King v. ZAMIARA

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0146p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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KEVIN KING,

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Plaintiff-Appellant,

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No. 09-2469

v.

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CHUCK ZAMIARA, CURTIS CHAFFEE, SHARON -

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WELLS, MICHAEL SINGLETON, and MARY

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BERGHUIS,

Defendants-Appellees. -

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Appeal from the United States District Court

for the Western District of Michigan at Kalamazoo.

No. 02-00141—Robert Holmes Bell, District Judge.

Decided and Filed: May 22, 2012

Before: MOORE and COLE, Circuit Judges; BECKWITH, District Judge.*

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COUNSEL

ON BRIEF: Kevin Himebaugh, OFFICE OF THE MICHIGAN ATTORNEY

GENERAL, Lansing, Michigan, for Appellees. Kevin King, Jackson, Michigan, pro se.

MOORE, J., delivered the opinion of the court in which COLE, J., joined.

BECKWITH, D. J. (pp. 36–39), delivered a separate opinion concurring in part and

dissenting in part.

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OPINION

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KAREN NELSON MOORE, Circuit Judge. Kevin King is an inmate with the

Michigan Department of Corrections (“MDOC”). In 2002, King sued several MDOC

*

The Honorable Sandra S. Beckwith, Senior United States District Judge for the Southern District

of Ohio, sitting by designation.

1

No. 09-2469 King v. Zamiara et al. Page 2

employees under 42 U.S.C. § 1983 for violating his First Amendment rights when they

transferred him from the Brooks Correctional Facility (“Brooks”), a Level II security

facility, to the Chippewa Correctional Facility (“Chippewa”), a Level III facility, in May

of 2000. King claims that the increased security level and corresponding transfer were

acts of retaliation committed against him for his participation in Cain v. Michigan

Department of Corrections, Michigan Court of Claims Nos. 88-61119-AZ, 93-14975-

CM, 96-16341-CM, a state-court class action regarding inmate property, as well as for

his assistance to other inmates in filing grievances. Following our decisions in two prior

appeals, the district court has previously held that (1) King’s participation in Cain and

his assistance to other inmates in filing grievances are protected activities, and (2) the

increase in his security level—though not the transfer itself—was an adverse action. The

district court held a bench trial on the sole remaining issue, whether King’s protected

activities caused the adverse action, and found in favor of the defendants. King appeals

this ruling pro se. For the following reasons, we AFFIRM the district court’s judgment

in favor of defendants Singleton and Berghuis, but we REVERSE the district court’s

judgment with respect to defendants Wells, Chaffee, and Zamiara and REMAND for

further proceedings consistent with this opinion.

I. BACKGROUND

Kevin King has been an inmate at the MDOC since he was incarcerated for first-

degree murder in 1983. On September 17, 1999, the MDOC first transferred King to

Brooks from Saginaw. His transfer order indicated that the transfer was requested on

“suspicion” that King was a “vocal participant” in organizing a protest over personal

property issues1 and that the transfer was to separate suspected participants. King v.

Zamiara, No. 4:02-CV-141, 2009 WL 3424221, at *1 (W.D. Mich. Oct. 20, 2009)

1

“Personal property issues” generally is a reference to the same issues litigated in Cain. Cain was

a state-court class action filed by a group of prisoners in 1988 to challenge new MDOC policies regulating

personal property. King IV, 2009 WL 3424221, at *1. King was actively involved in the Cain litigation

and spoke regularly with the attorneys and the court monitor in that case, although he was not one of the

named class plaintiffs. Id.; R. 171 (Trial Tr. I at 23:9-25:2).

No. 09-2469 King v. Zamiara et al. Page 3

(“King IV”) (quoting R. 130-4, Ex. 31 (Saginaw Transfer Order)).2 Both the Brooks and

Saginaw facilities were Level II facilities, which is the second lowest security level

offered by the MDOC, and King does not challenge this transfer.

Seven days after his arrival at Brooks, Sandra Naves (now Sandra Galiton, herein

“Naves”) issued King a Notice of Intent (“NOI”) to classify him to segregation, which

is an alternative to a misconduct ticket but similarly requires a hearing. The purported

basis was that “‘it is believed that prisoner King is attempting to incite a demonstration

amongst the prisoners.’” King IV, 2009 WL 3424221, at *1 (quoting R.130-4, Ex. 27

(Naves NOI)). At trial, Naves testified that she was not responsible for supervising

King’s unit at the time of the alleged incident, she did not investigate the factual basis

of the NOI, and she had no personal knowledge that King was attempting to incite a

demonstration. R. 172 (Trial Tr. II at 197:8-198:20). She wrote the ticket because her

supervisor, Sharon Wells,3 asked her to and told her what to put in the NOI. Id. When

Naves told Wells that she “had a problem” writing a ticket when she “didn’t have any

personal knowledge about” the underlying events, Naves testified that Wells told her to

write it anyway. Id. at 198:21-199:5.4 Naves’s credibility was not challenged.

King never had a hearing on the NOI because on September 27, 2009, he was

transferred to another Level II facility for hernia surgery. King IV, 2009 WL 3424221,

at *2. King’s transfer order for surgery indicated that he had been transferred out of

Saginaw “due to his attempts to organize a demonstration” there, and that “[s]ince his

arrival at [Brooks] he has attempted to do the same,” R. 130-4, Ex. 32 (Surgery Transfer

Order), but referenced only the recent NOI issued by Naves.

King returned to Brooks on November 10, 1999. Two days later, he wrote a

letter to Mary Berghuis, the Warden of Brooks at the time, complaining about his

2

Because the trial exhibits were not made available on appeal, we cite the record on summary

judgment to identify the relevant documents used by both parties at trial.

3

Sharon Wells was the Resident Unit Manager of the Conklin Unit at Brooks, where King was

housed upon his arrival at Brooks.

4

Wells testified that she did not recall instructing Naves what to put in the NOI. R. 172 (Trial

Tr. II at 191:1-21).

No. 09-2469 King v. Zamiara et al. Page 4

treatment and the monitoring of his phone calls in violation of Cain. King IV, 2009 WL

3424221, at *2. He added, “Frankly, I don’t like your facility at all. Your staff rival

[sic] in abusing their authority and feel they don’t have to answer to anyone. I’ve

watched them provide [sic] situations and retaliate against those who remotely stand up

for themselves.” Id. (quoting R. 130-2, Ex. 3 (King/Berghuis Letter)). Sometime in

early 2000, King became the Chairman of the Warden’s Forum, a position elected by the

other prisoners to serve as their representative in meetings with Warden Berghuis. R.

172 (Trial Tr. II at 224:25-225:25); see also R. 11-2, Ex. 8 (Prisoner Representative

Policy).

On February 19, 2000, King was issued a ticket5 for being out of place—a major

misconduct violation—in violation of a toplock order imposed by Wells a few days

before. See King IV, 2009 WL 3424221, at *2 (citing R. 1-5, Ex. D (Misconduct Hr’g

Report)); see also King v. Zamiara, 150 F. App’x 485, 487-88 (6th Cir. 2005) (“King I”)

(unpublished opinion).6 This ticket was subject to administrative review. On review,

King was found not guilty of the charge, because Wells had previously told King that

toplock would start at midnight, and he was cited for being out of place in the afternoon.

R. 1-5, Ex. D (Misconduct Hr’g Report); King I, 150 F. App’x at 487-88.

On March 31, 2000, Bonnie Lewis, another Corrections Officer, wrote King a

major misconduct ticket for “Creating a Disturbance.” King IV, 2009 WL 3424221, at

*2. Officer Lewis indicated that while she was instructing several prisoners at the

officers’ station regarding new clothing rules, the prisoners started to argue and King

became disruptive. R. 130-4, Ex. 29 (Misconduct Hr’g Report). However, Assistant

Deputy Warden Michael Singleton reported to the hearing officer that he spoke to Lewis

and she had retracted her statement. Lewis testified at trial that she did not remember

the incident in question or whether Wells had asked her to write the ticket. R. 172 (Trial

5

The record does not clearly indicate who issued the misconduct ticket. The district court found

that Wells issued the major misconduct ticket. King IV, 2009 WL 3424221, at *2. King testified that

Wells instituted the toplock order, but that the citation for being out of place was issued by a different

officer at Wells’s behest. King I, 150 F. App’x at 487.

6

“Toplock” is a restriction placed on prisoners requiring them to remain in their cell with limited

periods of release. King I, 150 F. App’x at 488.

No. 09-2469 King v. Zamiara et al. Page 5

Tr. II at 205:13-14). Lewis was impeached with her deposition, however, where she

testified, “I must have been asked to write the statement, I guess. I must have went to

the RUM [Sharon Wells], I guess, and talked to the RUM and was asked to write a

statement.” Id. at 206:1-3 (quoting her deposition). Lewis did not cite any of the other

seven prisoners for misconduct relating to that incident, only King. Id. at 206:25-207:5.

The hearing officer, whose credibility was not challenged, found King not guilty on

April 17, 2000. The officer found Lewis’s testimony to be inconsistent and that it was

“in some respects personal,”7 and he “therefore [did] not find the reporter credible as to

this prisoner’s involvement.” R. 130, Ex. 29 (Misconduct Hr’g Report).

Three days after the ticket was reversed, on April 20, Wells requested King be

removed from her unit in a letter to Deputy Warden Shirlee Harry:

I am requesting that this prisoner be removed from Conklin Unit. He is

becoming increasingly more powerful in the eyes of the prisoners in

Conklin Unit. He has made the statement to a unit officer that “these

guys in the unit will do what ever I ask” “If I wanted to cause a

disturbance I could anytime.” Prisoners have also approached me on

several occasions with different types of request and when refused they

will either state that “they will get someone who will take [care] of it”

and when the grievance is written it is more often than not written by

prisoner King or they will state that they will make sure “King knows

about this.” The most recent situation, in where King was found not

guilty of Creating a Disturbance, has boosted King’s status in the unit

with the prisoners. I believe it should be considered a security risk to the

unit officers when prisoner King’s authority over other prisoners is

higher then the officers working in the unit. I have attached other

examples of his behavior to this report. I am asking for permission to

move him on the next move day, 4-26-00.

