Opposition Brief — Muhammad v. Close

Supreme Court brief2004

Ask Donna

What actually matters in this document.

Text

: ORIGINAL a" pw coor Us.

LED

No. 02-9065 MAY 12 203

In the Supreme Court of the Anited States CLERK

Shakur Muhammad, aka John E. Mease,

Petitioner,

Mark Close,

Respondent.

On Petition For Writ Of Certiorari

to the United States Court of Appeals for the Sixth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

AND APPENDIX

Michael A. Cox

Attomey General

- Thomas L. Casey

Solicitor General

Counsel of Record

P.O. Box 30212

SuEN - Lansing, Michigan 48909

(517) 373-1124

Kevin Himebaugh

OFF.CZ = -..> *LERK Assistant Attorney General

SUPREME CCLAT

Attorneys for Respondent

Should this Court grant certuioran to correct a harmless procedural error that did not

affect the final outcome of this case and will have no precedential value for future

cases?

Petitioner asserts t'iat the Court of Appeals misapplied the “favorable termination™

rule, which was se. forth by this Court in Heck v. Humphrey, 512 U.S. 477 (1994).

Should this Court g-ant certioran when there are several other alternative grounds for

affirming the distnct court's decision to dismiss Petitioner's action?

T NTEN

a clans deicteclbalattenenibesiideianibdmidnsbdbintenigedd ill

acacia en taineitdtei deibiasebenesetiehennedttanlendeanesennent iv

I SEs naebinsnbembeoneeneebanenebonensinies l

laa dmsemninsnneninibipopemmmaneneahaies 4

[.- | Whether or not the Court of Appeals correctly decided the Heck issue is irrelevant

because that issue was not dispositive of this CaS€..................:ccceccessececesccesseesseesseessseneserssenesenenenees 4

Il. The Court of Appeals correctly affirmed the District Court's decision to grant summary

judgment because Petitioner failed to sufficiently support his Claim. ................ccccecccceeeeeeeeeeeeerenens 9

Serre TnTTITTIITT itcsencsicneensiiiciniinieiettepaeeaiataeeinadeeaiecinilehiainainindedeinasnatinnmeunenateniecnencbemniinsite 11

APPENDIX

1. Magistrate Judge's Report and Recommendation,

STITT: TITTIII nhinndicteicalicenuninenaamnaamnennisiimiiiiiaseininarmineenedeseennadinicieds la

2. District Court Order Adopting Magistrate Judge's Report and Recommendation,

I TIT stesaccensectinssl iil cians cates i mtbenmngunnddndtsidunesnconsdansnanbiinaanoeedeedl 36a

3. Magistrate Judge's Report and Recommendation,

ITI cis ictal da inc ecenid peedaniandndigisedesadnnindniaaneaeinenderionaeersensadiel 47a

4. Distnct Court Order Adopting Report and Recommendation,

III TI rin cielinai ioctl ap sialic cans ciedinaidnidnpsessbaenntinnn midsnesesneeeenireianell 6Sa

5. District Court Judgment,

ITI I cits sitethiinndensisibanenadimidsisdbnebeiendendinsiedneesbaceedanindassaéencenenl Tla

6. Court of Appeals Order Affirming District Court Judgment.

II lnsicld arin traenaieciebenedaanianbansammesanddciibeiateciebbansedenton 72a

7. Court of Appeals Order Denying Reheanng.

SE ee ee Pe EE ED LOM et I Te 74a

-m-

Cases

Edwards v. Balisok,

Fa US. GEG COI IR cecncceccccccecstctssossscnssnccsieceisaiiismtssassmmmimiemanimeaia ee 4,7, 10

Huey v. Stine.

FIO F.98 FID Cle. WD accecccnesscrecorsevaeiessstisisiiissnsssmasssaiammsssie

Spencer v. Kemna,

FED UD. 8 CG GID cccccccreccccsccecceccencccscesescsntnnstiestiisinaisabansmmsmmusiniesssi ee 5

Thaddeus-X v. Blatter.

579 8.36 FIG GG” Cle. (DOD vacencencececcorescsenccesisssiivissizimapemmcaisisasis an 9

Umited States National Bank of Oregon v. Independent Insurance Agents of America,

FE US. GO CGI cececccscoceccrecssscnssntesonssnstitzssiiinsammsamspmasiasiieti 7

Statutes

Be UBL... © DBDGIGD ncccconscoccccscsecccccnscesstnitssendestessnitictammmeni iv

BO UBL. © BAIS ccccncccccscnssccnsstscssssscetenicscsensscsssiisiiasmmmmmesee IV

Be UBB. © CBG ccnccccnrccasacccnscsossvsssssnserasecssonsnsiatitidisssasmemsenimma IV

GB UBG... 6 BGP PII ID neccceccctcccconcessecscsscsesvcsensstesnicctimmmmmmetnieanteaee 6

-W-

This is a civil mghts action brought under 42 U.S.C. § 1983. The distnet court had

subject matter jurisdiction because Petitioner raised a federal question. 28 U.S.C. § 1331. The

Court of Appeals had appellate junsdiction because Petitioner appealed from a final decision of

the district court, which granted summary judgment in favor of Respondent. 28 U.S.C. § 1291.

This Court has jurisdiction to review the judgment of the Court of Appeals. 28 U.S.C. § 1254(1).

STATEMENT OF THE CASE

This ts a civil mghts action brought pro se under 42 U.S.C. § 1983. Petitioner. who is a

Michigan state pnsoner, tiled his complaint on June 2. 1998. Respondent 1s a corrections officer

employed by the Michigan Department of Corrections. Petitioner claims that Respondent

instigated a confrontation with him in the dining hall that resulted in Petitioner being found

guilty of a major misconduct violation, albeit a lesser violation than the one charged by

Respondent.' Petitioner claims that Respondent's actions were in retaliation against two

previous lawsuits that Petitioner had filed against Respondent, along with several other MDOC

employees. (App. p. 48a). The incident in the instant case occurred two and a half years after

the first lawsuit was filed and nearly one and a half years after the second lawsuit. (App. p. 61a).

Respondent filed a motion to dismiss and or for summary judgment on July 31, 1998.

The magistrate judge recommended denying the motion. (App. p. la). The district court

adopted the report and recommendation. (App. p. 46a). Petitioner then filed an amended

complaint.

On October 19. 1999, the magistrate judge appointed pro bono counsel for Petitioner.

Significant discovery then proceeded. On August 3, 2000, Respondent filed a motion to dismiss,

which was based on failure to exhaust administrative remedies. The magistrate judge

recommended denying the motion. The distnct court adopted the report and recommendation.

" Petitioner was charged with “Threatening Behavior,” which is defined as “words,

actions or other behavior which expresses an intent to injure or physically abuse another person.

Such misconduct includes attempted assault and battery.” Michigan Department of Corrections

Policy Directive 03.03.105, Attachment B, p. |. The hearing officer found Petitioner guilty of

“Insolence.” which is defined as “words. actions. or other behavior which is intended to harass,

degrade or cause alarm in an employee.” /d.. at p. 3. Although both are considered major

misconduct violations. only Threatening Behavior is “non-bondable.”” meaning that the prisoner

immediately goes to administrative segregation pending the administrative hearing.

‘

On February 6, 2001. which was after discovery had closed. Respondent filed a second

motion for summary judgment. Respondent also filed a supplement to the motion. Petitioner

filed a response and Respondent replied. The magistrate judge recommended granting

Respondent's motion for summary judgment. The sole reason for the magistrate judge's

recommendation was that Petitioner failed to come forward with sufficient evidence in support

of his retaliation claim. In this report and recommendation. the magistrate judge made no

recommendations regarding the issue in Heck v. Humphrey, 512 U.S. | (1998). (App. p. 47a).

In Heck, this Court held that a § 1983 plaintiff cannot recover damages if such recovery would

render a conviction invalid, unless the conviction had been set aside. Petitioner filed obyections

pro se because his counsel filed a motion to withdraw. The district court adopted the report and

recommendation. As with the magistrate judge. the distnict judge's analysis focused solely on

the fact that Petitioner failed to present sufficient evidence to support his retaliation claim. Heck

was not mentioned in the opinion. (App. p. 65a).

Petitioner then filed a timely notice of appeal. On appeal, Petitioner argued that the

district erred when it decided that Petitioner tailed to set forth sufficient evidence in support of

the causation elemert of his retaliation claim. Petitioner argued that there were disputed issues

of matenal fact that should have precluded summary judgment. In his response bnet.

Respondent addressed the issue raised by Petitioner. In addition. Respondent asserted alternative

grounds for affirming the district court's decision. including Heck.

On September 23. 2002. the Court of Appeals issued an unpublished order affirming the

district court's decision. (App. p. 72a). The Court of Appeals declined to address whether the

district court correctly decided that Respondent was enutled to summasy judgment because

Petitioner failed to come forward with sufficient evidence to support his claim. Rather, the Court

o8s

of Appeals affirmed on an alternative ground. namely. that the case fell directly within the

doctnne of Heck v. Humphrey because Petitioner sought to have the misconduct charge

expunged from his file.

Petitioner then filed a petition for rehearing. On November 14, 2002, the Court of

Appeals denied the petition for rehearing. (App. p. 74a). On February | 1, 2003. Petitioner filed

a timely petition for a wnt of certioran. After Respondent filed a waiver form. the Clerk of the

Court requested Respondent to file a response.

REASONS FOR DENYING THE PETITION

IL. Whether or not the Court of Appeals correctly decided the Heck issue is

irrelevant because that issue was not dispositive of this case.

Petitioner's first question presented asserts that the Court of Appeals misconstrued the

relief sought (i.e., whether Petitioner sought to have his misconduct violation expunged).

Petitioner's second question presented asserts that the Court of Appeals misapplied the Heck

analysis. These two questions are interrelated and will therefore be addressed together.

The procedural waters of this case are somewhat murky. In his onginal complaint,

Petitioner sought to have the misconduct charge expunged from his file. But Petitioner later filed

an amended complaint, which sought damages only. In its analysis, the Court of Appeals

focused on the relief sought in the onginal complaint. Because it determined that Petitioner was

seeking to have the misconduct charge expunged from his file, the Court of Appeals held that

Petitioner's action was barred by Heck v. Humphrey, supra, 512 U.S. at 486-87, where this Court

held:

[I}n order to recover damages for allegedly unconstitutional conviction or

impnsonment, or for other harm caused by actions whose unlawfulness would

render a conviction or sentence invalid, a § 1983 plaintiff must prove that the

conviction or sentence has been reversed on direct appeal, expunged by executive

order, declared invalid by a state tribunal authorized to make such determination,

or called into question by a federal court's issuance of a wnt of habeas corpus.

The doctrine in Heck, known as the “favorable termination” rule, was applied to pnson

disciplinary proceedings in Edwards v. Balisok. 520 U.S. 641 (1997).

The main issue presented by Petitioner 1s whether the favorable termination rule should

apply when a prisoner is no longer in custody. In his petition for a wnt of certioran, Petitioner

asserts that “(t}here is clear conflict in the circuit courts regarding the application of the Heck

tule after Spencer {v. Kemna, 523 US. | (1998)] and Petitioner believes it imperative that this

Court decide this issue.” (Petitioner's brief. p. 10). While there may be some ment to

Petitioner's assertion that there is disagreement among the circuits, granting certioran in the

instant case would not resolve the issue. As discussed more fully in the next section, the instant

case was resolved on summary judgment. In other words, the district court dismissed

Petitioner's action because Petitioner could not factually support his claim. Heck had nothing to

do with the district court's decision. The procedural posture of this case was somewhat confused

as the result of the Court of Appeals using Heck as an alternative ground for affirming the district

court's decision. The Court of Appeals did not hold that the district court erroneously granted

summary judgment. Rather. the Court of Appeals simply chose not to address this tact-intensive

issue.

Further complicating the instant case is that the main issue presented in the Petition was

not addressed by the distnct court. namely, that Heck was misapplied by the Court of Appeals in

Huey v. Stine, 230 F.3d 226 (6" Cir. 2000). Respondent raised the Heck issue in his first motion

for summary judgment, which was denied by the district court. In its first report and

recommendation. the magistrate judge did a detailed analysis of the Heck issue. (App. pp. 23a-

29a). In fact. the magistrate judge recommended that Heck did not apply because Petitioner was

no longer “in custody.” The magistrate judge based this conclusion on its interpretation of

Spencer v Kemna, 523 US. | (1998).

After the first report and recommendation was adopted by the distnct court. the Court of

Appeals issued its Huey decision. In Huey. the Court of Appeals held “that Heck is not made

inapplicable to (the plaintiffs) claim by the unavailability of habeas relief.” Huey, 230 F.3d at

230. The Huey court determined. even in light of Spencer, that the favorable termination rule

applies even if a pnsoner 1s no longer in custody. This was contrary to the conclusion reached

previously by the magistrate judge in the instant case The magistrate judge and distnct court

never analyzed Petitioner's claims under the new law announced by Huey, however. because the

basis for the district court's final decision in the instant case was simply that Petitioner failed to

sufficiently support his retaliation claim. In other words, the issue regarding whether Heck

applies to a prisoner who is no longer in custody was never fully developed below. The

| incomplete and messy procedural posture of the instant case makes it a poor candidate for

In short, the ultimate resolution of this case rested on basic summary judgment principles,

not Heck. And this was not the only available ground for dismissing Petitioner's action. For

example, because the district court decided the instant case on the merits, it did not make a

decision on Respondent's claim of qualified immunity, which could have also been a reason for

dismissing Petitioner's action. The qualified immunity issue would have also been completely

independent from the Heck issue. Yet another issue is whether Petitioner properly exhausted his

claim as required by 42 U.S.C. § 1997e(a). Again, these alternative grounds for dismissing

Petitioner's action show that the accuracy of the Court of Appeals’ analysis of the Heck issue

does not affect the ultimate resolution of this case.

Even if this Court were to make a ruling on the Heck issue that departs from the Sixth

Circuit's view that Heck applies even when a prisoner is no longer in custody, the result of the

instant case would not change because there were several other grounds for dismissing

Petitioner's action, including the ground relied upon by the district court. which was that

Petitioner failed to factually support his claim. If this Court's decision on the Heck issue were to

have any impact on the instant case. then this Court would have to wade through the procedural

and factual morass of the instant case and determine that the numerous alternative grounds did

not support dismissing Petitioner's action.

Finally, Petitioner actually is still in custody. Although Petitioner is no longer in

administrative segregation, he 1s still serving time in pnson. Moreover, Petitioner's conviction

of the Insolence major misconduct ticket resulted in a loss of good time credits. In other words.

Petitioner 1s serving a longer sentence as a result of his misconduct conviction. Because the

major misconduct ticket resulted in an increase in his sentence, Petitioner should be considered

“in custody” until he is released from pnson, not just when he is released from administrative

segregation. Because Petitioner did not get his conviction reversed on direct appeal or otherwise

set aside, the instant lawsuit does, in fact, affect the length of Petitioner's cqnsense. Petitions:

could have appealed his misconduct conviction even after he was released from administrative

segregation. Habeas-type relief was therefore not foreclosed merely because Petitioner was

released from administrative segregation. Petitioner is claiming that he would not have been

found guilty had Respondent not “set him up” by allegedly instigating a confrontation. Thus,

success on Petitioner's claim would imply the invalidity of the major misconduct conviction,

which 1s barred by Heck and Edwards, supra.

