allegation

but admits that Inmate Roysdon was present in Defendants’ office when the decision was made to

add Plaintiff to the transfer list [Doc. 104 pp. 91-92 ¶¶ 5, 7; Doc. 109-9 p. 3 ¶ 11].

Defendants urge the Court to find these inmate declarations regarding Defendant Burns’

alleged statements impermissible hearsay [Doc. 129 pp. 6-7]. A court cannot consider

inadmissible hearsay when ruling on a motion for summary judgment. Wiley v. United States, 20

F.3d 222, 226 (6th Cir. 1994). But these statements are not hearsay, because they are “offered

against a party and [are] ‘the party’s own statement in either an individual or representative

capacity.’” Jewell v. CSX Transp. Inc., 135 F.3d 361, 365 (6th Cir. 1988) (quoting Fed. R. Evid.

801(d)(2)(A)). Instead, the Court finds these statements are “key piece[s] of evidence relating to

causation[.]” Muhammad v. Close, 379 F.3d 413, 417-18 (6th Cir. 2004) (finding court should

have considered inmate affidavit recounting alleged overheard conversation between corrections

officers).

And Plaintiff’s claim that his transfer was retaliatory is supported with other circumstantial

evidence to counter Defendants’ evidence. First, Plaintiff avers that the BCCX compound where

he was housed is separate from the BCCX annex, such that his transfer would not make beds

available at BCCX’s annex [Doc. 125-1 pp. 7-8 ¶ 17]. Next, as to the claim that Plaintiff was

transferred because of a lengthy pattern of disrespectful behavior and conduct, his comfort

disregarding rules regarding attire, an overall deterioration in his respect toward prison authority,

and for failure to follow TDOC policies [see Doc. 104 p. 51 ¶ 6], there is no evidence of such

conduct in the record. Rather, on September 17, 2021, approximately two weeks prior to Plaintiff’s

transfer, at Plaintiff’s annual reclassification hearing, a classification panel that included

Defendant Burns determined that Plaintiff would remain minimum custody at BCCX and continue

working in the TRICOR program [See Doc. 104 p. 24 ¶ 3; Doc. 104-2 pp. 53-56; Doc. 104-1 p. 5

¶ 4]. Defendant Burns did not express any concerns regarding Plaintiff’s conduct, dress, or attitude

at that time [Doc. 104-1 p. 5 ¶ 5].

Further, Defendant Lewis’ contention that Plaintiff was transferred for a “lengthy pattern

disrespectful behavior and conduct directed toward institutional staff” in 2021 [Doc. 109-8 p. 3 ¶

10] is a stark contrast to the clemency recommendation he wrote for Plaintiff in 2020 asserting that

Plaintiff “has always been helpful and respectful to [Defendant Lewis] and other staff” [Doc. 104-

2 p. 95]. And Plaintiff has presented evidence that he has no disciplinary history or negative

contact notes at all, much less for the allegedly disruptive behaviors cited by Defendants [Doc.

104-1 p. 5 ¶ 7; Doc. 104-2 pp. 63-108]. To contrast Defendants’ assertions regarding Plaintiff’s

behavior/conduct, Plaintiff has produced evidence of his significant rehabilitative efforts while

incarcerated, which include that he has earned two college degrees and two vocational

certifications, completed numerous programs and classes, and served approximately eleven years

on the board of the Lifer’s Club [Doc. 122 p. 19 ¶ 61; Doc. 125-2].

Accordingly, under the evidence presented, a rational jury could ultimately conclude that

Plaintiff’s protected conduct motivated Defendants’ decision to transfer him. And the same jury

could conclude that Plaintiff’s protected conduct did not motivate Defendants, or that they would

have transferred him anyway. The Court concludes it is a jury’s call to make.

IV. CONCLUSION

As set forth above, there are genuine disputes of material fact as to Plaintiff’s retaliatory

transfer claim that preclude resolving this case on summary judgment. Therefore, the summary

judgment motions of both parties [Docs. 103 and 108] are DENIED. Thus, this case will proceed

to trial on Plaintiff’s retaliatory transfer claim against (1) Defendants Randall Lewis and Luke

Burns solely in their individual capacities and (2) Defendants Frank Strada and Shawn Phillips

solely in their respective official capacities and only for any prospective injunctive relief that may

ultimately be ordered [See Doc. 89 ¶¶ 15-16].

Considering this Order, Plaintiff’s motion to defer adjudication of Defendant’s motion for

summary judgment and reopen discovery [Doc. 117] is also DENIED. See Fed. R. Civ. P.

56(d)(1)-(3).

SO ORDERED.

ENTER:

s/Susan K. Lee

SUSAN K. LEE

UNITED STATES MAGISTRATE JUDGE