R. 11-2, Ex. F (Wells Memo) (mistakes in original); see also King IV, 2009 WL

3424221, at *2. At trial, Wells could not recall what officer made those statements to

her, see R. 172 (Trial Tr. II at 189:24-190:12), and none of the referenced attachments

7

The hearing officer also observed that many of Lewis’s statements related to “after-occurring

situations” that he “found not relevant” to the instant offense. R. 130-4, Ex. 29 (Misconduct Hr’g Report).

Lewis had submitted two affidavits in support of the ticket in which she complained that King would watch

the officer’s station for hours at a time, or pretend to be on the phone to listen in on officer conversations.

Id.

No. 09-2469 King v. Zamiara et al. Page 6

were ever identified by any witness. She also testified that she meant for King to be

moved to another unit within Brooks, not another facility. Id. at 193:16-18.

The next documented MDOC action is an email from Curtis Chaffee, the transfer

coordinator at Brooks, to Chuck Zamiara, a classification specialist at the MDOC

Central Office in Lansing (“Central Office”), indicating that “Deputy Harry has asked

for this prisoner to be transferred to an alternate Level II.” R. 130-3, Ex. 18

(Chaffee/Zamiara Email). Chaffee added:

The reason for this request is that he has been at [Brooks] for 6 months

during this time, he has developed a cadre of followers over whom he has

substantial influence. It seems he can instigate them to create problems

(grievances, complaints to Warden’s Forum, etc.) while he remains

uninvolved directly. Currently, he is printing out grievances about

various issues and having other prisoners sign them and send them in.

Deputy Harry has asked for a “break” from prisoner King and would

accept him back after a period of time.

Id. Chaffee testified that he believed the specific examples of the “problems” King was

creating—filing grievances and complaints to the Warden’s Forum—came from Harry.

Had Harry mentioned other forms of misconduct, Chaffee testified that he would have

included them. R. 171 (Trial Tr. I at 141:4-21). Chaffee also testified that were it not

for King’s participation in the filing of grievances and the Warden’s Forum, he did not

believe King would have been transferred at all. Id. at 142:13-16. Harry confirmed

these statements, testifying that the only behavioral issues she was aware of were that

King was filing grievances and making complaints to the Warden’s Forum. Id. at

120:23-121:1. She did not think he was being manipulative or causing other disruptions.

Id. at 127:14-128:2.

Zamiara responded forty minutes later to Chaffee saying, “Let’s send him to URF

as a level III, note in the departure, prisoner is preceived [sic] as a disruptive prisoner

who is manipulating others to create unrest at LRF.” King IV, 2009 WL 3424221, at *4

(quoting R. 130-3, Ex. 18 (Chaffee/Zamiara Email)). A “level III” is a more heightened

security facility with greater restrictions on a prisoner’s movement and access to

No. 09-2469 King v. Zamiara et al. Page 7

telephone calls. King IV, 2009 WL 3424221, at *6. Because King was on a hold list,8

Zamiara had to obtain approval from Classification Director Nick Ludwick before

approving the transfer. After the two discussed the matter, “the decision was made that

[King] should be transferred to Level III.” King IV, 2009 WL 3424221, at *4.

Chaffee admitted that he completed the required security screen review to

effectuate the transfer for King prior to contacting Zamiara on May 8, 2000. R. 171

(Trial Tr. I at 135:12-136:12; 146:12-21). Chaffee initially indicated a transfer to a

Level II facility in Carson City (“DRF”) and wrote in that King was “manageable in

Level II / Remain in Level II.” King IV, 2009 WL 3424221, at *3 (citing R. 130-3, Ex.

16 (Chaffee Screen)). Upon receiving Zamiara’s email, Chaffee admitted that he went

back to this exact screen and revised it by hand to say “URF” instead of “DRF” and

scored King at a Level III instead of a Level II. King IV, 2009 WL 3424221, at *4; R.

171 (Trial Tr. I at 140:3-11). The review was signed as “approved by Wells.” R. 130-3,

Ex. 16 (Chaffee Screen).

On May 12, Chaffee and Berghuis signed the transfer order sending King to

Chippewa, a Level III facility. King IV, 2009 WL 3424221, at *4 (citing R. 130-3, Ex.

26 (Transfer Order)). The stated reason was: “Prisoner manipulates other prisoners to

be disruptive.” Id. The transfer order also indicates that the transfer was approved by

Central Office “Per email by C. Zamiara 05/08/00.” R. 130-3, Ex. 26 (Transfer Order).

King was transferred May 17, 2000.

A month later, on June 14, Zamiara sent an email directly to Berghuis. King IV,

2009 WL 3424221, at *4. Zamiara told Berghuis that Peter Govorchin, who was the

attorney handling the Cain case for the state, was concerned that “the issue of

retaliation” may be raised over the fact that King’s transfer documents were edited by

hand. R. 130-3, Ex. 20 (Zamiara/Berghuis Email). Zamiara asked Berghuis to have her

staff “re-do these and indicate that transfer to URF level III and the one level departure

8

King was on the hold list because in 1990 he received a major misconduct ticket due to

allegations by another inmate of a potential escape attempt; King was found not guilty of the ticket, but

was never removed from the hold list. King IV, 2009 WL 3424221, at *4.

No. 09-2469 King v. Zamiara et al. Page 8

was done because Prisoner King is perceived as a disruptive prisoner who is

manipulating others to create unrest at LRF.” Id. Zamiara ended his email with a

prescient warning: “Mr. Govorchin also ask [sic] that I advise you that staff from LRF

may be called to court to answer questions concerning Prisoner King’s transfer to URF.”

Id. Chaffee remembered being “chewed out” by Warden Berghuis over the screen, R.

171 (Trial Tr. I at 133:11-19) (citing R. 130, Ex. 7 (Chaffee Dep. Tr. at 15:1-3)), and that

Warden Berghuis then told him to prepare a new screen to replace the old one. R. 171

(Trial Tr. I at 147:24-148:3; 149:7-11). The new screen stated “Prisoner manipulates

other prisoners to be disruptive/needs higher level of security,” in place of “Manageable

in Level II/Remain in Level II,” and was backdated to May 8, 2000. Michael Singleton

signed and approved the new screen. At trial, Singleton stated that he had no idea it had

been backdated at the time. R. 172 (Trial Tr. II at 212:13-14).

While at Chippewa, King continued to object to various people, including

Zamiara, regarding his Level III placement, all of whom responded with references to

the prior statements regarding his ability to manipulate other prisoners. King IV, 2009

WL 3424221, at *4. In February, 2001, King was approved for a transfer to Thumb

Correctional Facility at a Level II and sent there shortly thereafter. Id. Although not

always at the same facility, King has subsequently remained at a Level II.

II. PROCEDURAL HISTORY

On July 26, 2002, King filed a pro se complaint in the United States District

Court for the Western District of Michigan alleging First Amendment retaliation against

eight MDOC employees: Chuck Zamiara, Curtis Chaffee, Bonnie Lewis, Sharon Wells,

Michael Singleton, Mary Berghuis, Terry Swift, and Dan Bolden.9 All eight defendants

moved for summary judgment on April 1, 2003, which the district court granted,

concluding that King had not engaged in any form of protected conduct, and that even

if he had, none of the three purported acts in retaliation were motivated by the conduct.

R. 30 (Dist. Ct. Order at 1).

9

King alleged much more, but this is all that is relevant for our purposes.

No. 09-2469 King v. Zamiara et al. Page 9

King timely appealed to this court, and we reversed. King I, 150 F. App’x at 497.

We held that summary judgment for the defendants was inappropriate because King

made a sufficient prima facie showing that his participation in the Cain class-action

lawsuit and his legal assistance to other inmates in filing grievances both constituted

protected conduct under the First Amendment. Id. at 491-93. We also held that King

had produced sufficient evidence that the defendants took “adverse” actions against him

when they charged him with the various misconduct tickets and increased his security

level, but not by the act of transferring him from one facility to another. King also

provided sufficient evidence of a causal connection between the increase in security and

the protected conduct, although not the misconduct tickets. We then remanded the case

to the district court for a determination in the first instance of whether increasing an

inmate’s security level in retaliation for engaging in protected conduct would constitute

a “clearly established” constitutional violation in May 2000 so as to preclude qualified

immunity. Id. at 491 n.3.

On remand, the Magistrate Judge recommended denying the motion to dismiss

on the basis of qualified immunity because the facts taken in the light most favorable to

King demonstrated a constitutional violation based on retaliatory conduct, and such

retaliation was a violation of “clearly established” constitutional law as set forth in

Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). R. 57 (Mag. R&R

at 5, 7). The district court disagreed and granted the defendants’ motion. King v.

Zamiara, No. 4:02-cv-141, 2006 WL 2439732, at *1 (W.D. Mich. Aug. 22, 2006) (“King

II”). Again, King timely appealed.

We again reversed the district court and held the officials were not entitled to

qualified immunity. King v. Zamiara, No. 06-2271, slip op. at 4 (6th Cir. April 26,

2007) (“King III”). We held that the absence of a case dealing directly with the adverse

action in question—here, increasing a security level—was not the proper inquiry because

“the law was clear in May 2000 that prison officials could not retaliate against prisoners

for participation in these activities . . . .” Id. at 4-5. The case was again remanded for

further proceedings.

No. 09-2469 King v. Zamiara et al. Page 10

On remand, both parties moved for summary judgment. The district court

granted the defendants’ motion in part, agreeing that King had not shown sufficient

evidence of three of the defendants’ roles to maintain liability against them.10 The

district court also granted King’s motion in part, ruling on both of the elements that we

had previously held survived summary judgment: King’s conduct was in fact protected

and the subsequent increase in his security did constitute an adverse action. The

remainder of both parties’ motions were denied, and the case proceeded to trial solely

on the question of causation. King was eventually appointed counsel.

At trial, King called twelve witnesses, including himself and all five defendants.

Excerpts of the deposition testimony of several witnesses were also entered as trial

testimony. The defendants called no witnesses. Following the two-day trial, the district

court issued its opinion finding in favor of the defendants. King IV, 2009 WL 3424221,

at *9. King now appeals pro se.

III. RETALIATION CLAIM

A. Standard of Review and Analytical Framework

Following a bench trial, we review de novo the district court’s conclusions of

law. Woolsey v. Hunt, 932 F.2d 555, 563 (6th Cir.), cert. denied, 502 U.S. 867 (1991).