In sum, the instant case would be an exceedingly poor candidate for deciding the issue of

whether Heck applies when a pnsoner is no longer in custody. First. there were alternative

grounds for dismissing Petitioner's action. Because the Heck analysis was not even necessary

for the district court's decision, a ruling by this Court on the issue would essentially be an

advisory opinion. Federal courts. however, lack the power to issue advisory opinions. United

States National Bank of Oregon v. Independent Insurance Agents of America, 508 U.S. 439, 446

(1993). Second, Petitioner was in custody and remains in custody. Consequently, Petitioner was

-8-

not barred from seeking review of his misconduct conviction merely because he had already

been released from administrative segregation. Thus. the petition for a wnt of certioran should

be denied.

Il. The Court of Appeals correctly affirmed the District Court's decision to grant

summary judgment because Petitioner failed to sufficiently support his claim.

As discussed above, the instant case was decided by the distnct court without considenng

the Heck issue. This is manifestly evident since the Petitioner essentially asks this Court to

correct an alleged error regarding the granting of summary judgment. It 1s not, however, the role

of this Court to simply correct errors of the lower courts. Moreover, even if this Court chose to

correct errors in individual cases, this case is not a good candidate for such review because the

distnct court correctly granted summary judgment and the Court of Appeals correctly affirmed.

The disposition of this case at the district court level was based on retaliation law in the

Sixth Circuit. Pnsoner claims alleging First Amendment retaliation are analyzed under the en

banc court's decision in Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6" Cir. 1999). In Thaddeus-

X, the Court of Appeals held that: (1) the plaintiff was 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. /d. at 394.

The magistrate judge's second report and recommendation focused on the second and

third prongs of the Thaddeus-X test. Regarding the adverse action prong, the magistrate judge

concluded that the evidence was entirely one-sided in favor of Respondent. (App. pp. 58a-59a).

Petitioner failed to present sufficient evidence in support of his allegation that Respondent

instigated an incident, then filed a trumped-up misconduct charge. Regarding the causation

prong, the magistrate judge concluded that the protected conduct (filing lawsuits) occurred too

long before the alleged adverse action to support an inference of causation. (App. p. 61a).

-10-

Although the distnct court did not disagree with the magistrate judge on the adverse

action prong, the distnct court found that Respondent's arguments against the causation prong

were much stronger, and therefore dispositive of the case. (App. p. 69a). In short, the distnct

court concluded that temporal proximity was not sufficient to establish causation and that there

was a lack of affirmative evidence to support Petitioner's claim.

Missing from both the magistrate judge's scsend report and recommendation and the

district court's opinion was any mention of Heck v. Humphrey, Edwards v. Balisok, or Huey \

Stine, or any discussion whatsoever about the favorable termination rule. Such a discussion was

simply not necessary because the claims could be dismissed on the ments. In other words, this

was a straightforward application of basic summary judgment principles, as guided by the First

Amendment retaliation law of the Sixth Circuit. In sum, the correct result was reached by the

lower courts in the instant case, regardless of whether Heck applies when a pnsoner 1s no longer

in custody.

the

CONCLUSION

The Petition for a Wnt of Certioran should be denied

Dated: May, 2003

Respectfully submitted,

Michael A. Cox

Attomey General

Tamet b-

Thomas L. Casey

Solicitor General

Counsel of Record

P.O. Box 30212

Lansing, Michigan 48909

Telephone: (517) 373-1124

Kevin Himebaugh

Assistant Attorney General

Attomey for Respondents

-la-

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

SHAKUR MUHAMMAD, #213302,

aka John E. Mease,

Plaintiff, CIVIL ACTION

NO. 98-CV-10153-BC

Vv.

_ DISTRICT JUDGE ROBERT H. CLELAND

MARK CLOSE, MAGISTRATE JUDGE CHARLES BINDER

Defendant.

ON DEFENDANT’S RULE 12(b) MOTION FOR DISMISSAL

AND RULE 56(b) MOTION FOR SUMMARY JUDGMENT

(Dkt. 9),

(Dkt. 15.)

I. RECOMMENDATIONS

For the reasons set forth below, IT IS RECOMMENDED that Plaintiffs Motion to

Amend Complaint be GRANTED.

After review and consideration of the pleadings, I conclude that: (1) the Plaintiff has

stated a cause of action alleging the violation of rights protected by the United States

Constitution; (2) the Defendant is not entitled to qualified immunity; and (3) the Plaintiff's

claim is not barred by United States Supreme Court precedent. Accordingly, IT IS

RECOMMENDED that the prayer for dismissal contained in Defendant’s motion be

DENIED.

After review and consideration of the entire record presently before the Court, |

conclude that there are disputed material issues of fact relating to Defendant's intent at the

time he issued misconduct charges against Plaintiff, and that Defendant is not entitled to

qualified immunity. Accordingly, IT IS RECOMMENDED that the prayer for summary

judgment contained in Defendant's motion BE DENIED.

Il. REPORT

A. INTRODUCTION and FACTS

Pending, pursuant to an Order of Reference from United States District Judge

Robert Cleland, (Dkt. 6), is Defendant Close’s Rule 12(b) Motion for Dismissal and Rule

56(b) Motion for Summary Judgment. (Dkt. 9). Plaintiff filed a Motion in Opposition to

Defendant's Motion for Dismissal/Summary Judgment. (Dkt. 16). Also pending is

Plainuffs Motion to Amend the Complaint. (Dkt. 15). Upon review of the pleadings, |

conclude that pursuant to E.D. Mich. LR 7.1(e)(2), this motion is ready for Report and

Recommendation without oral argument.

Plainuff filed this prisoner civil nghts complaint under 42 U.S.C. § 1983, claiming

that “Defendant framed Plaintiff in retaliation for the Plainuff's exercise of his First

Amendment nights.” (Compl., Dkt. 3 at 4B). The incident occurred on May 21, 1997,

while Plaintiff was incarcerated in general population at Standish Maximum Facility

(“SMF”). Plaintiff alleges that Defendant Close, a corrections officer employed by SMF,

instigated an incident with Plaintiff, and then wrote Plaintiff up for misconduct arising out

-3a-

of the incident, al! with the intent of retaliating against Plaintiff for filing two previous civil

nghts lawsuits against the Defendant and others, as well as for filing SMF grievances

against the Defendant. At the time of the incident, an appeal was pending with the Sixth

Circuit in one of those §1983 cases.'

Regarding the incident in question, Plaintiff alleges that while he was eating

breakfast in the dining area, he noticed Defendant Close Staring at him. Plainuff continued

to eat, but when he looked up again, Defendant was still Staring. At this time, Plaintiff

began to stare back. Plaintiff alleges that Defendant then “made a fighting stance” towards

him. (Compl., Dkt. 3 at 4A). Plaintiff tumed away to drink his coffee, and then noticed

that Defendant was “coming into the dining area at a fast pace with his face contorted.”

(/d.) Plainuff, feeling threatened by Defendant's body language and fast approach, stood

up and walked towards the Defendant. Plaintiff alleges that when “Defendant and Plaintiff

came within a foot of one another, Defendant stated, ‘What's up,’ while staring angerly

(sic) at Plainuff. Plaintiff did not respond.” Plaintiff was then handcuffed by two other

officers and taken to a detention cell. (/d)

' Plaintiff filed a Prisoner Civil Rights case in this court against 14 defendants,

including Defendant Close, in 1994 (Case No. 94-CV-7493-DT), Summary judgment for

defendants was granted by U.S. District Judge Anna Diggs Taylor on August 18, 1995,

and the appeals court dismissed Plaintiff's appeal for want of prosecution in March of

1996. In February, 1996, Plaintiff filed another Prisoner Civil Rights case against five

defendants, including Defendant Close (Case No. 96-CV-100053-BC). Judgment was

entered for defendants by U.S. District Judge Robert H. Cleland on December 24, 1996,

and Plaintiff filed an appeal with the Sixth Circuit Court of Appeals in February of 1997.

The appeals court affirmed the decision of the district court on February 9, 1998.

- 4a -

Following this incident, Defendant Officer Close filed a Major Misconduct Report

charging Plaintiff with the major rule violation of “Threatening Behavior.”” Defendant

descnbed the confrontation in his report:

At 0744 while watching 3 block chowlines, | made direct eye contact with

prisoner Mease-X []. Mease-X contorted his face and made a statement

that I believe was directed at me but | could not understand him over the

room noise. I then walked into the chow hall to speak with Mease, | then

nouced Mease-X was angerly (sic] walking towards me and looked very

hosule, I Immediately stopped. Mease kept walking and stopped

approximatly [sic] 2 inches from my face, starring [sic] directly into my

eyes and breathing hea

(Pl."s Exhibits, Dkt. 14. Ex. A at 2). The Report also stated that Plaintiff Mease’s “Status

Pending Hearing” was “Non-Bond List,” and stated that “prisoner was placed on

(illegible)’ because of above misconduct.” (/d )

* “Threatening Behavior” is a major rule violation defined as: “Words, actions or

Other behavior which expresses a intent to injure or physically abuse another person.

Such misconduct includes attempted assault and battery.” MDOC PD. 03.03.105,

Attachment B at 2. It is a “[mJandatory ‘nonbondable’ charge.” /d at 1. The Policy

Directive lists the following as common examples of Threatening Behavior: “Threats of

another person: threats made to a third person which are intended to place the person

’ I believe that the report states that Plainuff was placed on “T-Lock,” which would

be short for “toplock.” This would be consistent with the MDOC’s policy directive

Stating that “the reviewing officer shall order the prisoner to be confined in segregation or

on toplock pending a formal hearing if the charge is nonbondable . ...” MDOC P. D.

03.03.105(J\(S). Toplock means that a prisoner is restricted to his own cell, room or

bunk and bunk area. He “shall not leave his cell, room or bunk area for any reason

~ ea

- Sa-

Six days after the incident, a Major Misconduct Hearing was held. Plaintiff was

found not guilty of Threatening Behavior. (Jd at 1.) After reading witness statements

from both inmates and officers, the hearing officer reduced the charge to Insolence.4

Plaintiff was found guilty of Insolence. Plaintiff was given the disciplinary sanctions of

seven days detention and thirty days loss of privileges for the violation. (/d )

Plainuff states that he “suffered physically as he was subjected to 43 days of unjust

loss of his liberty and . . . suffers mental and emotion [sic] anguish as a result of

Defendant's threatening conduct and retaliatory disciplinary punishment.” (Compl., Dit. 3

at 4B). He requests relief in the form of: (1) $4,300 in compensatory damages; (2) $5,000

in punitive damages for physical and mental injuries; and (3) his record expunged of the

misconduct charge because “Defendant used the prison disciplinary process to retaliate.”

(Id. at 4.)

Defendant Close filed the instant motion, (Def.'s Mot., Dit. 9), arguing that the

complaint must be dismissed because Edwards v. Balisok, $20 U.S. 641, 117 S. Ct 1584,

137 L. Ed. 24 906 (1997), bars Plaintiff's § 1983 claim. Alternatively, Defendant argues

that the finding of guilt on the misconduct charge defeats Plaintiffs claim that the ticket

sin

was retaliatory and an abuse of authority. Finally, Defendant asserts that he is entitled to

qualified immunity. An affidavit by Defendant Close is included with the motion.

Plainuff filed a Motion in Opposition to Defendant's Motion for

Dismissal Summary Judgment, (P!.’s Response, Dkt. 16), disputing each of the three legal

arguments made by Defendant. In addition, Plaintiff argues that summary judgment should

not be granted because Plainuff has not had the opportunity to pursue discovery. (/d. at 16.)

Plainuff's response also includes an affidavit by Plaintiff Muhammad.

On the same day that Plaintiff filed his Response, he also filed a Motion and

Affidavit to Amend Plaintiffs § 1983 Complaint. (Pl.’s Mot. to Amend, Dkt. 15).

Plainuff seeks to amend two paragraphs of his complaint. The Defendant did not file a

response to Plainnff's Motion to Amend.

B. ANALYSIS AND CONCLUSIONS

1. Plaintiff's Motion to Amend Complaint

Rule 15 of the Federal Rules of Civil Procedure governs amendments of pleadings.

It reads:

A party may amend the party's pleading once as a matter of course at any

ume before a responsive pleading is served or, if the pleading is one to

which no responsive pleading is permitted and the action has not been

placed upon the tal calendar, the party may so amend it within 20 days

after it is served. Otherwise, a party may amend the party's pleading only

by leave of court or by written consent of the adverse party; and leave shall

be freely given when justice so requires.

FED. R. Civ. P. 1 5(a).

-7a-

In this case, Defendant had responded to Plainuff's original complaint prior to the

filing of the motion to amend, so the applicable standard is that leave to amend the

complaint shall be “freely” granted if “justice so requires.”

Plaintiff seeks to amend the portion of his complaint which states that he was

subjected to 43 days of unjust loss of his liberty” (quoted more fully above) to read that

he”. .was subjected to 7 days of unjust loss of his liberty... .” (P1°s Mot. to Amend, Dkt.

15 at 1). He further moves to amend the section on relief. Instead of requesting that his

record be expunged and specifying a separate dollar amount for compensatory and punitive

damages, he moves to request relief as follows: “Plaintiff requests $10,000.00 in

compensatory and punitive damages for the physical and emotional injuries sustained as a

result of defendant's retaliatory conduct.” (/d. at 2.)

Plaintiff states that the two changes he requests “will not in any way prejudice the

defendant or effect any of the defenses alleged by the defendant. The . . . amendments only

seek to more accurately state the relief sought by plaintiff in his § 1983 complaint and will

be in the interest of a just and sound judicial process.” (/d.) He further “attests that the

errors made in his § 1983 complaint arose from his lack of experience in the legal

articulation of the relief he seeks for the violation of his constitutional nghts by the

defendant.” (/d.)

Defendants did not file a response to Plaintiffs Motion to Amend. L.C.R.

7.1(d)(2)(B) states that “[a] response to a nondispositive motion must be filed within 14

days after service of the motion.”

It is my assumption that Plaintiff's desire to change “43 days loss of liberty” to only

“7 days” is an effort to correct a mischaracterization of the 30 days loss of privileges he

received, as a “loss of liberty.” His other proposed amendment is a change to the relief he

is requesting. Since Plaintiff is not seeking to add or change any factual allegations, and

considering that Defendant has not registered any opposition to the Motion to Amend, |

conclude that the Defendant would not be prejudiced by this Court's allowing the Plainuff

to amend his Complaint. Moreover, a pro se litigants’ pleadings are to be held to a less

stringent standard than pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520,

92 S. Ct. 594, 30 L. Ed. 2d 652 (1972); Brooks v. Seiter, 779 F.2d 1177, 1180 (6" Cir.

1985).

I therefore suggest that the Motion to Amend be granted.

2. Defendant’s Motion to Dismiss or for Summary Judgment

a. Motion Standards

Defendant moves for dismissal pursuant to Fed. R. Civ. P. 12(b)(6) for failure to

state a claim, or for summary judgment under Fed. R. Civ. P. 56(c). When deciding a

motion to dismiss for failure to state a claim under 12(b)(6), “[t]he court must construe the

complaint in the light most favorable to the plaintiff, accept all factual allegations as true,

and determine whether the plaintiff undoubtedly can prove no set of facts in support of his

claims that would entitle him to relief.” Cline v. Rogers, 87 F.3d 176 (6" Cir. 1996), cert.

denied, _U.S. _, 117S. Ct. $10, 136 L. Ed. 2d 400 (1996)(citing Jn re DeLorean Motor

Co.. 991 F.2d 1236, 1240 (6" Cir. 1993)). “While this standard is decidedly

- 9a -

liberal, it requires more than the bare assertion of legal conclusions." DeLorean, 991 F.2d

at 1240 (citing Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6" Cir.