We review the district court’s findings of fact, however, for clear error. Anderson v. City

of Bessemer City, 470 U.S. 564, 573 (1985). In assessing for clear error, “the reviewing

court must give due regard to the trial court’s opportunity to judge the witnesses’

credibility.” Fed. R. Civ. P. 52 (a)(6). A district court has committed clear error only

when “‘the reviewing court on the entire evidence is left with the definite and firm

conviction that a mistake has been committed.’” Anderson, 470 U.S. at 573 (quoting

United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). If the district court’s

account is “plausible in light of the record viewed in its entirety, the court of appeals

may not reverse.” Id. at 574. We cannot find that the district court committed clear

10

Defendants Bolden, Swift, and Lewis were thereafter dismissed from the case, a decision King

did not appeal.

No. 09-2469 King v. Zamiara et al. Page 11

error “[w]here there are two permissible views of the evidence,” id., even if we would

have weighed the evidence differently, Beaven v. U.S. Dep’t of Justice, 622 F.3d 540,

556 (6th Cir. 2010).

To state a claim for relief under § 1983 for a First Amendment retaliation claim,

a plaintiff must show that:

(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, 175 F.3d at 394.

Because of the prior rulings, the only issue at trial was the third

element—whether there was a causal connection between the increase in King’s security

level and his participation in the Cain litigation or his assistance in the filing of

grievances. King bore the burden of establishing by a preponderance of the evidence

that his reclassification was motivated at least in part by King’s protected conduct. Id.

at 399. Upon such a showing, the defendant must “show[] by a preponderance of the

evidence that it would have reached the same decision . . . even in the absence of the

protected conduct.” Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287

(1977); see also Sowards v. Loudon Cnty., 203 F.3d 426, 431 n.1 (6th Cir.) (“[I]n a First

Amendment retaliation case, once a plaintiff shows that her constitutionally protected

conduct was a substantial factor in an adverse employment decision, the burden of

persuasion shifts to the defendant.”), cert. denied, 531 U.S. 875 (2000).

B. Establishing Causation in a Retaliation Claim

Protected speech does not cause an adverse action in the traditional sense

because protected speech does not act, but we say protected speech causes an adverse

action if the speech motivates an individual actor to take acts that then proximately cause

an adverse action. Subjective motivation appropriately enters the picture on a retaliation

No. 09-2469 King v. Zamiara et al. Page 12

claim because our concern is with actions by public officials taken with the intent to

deter the rights to free expression guaranteed under the First Amendment. Bloch v.

Ribar, 156 F.3d 673, 681-82 (6th Cir. 1998) (“[A]n act taken in retaliation for the

exercise of a constitutionally protected right is actionable under § 1983 even if the act,

when taken for a different reason, would have been proper.”) (internal quotation marks

omitted). Thus, causation in retaliatory claims may really be considered a two-part

inquiry: A plaintiff must show both (1) that the adverse action was proximately caused

by an individual defendant’s acts, Siggers-El v. Barlow, 412 F.3d 693, 702 (6th Cir.

2005), but also (2) that the individual taking those acts was “motivated in substantial part

by a desire to punish an individual for exercise of a constitutional right,” Thaddeus-X,

175 F.3d at 386.

“Causation in the constitutional sense is no different from causation in the

common law sense.” McKinley v. City of Mansfield, 404 F.3d 418, 438 (6th Cir. 2005)

(citing Malley v. Briggs, 475 U.S. 335, 345 n.7 (1986)), cert. denied, 546 U.S. 1090

(2006). An officer may therefore be liable under § 1983 “‘for the natural consequences

of his actions.’” Id. (quoting Monroe v. Pape, 365 U.S. 167, 187 (1961)). This includes

liability for acts giving rise to the ultimate harm, even if the harm is executed by

someone else. Powers v. Hamilton Cnty. Pub. Defenders Comm’n, 501 F.3d 592, 609

(6th Cir. 2007) (“Even if an intervening third party is the immediate trigger for the

plaintiff’s injury, the defendant may still be proximately liable, provided that the third

party’s actions were foreseeable.”), cert. denied, 555 U.S. 813 (2008); see also Paige v.

Coyner, 614 F.3d 273, 281-82 (6th Cir. 2010) (holding state actor could be liable for

retaliation for making false statements to plaintiff’s employer causing her to be fired);

Sykes v. Anderson, 625 F.3d 294, 311-12 (6th Cir. 2010) (rejecting argument that

officers could not be liable for malicious prosecution because they did not “make” the

decision to prosecute).

The district court found that four of the five defendants—Wells, Chaffee,

Singleton, and Berghuis—could not be liable for retaliation because they were not

“involved” in the decision to increase King’s security level. King IV, 2009 WL

No. 09-2469 King v. Zamiara et al. Page 13

3424221, at *8. The district court’s use of the word “involved,” however, erroneously

focused solely on who made the ultimate decision to increase King’s security, not

whether any of the defendants’ actions were the proximate cause of the increase in

security. The district court failed to acknowledge that a person who sets in motion an

adverse action can be liable for retaliation for the reasonably foreseeable consequences

of his actions. Siggers-El, 412 F.3d at 702.

That brings us to motive. Motive is often very difficult to prove with direct

evidence in retaliation cases. Bloch, 156 F.3d at 682-83. Circumstantial evidence may

therefore acceptably be the only means of establishing the connection between a

defendant’s actions and the plaintiff’s protected conduct. We have previously

considered the temporal proximity between protected conduct and retaliatory acts as

creating an inference of retaliatory motive. Paige, 614 F.3d at 282-83; Muhammad v.

Close, 379 F.3d 413, 417-18 (6th Cir. 2004) (“[T]emporal proximity alone may be

significant enough to constitute indirect evidence of a causal connection so as to create

an inference of retaliatory motive.”) (internal quotation marks omitted).

The defendants urge us to hold that the plaintiff must show an intent to achieve

the specific adverse action—here, the increase in security level—and not just a general

intent to retaliate for the protected speech. We decline to do so. Under such an

approach, the corrections officer who wanted to punish an inmate for filing complaints

against her could write a letter to her superior demanding a transfer for false allegations

of violence, and under the defendants’ view, she would be liable only if the inmate was

then transferred, not if her superior decided to place the inmate in solitary confinement

as a result of the officer’s letter. The officer could guarantee escaping liability entirely

by requesting no specific action at all, knowing full well the likely result of her letter

labeling the inmate a “security risk” would be some sort of punitive act against the

inmate and intending some form of punishment to occur. Such a standard would permit

those with the necessary intent to retaliate to escape liability for setting in motion a

punitive act ultimately executed by someone else.

No. 09-2469 King v. Zamiara et al. Page 14

The district court found all five of the defendants could not be liable because they

were motivated to take action against King not because of his protected activities but

because “he was using his influence over other prisoners to create problems and was

undermining the authority of prison officials.” King IV, 2009 WL 3424221, at *9. The

district court’s finding with respect to the defendants’ motivation is a finding of fact to

which we afford deference.

C. Alternative Theories of Liability in a Retaliation Claim

There are two other possible paths for holding someone liable for retaliation

relevant in this context: subordinate liability and supervisory liability. Individuals who

aid in the implementation of an adverse action at the instructions of a superior will be

liable along with their superior if they knew or should have known that the adverse

action was unlawful. Thaddeus-X, 175 F.3d at 393 (“[R]ejecting prison officers’

argument that ‘since they did not have the authority to alter the [prisoner’s security]

classification, any consequence of that status cannot be their responsibility.’” (quoting

Villanueva v. George, 659 F.2d 851, 854 (8th Cir. 1981) (en banc))). Because this stems

from principles of agency, the plaintiff must establish that the superior intended to

retaliate but only that the subordinate knowingly participated in the acts of the superior.

Thaddeus-X, 175 F.3d at 393 (holding a subordinate’s knowing participation in a

superior’s retaliatory conduct sufficient to give rise to liability of subordinate who

merely executed the unlawful orders).

Superiors and supervisors, on the other hand, are generally not liable for the acts

of those whom they oversee. “Respondeat superior is not a proper basis for liability

under § 1983.” McQueen v. Beecher Cmty. Sch., 433 F.3d 460, 470 (6th Cir. 2006).

Superiors may be liable, but only if they “‘either encouraged the specific incident of

misconduct or in some other way directly participated in it.’” Id. (quoting Shehee v.

Luttrell, 199 F.3d 295, 300 (6th Cir. 1999), cert. denied, 530 U.S. 1264 (2000)). Having

the right to control the offending employee is not enough, simply being aware of the

misconduct is not enough, and even administrative approval of an action later found to

be retaliatory, without more, is not enough. Id.; see also Siggers v. Campbell, 652 F. 3d

No. 09-2469 King v. Zamiara et al. Page 15

681, 695 (6th Cir. 2011) (granting summary judgment for warden who merely approved

notices filed against the inmate). The supervisor must be said to have “directly

participated, encouraged, authorized or acquiesced in the claimed retaliatory acts” to be

liable under § 1983. Shehee, 199 F.3d at 300.

Against this legal backdrop, we turn now to examining the acts and motivations

of each of the named defendants.

D. Liability of Named Defendants

1. Deputy Warden Sharon Wells

Wells took numerous actions in this case, none of which are really in dispute.