1988)). However, pro se litigants’ pleadings are held to a less stringent standard than

pleadings drafted by lawyers. Brooks v. Seiter, 779 F.2d 1177, 1180 (6" Cir. 1985).

Defendant's motion also included a prayer for summary judgment. A motion for

summary judgment will be granted under Fed. R. Civ. P. 56(c) where there is no genuine

issue of material facts, and the moving party is entitled to judgment as a matter of law. All

facts and inferences must be viewed in the light most favorable to the non-moving party.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89

L. Ed. 2d 538 (1986). The moving party has the initial burden of showing the absence of a

genuine issue of material fact as to an essential element of the non-movant’s case. Street v.

J. C. Bradford & Co., 886 F.2d 1472, 1479 (6" Cir. 1989)(citing Celotex Corp. v Catrett,

477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). The moving party thus bears a

considerable burden. The Court of Appeals for the Sixth Circuit has held that a

District Court may grant a motion for summary judgment only if it finds

from the whole record before it that there are no material facts which are in

dispute. It may not make findings of disputed facts on a motion for

summary judgment. The movant has the burden of showing conclusively

that there exists no genuine issue as to a material fact and that the evidence

together with all inferences to be drawn therefrom must be considered in

the light most favorable to the party opposing the motion. The movant’s

papers are to be closely scrutinized while those of the opponent are to be

viewed indulgently.

- 10a-

Watkins v. Northwestern Ohio Tractor Pullers Assn., 630 F.2d 1155, 1158 (6 Cir. 1980)

(citations omitted). See also, Ghandi v. Police Dept. of Detroit, 747 F.2d 338 (6" Cir.

1984).

Summary judgment is proper when the moving party shows that the non-moving

party, after sufficient discovery, is unable to meet its burden of proof. Celotex, 477 U.S. at

326. However, to defeat the motion, the non-moving party cannot rest merely on the

pleadings alone. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505. 191

L. Ed. 2d 202 (1986). It is the plaintiff's obligation to present affirmative evidence in order

to defeat a properly supported motion for summary judgment. Celotex, 477 U.S. at 324.

Not every issue of fact or conflicting inference presents a genuine issue of material fact

requiring the denial of summary judgment. “The mere existence of some alleged factual

dispute between the parties will not defeat an otherwise properly supported motion for

summary judgment.” Anderson, 477 U.S. at 247-48 (1986). Irrelevant and unnecessary

facts should have no bearing on a trial court’s determination on a motion for summary

judgment. /d. at 248. Accordingly, only germane facts that go to the heart of the party’s

suit deserve consideration. The courts will not entertain metaphysical doubts as material

facts to defeat the motion. Matsushita, 475 U.S. at 586.

As a general rule, “[p]rison administrators should be accorded wide-ranging

deference in the adoption and execution of policy and practices that in their judgment are

needed to preserve internal order and discipline and to maintain institutional security.”

Bell v. Wolfish, 441 U.S. 520, 547, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979). “As long

-lla-

as the conditions or degree of confinement to whick the prisoner is subjected are within the

sentence imposed upon him and are not otherwise violative of the Constitution, the Due

Process Clause does not in itself subject an inmate’s treatment by prison authorities to

judicial oversight.” Montanye v. Haymes, 427 U.S. 236, 96 S. Ct. 2543, 49 L. Ed. 2d 466

(1976).

b. Motion to Dismiss

Two of Defendant’s three claims are appropriately considered under the dismissal

standard: whether Defendant is entitled to qualified immunity and whether Plaintiffs claim

is barred by Heck and Balisok. The Sixth Circuit has recently stated that before a court can

consider whether a defendant is entitled to qualified immunity, it “must first examine

whether the [plaintiff] ha{s] properly alleged a cause of action.” Block v. Ribar, 156 F.3d

673, 678, 683 (6" Cir. 1998)("Because the proper order of consideration begins with the

determination of whether a violation of a constitutional right occurred, and then proceeds

to a consideration of the defense, we will begin our analysis with the former, then discuss

[the] defense of qualified immunity.”). I therefore will consider whether Plaintiff has

properly alleged a cause of action for retaliation prior to discussing the defense of qualified

immunity.

i. Cause of Action for Retaliation

Plaintiff brings his retaliation action under 42 U.S.C. § 1983. The essential

elements of a § 1983 claim are that the conduct complained of (1) was committed by a

person acting under color of state law and (2) deprived the plaintiff of rights, privileges,

- 12a-

and immunities secured by the Constitution or laws of the United States. Parratt v. Taylor,

45i U.S. 527, 535, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981), overruled on other grounds

by Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 677, 88 L. Ed. 2d 662 (1986). Absent

either element, a § 1983 claim will not lie. Christy v. Randlett, 932 F.2d 502, 504 (6" Cir.

1991). It is not disputed that Defendant Close was acting under the color of state law as a

corrections officer when the incident took place and the misconduct report was filed,

therefore the first element is met. Regarding the second element, Plaintiff asserts that his

constitutional rights were violated by Defendant when Defendant allegedly retaliated

against him for filing previous lawsuits and grievances.

When a prison official retaliates against a prisoner for exercising his First

Amendment rights to file a lawsuit or a grievance, it can be a violation of the substantive

due process rights of the prisoner. See Jackson-El v. Winsor, 986 F. Supp. 440 (E.D. Mich.

1997); Cale v. Johnson, 861 F.2d 943 (6" Cir. 1988). In order to prevail on a claim of

retaliation, plaintiff must show that retaliation was a substantial or motivating factor in

defendant’s conduct. Mt. Healthy City School District Board of Education v. Doyle, 429

U.S. 274, 287, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977).

In 1988, the Sixth Circuit reviewed a case where the plaintiff prisoner alleged that

correction_officers had framed him and then filed disciplinary charges against him in

retaliation for exercise of his First Amendment rights. In Cale v. Johnson, 861 F.2d 943

(6" Cir. 1988), the court tackled the issue of what standard to apply to determine whether

defendant's conduct rose to the level of a due process violation. The court began by

o ae, neg

tebe

- l3a-

quoting the general principle that the “’[t]est for substantive due process claims is whether

defendants’ conduct “shocks the conscience.””” /d. at 949 (quoting McMaster v. Cabinet

for Human Resources, 824 F.2d 518 (6” Cir. 1987)(quoting Rochin v. California, 342 U.S.

165 (1952))). The court went on to recognize that in at least one case, “however, this court

has recognized that an ‘egregious abuse of governmental power’ may be sufficient to state

a Claim based on the violation of substantive due process.’” /d. (citing Vinson v. Campbell

County Fiscal Ct, 820 F.2d 194, 201 (6" Cir. 1987)). The Cale court, in reversing the

district court’s grant of summary judgment for defendants, did not apply the “shocks the

conscience” standard when it concluded that

the evidence supports a ain that [defendant] intentionally and maliciously

framed [plaintiff] Cale and filed disciplinary charges against him in

retaliation for Cale’s exercise of his first amendment rights. This alleged

conduct constitutes an egregious abuse of authority within the meaning of

Vinson.

Id. at 950 (emphasis added).

In 1995, Judge Hood considered the legal standards to be applied in a retaliation

action. In Riley v. Kurtz, 893 F. Supp. 709, 716 (ED. Mich. 1995), she stated that cases

holding that “the means of retaliation must be an ‘egregious abuse of government power’

or ‘shock the conscience’” are wrong. Instead, the court found that “[w)illful violations of

enumerated constitutional guarantees are constitutional torts, and nothing more need be

shown. ... It is only when dealing with one of the unenumerated portions of substantive

due process that some plus factor, such as ‘shocks the conscience,’ is required to define the

conduct as a constitutional tort.” /d. at 717-18.

- l4a-

In June of 1997, the Sixth Circuit decided another retaliation case. In McLaurin v.

Cole, 115 F.3d 408 (6" Cir. 1997), a prisoner plaintiff appealed a district court’s judgment

as a matter of law for defendant, a corrections officer, following the plaintiff's proofs at

trial. The Sixth Circuit stated: “Though McLaurin argues that the facts alleged need not be

shocking to the conscience because his claim is grounded on first amendment principles,

this court has repeatedly demanded that retaliation claims arising from the exercise

of First Amendment rights be shocking to the conscience.” Jd. at 410 (footnote

omitted)(emphasis added). Interestingly, the McLaurin court then cited five cases as

support for that statement. The first case it cited was Cale v. Johnson, discussed supra,

which mentioned the “shocks the conscience” test, but actually used the “egregious abuse

of governmental power” test in its decision. The other four cases cited are all unpublished

opinions. Of those four, only two mentioned the “shocks the conscience” test, and one of

those two used an either/or approach (“plaintiff has not shown that the defendants’ conduct

constitutes an egregious abuse of governmental power or that such action otherwise shocks

the conscience”). /d. at 410-11.

The McLaurin court went on to affirm the district judge’s grant of judgment as a

matter of law because the plaintiff had not proven that the misconduct report defendant

wrote against him was motivated by a desire to retaliate, and additionally because the

defendant’s actions were not shocking to the conscience. /d. at 411.

- |Sa- rr

Circuit Judge Ryan wrote a concurring opinion in McLaurin, essentially agreeing

with Judge Hood’s reasoning in Riley. He first explained that there are two types of

substantive due process:

[A]s this court has . . . held, there are two distinct categories of substantive

due process rights, and only one of them implicates the “shocks the

conscience standard:

Substantive due process claims are of two types. The first

type includes claims asserting denial of a right, privilege, or

immunity secured by the constitution or by federal statute

other than procedural claims under “the Fourteenth

Amendment simpliciter.”

The other type of claim is directed at official acts which may

not occur regardless of the procedural safeguards

accompanying them. The test for substantive due process

claims of this type is whether the conduct complained of

“shocks of the conscience” of the court.

Id. at 412 (quoting Mertik v. Blalock, 983 F.2d 1353, 1367 (6" Cir. 1993)). Judge Ryan

explained that the

important analytical difference between the two varieties of substantive due

process claims should amply illustrate why the “shocks the conscience”

standard is not appropriately applied in the type of claim implicated here.

The “shocks the conscience” standard developed as a safeguard against

frivolous substantive due process claims of this ill-defined, non-

enumerated, generalized variety. Only this category of generalized

substantive due process claims not rooted in any specific enumerated

provision of the Bill of Rights need meet the “shocks the conscience”

standard in order to survive dismissal. D

And the logic of this is apparent. If a plaintiff has adequately alleged a

willful violation of, for example, the First Amendment, it simply makes

no sense for the court to require further that the particular

unconstitutional action in question be one that is shocking to the

conscience of the court.

Id. at 412 (emphasis added). Finally, Judge Ryan discussed the majority opinion:

- l6a—- v

The majority declares that Cale v. Johnson supports the application of

the shock-the-conscience test, but this is incorrect. First, Cale does not

hold that the shocks-the-conscience test is the appropriate standard for

that case; it simply mentions that standard in passing, as a dictum. But

second, and more importantly, Ca/e is not a “retaliation” case in the sense

that this case is a retaliation case. The plaintiff's claims in Cale were

founded on the second type of substantive due process .... There was no

suggestion that the guard’s action in Cale was taken in retaliation for the

plainuff’s attempt to gain access to the courts or utilize the administrative

grievance process, or any other exercise of a First Amendment right. I

know of no published authority from this court relying on Cale for the

proposition that the shocks-the-conscience standard is appropriately

applied in First Amendment retaliation claims; the majority's reliance

on unpublished case law may be interesting as an academic matter, but

those cases simply do not have the weight of authority.

Id. at 412-13 (citations and footnotes omitted)(emphasis added). Judge Ryan concluded by

agreeing with the outcome of the majority’s opinion, however, because he too believed that

plainuff had not presented any evidence to suggest the misconduct ticket was motivated by

a desire to retaliate. /d. at 413.

In this case, I suggest that the correct standard to be applied to determine if

Defendant's alleged conduct rose to the level of a violation, and therefore whether Plaintiff

has adequately pleaded a cause of action, is whether the conduct “shocks the consciences

of the court. Although the reasoning of Judge Hood and Judge Ryan is compelling, the fact

remains that binding Sixth Circuit precedent requires the “shocks the conscience” standard

to be applied. See McLaurin v. Cole, 115 F.3d 408, 410 (6” Cir. 1997). I further suggest

that “framing” a prisoner in retaliation for the exercise of his First Amendment rights is a

severe abuse of governmental power which is shocking to the conscience. See Jackson-El

v. Winsor, 986 F. Supp. 440, 443-44 (E.D. Mich. 1997).

-17a-

Plaintiff has alleged that Defendant provoked the incident and charged Plaintiff with an

inflated violation with the intention of retaliating against Plaintiff for his exercising his

constitutional rights. I suggest that this alleged conduct “shocks the conscience” of the

court, and therefore Plaintiff has stated a cognizable claim of retaliation. Dismissal

pursuant to Rule 12(b)(6) is therefore inappropriate unless the Defendant is entitled to

qualified immunity or the claim is barred by Heck and Balisok.

ii. Qualified Immunity

The Defendant asserts that he is entitled to qualified immunity. The Supreme Court

defined the doctrine by stating that “government officials performing discretionary

functions generally are shielded from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitutional nights of which a reasonable

person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The Sixth

Circuit recently discussed the “sometimes confusing doctrine” of qualified immunity:

The confusion in this area is generated in part by carrying over an

absolute immunity construct into a qualified immunity analysis. When an

official is cloaked with absolute immunity, it matters not what he did, when

he did it or what the state of the law was then and now. Such is not the case

with qualified immunity.

Kain v. Nesbia, 156 F.3d 669, 672 n.5 (6" Cir. 1998). The court there explained:

When making a qualified immunity analysis, it is important to remember

that the defendant is, in essence, saying: “If the plaintiff's version is

credited, what I did, judged today, argucado would be wrongful, but at the

time I acted, no reasonable officer would have known he was acting

wrongfully.” See Berryman v. Rieger, 150 F.3d 561, 562 (6" Cir. 1998)

(“the defendant must be prepared to overlook any factual dispute and to

concede an interpretation of the facts in the light most favorable to the

- 18a-

plainuff's case”). If an officer committed no wrong, then qualified

immunity is not implicated.

Kain, 156 F.3d at 671-72.

The Sixth Circuit has also held that there is a “heightened pleading” requirement in

cases where the defendant claims qualified immunity. In Veney v. Hogan, 70 F.3d 917 (6"

Cir. 1995), the court held that a plaintiff must respond to a defense of qualified immunity

with “specific, non-conclusory allegations of fact that will enable the district court to

determine that those facts, if proved, will overcome the defense of qualified immunity.”

Id. at 922. The court reasoned that it can be argued that this “heightened” standard is not

really a departure from Rule 8° of the Federal Rules of Civil Procedure at all, but rather is

exactly what the drafters of the rule envisioned. /d. at 921-22. The court also explained

that if the defense of qualified immunity is “raised by the individual defendant by a motion -

for summary judgment, it would follow that the burden by the plaintiff would be a

heightened production of summary judgment documentation under Rule 56.” /d. at 922,

n.5. The Veney court found that the plaintiff in that case did not meet the heightened

standard because he

fail[ed] to indicate the precise content and form of the complaints and

challenges, the context in which they were made, and when and to whom

they were made. Furthermore, .. . the complaint does not allege

wrongdoing by any particular defendant. It is this sort of inchoate,

generalized form of pleading that fails to convey to the district court the

* Rule 8 in relevant part states that: “A pleading which sets forth a claim for relief. . .

shall contain . . . a short and plain statement of the claim showing that the pleader is

entitled to relief... .” FED. R. Civ. P. 8(a)(2).

- 19a-

information it needs to determine whether a defendant is entitled to

qualified immunity.

Id. at 922.

The Kain court described the progression of a Sixth Circuit case involving a

qualified immunity defense. First, the plaintiff must adequately state his claim under the

notice pleading requisements of Rule 8. If the defendant responds with the defense of

qualified immunity, “then, at this point, plaintiff's complaint does not meet the heightened

pleading requirement we enunciated in Veney{.]” Kain, 156 F.3d at 672. Plaintiff must

come forward with specifics such as what happened, who was involved, when it happened,

and the context in which it happened. If these factual allegations, taken as true, do not rise

to the level of a constitutional violation, then the “claim would be subject to dismissal

under Rule 12(b)(6) of the Federal Rules of Civil Procedure or summary judgment. It

would not be necessary to make a qualified immunity analysis.” /d. If, however, plaintiff

adequately responds by raising a constitutional violation, “then the qualified immunity

analysis would have to be made.” /d.

I suggest first that Plaintiff has met the Sixth Circuit's “heightened pleading”

requirement. Plaintiff has given a very specific account of what he alleges happened in the

dining area, as well as giving the case numbers of the previous lawsuits filed against

Defendant which provide the context for the incident. He has included the names of those

present, as well as statements given by them. Also included with his pleadings are copies

of the Major Misconduct Report, the hearing report, and MDOC policy directives relevant

- 20a - ™

to this case. I therefore suggest that dismissal for lack of pleading specificity is

inappropnate. As a result, as mandated by Kain, | suggest that qualified immunity analysis

must be undertaken.

There are two steps that a district court must take when qualified immunity is raised

in a motion to dismiss. First, the court must determine, as a purely legal matter, if the

“allegations state a claim of violation of clearly established law{.]” Mitchell v. Forsyth,

472 U.S. 511, 526, 105 S. Ct. 2806, 86L. Ed. 2d 411 (1985); see also Siegert v. Gilley, 500

U.S. 226, 231, 111 S. Ct. 1789, 114 L. Ed. 2d 277 (1991). Second, the court must decide if

“the public official acted ‘objectively unreasonable in light of [the] established

constitutional right{]."” Bloch v. Ribar, 156 F.3d 673, 678 (6" Cir. 1998)(quoting Adams v.

Metiva, 31 F.3d 375, 387 (6" Cir. 1994)). This determination is necessary because it

answers the “legal question of whether the defendant should have known that his alleged

acts violated clearly established rights at the time.” Domingue v. Telb, 831 F.2d 673, 677

(6” Cir. 1987).

To find a clearly established constitutional right, a district court in the Sixth Circuit

must find binding precedent “from the Supreme Court, the Sixth Circuit, or from itself.”

Cagle v. Gilley, 957 F.2d 1347, 1348 (6" Cir. 1992). A district court may look finally to

the decisions of other circuits. Buckner v. Kilgore, 36 F.3d 536 (6" Cir. 1994). The

Supreme Court has explained that the nght an official has allegedly violated must have

been clearly established in a particularized sense. “The contours of the right must be

sufficiently clear that a reasonable official would understand that what he is doing violates

-2la-

that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L. Ed. 2d 523

(1987). This ensures that government officials can reasonably “anticipate when their

conduct may give rise to liability for damages.” /d. at 639 (citing Davis v. Scherer, 468

U.S. 183, 195, 104 S. Ct. 3012, 82 L. Ed. 2d 139 (1984)).

In November of 1997, Judge Duggan decided a summary judgment motion in a §

1983 retaliation case where the defendants argued they were entitled to qualified immunity

on the grounds that “the law of retaliation was not clearly established because courts could

not agree on the appropriate standard to be applied in such cases, and a prison official

would not be on notice of exactly what conduct constitutes retaliation.” Jackson-El v.

Winsor, 986 F. Supp. 440, 443 (E.D. Mich. 1997). As evidence of the confused state of the

law, defendants specifically pointed to Judge Hood’s “willful violation” standard utilized

in Riley, compared with Cale’'s mentioning of both the “shocks the conscience” and

“egregious abuse of governmental power” tests. /d. Judge Duggan stated:

In 1988, the Sixth Circuit indicated in Cale that a prison guard’s retaliatory

act must constitute an egregious abuse of governmental power to be

actionable. Defendants acknowledge that the Sixth Circuit has never

“abdicated” the Cale analysis. Furthermore, Riley was decided in 1995,

long after the conduct allegedly occurred in this case, and the Sixth Circuit

noted in McLaurin that it “has repeatedly demanded that retaliation claims

arising from the exercise of First Amendment rights be shocking to the

conscience.” For these reasons, the Court is satisfied that as of 1993, when

the incidents allegedly occurred, it was clearly established that a “shocks

the conscience” approach was utilized in the Sixth Circuit.

In addition, even if there was some dispute in the courts whether a

“shocks the conscience,” or a more liberal (to plaintiffs) “willful violation”

approach should be employed, that dispute has no impact on this case.

Cale clearly held that the “framing” of a prisoner in retaliation for the

: - 22a-

exercise of his First Amendment rights was a severe abuse of

governmental power. ... Conduct that was unlawful under the “shocks

the conscience” standard would certainly remain unlawful under a “willful

violation’ standard. Therefore, defendants were on notice that their

alleged conduct was unlawful, even if they were unsure about the

standard that would be used to analyze their conduct.

Id. at 443-44 (citations and footnotes omitted)(emphasis added).

I suggest that the law of retaliation was clearly established at the time of the incident

in question. As Judge Duggan reasoned, even if the appropriate standard to apply in First

Amendment retaliation cases was not settled in this circuit, the wrongfulness of the conduct

was. Moreover, the law was clearly established outside of this circuit as well. The

Supreme Court has stated that the rule that the First Amendment bars retaliation for

protected speech has “long been clearly established.” Crawford-El v. Britton, U.S. _,

118 S. Ct. 1584, 1594, 140 L. Ed. 2d 759 (1998)("Even when the general rule has long

been clearly established (for instance, the First Amendment bars retaliation for protected

speech). . .”). Likewise, the Second Circuit has stated that “the proscription of retaliation

for a plaintiff's exercise of First Amendment rights has long been established.” Dobosz v.

Walsh, 892 F.2d 1135, 1141-42 (2d Cir. 1989). Therefore, | suggest that Plaintiff's

allegations adequately state a violation of clearly established law.

The second question of law to be determined at this stage is whether a reasonable

public official would have understood that the alleged conduct violated the plaintiff's

rights. If a reasonable corrections officer should have known, then the defendant is not

entitled to qualified immunity. Considering the volume of retaliation cases that have been

- 23a-

decided at all levels of the federal courts over the past ten years, | suggest that Defendant

was on notice and should have known that his alleged conduct was unlawful.

In conclusion, I suggest that Defendant is not entitled to dismissal on the grounds of

qualified immunity. Whether Defendant is entitled to summary judgment on this issue is

discussed in section II.B.2.c.ii., infra.

iii, Heck & Balisok

Defendant's remaining argument for dismissal is that Plaintiff's action is barred by

the Supreme Court’s holdings in Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L.

Ed. 2d 383 (1994), and Edwards v. Balisok, 520 U.S. 641, 117 S. Ct. 1584, 137 L. Ed. 2d

906 (1997).

In Heck v. Humphrey the Supreme Court addressed the issue of whether a state

prisoner may challenge the constitutionality of his conviction in a suit for damages under

42 U.S.C. § 1983. The Court expressed concern that a prisoner could bring a § 1983 action

in an effort to do an end run around the exhaustion requirements of habeas corpus, or could

use a civil rights suit to develop factual findings in a federal court that could be issue

oe on subsequent state actions challenging the fact or duration of confinement. To

address those concerns, the Court concluded that a damages claim that calls into question

the lawfulness of a conviction or confinement is not cognizable under § 1983. The Court

held that

in order to recover damages for allegedly unconstitutional conviction or

imprisonment, or for other harm caused by actions whose unlawfulness

would render a conviction or sentence invalid, a § 1983 plaintiff must prove

- 24a -

that the conviction or sentence has been reversed on direct appeal,

expunged by executive order, declared invalid by a state tibunal authorized

to make such determination, or called into question by a federal court's

issuance of a writ of habeas corpus[.]

Heck, 512 U.S. at 486-87(footmotes omitted). The Court went on to explain the initial

inquiry that must be made when such a claim is brought before the federal courts:

[T}he district court must consider whether a judgment in favor of the

plaintiff would necessarily imply the invalidity of his conviction or

sentence; if it would, the complaint must be dismissed unless the plaintiff

can demonstrate that the conviction or sentence has already been

invalidated. But if the district court determines that the plaintiff's action,

even if successful, will not demonstrate the invalidity of any outstanding

criminal judgment against the plaintiff, the action should be allowed to

proceed, in the absence of some other bar to the suit.

Id. at 487(footmotes omitted). Examples of situations where “the plaintiff's action, even if

successful, will not demonstrate the invalidity of any outstanding criminal judgment

against the plaintiff’ were provided by the Court. /d. One example is where an illegal

search was conducted that yielded inculpatory evidence which, instead of being

suppressed, was admitted as evidence at trial due to the application of either the doctrine of

independent source or inevitable discovery. /d. at 487 n.7. In a situation such as this, a

prisoner could bring a § 1983 suit for damages for the illegal search, prevail in that suit,

and still not imply the invalidity of his conviction because the rules of evidence allowed for

the conviction in spite of the constitutional violation. The Court explained that in such a

case, however, the “plaintiff must prove not only that the search was unlawful, but that it

caused him actual, compensable injury, which . . . does not encompass the ‘injury’ of being

convicted and imprisoned[.]" /d. (citations omitted). ‘

- 25a- »

Four justices, including Justice Ginsburg, joined Justice Scalia in the majority

opinion in Heck. Justice Souter filed a concurring opinion in Heck that was joined by three

other justices. He agreed with the new “favorable termination” rule, but disagreed with the

majority's readiness to have it apply as an “element” of every § 1983 case. He argued that

it should not apply to persons who were not “in custody” and thus had no habeas remedy,

even if a favorable § 1983 judgment would suggest the invalidity of that individual’s prior

State conviction. If it were applied to those plaintiffs, then

the result would be to deny any federal forum for claiming a deprivation of

federal rights to those who cannot first obtain a favorable state ruling. The

reason . . . is that individuals not “in custody” cannot invoke federal habeas

jurisdiction, the only statutory mechanism besides § 1983 by which

individuals may sue state officials in federal court for violating federal

rights. That would be an untoward result.

Heck, 512 U.S. at 500.

In 1997, the Supreme Court extended the holding of Heck to § 1983 claims for

damages by prisoners alleging a violation of their rights in a prison disciplinary procedure

which led to punishment (such as toplock, administrative segregation, or loss of good time

credits). Jn Edwards v. Balisok, 520 U.S. 641, 117 S. Ct. 1584, 1589, 137L. Ed. 2d 906

(1997), the court held that a prisoner’s civil rights suit for damages based on allegations of

bias of the prison’s disciplinary hearing officer was not cognizable under § 1983 because a

decision in the prisoner’s favor would necessarily imply the invalidity of the discipline

imposed.

- 26a -

Heck's “favorable termination” rule continued to evolve in Supreme Court

jurisprudence. In Spencer v.Kemna, __ U.S. __, 118 S. Ct. 978, 989, 140 L. Ed. 2d 43

(1998), Justice Ginsburg abandoned Justice Scalia’s five justice majority opinion in Heck

and joined the reasoning of Justice Souter’s Heck concurrence. Justice Ginsburg stated: “I

have come to agree with Justice SOUTER’s reasoning: Individuals without recourse to the

habeas statute because they are not ‘in custody’ (people merely fined or whose sentences

have been fully served, for example) fit within § 1983's ‘broad reach.’” Jd. at 990. She

added, “*Wisdom too often never comes, and so one ought not to reject it merely because it

comes late.’” /d. (quoting Henslee v. Union Planters Nat. Bank & Trust Co., 335 US.

595, 600, 69 S. Ct. 290, 293, 93 L. Ed. 259 (1949)(Frankfurther, J., dissenting)).

Thus, it is now clear that five justices of the Supreme Court would limit Heck and its

progeny to petitioners who attempt to bring a § 1983 action directly or indirectly

challenging a conviction or disciplinary matter when such plaintiffs are “in custody” and

have an available federal remedy in habeas corpus.

Defendant argues that “[b]Jecause plaintiff here claims that the misconduct ticket he

received was retaliatory, he is thus ‘imply{ing] the invalidity of the punishment imposed’

upon him, and his claim ‘is not cognizable under § 1983.’ Therefore, this complaint should

be dismissed.” (Def.’s Mot., Dkt. 9 at 3 (quoting Balisok).)

I suggest however, that, in light of Spencer, there simply is not a Heck/Balisok issue

present when a plaintiff brings a § 1983 claim when he or she is no longer “in custody.”

-27a-

When applying Heck/Balisok/Spencer to the prison context, where there has been no

deprivation of good-time credits and the inmate has served whatever period of time in

segregation or toplock that was imposed by the hearing officer, there is no concern that a

§ 1983 action could be used as an end run on the habeas exhaustion requirement or for

issue-preclusive effects to force a state court to reach a conclusion that the disciplinary

hearing was invalid. Thus, the reasons for applying a “favorable termination rule” are not

present.

In this case, the sanctions Plaintiff received from the hearing officer were 7 days of

detention and 30 days loss of privileges. These were given in punishment for the violation

of Insolence. Since Plaintiff agrees that he was guilty of Insolence, these call only be

considered to the extent that Plaintiff asserts he would not have been insolent but for the

Defendant’s provocation. However, the six days of mandatory pre-hearing toplock

Plaintiff experienced as a result of being charged with a nonbondable offense are definitely

in issue, and this sanction had been served by the time Plaintiff commenced his § 1983

action. Thus, he was not “in custody” in the relevant sense of Spencer that would allow

him to bring a habeas corpus action with respect to the alleged provocation of the incident

and wrongful pre-hearing detention.°

° Plaintiff clearly is still “in custody” with respect to his original conviction.

However, he is no longer in the more restrictive custody of toplock or administrative

segregation, nor in the more extended custody that would still face him had he lost any

good-time credit. Thus, he is not “in custody” within the meaning of 28 U.S.C. § 2254

and could not bring a habeas action with respect to his misconduct ticket and its sanction.

- 28a -

Based on the foregoing analysis, 1 suggest that Heck and Balisok are inapplicable to

the instant case and therefore do not bar Plaintiffs § 1983 action.

Alternatively, even if Justice Ginsburg had not changed her position in Spencer, the

Plaintiff argues that the Heck/Balisok rule would not preclude his case. He states:

[P}lainuff argues that his claim is not barred by [Balisok] or Heck as he is

not attempting to attack the validity of the charge he was found guilty of on

5-27-97 (026 Insolence), but instead is alleging that he was framed and

falsely charged for the offence of threatening behavior for which he was

found unambiguously not guilty.