Of greatest relevance are the two acts that may give rise to liability against her: (1)

Wells sent a memo to Deputy Warden Shirlee Harry on April 20, 2000 (“Wells Memo”),

to complain about King’s behavior, and (2) following communication from Central

Office, Wells signed the initial security screen that increased King to a Level III. Wells

would be liable for the first action if she intended to punish King for his protected

conduct and the security increase was a reasonably foreseeable consequence of her

memo. Siggers-El, 412 F.3d at 702. She would be liable for the latter action if, as a

subordinate, she knew or should have known that she was implementing an order

motivated by a desire to retaliate for participation in protected conduct, Thaddeus-X, 175

F.3d at 393, or as a superior if her signature constituted active participation in the

unconstitutional act of increasing his security level for retaliatory purposes, Shehee, 199

F.3d at 300.

a. Sending Internal Memo

The Wells Memo was the initial step in a chain of communications that

undeniably resulted in King’s security increase and transfer to Chippewa. After

receiving the Wells Memo, Deputy Warden Harry instructed a subordinate, Chaffee, to

email Central Office and request a transfer. There is no evidence on the record of any

other information in the possession of Harry or Chaffee that could have motivated their

communications to Central Office. Harry testified at trial that aside from the two

No. 09-2469 King v. Zamiara et al. Page 16

examples listed in Chaffee’s email, the filing of grievances and the complaints to the

Warden’s Forum, she was not aware of King causing any other problems during his

tenure at Brooks. R. 171 (Trial Tr. I at 120:23-121:1). Chaffee testified that he had no

personal knowledge of King’s behavior and was told to initiate the transfer because King

was instigating other prisoners to file grievances. Id. at 139:9-13. The substance of the

complaint in Chaffee’s email is also the same as the Wells Memo—King has gained

influence over other prisoners and is having them file numerous grievances. Zamiara

from Central Office, after being confronted with his own deposition testimony, admitted

at trial to having no other information outside of what was in Chaffee’s email that could

have motivated the decision to increase King’s security level. See R. 172 (Trial Tr. II

at 166:19-167:20). The only reasonable conclusion from the record is that the Wells

Memo was a “but for” cause of the increase in King’s security.

The Wells Memo was also a proximate cause of the adverse action, because an

adverse action, such as increasing King’s security, was a reasonably foreseeable

consequence of sending the memo. In Siggers-El, we held that a prison guard who fills

out a security screen cannot disentangle herself from the resulting adverse action even

though it was approved and ordered by other people. Siggers-El, 412 F.3d at 702.

Although unforeseeable consequences would not give rise to liability, such as an attack

on the prisoner following the transfer, the guard could not absolve herself of liability by

arguing that she did not take part in or have control over the adverse action. Id. Here,

there are admittedly more steps between Wells’s actions and the resulting harm than

there were for the defendant in Siggers-El. The Wells Memo was not sent directly to

Central Office, but traveled first to Wells’s Deputy Warden. Wells nominally asked for

a transfer. However, an adverse action was nonetheless a reasonably foreseeable

No. 09-2469 King v. Zamiara et al. Page 17

consequence of the allegations in her Memo.11 Wells’s actions are not so attenuated as

to absolve her of their reasonably foreseeable consequences.

The district court, faced with the same facts, “found” that Wells was not involved

in the increase in King’s security level based on the fact that she did not ask specifically

for an increase and “had no involvement in the decision to increase his security level.”

King IV, 2009 WL 3424221, at *6. As already discussed, however, this applies the

wrong legal standard. On de novo review, we conclude that the adverse action taken

against King was proximately caused by the Wells Memo.

We turn now to whether Wells was motivated by a desire to punish King for his

protected conduct. The district court found that Wells was motivated only by concerns

over King’s power over other prisoners and ability to create unrest through his abuse of

the grievance process. King IV, 2009 WL 3424221, at *9 (“To the extent that

Defendants were motivated in transferring King based upon his manipulation of other

prisoners to file grievances to achieve King’s own goals, they did not retaliate against

him on the basis of any protected conduct.”). Embedded in this conclusion is both a

legal error and a factual one. The legal problem is that the district court, following

analysis from this court, already concluded as a matter of law that King’s assistance to

11

The dissent objects to this conclusion, but makes the same error as the district court by

erroneously focusing on the foreseeability of the precise adverse action that was taken, in this case an

increase in security. The issue is only whether it was reasonably foreseeable that the Wells Memo would

cause a punitive act to be taken against King significant enough to be classified legally as “adverse.” The

Wells Memo did not need to contain “code words” to signal Harry to increase King’s security, nor does

it matter that Harry herself was not subjectively alarmed by the words in Wells’s Memo because the causal

chain did not stop at Harry. We also do not agree that transfers may never be adverse actions, although

we take no issue with the prior holding in this case that King’s transfer was not adverse. See Hill v.

Lappin, 630 F.3d 468, 474-75 (6th Cir. 2010) (collecting cases). Here, Wells’s Memo outlined conduct

allegedly undertaken by King, and it was reasonably foreseeable that an adverse action would be taken

against King as a result of her Memo. That Harry read Wells’s Memo and continued with the request for

a transfer does not mean stronger action was not reasonably foreseeable.

The dissent commits a second error by focusing on the motive of Harry, the initial recipient of

Wells’s Memo, as breaking the causal chain. The dissent finds it absolutely crucial that King concedes

that Harry had no retaliatory intent, but cites no case or law for the proposition that the causal chain is

broken when a retaliator uses ignorant third parties to effectuate the retaliation. Indeed, as we discussed

above in Section III.B., supra, the law is precisely the opposite. See Powers, 501 F.3d at 609 (holding

proximate causation still exists “[e]ven if an intervening third party is the immediate trigger for the

plaintiff’s injury”); Paige, 614 F.3d at 281-82 (holding proximate causation not broken when false

statements by retaliator caused innocent employer to fire plaintiff); Sykes, 625 F.3d at 311-12 (holding

officers proximately caused malicious prosecution even though innocent party made the decision to

prosecute). As we further explained, to hold otherwise would allow an officer with retaliatory intent to

insulate herself entirely from liability by writing a memo with trumped up allegations requesting no action

at all but intending and rightfully expecting severe consequences to follow.

No. 09-2469 King v. Zamiara et al. Page 18

other prisoners in using the grievance system was protected conduct. R. 153 (Dist. Ct.

Mem. Op. & Order at 14). Abusive or manipulative use of a grievance system would not

be protected conduct. See Hill v. Lappin, 630 F.3d 468, 472 (6th Cir. 2010) (holding no

First Amendment right to file frivolous grievances). Therefore, to conclude now that

King was in fact manipulating the grievance system would require reversing the prior

holdings in the case, which we will not do.

That brings us to the factual error. Subjective motivation requires asking

whether the individual in question believed the defendant to be abusing the system to

create unrest. The district court credited Wells’s statements in her Memo that King “was

becoming increasingly powerful over the prisoners” and was therefore a security risk.

King IV, 2009 WL 3424221, at *6. “[T]he preponderance of the evidence demonstrates

that King’s behavior did not stop [with protected conduct], but also involved agitating

other prisoners and attempting to disrupt the delicate balance of authority the MDOC

must retain over prisoners in its charge.” Id. at *9. The district court found collectively

that none of the defendants, including Wells, had any animus against King or the

exercise of his protected conduct. We afford this fact determination substantial

deference, but on review we deem this finding to be clear error.

The record is void of any evidence—let alone a preponderance—to support

Wells’s claim that she subjectively believed King was abusing the grievance system or

was otherwise disruptive or manipulative in any way that would entitle her to initiate

punitive action against him. King was undeniably the litigious type. Aside from his

participation in the Cain litigation, he was also involved in the filing of numerous

grievances, both his own and assisting others.12 He was also a member of the Warden’s

Forum. As a result, King undoubtedly had a certain level of respect and influence

among the prisoners. This conduct—protected conduct—may undoubtedly create

disruptions or “problems” for prison officials. But when that happens, the prison is not

12

The record does not contain any evidence of the purported “shotgun” grievances that the

defendants claimed were an abuse of the system. See Ward v. Dyke, 58 F.3d 271, 274 (6th Cir.) (citing

specific numbers of grievances the allegedly disruptive plaintiff filed), cert. denied, 516 U.S. 991 (1995).

And as already discussed, this is consistent with the district court’s legal determination that King’s actions

constituted protected conduct.

No. 09-2469 King v. Zamiara et al. Page 19

restricted from taking any action against the prisoner to minimize the disruption, it just

must not take an adverse action against the prisoner. Ward v. Dyke, 58 F.3d 271, 274

(6th Cir.) (holding no constitutional violation for taking action against prisoner whose

numerous grievances were disruptive because chosen action did not deter him from

exercising his rights), cert. denied, 516 U.S. 991 (1995). “Prison officials are clearly

free to punish inmate conduct that threatens the orderly administration of the prison. But

. . . prison rules are not [to be] used as a backdoor means of punishing inmates for

exercising their right[s].” Brown v. Crowley, 312 F.3d 782, 791 (6th Cir. 2002), cert.

denied, 540 U.S. 823 (2003) (internal quotation marks omitted).

Nor was there any support for Wells’s statements that King posed a security risk

or was responsible for or even at risk of creating any disturbances or manipulating the

other prisoners in any way. The testimony of the disinterested witnesses consistently

established the contrary. The Wells Memo references examples of threats by King and

purportedly attaches examples, but no such examples are attached. Nor was Deputy

Warden Harry, the recipient of the Wells Memo, able to confirm the existence of any

problems with King. R. 171 (Trial Tr. I at 120:23 (testimony that Harry was not aware

of King causing any problems “other than what he was doing in connection with

grievances and complaints to the Warden’s Forum”)). Warden Berghuis testified that

King “has a huge ego” and was a “very difficult to manage prisoner” who “superimposes

his will over the will of the department,” but not even she could identify any specific

manipulative or disruptive behavior. R. 172 (Trial Tr. II at 135:10-17; 237:2-238:2).

None of the witnesses could identify specific examples, and many even testified that

they had no knowledge of King ever manipulating others to create unrest among the

other prisoners. See R. 171 (Trial Tr. I at 127:14-17) (Harry testimony); id. at 147:10-23

(Chaffee testimony); R. 172 (Trial Tr. II at 198:6-15) (Naves testimony); id. at 207:23-

25 (Lewis testimony).13

13

The district court credited Lewis’s affidavit in support of her major misconduct ticket wherein

she complained about King watching the officers and interfering with the operation of the unit, but failed

to acknowledge that the hearing officer reviewing that ticket, a neutral party, did not find Lewis’s account

credible. Compare King IV, 2009 WL 3424221, at *2 with R. 130, Ex. 29 (Misconduct Hr’g Report).

No. 09-2469 King v. Zamiara et al. Page 20

We do not deny the general need of corrections officers to maintain order in a

prison, which may require acting preemptively based on concerns that have not yet

materialized. And had the testimony stopped here, a retaliatory motive would have been

difficult to substantiate. But the evidence did not stop here. Although the record is

silent as to disruptive behavior by King, the record speaks volumes as to repeated

attempts by Wells to punish King following his arrival at Brooks as a known participant

in the Cain litigation:

• Sandra Naves, a corrections officer at Brooks with no incentive to lie,

testified that she had no personal knowledge of King ever inciting a

demonstration in September 1999, and despite her concerns, was told

by Wells to issue King a NOI and what to put in it. No other inmate

supposedly involved in that incident was written up. R. 172 (Trial Tr.