In this case, defendant falsely charged plaintiff with conduct the plaintiff

did not perform and the prison hearing officer found that “[t]he resident

made no threats of physical injury or specific threats of assault,” as alleged

by defendant. Therefore, a finding in this case that defendant framed

plaintiff for disciplinary action in retaliation for the exercise of his First

Amendment nights would not necessarily imply the invalidity of the 5-27-

97 guilty finding of Insolence.

(P1.’s Response, Dkt. 16 at 2,4.)

I suggest that the reasoning of Plaintiff is persuasive. The rule of Heck and Balisok

(pre-Spencer) would not bar Plaintiffs case because the facts present one of the

“exceptions” where a favorable outcome of the § 1983 action would not imply that the

disciplinary hearing officer’s finding was invalid. Plaintiff asserts that Defendant

instigated an incident in an effort to frame Plaintiff, and then when Plaintiff did respond,

Defendant wrote the misconduct ticket for a more severe charge than was necessary. The

hearing officer’s finding that the charge Defendant made was excessive and unsupported

by the facts actually bolsters Plaintiff's claims in the instant action -- rather than being

— tees

- 29a -

diametrically opposed to them. Therefore, I suggest that, even if Justice Ginsburg’s change

of position was not considered, Heck and Balisok still would not prevent this case from

proceeding. As a result, I suggest that on this ground, Defendant’s Motion to Dismiss

should be denied.

c. Motion for Summary Judgment.

i. Effect of Misconduct Hearing Finding

Defendant’s third argument in his instant motion is that the finding of guilt on the

related misconduct charge defeats Plaintiff's claim that the ticket was retaliatory and an

abuse of authority. Since this issue necessarily concerns documents outside of the

pleadings, I construe this as an argument in support of defendant’s prayer for summary

judgment. Defendant asserts that “[w]riting a major misconduct for violating the rules is

not an egregious abuse of authority or shocking to the conscience,” and that Plaintiff has

failed to prove that Defendant “Close would not have written this ticket absent a motive to

retaliate.” (Def.’s Mot., Dkt. 9 at 4.)

The substantive question presented here is whether the Defendant has shown

conclusively that there exists no genuine issue as to material fact regarding whether

Plaintiff's right to substantive due process was violated. In making this determination, the

court must consider all of the evidence presented, together with all inferences to be drawn

therefrom, in the light most favorable to the Plaintiff.

There are many facts of this case on which both sides agree. All parties agree that

Defendant initiated eye contact with the Plaintiff while Plaintiff was in the dining area, that

- 30a -

Defendant then entered the dining area and began walking toward Plaintiff, and that

Plaintiff then stood up and walked toward Defendant. They came within inches of each

other. No physical contact took place. Plaintiff was handcuffed and removed. Defendant

wrote up a Major Misconduct Report charging Plaintiff with Threatening Behavior. A

hearing was held where Plaintiff was found not guilty of Threatening Behavior, but was

found guilty of Insolence.

Plainuff further asserts facts that Defendant has not agreed with, but which this

court is required to give credence to on a motion for summary judgment. Plaintiff alleges

that Defendant was “staring continuously at him in an effort to intimidate him,” and that

“{wJhen plaintiff stared back at the defendant, defendant made a fighting stance and then

approached plaintiff at a fast pace with his face contorted.” (P1.’s Response, Dkt. 16 at 8.)

These facts, if proven true, could indicate that Defendant did “instigate” the confrontation.

Plaintiff points to the statement of Defendant’s Supervising Officer, Sergeant Tipton, as

support for these assertions. Sgt. Tipton wrote ou: the following statement which was read

at the misconduct hearing:

While standing next to [Defendant] Close I observe[d] [Defendant] Close

make a body movement by going forward and hunching his shoulders at the

same time hold his arms out and hands facing (palms) upward. [sic] At this

time [Defendant] Close started walking toward the table area were [sic] the

prisoner were eating. At the same time [Plaintiff] Mease-X jump[ed] up and

started walking directly towards [Defendant] Close. The two end up in each

other face | inch apart. [ sic] Just standing looking each other in the eyes.

C/O Metevia then applied cuffs to [Plaintiff] Mease-X without incident.

Mease-X was then excorted [sic] to Unit Two without incident. This writer

asked [Defendant] Close why he went in the chow area in that manner - he

-3la-

stated he was just going to ask [Plaintiff] Mease-X why does he keeps on

Marquetteing him. [sic]

(P1.’s Exhibits, Dkt. 14, Ex. A at 5-6.) Sgt. Tipton’s statement corroborates Plaintiff's

assertions that Defendant made some out-of-the-ordinary body movements toward

Plaintiff. I suggest that the inference which could be drawn therefrom is that Defendant

purposely took these actions to provoke Plaintiff into jumping up to defend himself.

The Supreme Court has recently held that when a plainuff brings a constitutional

claim against a government official where proof of motive is an element, the trial court

may not impose a heightened proof requirement which demands that a plaintiff must prove

motive by clear and convincing evidence at the summary judgment stage. Crawford-El v.

Britton, __ U.S. _, 118 S. Ct. 1584, 1595, 140 L. Ed. 2d 759 (1998). I suggest that

Plaintiff has presented sufficient evidence to this court on the issue of intent to show that a

material issue of fact is in dispute. As stated above, a rational trier of fact could infer from

Sgt. Tipton’s statement, in addition to Plaintiff's assertions, that Defendant Close intended

to frame Plaintiff. It comes down to an issue of credibility, which cannot be decided by the

court on a motion for summary judgment. See Bloch v. Ribar, 156 F.3d 673, 682 (6" Cir.

1998)(“Accordingly, ‘claims involving proof of a [defendant's] intent seldom lend

themselves io summary disposition. *”’)

Defendant points to the cases of McLaurin v. Cole, discussed supra, and Orebaugh

v. Caspari, 910 F.2d 526 (8" Cir. 1990), where the Eighth Circuit stated that “[nJo claim

can be stated when the alleged retaliation arose from discipline for acts that a prisoner was

- 32a-

not entitled to perform.” Orebaugh, 91° F.2d at 528. I suggest that these cases can be

distinguished. In those cases the prisoners were found guilty of the charged misconduct.

Here, Plaintiff was found not guilty of the charge the officer made against him, that being

Threatening Behavior. The hearing officer specifically found tnet * (t}he resident made no

threats of physical injury of specific threats of assault thus the charge is changed to

Insolence.” (PI.'s Exhibits, Dkt. 14, Ex. A. at 1.)

In addition, Plaintiffs complaint is not solely based on the writing of the

misconduct ticket as the act of retaliation. His complaint instead is two-fold: first, that

Defendant instigated the entire confrontation to provoke Plaintiff, and second, when that

plan was successful, Defendant then wrote Plaintiff up for a more severe violation, (one

that required mandatory immediate detention), than was warranted by Plaintiff's actions.

Plaintiff alleges that both of these acts were purposely taken in an effort to retaliate.

Plaintiff does not dispute that he was guilty of Insolence. He admits that he stood up, ready

to defend himself against what he perceived as an oncoming threat. Under Plaintiff s

theory of the case, there would have been no misconduct report but for the provocation of

Defendant. | therefore suggest that the hearing officer's finding that Plaintiff was guilty of

Insolence does not defeat Plaintiff's claim that Defendant retaliated against him by

provoking the incident and then charging Plaintiff with a more severe violation than was

warranted. It is consistent with Plaintiffs claims.

The Sixth Circuit has held that “a District Court may grant a motion for summary

judgment only if it finds from the whole record before it that there are no material facts

—

-33a-

which are in dispute. It may not make findings of disputed facts on a motion for summary

judgment.” Watkins v. Northwestern Ohio Tractor Pullers Assn., 630 F.2d 1155, 1158 (6°

Cir. 1980)(citations omitted). I suggest that the disputed issue of Defendant's intent is

material to the claim of retaliation, and is an issue of fact to be decided by the trier of fact

at trial, not a matter of law to be determined by a court on a motion for summary judgment.

I also suggest that Plaintiff has sufficiently alleged, at this pre-discovery stage, a

nexus between Plaintiffs asserting his First Amendment rights and the incident in question.

Plaintiff has shown that this incident took place while the appeal was pending on Plaintiff's

second lawsuit against Defendant. In addition, Plaintiff asserts that at this time he also had

“initiated an institutional investigation including defendant on 5-16-97 of which Lt. J.

Chudzinski had notified me was underway on 5-17-97.” (P1.’s Response, Dkt. 16 at 3.)

Although Plaintiff has not presented conclusive proof to this court that there was a

sufficient link between Plaintiff's filing of the lawsuits or prison investigation and

Defendants alleged retaliatory conduct, Plaintiff is not required to prove at the summary

judgment stage. The questions of whether Defendant performed the alleged acts, as well as

whether retaliation was a substantial or motivating factor behind them, are questions for a

jury.

In conclusion, I suggest that there are at least three disputed issues of material fact

present: (1) whether Defendant intentionally committed the act of imstigating a

confrontation with Plaintiff, (2) whether Defendant intentionally charged Plainuff with a

- 34a -

more severe prison violation than was warranted, and (3) whether he did these alleged acts

with the motivation to retaliate against Plaintiff for exercising his First Amendment rights.

Therefore, I suggest that Defendant's summary judgment motion should be denied.

Therefore, | suggest that Defendant's summary judgment motion should be denied.

ii. Qualified Immunity

Defendant's motion was a combined one for dismissal and/or summary judgment,

which raised qualified immunity generally as a defense. However, recent Sixth Circuit

caselaw calls for compartmentalized analysis in the qualified immunity arena. Different

questions are considered when qualified immunity is raised as grounds for dismissal versus

when it is raised as grounds for summary judgment. The Supreme Court stated:

Even if the plainuff's complaint adequately alleges the commission of acts

that violated clearly established law [so as to preclude dismissal], the

defendant is entitled to summary judgment if discovery fails to uncover

evidence sufficient to create a genuine issue as to whether the defendant in

fact committed those acts.

Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 2815, 86 L. Ed. 2d 411 (1985).

The Sixth Circuit quoted from this passage in the case of Russo v. City of Cincinnati, 953

F.2d 1036, 1043 (6” Cir. 1992), when it noted that, in the context of a motion for summary

judgment, the court must decide the legal question of whether the plaintiff has presented

“evidence sufficient to create a genuime issue as to whether the defendant in fact

commutted those acts.””

In this case, although discovery has not yet taken place, it is relevant to note that

Defendant has conceded that he committed the acts the Plaintiff has alleged, at least to a

substantial degree. The intent behind those acts, however, is material to Plaintiffs claim

- 35a-

and is in dispute. Therefore, I suggest that summary judgment is inappropriate at this time,

and that the case should proceed to the discovery stage.

Il. REVIEW

The parties to this action may object to and seek review of this Report and

Recommendation within ten (10) days of service of a copy hereof as provided for in 28

U.S.C. section 636(b)(1). Failure to file specific objections constitutes a waiver of any

further right of appeal. United States v. Walters, 638 F.2d 947 (6" Cir. 1981), Thomas v

Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985), Howard v. Secretary of HHS,

932 F.2d 505 (6" Cir. 1991). The parties are advised that making some objections; but

failing to raise others, will not preserve all the objections a party may have to this Report

and Recommendation. Smith v. Detroit Fed'n. of Teachers Local 231, 829 F.2d 1370,

1373 (6" Cir. 1987), Willis v. Secretary of HHS, 931 F.2d 390, 401 (6" Cir. 1991).

Pursuant to E.D. Mich. LR 72. 1(d)(2), a copy of any objections is to be served upon this

Magistrate Judge.

CHARLES E. BINDER

United States Magistrate Judge

DATED: November 23, 1998

Copies to: Shakur Muhammad, #213302, lonia Maximum Facility, 1576 W. Bluewater

Ms. Christine Campbell, Assistant Anorney General, Corrections Division, P.O

Box 30217, Lansing, MI 48909

Honorable Robert H. Cleland, United States District Judge (Hand Delivered)

UNITED STATES DISTRICT COURT ‘

FOR THE EASTERN DISTRICT OF MIcAIGAN fit 25 341, _ 5-

NORTHERN DIVISION °

SHAKUR MUHAMMAD, #212302 er

Case No: 98-cV-17°1523-8¢

I. Introduction

wh me. - weer wc are ’ :

72S Prisoner Civi. rights complaint, crought pursuant to 42

J.5.c. § 1383, is before the court on plaintiff’s motion to amend

the complaint and defendant’s motion to dismiss and/or for

summary lSucgoment. The matter was referred => United States

‘

“2

‘)

—

it)

i @ |

_—

Dele

$ <36(5) (1) (B) and Local Rule 72.2. The magistrate judge issued

maS report on November 24, 1332, recommending that the court

rant Psasncilt’s moticn to amens and deny cefendant’s sotion <3

32S™288 and/or fcr summary *sdgmenc ~efer.scan: filed cerections

ans plaintiff responded Saving reviewed <-¢ f:le, the

magistrate’s report, <he cplections-and the response thereto, and

maveng mace a de novo review of the portions of the report to

2onS, The court setermines that the

‘S conc.usions cf tne magistrate cudge are correct and

Pea@\/' Pf! ld- of

-37a-

adopts the same for <he purposes cf his order.

| II. Background

Plaintiff is a prisoner. (‘R&R at 2.) Over the course of

his incarceration, plaintiff has filed a number of lawsuits and

grievances against, among others, the defendant in the instant

case--a corrections officer. Id. at 2-3.) In the instant case,

plaintiff alleges that as a result of exercising his First

Amendment rights--through filing the lawsuits and the grievances-

-defendant retaliated by instigating a confrontation with

plaintiff and then falsifying or exaggerating plaintifft’s part in

the incident. Defendant charged plaintiff in a misconduct report

with “threatening behavior”--a mandatory nonbondable charge, (rér

at 4); plaintiff was later found not to have committed

“threatening behavior” but was found to have committed

“insolence”--not a mandatory nonbondable sharge. (RéR at =.

The relevant facts and positions of the parties are more fully

laid forth in the magistrate judge’s report and need not be

repeated here.

III. Standard

The magistrate analyzed portions of sefendant’s motion under

Rule 12 and portions under Rule $6 of she Federal Rules o

Procedure. Since the court will consider matters outside <he

pleasing, cefenaant’s crtecticons will Sy analyzed under Rule

sed. R. Civ. P. i2:b).

néer Rule 56, summary judgment is proper when there is n

genuine issue as to any material fact and the moving party :s

entitled 9 judgment as a matter of law. Fed. 2.

that the pleadings, depositions, answers to interrogatories,

admissions and affidavits in the record construed favorably to

the non-moving party, do not raise a genuine issue of material

fact for triai, entry cf summary sudgment is appropriate.”

Sutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir. 1987) (citing

rp. v. catrett, 4°77 U.S. 317 (1986)). Summary judgment

‘7

ue)

se]

priate when "the evidence presents a sufficient

s+Sagreement tc require submission to a jury.” Anderson v.

mR -- A e 7 \ . -sr-

-~_———m © ss mtewe ese oe Jeoede —_ter é@4%a6¢ (4900) « The exist om

’

wa)

' ,

()

i?)