II at 197:8-199:5).

• In February, Wells herself placed King on toplock, and shortly

thereafter he was cited for being in violation of the toplock, despite

having no notice that it would start before midnight on the day in

question. This ticket was also ultimately thrown out. R. 1-5, Ex. D

(Misconduct Hr’g Report).

• Bonnie Lewis, another fellow officer at Brooks, issued King a ticket

for being disruptive, despite later admitting that he was not disruptive,

and conceded that Wells had asked her to write the statement. R. 172

(Trial Tr. II at 206:1-4). No other prisoners from the supposed group

of seven were cited for that incident. Deputy Warden Singleton spoke

to Officer Lewis and thereafter conveyed to the hearing officer that

she had retracted her statements. R. 130, Ex. 29 (Misconduct Hr’g

Report). The hearing officer determined that Lewis’s report was not

credible and found King not guilty of the ticket. Id.

• Three days after Lewis’s ticket was thrown out, Wells formally

complained to the Deputy Warden for the first time regarding King’s

behavior, referencing allegations by unnamed officers and purportedly

attaching examples that do not appear to have been attached. R. 11-2,

Ex. F (Wells Memo).

The district court made no mention of any of the above testimony of Sandra

Naves, Michael Singleton, and Bonnie Lewis with respect to the purported

“disturbances” created by King, nor did the district court indicate why it found their

statements not credible. All three of these witnesses were MDOC employees, two of

No. 09-2469 King v. Zamiara et al. Page 21

whom were not defendants when they testified at trial, and at no point was their

credibility ever challenged or questioned. The district court also ignored the timing of

when Wells sent her Memo to Harry—three days after the ticket Wells had asked Lewis

to write was thrown out—which is also highly suggestive of an intent to retaliate against

King. See Paige, 614 F.3d at 283; Muhammad, 379 F. 3d at 417-18. Instead, the district

court relied on Wells’s unsupported assertions at trial and in her Memo that unnamed

officials had reported various degrees of unrest and violence by King and her general

denial of ever taking action against King in order to retaliate against him. Wells’s

inability to remember at trial several years later the events in support of her Memo is

hardly proof that these events did not happen, but it also does not explain why those

officers were never identified in the first place.14

The district court concluded that Wells was “a very credible witness,” King IV,

2009 WL 3424221, at * 6, and we do not overturn that finding lightly. Credibility

assessments by the finder of fact in particular are owed “even greater deference” under

Federal Rule of Civil Procedure 52(a). Anderson, 470 U.S. at 575. At the same time,

a district court cannot “insulate his findings from review by denominating them

credibility determinations,” because whether a witness is believable depends on more

than just her demeanor on the stand. Id. Where “[d]ocuments or objective evidence . . .

contradict the witness’ story; or the story itself [is] so internally inconsistent or

implausible on its face that a reasonable factfinder would not credit it[,] . . . the court of

appeals may well find clear error even in a finding purportedly based on a credibility

determination.” Id. The district court here committed clear error when it concluded that

the preponderance of the evidence supported Wells’s claim that she was motivated by

King’s disruptiveness despite no substantiation for such disruptiveness and despite

14

The district court also erroneously credited Wells’s brief testimony despite her frequently

inconsistent answers. For example, when asked about the security screen she signed that bumped King

to a Level III yet also said “Manageable at II,” she said both that she would have paid great attention to

making sure all the boxes were filled in, but that it never stood out to her as not matching up. When her

own counsel seemed surprised, her explanation made even less sense: “I think I would have questioned

it at that time, but I didn’t notice it.” R. 172 (Trial Tr. II at 192:15-3). When asked if she had any input

in the decision to bump King to a Level III, she said both “I had no part of that,” and then “I don’t

remember.” Id. at 194:5-7.

No. 09-2469 King v. Zamiara et al. Page 22

repeated contradictory testimony by other MDOC officers that Wells instructed them to

write King up for incidents later found not credible by neutral parties.

Rare is the case where a defendant testifies on the record that she intended to

retaliate against a prisoner for exercising his constitutional rights. Here, however, the

district court’s finding regarding Wells’s motivation was wholly unsupported by the

record evidence; more problematically, this finding was specifically contradicted by

uncontested documents and testimony from neutral parties establishing Wells’s

retaliatory motive. We are left with the firm impression that on this evidence the district

court committed clear error in finding that Wells’s actions were not motivated “at least

in part” by King’s protected conduct.

b. Signing Security Screen

Wells was also involved in the implementation of the adverse action against

King. Upon receiving the instructions from Central Office to increase King’s security,

Chaffee edited the initial screen by hand to replace the II with a III and Wells signed the

screen. The only relevant question for this act of implementing the order is whether

Wells knew or should she have known that implementing Central Office’s orders would

violate King’s rights. See Thaddeus-X, 175 F.3d at 393. Because Wells was the one

who put in motion the adverse action in the first place out of a desire to punish King, we

have no difficulty concluding that she helped execute the order with knowledge that it

was intended to retaliate. We therefore find it unnecessary to consider whether Wells

should alternatively be viewed as a superior for this action.

c. Conclusion

The judgment in favor of Wells must be reversed because the district court

committed both an error of law and a clear error of fact. The district court first erred in

applying the wrong legal standard to the issue of whether Wells caused the adverse

action against King in this case. When the correct legal standard is applied to the facts

as determined by the district court, Wells’s Memo was the actual and proximate cause

of the increase in King’s security level. Although we afford the district court’s findings

No. 09-2469 King v. Zamiara et al. Page 23

substantial deference, we cannot affirm the district court’s finding that Wells was not

motivated at least in part by King’s protected conduct when sending this Memo. This

finding is unsupported by the record evidence and directly contradicted by the

undisputed record and testimony by neutral parties demonstrating her animus against

King’s protected activities. See Perkins v. Am. Elec. Power Fuel Supply, Inc., 246 F.3d

593, 601 (6th Cir.) (reversing as clear error finding of fact following bench trial that was

unsupported by the record when contradictory evidence was offered in support of the

opposite conclusion), cert. denied, 534 U.S. 994 (2001). We do not hesitate to conclude

that the district court committed clear error with respect to Wells. The district court’s

judgment in favor of Wells is vacated, and we remand for further proceedings consistent

with this opinion.

2. Transfer Coordinator Curtis Chaffee

Chaffee’s potential involvement in increasing King’s security level also came in

multiple forms, none of which are factually disputed: (1) he emailed Central Office the

information it ultimately relied on in making the decision to increase King’s security

level, (2) he implemented the decision to increase King’s security level by issuing and

then editing the initial security screen, and (3) he subsequently edited the screen several

months later with a new reason for the increase. Just like Wells, he could be liable for

the first action if an increase in security was a reasonably foreseeable consequence of his

actions and proximately caused by them, and if he intended to retaliate against King for

his protected conduct. Siggers-El, 412 F.3d at 702. Chaffee could be liable for the latter

actions if he knew or should have known that implementing his superior’s orders would

violate King’s rights. Thaddeus-X, 175 F.3d at 393.

a. Email to Central Office

Just like the Wells Memo, Chaffee’s email to Central office proximately and

actually caused the resulting security increase by Central Office. There is no indication

in the forty minutes between Zamiara’s receipt of Chaffee’s email and Zamiara’s reply

issuing the security increase that Zamiara received any additional information regarding

No. 09-2469 King v. Zamiara et al. Page 24

King. See R. 172 (Trial Tr. II at 166:19-167:20). For the same reasons discussed above

in addressing the Wells Memo, we disagree with the district court’s conclusion that

Chaffee was not “involved” in the increased security level. That conclusion is the result

of a misapplication of the correct law to the undisputed facts giving rise to the increase

in King’s security level.

The next inquiry is whether the district court committed clear error in finding that

Chaffee was not motivated by King’s exercise of his constitutional rights. Compared to

Wells, Chaffee appears to have held no specific malice or ill-will toward King.

However, the desire to punish someone for protected conduct does not require malice.

The record clearly reflected that Chaffee was motivated at least in part by King’s

protected conduct, even if he did not realize that doing so would constitute retaliation.15

We therefore take no issue with the district court’s finding that Chaffee’s testimony was

credible, King IV, 2009 WL 3424221, at *9, because Chaffee’s statement that he took

no action “for the purpose of retaliating against Mr. King,” R. 171 (Trial Tr. I at 154:6-

8), says nothing about whether Chaffee understood that the legal definition of retaliation

included taking an adverse action against King in response to his protected conduct,

which included assisting others in filing grievances.

Indeed, if Chaffee is credible, his testimony directly establishes that he was

improperly motivated by King’s protected conduct. In his email to Zamiara, Chaffee

specifically cites King’s assistance with filing grievances and participation in the

Warden’s Forum as examples of the “problems” King was causing that required him to

be transferred: “It seems he can instigate them to create problems (grievances,

complaints to Warden’s Forum, etc.) while he remains uninvolved directly. Currently,

he is printing out grievances about various issues and having other prisoners sign them

and send them in.” R. 130-3, Ex. 18 (Chaffee/Zamiara Email). Chaffee also

acknowledged being told that “King was being transferred because he was instigating

other prisoners to file grievances.” R. 171 (Trial Tr. I at 139:9-12). Chaffee testified

15

We see no error in the district court’s finding that Chaffee “did not know King, and he had no

knowledge of King’s involvement in the Cain litigation.” King IV, 2009 WL 3424221, at *6. Involvement

in Cain, however, was only one of the protected activities in which King participated.

No. 09-2469 King v. Zamiara et al. Page 25

that if Harry had told him of other forms of misconduct or manipulative behavior, he

would have included it in the email, and that if King had not been involved in the

Warden’s Forum and had not been assisting other prisoners file grievances, he likely

would not have been transferred at all. Id. at 142:13-16.16 An adverse action, like an

increase in security, was a reasonably foreseeable consequence of Chaffee’s request, and

the record clearly demonstrates that King’s assistance in filing grievances motivated

Chaffee to comply with his superior’s order requesting the transfer.17

b. Initial Editing of Security Screen

With respect to implementing the increase in security, Chaffee admits making

the change to King’s transfer order to increase him to a level III. R. 171 (Trial Tr. I at

140:3-11). These changes were necessary to effect the transfer and increase in security

ordered by Central Office. We have already held that Chaffee is not entitled to qualified

immunity, King III, slip op. at 4, and the evidence supports that he knew or should have

known that increasing a prisoner’s security level in response to protected conduct would

be a violation of King’s First Amendment rights. The question is therefore whether he

knew or should have known the increase was in fact impermissibly motivated by the

protected conduct. See Thaddeus-X, 175 F.3d at 393.

Chaffee could not recall having any discussions with Zamiara outside of his

email. R. 171 (Trial Tr. I at 146:1-5). However, only forty minutes passed between

Chaffee’s email and Zamiara’s response. Chaffee testified that he had no reason to

believe Zamiara’s response to increase security was for retaliation, and that he assumed

16

That Warden Harry ordered Chaffee to send the email requesting transfer does not relieve him

of liability. Thaddeus-X, 175 F.3d at 393.

17

The dissent makes no effort to counter these clear facts, concluding instead that there was “no

evidence that Chaffee knew or should have known that [King] was not actually instigating other prisoners

to defiance.” Dissent Op. at 38. The dissent offers no record support for the statement that King was

instigating others to “defiance,” because there is no record support for that statement. Chaffee himself

testified that he had no personal knowledge that King ever manipulated other prisoners to be disruptive.

R. 171 (Trial Tr. I at 147:10-23) (Chaffee testimony). Instead, Chaffee had information that King was

printing out grievances and making complaints to the Warden’s Forum, protected First Amendment

conduct, which he may have deemed disruptive. King’s personal speculation that Harry did not want to

retaliate against him has no legal significance as to Harry’s actual intent, and even if it did, the dissent

offers no support for why Harry’s intent should have any bearing on Chaffee’s intent.

No. 09-2469 King v. Zamiara et al. Page 26

that “[Zamiara] knew something I didn’t know.” R. 171 (Trial Tr. I at 156:18-25).

However, this assertion is not factually plausible in light of Chaffee’s other statements

that are directly contrary.18 He conceded at trial that absent a few narrow exceptions,

increasing a prisoner’s security level was a punitive act. Id. at 136:13-137:15. And he

conceded at his deposition that he believed Zamiara’s response was based entirely on the

underlying email that he himself had sent. R. 130, Ex. 7 (Chaffee Dep. at 38:24-39:20).

This is consistent with the testimony of Deputy Warden Harry that Central Office would

have relied solely on information coming from Brooks regarding what action to take

against King. R. 171 (Trial Tr. I at 122:6-14). The record establishes that Chaffee knew

or should have known that Zamiara’s rapid response of increasing King’s security level

was motivated by King’s assistance with the grievance process, because the evidence is

clear that the increase was the result of Chaffee’s email, which was itself motivated by

King’s assistance with the grievance process.

c. Final Editing of Security Screen

Chaffee’s last relevant action was editing King’s security screen to replace the

initial notation with the notation that King was manipulative. Here, Chaffee was clearly

following the order of a superior, Warden Berghuis, to revise the screen. R. 171 (Trial

Tr. I at 147:24-148:3; 149:7-11). Unlike the forty-minute window we discussed above,

the passage of time here was almost a month. Even if Berghuis’s action was retaliatory,

nothing in the record suggests that at this point Chaffee knew or should have known that

Berghuis’s order was meant to retaliate and not based on additional information obtained

during the course of the intervening month. See Thaddeus-X, 175 F.3d at 393 (citing

Villanueva, 659 F.2d at 854).

d. Conclusion

The district court’s conclusion with respect to Chaffee suffered from the same

legal error regarding proximate causation in a retaliation case as the district court’s

18

At his deposition, which King offered to the district court in support of summary judgment,

Chaffee conceded that “99 percent of the time, [increases in security] are punitive.” R. 130, Ex. 7 (Chaffee

Dep. at 28:11-14).

No. 09-2469 King v. Zamiara et al. Page 27

conclusion with respect to Wells. In light of the overwhelming record evidence

demonstrating Chaffee’s actions were motivated by King’s protected conduct, the district

court also clearly erred in finding that Chaffee was not improperly motivated. We

therefore hold that the district court erred in entering judgment against King in favor of

Chaffee with respect to some, but not all, of his undisputed acts in this case. The

judgment in favor of Chaffee is vacated, and we remand for further proceedings

consistent with this opinion.

3. Assistant Deputy Warden Michael Singleton

Singleton’s sole act that could be tied to King’s increase in security was

approving the backdated security screen created by Chaffee. The district court found

that he had “no participation in the decision to reclassify King to Level III” and was

“bound” by the decision from Central Office. King IV, 2009 WL 3424221, at *7.

Although we agree that Singleton did nothing to cause the initial decision to increase

King’s security, this alone does not relieve Singleton of liability. As the individual

signing the backdated security screen approving King’s transfer to the increased security

facility, Singleton cannot escape liability if in following this order he knew or should

have known that he was implementing punishment for King’s exercise of his rights.

Thaddeus-X, 175 F.3d at 393.19

Here, however, the district court did not find (and the record does not suggest),

that Singleton had any knowledge or should have had knowledge that the revised

security screen was backdated or that the statement that “prisoner manipulates other

prisoners to be disruptive/needs higher level of security” was in response to any

particular activity, let alone King’s participation in protected conduct. R. 172 (Trial Tr.

II at 212:2-21) (Singleton’s testimony regarding lack of knowledge and general practice

not to backdate). Nothing on record suggested that Singleton was aware of any

underlying constitutional violation that he could be deemed to have assisted in signing

19

As with Wells, it is unclear whether signing a security screen is an act of implementing

someone else’s order or if it was a supervisory act of approval. However, because the district court treated

Singleton as “bound” by Central Office’s order, we do the same.

No. 09-2469 King v. Zamiara et al. Page 28

the screen, nor does the screen on its own suggest a constitutional violation is

occurring.20 Singleton also helped resolve in King’s favor the February misconduct

ticket reported by Bonnie Lewis. R. 172 (Trial Tr. II at 218:20-24). Nothing suggests

that Singleton knew or should have known that the increase in security level was a

violation of King’s constitutional rights. On this record, we cannot say that the district

court’s conclusion that Singleton lacked a retaliatory motive was clear error. We

therefore affirm the district court’s judgment in favor of Singleton.

4. Warden Mary Berghuis

The district court’s findings with respect to Warden Berghuis are somewhat

unclear, but the record is again not disputed with respect to what acts she took. Warden

Berghuis took two actions that King argues implicate her in the increase in King’s

security level. First, she signed the transfer order executed by Chaffee stating “Prisoner

manipulates other prisoners to be disruptive,” which led to his transfer to the higher

security level facility. R. 130-3, Ex. 26 (Transfer Order). Second, she also instructed

Chaffee to create the new screen in June of 2000. R. 130-3, Ex. 20 (Zamiara/Berghuis

Email); R. 171 (Trial Tr. I at 149:7-11) (Chaffee testimony).

As an initial matter, we must evaluate Warden Berghuis under the theory of

supervisory liability under § 1983. Liability will not lie absent active unconstitutional

behavior; failure to act or passive behavior is insufficient. Salehpour v. Univ. of Tenn.,

159 F.3d 199, 206 (6th Cir. 1998), cert. denied, 526 U.S. 1115 (1999). Warden Berghuis

will be liable for the unconstitutional acts of her subordinates only if she actively

participated in the unlawful conduct, such as if she “‘implicitly authorized, approved or

knowingly acquiesced in the unconstitutional conduct of the offending subordinate.’”

20

Although Singleton admitted that he was aware that King was transferred to Brooks from

Saginaw on concerns relating to “personal property issues,” and he believed such issues to be part of the

Cain case, there is nothing in the record connecting those concerns to the statements on the screen signed

by Singleton. Singleton himself assumed at trial that Wells must have spoken to him about the transfer,

but it is unclear what Wells said. Singleton may have also been aware of the Wells memo, as Deputy

Warden Harry handwrote a message to him on the memo stating “Singleton[,] please see me to discuss

asap,” dated 4/21/2000. R. 11-2, Ex. F (Wells Memo). The record does not establish, however, what role

the information from Wells played, if any, in motivating Singleton to sign the Transfer Order, nor does it

establish that Singleton knew or should have known that this information from Wells played a part in the

security increase.

No. 09-2469 King v. Zamiara et al. Page 29

Taylor v. Mich. Dep’t of Corr., 69 F.3d 76, 81 (6th Cir. 1995) (quoting Bellamy v.

Bradley, 729 F.2d 416, 421 (6th Cir. 1984)) (emphasis omitted).

The evidence presented a trial demonstrated that Berghuis at a minimum had

knowledge of King’s protected conduct. Berghuis testified at trial that she was not

aware that King was involved in Cain, R. 172 (Trial Tr. II at 228:13-16), but she did not

deny receiving a letter from King, the subject of which was “Retaliation/Cain v.

MDOC,” id. at 228:1-6. Berghuis further admitted that the Cain case was a problematic

case for the department. Id. at 228:7-16. She was also aware of King’s participation in

the Warden’s Forum and his assistance to other inmates in filing grievances. Id. at

229:24-230:5. She testified at trial that “[n]othing he did in terms of the grievance

contacts stood out in my mind ever as being abnormal, unusual. In the forum it didn’t

either.” Id. at 236:10-12. Her distaste for King was evidenced by her statements that

King “has a huge ego” and was a “very difficult to manage prisoner” who “superimposes

his will over the will of the department,” but, even if she acted out of distaste for a

prisoner, that is not the same as unconstitutional retaliation. R. 172 (Trial Tr. II at

135:10-17; 237:2-238:2).

Despite Berghuis’s knowledge of King’s protected conduct, nothing about the

transfer order she signed suggested any potential constitutional violation or retaliation

was afoot. The record does not demonstrate any knowledge of the Wells Memo or

Chaffee’s email to Central Office. Nor did Berghuis speak with anyone at Central

Office. Although Berghuis was aware of the protected conduct, she also was aware of

the transfer order to Brooks that described King as organizing a protest. R. 130, Ex. 31

(Transfer Order). Without some level of knowledge of the underlying constitutional

violation—that the increase was related to his participation in protected

conduct—Berghuis cannot be liable for the acts of her subordinates. Siggers, 652 F.3d

at 695 (granting summary judgment for warden who merely approved notices filed

against the inmate).