’

©)

ummary judgmer.t is to

Siow chat che nonemovings parcy nas failed ss establish an

essertia. element of its case SPON WHLSCN T22 NRON-Moving part:

omnes” > ; ° : - - - | lf f=

WOS.S S82r 27e SetlmMate Surcen si proct at <riai. Celotex Corp.,

77@ SOsSt ACteS, Nowever, ctrat the neiding of this order would not

-7.O°.3@ 35 Th@ Sosrt anacszes sefer.scanc’s corecticons unser Rule 12'b) sf the

Fesess. Fs.es sf Sivii Peocesure.

- ¥a-

4 v~eS. @t 322. Suc che moving party need ast suppers ics

motzon with affidavics cor other similar materials "negating" che

opponent's claim. Id. at 323. Once the moving party meets this

burden, the burden passes co the non-moving party to establish,

Gisputed factual element necessary to its case with respect <2

which it bears the burden of proof. Id. The non-moving party

must show that there is sufficient evidence for a jury to return

a verdict in its favor, Street v. J.C. Bradford & Co., 386 F.2d

1472, 1477 (6th Cir. 1989), i.e., that there is doubt as to the

material facts and that the record, taken as a whole, does not

lead to a judgment for the movant. Id. at 1478. The nen-moving

party must present affirmative evidence on critical issues. Id.

In regard to a magistrate’s report and recommendation, the

.g Of timely objections <c such a repert requires the court

to “make a de novo determination cf those portions of the report

Or specified proposed findings or recommendations to which

objection is made.” 28 U.S.C. § 636(b) (1). See Thomas v. Arn,

474 U.S. 140, 142, 149 (13385), rea’g denied, 374 U.S. L212

(1986); Neuman v. Rivers, :25 F.3a 315, 322-2: 6th

‘ .

' ,

()

«t

(ee)

+ ’

' ’

ive)

‘)

imi

)

Senied, U.S. _.,

HealicaA and Human Servs., 332 F.23 505, 509 ‘€th Cir. 1991);

Uniced States v. Walters, 638 F.2d 947, 950 (‘6th Cir. 1981). In

coder so qualify as a proper cobitecticn, the sdStection must be

950. A generalized csjection is the functional equivalent of a

ct. Xoward, 932 F.2d at 509.

IV. Discussion

efendan= ra:sec five objections to the magistrate’s report

which the court wil. address seriatim.

A. Objection One

Defendant’s firs= objecticn is that the magistrate’s view of

the facts is not sufficiently supported by the record. (Def. Br.

at i. The magistrate determined that plaintiff pled facts

sufficient to withstand defendant’s motion. (R&R at 11-16,

generally throughout). The court finds the magistrate’s position

Material fatt, see Gutierrez, 326 F.2d at 1536, as to whether

defendant instigated and exaggerated an incident in retaliation.

aside from his compliant, plaincifé offers his own affidavit,

dates September i4, -399, which avers shat defendant instigated

ing room incicent and also alleges fac=s indicating that

defendanc’s motive was retaliazicn. ‘Pl. Ex. 4.) Further, an

—— ee.

afticsavit of Zebadian Holland, a fellow inmate, indicates that

-s -~ _-~ = * ees “ . . 9 :

che correcticnal officers “continual [sic] to harass

= e° « ‘Sy - > \ _ c ,

siainssss el. Ex. 2.) The report from the hearing

-4la-

snvestigator also contains evidence supporting piaint: ff. The

report offers statements from the following people: Bellows, as.

employee--“that was wrong on the officers part”; Jones-el, an

inmate--“{tjhen the officer stepped in front cf him”; and Screws,

another inmate--“jdefendant] started calling the guy all cypes of

names.” (Pl. Ex. A at 4.) In addition, Sergeant Tipton, who was

standing next to defendant at the beginning of the incident

explained that he “observe [sic] [defendant] make a body movement

by going forward and hunching his shoulders [and] at the same

time hold his arms out and hands facing (palms) upward.” (Pl.

Ex. A at 5.) Although defendant interprets this movement as a

gesture of saying “‘I don’t know,’” (def. br. at 2), it could °

just as easily be interpreted as a gesture soliciting a fight.

Moreover, defendant argues that “the hearing officer found

that it was fp/’laintiff who came at [defendant] in an ‘alarming

manner’” (def. br. at 2) (emphasis in origina.); the court,

12)

«Dp

i i

r= |

ds defendant’s use of this statement exaggerated.

The hearing report actually indicates only that plaintiff “got up

from his seat in an alarming manner,” (pl. ex. A), not that

plaintiff “came at” defendant in an alarming manner.

defendant’s brief implies that the hearing report rules out

instigating conduct by defendant. It does not. Rather, it

merely describes the actions of plaintiff without making direct

reference to the appropriateness or inappropriateness of

“soncur with the [pliaintifft’s claim that [defendant]

*“isnstigated’ the ine:dent,” ‘def. br. at 2), nes “redec:iaie} the

factual issues and find[] that :;defendant] was at fault” def.

at 3)¢ instead, she magistrate merely suggests shat when the

evidence is construed in plaintift’s favor it survives

Gefendant’s motion. The court agrees. Defendant’s first

objection is denied.

B. Objection Two

Defendant’s second objection challenges the magistrate’s

application of plainciff’s different but related misconduct .

charge.‘ (Def. Br. at 3.) Stated otherwise, defendant argues

that the magistrate should nave appiied Orebaugh v. Caspari, 910

ie. 2.9399) in sefendgant’s favor. However, besides

the fact that Crebaugh is not sontrolling authority in shis

factually discinguishable from the instant case.

The Oregaugh court explains that “[wjhile a prisoner can state a

< retaliation Sy aileging chat discipuinary actions were

Dased upon false allegations, nc claim can ce stated when che

@ prisoner was nez es.titled <s serform.” Id. at $286. in

“ aS noted ear.:ers, sefendan=: S:led a mssconduct repor: agains=

Soasn2its shasging “shreatenssg seravios.” Sut plains:ff was found oniy to

nave sommstted “inso.cence.” AREER, Supsa. at 2.

ee ee

Orebaugh, there was n> avermenz By the plainciff chat che

violation report did not correspond with the actions of the

plaintiff. In the instant case the misconduct report was

determined not to be an accurate description of what actually

occurred. An exaggerated report--should it be proved

exaggerated--cou.d be construed as a false report. usches, in

Orebaugh, unlike the instant case, there was no allegation that

the defendant instigated the conduct. Defendant’s second

objection is denied.

C. Objection Three

Defendant’s third objection is that, despite che

Magistrate’s recommendation, there is no evidence to support a~

finding that the misconduct ticket was written in retaliation

because there is too great a time period Detween the prior

lawsuits and grievances and she dining rocm incident. (Def. Br.

at 4.) Defendant relies heavily on Bensen v. Cady, 761 F.2d 335

(7th Cir. 1985)--another non-controlling and factually

distinguishable case. In Bensen, the court indicated that the

retaliation claim was an afterthought witn inadequate factral

support that should have been pled separately: Sensen spoke of

oniy one lawsuit filed by the prisoner; and she Bensen plaintiff

did not allege that the “retaliation” was in any way detrimental

to him. Id. at 342. Moreover, the Bensen court merely indicated

shat “{ft]he lengthy pericd of time [five months] between the

sncident.

Second, defendan= arsues <nat cthere :s insufficient evidence

so 6 show that he would rave acted in the manner he did “but for”

the plaintiff filing che lawsuits and grievances, reiying again

on the “lengthy period of time” discussion in Benson v. Cady, “8:

reasons previously discussed, =he court determines that Benson

does not prevent the finding that a genuine issue of material

fact exists in the instant case sufficient to prevent summary

sudgment. Defendant’s fourth cbiection is denied.

E. Objection Five

Defendant’s fifth objection regards the magistrate’s

suggestion that plaintiff should be allowed to amend his

complaint. Defendant seneraily argues that plaintifft’s claim for

ection, however, is nebulous. it is unclear

whether ‘1) sefendant is cbiecting to a finding of the magistrate

oz (2) defendant is arguing chat plainctift’s motion to amend

oe)

’

should be denied or

The only reference by defendant to the magistrate’s report

is an observation by defendanz shat the magistrate cited

- 45a -

plaintiff’s motion to amend. ~-ef. Br. at 6.) Because sefendan:

does not allege specific erscr om the parc sf che mag:strace ans

because the overall nature of the objection is vague, defendant’s

fifth objection is a generalized objection which is the

functional equivalent of a failure to cbject. Howard, 332 F.2d

at 509.

Moreover, pleintiss did allege some physical injury in poth

the original and amended complaint. Defendant’s concerns

regarding physical injury could been brought in a response to

plaintiff’s motion to amend the complaint. As noted by the

magistrate, however, defendant simply failed to respond. (R&R at

8.) Further, a pro se civil rights complaint is governed by less

stringent standards and should be dismissed only if “‘it appears

beyond doubt that the plaintiff[]) can-prove no set of facts which

would entitle [him] to relief.’” Brooks v. Seiter, 779 F.2d 1177,

1180 (6th Cir. 1985). The court cannot say with certainty, based

on defendant’s affirmation, that plaintiff without a doubt

suffered no physical injury. Additionally, plaintiff’s original

complaint seeks to have his prison record expunged; aithough

plaintiff’s motion to amend :s unclear on this point, it is still

possible that plaintiff seeks some relie= other than monetary

damages.

Furthermore, if defendant’s argument constitutes a new

motion to dismiss and/or for summary judgment based on

: _— es ‘ea — - 47a -

UNITED STATES DISTRICT COURT

piainciff’s sequestec remedy, := :8 NOt proper cc raise such: a EASTERN DISTRICT OF MICHIGAN

e P , NORTHERN DIVISION

claim for the first <ime in cbsestions so she magistrate’s

report. Defendant’s fifth objection is denied.

' MUHAMMAD

V. Conclusion SHAKUR .

aka John B. Mease,

Accordingly, IT IS ORDERED that the Magistrate Judge’s —

Plainu ff, CIVIL ACTION

Report and Recommendation is hereby ADOPTED. NO. 98-CV-10153-BC

=T IS FURTHER ORDERED that plaintiff’s motion to amend che DISTRICT JUDGE DAVID M. LAWSON

MARK CLOSE, MAGISTRATE JUDGE CHARLES BINDER

complaint is hereby GRANTED.

Se ee ee , Defendant.

iT IS FURTHER ORDERED that defendant’s motion for summary /

Mi } + ie (Dkt. 73

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE L RECOMMENDATION

Vacet Ly °365

eOS Ci: - ours For the reasons set forth below, IT IS RECOMMENDED that Defendant's motion for

summary judgment be GRANTED.

ee ee ee ll. REPORT

MASP: . A. INTRODUCTION and FACTS

—Yhoee —_—_— Pending, pursuant to a general case management Order of Reterence from United States

District Judge Robert Cleland,’ (Dkt. 6), is Defendant Close’s motion for summary judgment.

3/22/99. PDK.N.\Wptext\98-153.SJ 12 ip to Administrative Order 00-AO-045, i 1 August 22, 2000, United S Distr:

Judge David M. Lawson assumed responsibility for the Bay City docket effective September 5, 2000.

Plaintiff filed a response brief (Dkt. 75) and Defendant filed a reply (Dkt. 76). Upon review of

the pleadings, | conclude that pursuant to E.D. Mich. LR 7. 1(e)(2), this motion is ready for

Report and Recommendation without oral argument.

Plaintuff filed this pnsoner civil rights complaint under 42 U.S.C. § 1983, claiming that

“Defendant framed Plaintiff in retaliation for the Plaintiffs exercise of his First Amendment

nghts.” (Compl., Dkt. 3 at 4B.) The incident in question occurred on May 21, 1997, while

Plainnff was incarcerated in general population at Standish Maximum Facility (“SMF”). Plaintiff

alleges that Defendant Close, a corrections officer employed by SMF, instigated an incident with

Plainnff, and then filed an inflated misconduct charge against him, all with the intent of

retaliating against Plainuff for filing two previous civil nghts lawsuits against Defendant Close

and others, as well as for filing SMF grievances against Defendant.

Specifically, Plaintiff alleges that while he was eating breakfast in the dining area, he

nounced Defendant Close staring at him. Plaintiff continued to eat, but when he looked up again,

Defendant was still staring. At this time, Plaintiff began to stare back. Plaintiff alleges that

Defendant then “made a fighting stance” towards him. (Compl., Dkt. 3 at 4A.) Plaintiff rumed

away to drink his coffee, and then noticed that Defendant was “coming into the dining area at a

fast pace with his face contorted.” (Jd) Plaintiff, feeling threatened by Defendant's body

language and fast approach, stood up and walked towards the Defendant. Plaintiff alleges that

when “Defendant and Plaintiff came within a foot of one another, Defendant stated, ‘What's up,’

while staring angerly [sic} at Plainuff. Plaintiff did not respond.” Plaintiff was then handcuffed

- 49a -

by two other officers and taken to a detention cell. (/d.)

Following this incident, Defendant Close filed a Major Misconduct Report charging

Plaintiff with the major rule violation of “Threatening Behavior.” Six days after the incident, a

Major Misconduct Hearing was held and Plaintiff was found not guilty of Threatening Behavior.

(Id. at 1.) After reading witness statements from both inmates and officers, the hearing officer

reduced the charge to Insolence.’ Plaintiff was found guilty of Insolence. Plaintiff was given the

disciplinary sanctions of seven days’ detention and thirty days’ loss of privileges for the

violation. (Id.)

B.___PROCEDURAL HISTORY

Plaintiff filed this action on June 2, 1998. The complaint alleges, first, that Defendant

instigated the confrontation to provoke Plaintiff, and second, that when that plan was successful,

Defendant then wrote Plaintiff up for a more severe misconduct violation, (one that required

mandatory immediate detention), than was warranted by Plaintiff's action. Plaintiff alleges that

? “Threatening Behavior” is a major rule violation defined as: “Words, actions or other behavior

which expresses an intent to injure or physically abuse another person. Such misconduct includes

attempted assault and battery.” MDOC P.D. 03.03.105, Attachment B at 2. It is a “[mjandatory

‘nonbondable’ charge.” Jd. at 1. The Policy Directive lists the following as common examples of

Threatening Behavior: “Threats of sexual assault made by one prisoner to another prisoner, writing

threatening letters to another person; threats made to a third person which are intended to place the person

threatened in fear of harm. /d. at 2.

> Insolence” is also classified as a major rule violation. Its definition is: “Words, actions, or other

behavior which is intended to harass, or cause alarm in an employee.” /d. at 3. It is not, however, a

mandatory nonbondable charge. Common examples of Insolence are: “Abusive language, wnting or

gesture directed at an employee.” /d.

- 0a -

both of these acts were purposely taken in an effort to retaliate against him for exercising his

constitutional nght to file lawsuits.

In July 1998, Defendant Close filed his initial motion for dismissal and/or summary

judgment on the following grounds: (1) that Edwards v. Balisok, 520 U.S. 641, 117 S. Ct. 1584,

137 L. Ed. 2d 906 (1997), barred Plaintiffs claim; (2) that the finding of guilt on the misconduct

charge defeated Plaintiff's claim that the ticket was retaliatory and an abuse of authority, and (3)

that Defendant was entitled to qualified immunity. (Dkt. 9.) This Court recommended denial of

the motion in a Report and Recommendation (“R&R”) dated November 24, 1998. The R&R

suggested that, when construing the allegations found in the complaint as true and viewing them

in the light most favorable to Plaintiff, there were three issues of material fact in dispute: (1)

whether Defendant intentionally committed the act of instigating a confrontation with Plaintiff;

(2) whether Defendant intentionally charged Plaintiff with a more severe prison violation than

was warranted; and (3) whether he did these alleged acts with the motivation to retaliate against

Plaintiff for exercising his First Amendment nghts. Judge Cleland adopted the Report and

Recommendation on March 26, 1999, over Defendant's objections. (Dkt. 22.)