By June of 2000, however, Berghuis received additional information that could

have made her aware that the decision to increase King’s security level was for

No. 09-2469 King v. Zamiara et al. Page 30

impermissible purposes. On June 14, 2000, Berghuis received an email from Zamiara

expressing concerns over a claim of retaliation. R. 130, Ex. 20 (Zamiara/Berghuis

Email). Zamiara also included a copy of the original screen that would have shown the

markings from Chaffee that the prisoner had no major misconducts and was

“manageable in Level II.” Rather than causing Berghuis to question the increase in

security level, she “chewed out” Chaffee and instructed him to fix the screen. R. 171

(Trial Tr. I at 133:11-19; 147:24-148:3; 149:7-11). Although this was hardly an

exemplary course of conduct, the record does not establish that this “fix” was necessary

to maintain King’s security status at the higher level, or had any impact on his security

level. As a result, we cannot say that Warden Berghuis’s actions constituted active

participation in maintaining a constitutional violation. See Taylor, 69 F.3d at 81

(holding triable issue of whether supervisor could be liable for abandoning duties despite

actual knowledge of breakdown in proper procedures by department) (citing Hill v.

Marshall, 962 F.2d 1209 (6th Cir. 1992)). We therefore affirm the district court’s

judgment in favor of Berghuis.

5. Classification Specialist Chuck Zamiara

Chuck Zamiara is the only defendant from Central Office, where the decision to

raise King’s security was made. Defendant Zamiara claims that Nick Ludwick, the

Classification Director, was the one who made the ultimate decision. No one disputes

that Ludwick had to sign off on the decision because King was listed as “CFA Hold,”

correctly or not. No one disputes that Zamiara emailed Chaffee with the instructions to

raise King’s security level and later emailed Berghuis to adjust the initial screen. R.

130-3, Ex. 18 (Chaffee/Zamiara Email); R. 130-3, Ex. 20 (Zamiara/Berghuis Email).

The district court did not state specifically whether Zamiara was “involved” in the

decision to increase King’s security level as it did with the others, but the district court

did note that “[n]either Zamiara nor Ludwick could testify with any certainty which of

them first recommended that King be transferred to a Level III facility.” King IV, 2009

WL 3424221, at *8.

No. 09-2469 King v. Zamiara et al. Page 31

At trial, Zamiara adamantly maintained that Ludwick made all the decisions with

respect to raising King’s security level. R. 172 (Trial Tr. II at 162:14-16) (“That would

not have been my decision.”); id. at 165:12 (“That is the message I relayed from Mr.

Ludwick.”); id. at 166:3-4 (“Well, if we use a little logic, we can say it came from Mr.

Ludwick.”). Zamiara did not dispute, however, that he was the one who received

Chaffee’s email and responded to it with the instructions to increase King’s security

level and what to note in the transfer screen. King IV, 2009 WL 3424221, at *7-8.

Although generally finding all of the witnesses credible, including King,21 the district

court was particularly “impressed” by Zamiara, id. at *7, despite Zamiara’s frequent

sarcasm that is apparent even from the written record, see R. 172 (Trial Tr. II at 163:17-

24).22

Zamiara’s best efforts aside, however, placing the final decision entirely on

Ludwick’s shoulders has no bearing on whether Zamiara can be held legally responsible

for the resulting adverse action. Thus, Zamiara’s credibility on this issue is ultimately

not relevant because Zamiara admitted the relevant facts relating to his participation in

the increase even if he denied being the decision maker. Zamiara’s acts were a

21

The district court found that “King’s testimony was generally credible, but his testimony was

colored by his high opinion of himself.” King IV, 2009 WL 3424221, at *5.

22

Zamiara’s credibility on this issue is highly questionable for a number of reasons. First, the

defendants themselves did not credit Zamiara’s testimony in their proposed findings of facts. The

defendants acknowledged that Zamiara “may have had a role in increasing King’s security level” and that

he “may have made a recommendation to Ludwick before Ludwick ultimately made the decision that

King’s security should be raised to Level III.” R. 163 (Defs.’ Proposed Findings of Fact and Conclusions

of Law at ¶ 52). Second, Zamiara’s statements at trial were progressively stronger compared to his

deposition, which in turn was stronger than his affidavit given in 2003. At his deposition, he admitted that

the language in the email to Chaffee may have been his own. R. 172 (Trial Tr. II at at 166:16-18 (quoting

his deposition)). His affidavit, which was plagued by the same passive voice that seems to follow most

decisions in this case, made no reference at all to any involvement by Ludwick other than being forwarded

a copy of the emails. R. 130-4, Ex. 34 (Zamiara Aff. at ¶ 9-10) (“I believed prisoner King was establishing

a pattern of manipulative behavior . . . . [P]risoner King was departed to level III because he was perceived

as a disruptive prisoner who was manipulating others to create unrest . . . .”). Third, Ludwick’s deposition

testimony, which was admitted in lieu of trial testimony, also suggested that the idea to raise King’s

security first came from Zamiara. R. 140-2, Ex. 2 (Ludwick Dep. at 19:9-11) (“Then, at that point in time,

it would have been Mr. Zamiara’s determination that Mr. King would be better suited at a higher level of

custody.”); id. at 19:15-20:5 (“Q: . . . did he come in, making a recommendation of what he was seeking

approval to do? A: Yes. . . . Q: . . . Did he actually, at that point, then, make a recommendation that I

think we should send him to URF in level III? A: Yes.”). Finally, even Zamiara’s description of the

process for initiating a transfer of someone on the hold list also conveniently distanced himself from any

decision making, but was inconsistent with how Chaffee and Ludwick described it. Chaffee and Ludwick

both indicated that Zamiara would first approve the transfer, and then Ludwick or Bolden would need to

approve lifting the hold to permit the transfer to occur. R. 130, Ex. 7 (Chaffee Dep. at 19:18-25); R. 140-2,

Ex. 2 (Ludwick Dep. at 19:17-20:25).

No. 09-2469 King v. Zamiara et al. Page 32

proximate cause of the increase in King’s security level, even if Ludwick had to approve

it. The only question is, therefore, whether Zamiara was motivated by King’s protected

conduct.

The district court found that Zamiara’s motivation was not because King was

engaging in protected activities, but “because he was using his influence over other

prisoners to create problems and was undermining the authority of prison officials.”

King IV, 2009 WL 3424221, at *9. For all the reasons already discussed, this finding is

clear error in light of the fact that the only “problems” on the record that Zamiara was

aware of were protected activities—assisting others to file grievances and participating

in the Warden’s Forum. The only information that Zamiara had regarding King was in

the email from Chaffee. R. 172 (Trial Tr. II at 166:19-167:20). In that email, Chaffee

indicated that King could instigate other prisoners to create “problems,” listing as

examples grievances and complaints to the Warden’s Forum. R. 130-3, Ex. 18

(Chaffee/Zamiara Email). Zamiara was unable to identify any other disruptive conduct

or source of information other than the email when discussing why he believed an

increase in King’s security was appropriate.23 Zamiara’s sole information regarding

King’s behavior appears to have come from Chaffee.24 Zamiara’s motivation was at

least in part to punish King for his protected activities—he did not have to know King

23

And for good reason—Zamiara and King’s counsel had a long exchange at Zamiara’s

deposition in which Zamiara continued to insist that there were a number of possibilities other than

Chaffee’s email behind why he would state that King manipulated others into causing arrest, but when

given the entirety of Central Office’s file on King and a brief recess to review it, Zamiara conceded that

there was nothing in the file other than Chaffee’s email that would corroborate that statement. R. 130-3,

Ex. 19 (Zamiara Dep. at 75:14-77:13).

24

The dissent suggests Zamiara cannot be liable for the act of increasing King’s security based

Chaffee’s references to King’s protected conduct, because Chaffee was not himself motivated to retaliate

when he sent the email. Although we take issue with the dissent’s discussion of Chaffee’s motive, the

dissent fails to explain why the lack of a retaliatory animus in Chaffee’s email should have any bearing

on Zamiara’s ultimate decision to increase King’s security when the email itself clearly outlines the

protected conduct. If a guard seeks a non-retaliatory reprieve from an overly litigious prisoner, and the

transfer coordinator upon hearing this decides instead to punish the prisoner, certainly the transfer

coordinator could be liable for his act of retaliation. The dissent does not dispute that Chaffee’s email

identified protected conduct and that Zamiara made his decision based entirely on the content of that email.

Dissent Op. at 38. Instead, the dissent suggests that Zamiara was motivated to act because King was

“instigating prisoners,” which would be a valid point if that is all that Chaffee’s email had actually said.

The dissent neglects to add that Zamiara only knew King to be “instigating prisoners” to engage in

protected conduct, and not any other kind, a factual point the dissent does not—and could not—dispute.

No. 09-2469 King v. Zamiara et al. Page 33

personally for this action to be unconstitutional. The district court’s finding with respect

to Zamiara’s motivation was therefore clear error.

Zamiara was also involved in the later action of asking Chaffee to edit the

security screen. As discussed above with Warden Berghuis, although this was hardly

an appropriate reaction to the concerns identified by the state’s attorney about potential

legal action from the error, there was no evidence presented that the revision to the

screen was necessary to maintain or implement the adverse action. Because the relevant

adverse action was the initial increase itself, we cannot say that the act of backdating the

screen caused the adverse action or even prolonged it, even if it was motivated in part

by a continued desire to punish King for the exercise of his constitutional rights.

As with defendants Wells and Chaffee, the district court’s judgment with respect

to Zamiara applied the wrong legal standard and made a key finding of fact unsupported

by the record evidence and explicitly contradicted by other undisputed evidence. We

therefore vacate the judgment in favor of Zamiara and remand for further proceedings

consistent with this opinion.

E. Defendants’ Actions Absent Protected Activity

Having found that the record demonstrates a causal connection between the

adverse action and King’s protected conduct for Wells, Chaffee, and Zamiara, we next

must determine whether these defendants have shown by a preponderance of the

evidence that they would have taken the same action absent the protected conduct. Mt.

Healthy, 429 U.S. at 285; Arnett v. Myers, 281 F.3d 552, 562 (6th Cir. 2002). The

district court devoted one sentence to whether the defendants would have taken the same

action in the absence of King’s protected activity: “Moreover, even if they were

motivated in part by any protected conduct, the Court finds that Defendants would have

taken the same action in the absence of King’s protected activity.” King IV, 2009 WL

3424221, at *9. This conclusion is not further explained and is unsupported by the

record.

No. 09-2469 King v. Zamiara et al. Page 34

The only suggestion on the record of King creating any disturbances unrelated

to his protected conduct is the Wells Memo. In her memo, Wells cites several concerns

that standing alone would be worrisome. She provides quotes from King, stating “these

guys in the unit will do whatever I ask,” and “if I wanted to cause a disturbance I could

anytime.” R. 11-2, Ex. F (Wells Memo). She also states that the officers believed that

“King’s authority over other prisoners is higher then [sic] the officers” and that the

officers believed that King had “developed a cadre of followers over whom he has

substantial influence. Id.

Wells herself cannot merely point to this Memo as proof that she would have

acted the same way regardless of King’s protected activities because, as already

discussed, she was unable to offer even minimal substantiation of any of these

statements, and her bias against King was evidenced by her acts of instructing other

officers to fabricate misconduct tickets against him. And although these statements

would support a recipient’s decision to increase King’s security, neither Chaffee nor

Zamiara can rely on them because neither man testified that they read this Memo or

acted as a result of these statements. Chaffee testified that his knowledge came from

Harry; Zamiara’s knowledge came from Chaffee. R. 171 (Trial Tr. at 141:14-21); R. 172

(Trial Tr. II at 166:19-167:20).

Every witness who testified that they were motivated by King’s “disruptive”

behavior could not point to any other disruptive behavior aside from the grievances, the

participation in the Warden’s Forum, or the personal property issues raised in Cain.

Absent the protected conduct, the “disturbances” would not have existed, and no action

would have been taken. The defendants have not produced any evidence, let alone a

preponderance, that they would have each taken the same actions against King had he

not been engaging in protected conduct. See Mt. Healthy, 429 U.S. at 287. Because the

defendants have failed to show any basis in the record for increasing King’s security

other than his purportedly disruptive First Amendment conduct, the defendants have

failed to defeat King’s claim for First Amendment retaliation. The district court erred

in concluding otherwise.

No. 09-2469 King v. Zamiara et al. Page 35

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court with

respect to defendants Singleton and Berghuis and REVERSE the judgment with respect

to defendants Wells, Chaffee, and Zamiara. We REMAND the case for entry of

judgment in favor of King against those three defendants with instructions to the district

court to proceed thereafter with a determination of the appropriate remedy, including any

declaratory relief or damages to the extent necessary to afford relief in this case.

No. 09-2469 King v. Zamiara et al. Page 36

_____________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

_____________________________________________________

BECKWITH, Senior District Judge, concurring in part and dissenting in part.

I concur in the majority’s disposition of King’s appeal with respect to his retaliation

claims against Defendants Singleton and Berghuis. I also agree with the majority that

no liability should attach to Defendants Chaffee and Zamiara for backdating a new

security screen to indicate that King’s transfer should include a security level increase.

I believe, however, that the majority’s causation analysis with respect to King’s claims

against Defendant Wells and Chaffee and Zamiara for increasing his security level is

flawed and omits a crucial piece of testimony that came from King himself.

Briefly summarized, the chain of events in this case was that Wells requested that

King be transferred to another unit within Brooks, allegedly for engaging in disruptive

and manipulative behavior. Instead of transferring King within the institution, Deputy

Warden Harry instructed Chaffee to transfer King to another Level II institution.

Chaffee actually made arrangements to transfer King to another Level II institution, but

had to receive authorization from the Central Office to complete the transfer. Chaffee

requested approval for the transfer from Zamiara, and Zamiara, seeing that one of the

reasons for the request was that King was instigating other prisoners, sought and

obtained approval to increase King’s security level. Zamiara then instructed Chaffee to

increase King’s security level and transfer him to a level III institution.

First, assuming that the district judge’s conclusion that Wells did not bear any

retaliatory animus toward King was clearly erroneous, Wells only requested that King

be transferred within the institution. The majority seems to agree that transferring King

within the institution would not have constituted an adverse action. Majority opinion

at 17 (“Wells nominally asked for a transfer.”). The majority then summarily concludes

that “an increase in security was nonetheless a reasonably foreseeable consequence of

the allegations in her Memo.” Id. The majority cites no evidence in the record to

support this conclusion, however, because there is none. If Wells’s memo was supposed

No. 09-2469 King v. Zamiara et al. Page 37

to have contained code words she knew would result in an increase in King’s security

level, they did not register with Deputy Warden Harry because she directed Chaffee to

transfer King to another Level II institution. A transfer to another institution at the same

security level would not have been an adverse action. Friedmann v. Corrections Corp.

of Am., 11 F. App’x. 467, 471 (6th Cir. 2001). In any event, since Harry apparently did

not believe that Wells’s memo was alarming enough to recommend increasing King’s

security level, I cannot conclude that it was reasonably foreseeable to Wells that a

security level increase would result from her memo.

Second, and this is the crucial evidence the majority fails to mention, King

testified that he does not believe that Harry retaliated against him. Trial Trans. (Vol.

I) at 112 (“I didn’t bring suit against the deputy warden, Shirlee Harry, because even

though her signature was on stuff, I don’t believe she had malice in her heart, and as the

testimony and the depositions have proven, she didn’t.”). In my view, King’s admission

that Harry did not intend to retaliate against him makes her request to transfer King to

another institution the intervening cause of his security level increase, and absolves

Wells from liability for any retaliatory motive she had in requesting King’s transfer in

the first instance. Stated another way, since King failed to prove that it was reasonably

foreseeable to Wells that her memo would result in an increase in King’s security level,

Harry’s direction to Chaffee to transfer King to another institution became the “but for”

cause of the adverse action because Zamiara’s actions were based on the transfer request

that Chaffee made at Harry’s direction. If Harry did not intend to retaliate against King -

and he admits she did not - then her directive to Chaffee to transfer King cannot have

been retaliatory. Moreover, Harry only requested a “break” from King due in part to

his litigious activities, which was perfectly appropriate under the law of this Circuit.

Ward v. Dyke, 58 F.3d 271, 274 (6th Cir. 1995).

This last point is especially important to analyzing causation with respect to

Chaffee and Zamiara. Chaffee testified that in requesting approval for the transfer from

Zamiara, he essentially repeated verbatim the reasons for the transfer given to him by

Deputy Warden Harry. Trial Trans. (Vol. I ) at 140-42, 150-51. As just stated, Harry’s

No. 09-2469 King v. Zamiara et al. Page 38

directive to transfer King to another Level II institution in order to give the staff a break

was facially legitimate. King produced no evidence that Chaffee knew or should have

known that he was not actually instigating other prisoners to defiance. Indeed, King’s

trial counsel elicited from Chaffee on direct examination that he did not have any first

hand knowledge whether King was instigating other prisoners. Trial Trans. (Vol. I) at

139. Thus, King failed to show that Chaffee knew or should have known that the reasons

Harry gave him for the transfer were false or given for retaliatory reasons. Therefore,

King failed to prove that in facilitating his transfer, Chaffee acted with retaliatory intent.

Thaddeus-X v. Blatter, 175 F.3d 378, 393 (6th Cir. 1999) (holding a subordinate will be

liable under § 1983 for following a superior’s orders if he knew or should have known

his acts were violating plaintiff’s constitutional rights). Indeed, Chaffee cannot have

known of any retaliatory motive for the transfer since King admits that Harry had no

such motive. Consequently, the only logical conclusion that can be reached is that

Chaffee in fact did not intend to retaliate against King when he relayed Harry’s reasons

for the transfer to Zamiara.

The causation analysis is much the same for Zamiara. Zamiara received an email

from Chaffee requesting a transfer which indicated that the prisoner was instigating other

prisoners to disobedience. Zamiara is even further removed from the situation than

Chaffee. Zamiara testified that the indication that King was instigating prisoners caused

him to request an increase in King’s security level. Trial Trans. (Vol. II) at 183-84.

King produced no evidence that Zamiara knew or should have known that the reasons

Chaffee gave him for requesting King’s transfer were false or retaliatory. Indeed, the

majority specifically recognizes that Zamiara’s sole source of information about King’s

alleged conduct came from Chaffee’s email. Majority Opinion at 32. If Chaffee’s email

was not tainted with retaliatory animus - and the evidence clearly shows that it was not -

then Zamiara’s reliance on the information in the email to increase King’s security level

cannot have been retaliatory.

The lack of retaliatory motive from Zamiara then flows back down to Chaffee,

who changed King’s security level at Zamiara’s direction. If Zamiara did not intend to

No. 09-2469 King v. Zamiara et al. Page 39

retaliate against Chaffee by increasing his security level, Chaffee cannot be held liable

for retaliation when he followed Zamiara’s directive to do so. Moreover, even if

Zamiara did intend to retaliate against King, King produced no evidence that Chaffee

knew or should have known that Zamiara was retaliating against King by increasing his

security level. Furthermore, contrary to the majority’s analysis, it is inconsequential that

Chaffee admitted in his deposition that normally security level increases are punitive

since King failed to show that Chaffee knew or should have known that the alleged

punitive measure was related to his protected activity. Consequently, Chaffee cannot be

liable for retaliation for following Zamiara’s direction to increase King’s security level.

In short, in my opinion the record rather indisputably shows that although

Chaffee and Zamiara may have relied on false or inaccurate information in transferring

King and increasing his security level, they did so in good faith and without retaliatory

motive. Even if Wells did intend to retaliate against King when she requested that he

be transferred to another unit within Brooks, King failed to prove that it was reasonably

foreseeable to Wells that a security level increase would result from her actions.

For all of these reasons, the district court’s judgment should be affirmed in toto.

Accordingly, I respectfully dissent from the Court’s opinion to the extent it reverses the

district court’s judgment as to Defendants Wells, Chaffee, and Zamiara.