Subsequently, Plaintiff was appointed counsel and the parties engaged in discovery.

Defendant Close then brought a motion for dismissal on two grounds: (1) that Plaintiff failed to

exhaust his administrative remedies as required by the Prison Litigation Reform Act (“PLRA”),

42 U.S.C. § 1997ef(a): and (2) that Plaintiff failed to allege a physical injury as required by the

PLRA, 42 U.S.C. § 1997e(e). On November 2, 2000. this Court recommended denial of the

-5la-

motion (Dkt. 68), and on January 12, 2001, Judge Lawson adopted the Report and

Recommendation over Defendant's objections. (Dkt. 71.)

Defendant Close now brings another motion for summary judgment, asserting that “after

discovery, the above three issues [of material fact] have been resolved in Officer Close’s favor

and that there is no reasonable dispute that necessitates putting these questions before a jury.”

(Def. ‘s Mot., Dkt. 73 at 3.)

C. ANALYSIS AND CONCLUSIONS

1. Motion Standards

A motion for summary judgment will be granted under Rule 56(c) of the Federal Rules of

Civil Procedure where there is no genuine issue of material fact, and the moving party is entitled

to judgment as a matter of law. All facts and inferences must be viewed in the light most

favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574. 587, 106 S. Ct. 1348, 89L. Ed. 2d 538 (1986). The moving party has the initial burden of

demonstrating the absence of a genuine issue of material fact as to an essential element of the

non-movant's case. Street v. J. C. Bradford & Co., 886 F.2d 1472, 1479 (6" Cir. 1989) (citing

Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). In

determining whether the moving party has met its considerable burden, a court may consider the

plausibility of the moving party's evidence. See Matsushita, 475 U.S. at 587-88.

To defeat the motion, the non-moving party cannot rest merely on the pleadings alone.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 191 L. Ed. 2d 202 (1986).

-)2a-

The non-moving party has an obligation to present affirmative evidence in order to defeat a

properly supported motion for summary judgment. Ce/otex, 477 U.S. at 324. After examining the

evidence, the court then determines “whether the evidence presents a sufficient disagreement to

require submission to a jury or whether it is so one-sided that one party must prevail as a matter

of law." Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1310 (6 Cir. 1989)

(quoting Anderson, 477 U.S. at 251-52). Summary judgment will not be granted “if the evidence

is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477

US. at 248.

2. Retaliation Claim

a. Governing Law

When the first motion for summary judgment in this case was decided, the standard

applicable to claims of retaliation for the exercise of First Amendment nights was not all that

clear in the Sixth Circuit. (See R&R dated | 1/24/98 at 12-17.) In March of 1999, however, the

Sixth Circuit clarified the standard to be applied in the case of Thaddeus-X v. Blatter, 175 F.3d

378, 386 (6"" Cir. 1999) (en banc). The Thaddeus-X standard is now applicable to this case. See

Herron v. Harrison, 203 F.3d 410, 414 (¢th Cir. 2000) (reversing district court’s dismissal of

prisoner's First Amendment retaliation claim because Thaddeus-X controlled even though it was

decided eight months after district court dismissed the case).

In Thaddeus-X, the court confirmed that “government actions. which standing alone do

not violate the Constitution, may nonetheless be constitutional torts if motivated in substantial

- J3a-

part by a desire to punish an individual for exercise of a constitutional night.” Thaddeus-X, 175

F.3d at 386. The court clarified that there are three elements to a claim of retaliation based on

the exercise of a specific constitutional right:

(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.

Id. at 394.

The first element requires that the plaintiff show that he engaged in conduct protected by

law. The court explained that when a retaliation claim is brought by a prisoner, this element

must take into consideration the plaintiff's incarcerated status:

[I]t is generally much harder for a prisoner to show that his conduct is protected

because prison regulations are allowed to infringe on prisoners’ rights as long as

they are rationally related to a legitimate penological concern. See Turner v.

Safley, 482 U.S. 78, 107 S. Ct. 2254, 96L. Ed. 2d 64 (1987). Therefore, if a

prisoner violates a legitimate prison regulation, he is not engaged in “protected

conduct,” and cannot proceed beyond step one.

Thaddeus-X, 175 F.3d at 395.

The term “adverse action” in the second element is derived from retaliation cases arising

in the public employment context. In those cases, adverse action could include discharge, refusal

to hire, or failure to promote. /d. at 396. In the prison context, the court explained,

an action comparable to transfer to administrative segregation would certainly be

adverse. In order to determine whether actions of lesser severity merit being

deemed “adverse” for purposes of a retaliation claim, we adopt the standard

suggested by Judge Posner in Bart v. Telford, 677 F.2d 622, 625 (7" Cir. 1982),

- 94a -

that an adverse action is one that would “deter a person of ordinary firmness”

from the exercise of the right at stake.

Thaddeus-X, 175 F.3d at 396.

The third element -- a causal connection between the protected conduct and the adverse

action -- begins with the plaintiff bearing the “burden of establishing that his protected conduct

was a motivating factor behind any harm.” /d. at 399.

b. First Element — Protected Conduct

In this case, Defendant Close does not dispute that Plaintiff has met the first element of a

retaliation claim. Plaintiff claims that he was retaliated against because he named Defendant

Close as a defendant in two prior lawsuits. It is well established that prisoners have a

constitutional nght of access to the courts, see Bounds v. Smith, 430 U.S. 817, 821-24, 97 S. Ct.

1491, 52 L. Ed. 2d 72 (1977), and therefore Plaintiff has alleged that he engaged in protected

conduct.

c. Second Element — Adverse Action

Plaintiff claims that the adverse action taken against him consisted of Defendant Close

provoking him by coming into the dining area with a contorted look on his face after staring and

making a “fighting stance” outside the window, and then, when Plaintiff reacted, Defendant

“purposely overcharg[ing] Plaintiff with a nonbondable offense in order to ensure that he

received toplock prior to his hearing.” (P1’s Resp., Dkt. 75 at 8.) Defendant Close asserts and

this Court agrees that both issues — whether he instigated the confrontation and whether he

inflated the misconduct charge — relate to the second prong of the Thaddeus-X standard. (Def. ‘s

Mot., Dkt. 73 at 3.) As a threshold matter, | suggest that these acts as alleged would rise to the

- 259a-

level of “adverse action” contemplated by the 7haddeus-X standard because being wrongfully

charged with a non-bondable major misconduct violation and therefore placed in toplock could

deter a person of ordinary firmness from continuing to engage in protected conduct. See

Thaddeus-X, 175 F.3d at 396 (“an action comparable to transfer to administrative segregation

would certainly be adverse.”). However, the question presented by a summary judgment motion

following discovery is not whether Plaintiff has stated a claim, but “whether the evidence

presents a sufficient disagreement to require submission to a jury or whether it is so one-sided

that one party must prevail as a matter of law.” Booker, 879 F.2d at 1310.

Defendant contends that, although Plaintiffs allegations are sufficient to survive a

dismissal motion, he is entitled to summary judgment because discovery has not uncovered any

evidence that he provoked Plaintiff by making a “fighting stance” as Plaintiff claimed in his

complaint. Defendant states: “Before discovery, it was not clear whether Officer Close instigated

the confrontation with Muhammad. Based on the deposition testimony, however, there is no

longer any reasonable dispute over this issue.” (/d.)

Defendant points to the deposition testimony of Corrections Officer Richard Metevia,

Resident Unit Manager Darlene Mclntire, and of Plaintiff himself in support of this position,

drawin, attention to the fact that the testimony is consistent with Defendant’s contention that he

did not make a “fighting stance,” but rather that he thought Plaintiff was trying to say something

to him through the glass so he simply made a “what do you want” gesture by raising his palms

up. Officer Metevia was standing next to Defendant Close at the glass while they were looking

- J0a -

into the dining area, and described the gesture made by Defendant:

@..

. Did you observe Mark Close making any motions towards the

prisoner before he went into the chow area?

Seemed like Mease said something and Close went, I can’t hear you,

whatever, you know, through the glass between them.

Now, I just realized we made a gesture, and the court reporter can’t

record that. Could you describe the gesture in words?

Like palms up, “what did you say,” you know.

"So you lifted your lower arms up, and leaving the upper arms at your

sides, you've lifted your lower arms up, palms up?

Yeah.

(Metevia Dep., Dkt. 73, Ex. 3 at 19-20.) Officer Metevia also testified that from his

observations, it did not appear that Defendant Close instigated a confrontation with Plaintiff. (Jd.

at 21.) Similarly, Resident Unit Officer Darlene McIntire, who was on duty in the dining area at

the time of the incident, testified at her deposition that she witnessed Defendant Close come into

the “chow hall” and stop, and “then Mease just walked in further and further, came right up into

his face.” (McIntire Dep., Dkt. 73 at Ex. 7.)

Defendant also contends that Plaintiffs own deposition testimony is consistent with

Defendant's version of what happened:

A... He made this gesture towards me like this (indicating).

Okay. So this gesture is his hands are sort of straight out in front about —

Like this (indicating).

-57a-

Q About, what is that, two and a half. three feet apart. So were his palms

up?

A Yes.

(Muhammad Dep., Dkt. 73, Ex. 6 at 11-12.)

When responding to a motion for summary judgment, the non-moving party cannot rest

merely on the pleadings alone, Anderson, 477 U.S. at 248, but has an obligation to present

affirmative evidence in order to defeat a properly supported motion for summary judgment.

Celotex, 477 U.S. at 324. In this case, Plaintiff has not presented any affirmative evidence in

response to Defendant's motion other than cites to his own deposition testimony where he

reiterates his allegation that Defendant instigated the confrontation by making an aggressive

gesture similar to a “wrestling position.” (P1.’s Resp., Dkt. 75 at 5.) Instead, Plaintiff merely

discounts the testimony of officers Metevia and McIntire, pointing out that they are co-workers

of Defendant Close and employees of the MDOC, the entity that would have to pay any

judgment if Plaintiff prevails. Plaintiff argues that “(a] jury may well discount such testimony as

self-serving and biased.” (/d.)

When analyzing this issue in the first R&R at the pre-discovery stage, the Court of course

acted on the presumption that Plaintiff would uncover evidence during discovery, such as

eyewitness testimony, that would support his allegations. Now, however, the Court must

determine “whether the evidence presents a sufficient disagreement to require submission to a

jury or whether it is so one-sided that one party must prevail as a matter of law.” Booker, 879

F.2d at 1310. On this issue of whether Defendant Close instigated the incident by making a

- 38a-

“fighting stance,” I suggest that the evidence proffered is, under this standard, entirely one-sided

— favonng the Defendant.

Defendant Ciees similarly claims that he is entitled to summary judgment on the issue of

whether he “overcharged” Plaintiff with the misconduct violation of Threatening Behavior.

Defendant points to the deposition testimony of three witnesses in support of his argument that

Threatening Behavior was an appropriate charge in light of Plaintiff's conduct. First, Sergeant

Walter Tipton, who also witnessed the incident, was asked whether he perceived Plaintiffs

conduct as threatening, and he responded: “Looked like he might was going to hit him or

seneting was going to happen, that was obvious. If it was me personally, yeah, I may have felt

threatened, if it was me personally.” (Tipton Dep., Dkt. 73, Ex. 4 at 37.)

Second, Officer Metevia testified that he thought Defendant Close acted properly in

wmiting the ticket. (Metevia Dep., Dkt. 73, Ex. 3 at 22.) Third, Hearing Officer Arvid Perrin, who

found Plaintiff not guilty of Threatening Behavior but guilty of the lesser included offense of

Insolence, testified that the Threatening Behavior charge was nevertheless not unjustified. He

explained that, in his opinion, the fact that Plaintiff had not made an overt move to strike

Defendant Close led him to the conclusion that the standard for Threatening Behavior had not

been met, however, another hearing officer could have reached a different result:

Q Now, just based on the facts of this [case], is this something where a

different Hearing Officer could have reached a different decision [than]

you?

- 5Ya-

aN More than likely, it could have been, yes. I'm sure that some Hearing

Officers would have felt that this was threatening behavior. .

(Perrin Dep., Dkt. 73 at Ex. 5.)

Defendant therefore asserts, supported by the testimony presented, that he “had good

reason, based on the intensity of the confrontation, for writing the Threatening Behavior ticket.”

(Def.’s Mot., Dkt. 73 at 9.)

In response to this issue, Plaintiff again has presented no directly relevant affiemative

evidence, but once more points out that the witnesses relied upon by Defendant are MDOC

employees who have an interest in the matter. Plaintiff does provide the Court with a statistical

report prepared by the MDOC showing major misconduct hearing statistics for all MDOC

hearing officers, including the percentage of misconduct hearings where the charges were

upheld, reduced, or dismissed. Plaintiff argues that Hearing Officer Perrin’s testimony that

another hearing officer may have found Plaintiff guilty of Threatening Behavior could be found

by a jury to be “incredible” in light of the fact that the MDOC keeps such statistics and evaluates

the performance of its hearing officers based upon the number of charges they uphold. (P1. ‘s

Resp., Dkt. 75 at 8-9.)

Once again | suggest that Plaintiff has failed to meet his burden of responding to the

summary judgment motion with affirmative evidence of a sufficient disagreement to require

submission to a jury. Obviously, Plaintiff does not have the burden of persuading this Court at

the summary judgment stage to the same degree it would have to persuade a jury at trial.

However, Plaintiff has failed to present any evidence other than Plaintiff's own allegations. His

argument regarding the MDOC’s performnance evaluation methods may be engaging and

- elt, - -

potentially admissible rebuttal at trial to testimony of Hearing Officer Perrin, but it is not

evidence that Defendant Close’s decision to charge Plaintiff with Threatening Behavior was an

unreasonable overcharge in light of the facts.

d. Third Element - Causal Connection

The third element of a retaliation claim involves a defendant's subjective intent. See

Thaddeus-X, 175 F.3d at 399. Plaintiff has the initial burden of showing that his protected

conduct, which in this case was filing two previous lawsuits naming Close as a defendant, was a

substantial yor motivating factor behind the adverse action. See Mount Healthy City Sch. Dist.

Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S. Ct. 568. 50 L. Ed. 2d 471 (1977). Although a court

may not require that a plaintiff prove motive by clear and convincing evidence at the summary

judgment stage, see Crawford-El v. Britton, 523 U.S. 574, 118 S. Ct. 1584, 1595, 140 L. Ed. 2d

759 (1998), a plaintiff nonetheless must provide more than conclusory allegations of retaliatory

motive to survive summary judgment. See Smith v. Campbell, 250 F.3d 1032, 1038 (6" Cir.

2000).

Plaintiff here states that “it is undisputed that Plaintiff was pursuing litigation against

Defendant at the time of the incident in question. The jury is then left with the subjective

credibility question of whether Defendant acted as he did because of those suits.” (P1.’s Resp.,

Dkt. 75 at 9.) Plaintiff has not, however, alleged that Defendant Close ever made any statements

that he harbored bad feelings toward Plaintiff because of these prior lawsuits or that he intended to

punish Plaintiff for filing them. Rather, Plaintiff's argument is solely that the temporal proximity

fcindliictt a

- 6la- -

between the prior lawsuits and the dining room incident demonstrates a causal connection.

Defendant Close conversely claims that the timing of the pnor lawsuits supports his

position that he in no way was motivated to charge Plaintiff with misconduct because he wanted

to retaliate for the prior suits. Defendant has provided copies of court dockets to show that the

first lawsuit naming him as a defendant was filed by Plaintiff in December 1994, and summary

judgment was granted to defendants in August 1995. The second suit was filed in February 1996

and was dismissed in December 1996. (Def. ‘s Mot., Dkt. 73 at 12, Exs. 8 & 9.) The alleged

_ incident of retaliation which gave rise to this lawsuit occurred in May of 1997, two and a half

years after the first suit was filed and one and a half years after the second. Defendant asserts that

the intervals between the prior suits and this incident preclude any inference that the prior suits

were a motivating factor behind his charging Plaintiff with misconduct. Furthermore, Defendant

states that “{a]lthough Muhammad appealed these decisions (in the prior suits], there is nothing

in the record showing that Officer Close was aware of Muhammad's appeals.” (/d. at 12.)

Defendant therefore asserts that Plaintiff has failed to establish a causal connection.

In his response to Defendant’s summary judgment motion on this issue, Plaintiff has not

presented any affirmative evidence other than the Plaintiff's own deposition testimony where he

stated that there has been a “constant problem between me and him from 1994, from the time he

chose to involve hisself [sic] with my litigation with other officers.” (Pl.’s Dep., Dkt. 75 at Ex.

1.) /

- 62a - =

In Smith v. Campbell, 250 F.3d 1032 (6" Cir. 2001), the plaintiff claimed that he was

transferred in retaliation for the gnevances he filed against prison officials. With regard to the

third element of the Thaddeus-X standard, the only valid connection plaintiff put forth

concerning retaliatory motive was the fact that he was transferred only days after he informed his

counselor that he was gathering documentation to file a grievance and a lawsuit.* /d. at 1038.

The Sixth Circuit affirmed the district court's grant of summary judgment for defendants, stating:

Aside from [the counselor's] statements, the temporal proximity between Smith

filing his gnevances and the decision to transfer him provides some circumstantial

support for a causal connection. However, the Court concludes that this evidence

alone is not sufficient to meet Smith’s burden to show that the filing of grievances

was a substantial or motivating factor for his transfer.

Id.

1 suggest that in this case, as in Smith, the temporal proximity connection alone is

insufficient to survive a motion for summary judgment, First, in this case the time frame between

the protected conduct and the alleged retaliatory act is not a matter of days, but of years. It is

entirely plausible that Defendant Close had no idea that Plaintiff had filed appeals of the prior

lawsuits, and Plaintiff has not refuted that claim. See Matsushita, 475 U.S. at 587-88 (stating

that in determining whether the moving party has met its considerable burden, a court may

consider the plausibility of the moving party's evidence). Moreover, like in Smith, the temporal

* The Plaintiff also claimed that his counselor's alleged statement that the prison could transfer

him at any tume and say it was based on institutional needs supported the inference of retaliatory motive,

but the Sixth Circuit rejected that notion because the counselor was not the decisionmaker with regard to

the transfer. /d. at 1038.

- 63a - as

proximity claim is the sole support for Plaintiffs claim that Defendant Close acted with

retaliatory animus, as apparently no statements from Defendant or others were adduced in

discovery which could serve as evidence to put before a jury to satisfy this element.

e. Conclusion

I therefore suggest that, faced now with the Defendant's well-supported motion for

summary judgment, Plaintiff has failed to come forward with evidence on which a jury could

reasonably find that Defendant Close retaliated against Plaintiff because of his prior lawsuits.

Although Plaintiff has met one element of a retaliation claim, and his pro bono counsel has

vigorously advocated Plaintiff's position, the evidence on the other two eluments is so one-sided

that one party must prevail as a matter of law. Anderson, 477 U.S. at 251-52. Accordingly, |

suggest that Defendant’s motion for summary judgment be granted.

Because | have suggested that Plaintiff has failed to present sufficient evidence to survive

summary judgment, the alternate grounds for summary judgment presented in Defendant's

motion shall not be addressed.

Ill. REVIEW

The parties to this action may object to and seek review of this Report and

Recommendation within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. §

636(>)(1). Failure to file specific objections constitutes a waiver of any further nght of appeal.

~ 048 - | - 65a -

See Thomas v. Am, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); Howard V. Sec'y of

Health & Human Servs., 932 F.2d 505 (6”" Cir. 1991); United States v. Walters, 638 F.2d 947

(6"” Cir. 1981). The parties are advised that making some objections, but failing to raise others,

will not preserve all the objections a party may have to this Report and Recommendation. See

Willis v. Sec ‘y of Health & Human Servs., 93\ F.2d 390, 401 (6" Cir. 1991); Smith v. Detroit

Fed'n of Teachers Local 23], 829 F.2d 1370, 1373 (6 Cir. 1987). Pursuant to E.D. Mich. LR

72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.

CHARLES E. BINDER

United States Magistrate Judge

DATED: August 15, 2001

Copies to: Ms. Wendy Davis Kanar, Attorney at Law, 414 Townsend St., P.O. Box 632, Midland,

MI! 48640

Mr. Kevin Himebaugh, Assistant Attorney General, Corrections Division, P. 0. Box 30217.

Lansing, MI 48909

Honorable David M. Lawson, United States District Judge

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

SHAKUR MUHAMMAD,

aka John B. Mease,

Plaintiff, No, 98-CV-10153-BC

v. Hon. David M. Lawson

MARK CLOSE,

Defendant.

The plaintiff filed this prisoner civil rights complaint against the defendant, a corrections

officer, alleging unlawful retaliation contrary to 42 U.S.C. § 1983. After two previous dispositive

motions were denied, the defendant filed his third motion for summary judgment, alleging that

the plaintiff offered insufficient evidence to proceed to trial on his First Amendment retaliation

claim. After reviewing the initial motion papers, the plaintiffs response, and the defendant's

reply brief, the Magistrate Judge, operating under a full-case reference pursuant to 28 U.S.C. §

636(b)(1), recommended that the defendant's motion be granted. After the plaintiffs pro bono

counsel declined to file objections on his behalf, the plaintiff requested the right to file his own

objections, and the Court granted that request on November 8, 2001. The plaintiff filed his

objections on November 29, 2001. After de novo review of the Magistrate Judge’s Report and

Recommendation, and the papers filed in this case, the Court agrees that the defendant’s motion

should be granted.

This case arose from an incident on May 21, 1997 while the plaintiff was incarcerated at

the Standish Maximum Correctional Facility (“SMF”). The plaintiff alleges that the defendant, a

corrections officer at SMF, intentionally provoked the plaintiff and wrote a violation accusing

- 60a - =

the plaintiff of Threatening Behavior, a serious offense. Specifically, the plaintiff claims that he

noticed the defendant staring at him through a dining room window, and that the plaintiff stared

back. In response, the defendant allegedly stormed into the dining room, and the plaintiff then

rose from his seat and approached the defendant. The plaintiff was then handcuffed and led

away to a detention cell.

The defendant subsequently initiated disciplinary proceedings against the plaintiff,

charging him with Threatening Behavior, defined as threatening words or behavior expressing an

intent to injure another. See MDOC P.D. 03.03.105, Pl’s S.J. Ex. 2 at 2. Six days after the

incident, a disciplinary hearing was held and the plaintiff was found not guilty of Threatening

Behavior, but found guilty of the lesser charge of Insolence, defined as words, actions or other

behavior intended to harass or cause alarm to an employee. See id at 3. The plaintiff was

punished with seven days detention and thirty days’ loss of privileges.

The plaintiff alleges that the provocation and write-up was in retaliation for two prior

lawsuits filed by the plaintiff against the defendant. The plaintiff first filed suit against defendant

Close in 1994; Close was granted summary judgment in 1995. The second suit was filed in

February, 1996 and dismissed in December, 1996.

The defendant now contends that he is entitled to summary judgment because the plaintiff

has failed to come forward with sufficient evidence to support his allegations that he was

subjected to adverse action and that the action taken against him, even if adverse, was in

retaliation for the pnor suits.

Il.

In the Sixth Circuit, a prisoner alleging retaliation for engaging in an activity protected by

the First Amendment must establish three elements: the plaintiffs engagement in protected

‘

"ern

conduct, — action taken against the plaintiff that would deter a person of ordinary firmness

from engaging in protected conduct, and proof that the adverse action was motivated at least in

part by the plaintiffs engagement in the protected activity. See Thaddeus-Xv. B/alter, 175 F.3d

378, 386 (6" Cir. 1999) (en banc). The first element is not disputed here: even though

incarcerated, the plaintiff retains the nght of access to the courts. See Bounds v. Smith, 430 U.S.

817, 821-24 (1977). The defendant instead challenges the plaintiffs showing on the second and

third elements of his retaliation claim. The Magistrate Judge found that the defendant’s showing

on the second element was so one-sided that summary judgment was appropriate. However, the

defendant's arguments against the third element are much stronger, and dispositive of this case.

When the plaintiff has the burden of proof on a claim, the defendant may support a

motion for summary judgment when he demonstrates that the plaintiff lacks sufficient evidence

on any element of that claim. Street v. IC. Bradford & Co., 886 F.2d 1472, 1478 (6" Cir. 1989).

Once the defendant has made such a showing, the plaintiff may not rely solely on his pleadings,

but must offer affirmative evidence from which a reasonable fact finder could find in his favor.

See Matsushita Flee. Indus. Co., Lid v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). The

plaintiff's showing must be more than an assertion that the trier of fact could disbelieve the

defendant's proffered evidence. Street, 886 F.2d at 1479. Even when the plaintiff does offer

affirmative evidence, however, the Court must view all reasonable inferences arising from that

evidence in the light most favorable to the plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 251-52 (1986). As a result, although the plausibility of circumstantial evidence may be

considered, any direct evidence offered by the plaintiff in response to a summary judgment

motion must be accepted as true. Adams v. Metiva, 31 F.3d 375, 382 (6" Cir. 1994). However,

when the evidence is so one-sided that no reasonable jury could find for the non-moving party

- 064 -

for the non-moving party, summary judgment as a matter of law should be granted. Anderson.

477 U.S. at 251-52.

On the third element of the plaintiffs retaliation claim, causation, the defendant has

demonstrated a lack of affirmative evidence for the plaintiff$ claim. Specifically, the defendant

points out that the incident at issue in this case occurred two and a half years after the first suit

was filed and one and a half years (actually about fifteen months) after the second. The

defendant correctly notes that the temporal connection between these lawsuits and the incident in

question is remote. In response to the defendant's motion, the plaintiff pointed to his prior

litigation with the defendant, and further stated that there has been a “constant problem between

me and him from 1994, from the time he chose to involve hisself [sic] with my litigation with

other officers.” P1’s Dep., dkt. 75, Ex. 1. In this Circuit, however, temporal proximity by itself

is generally insufficient to establish causation for a retaliation claim. See Smith v. Campbell, 250

F.3d 1032, 1038 (6 Cir. 2000); Nguyen v. City of Cleveland, 229 F.3d 559, 566 (6" Cir. 2000).

In the absence of additional probative evidence, the Sixth Circuit has specifically found that a

delay of even five months is too long. See, e.g., Hafford V. Seidner, 183 F.3d 506, 518 (6" Cir.

1999) (two to five month delay is too long); Cooper v. City of North Olmsted, 795 F.2d 1265,

1272 (6" Cir. 1986) (four months too long). The time gap in this case is fifteen months, which is

clearly outside the parameters established by the Sixth Circuit. Furthermore, the plaintiff's

generalized assertion of animosity between himself and the defendant is plainly insufficient.

Under the plaintiff's reasoning, he would be able to proceed with a retaliation claim anytime this

defendant took adverse action against him. This result would create unreasonable disorder in the

prison context, where officer-inmate animosity and civil rights lawsuits have evolved into a

ritualistic form of social intercourse.

- 0Ya- _

Thus, the Magistrate Judge’s finding that the plaintiff had not sustained his burden of

proof on this element was correct. In his objections to this finding, the plainuff contends that

temporal proximity is sufficient to establish this element, the clearly established precedential law

of this Circuit to the contrary notwithstanding. He also claims that the case for causation is

"strengthened by’ his absence from SMF for much of the time between the filing of his second

lawsuit and the incident in question, and his assertion that the incident was the first time in

several months that the defendant and the plaintiff had any personal contact. Pl’s Obj. at 13-14.

The plaintiff also attached his log of the events he deems significant occurring between 1996 and

the incident in this case. /d. Ex. H, at 1-4. Even if these notes were admissible, there is still no

direct evidence of animosity, such as statements made by the defendant, that the Court would be

required to take as true. See Adams, 13 F.3d at 382. Further, the conclusion is inescapable that

no reasonable fact finder would draw an inference of causation from these items. The plaintiff

essentially asks this Court to trust his hunch that the defendant’s adverse action against him was

motivated by his past lawsuits. Given the clear precedent in this Circuit, however, that

speculation and hunches are insufficient to defeat a summary judgment motion, the Court

declines the plaintiff's invitation. See Hartsel v. Keys, 87 F.3d 795, 802 (6 Cir. 1996).

Il.

Although, as noted in the rulings on the defendant's first two motions for summary

judgment, the plaintiff's complaint properly pleads all the elements of a retaliation claim, the

plaintiff has not been able to deliver factual support. The law is clear that the plainuff may not

rely on his pleadings alone. The plaintiff's prior history of litigation with the defendant is the

only circumstantial support for his theory of retaliation. However, this Court is bound by Circuit

- ‘Va

precedent that rejects the sufficiency of such evidence standing alone. The Magistrate Judge's

Report and Recommendation is thus correct, and the defendant's motion for summary judgment

will be granted.

Accordingly, it is ORDERED that the Magistrate Judge's Report and Recommendation

is ADOPTED.

It is FURTHER ORDERED that the defendant's Motion for Summary Judgment [dkt

#73) is GRANTED.

. Law

DAVID M. LAWSON

United States District Judge

Dated: December 17, 2001

Copies to:

Shakur Muhammad — #213302, 1576 Bluewater Highway, Ionia, Ml 48846

Wendy Davis Kanar, Esq. —

Kevin Himebaugh, Esq.

Honorable Charles E. Binder, United States Magistrate Judge

- /la- -

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

SHAKUR MUHAMMAD,

aka John B. Mease,

Plaintiff, No. 98-CV-10153-BC

v. Hon. David M. Lawson

MARK CLOSE,

Defendant.

JUDGMENT

In accordance with the Opinion and Order entered on this date,

It is ORDERED AND ADJUDGED that the judgment is entered for the defendant and

against the plaintiff.

It is further ORDERED AND ADJUDGED that the plaintiff takes nothing on its

complaint, and the case be dismissed with prejudice.

DAVID M. LAWSON

United States District Judge

Dated: December 17, 2001

Copies sent to:

Shakur Muhammad - #213302, 1576 Bluewater Highway, lonia. MI 48846

Wendy Davis Kanar, Esq.

Kevin Himebaugh, Esq.

Magistrate Judge Charles E. Binder

"“ tm@#a~

No. 02-1043

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

SHAKUR MUHAMMAD, also known as

John E. Mease,

Plaintiff-Appellant,

v. ORDER

MARK CLOSE, Correctional Officer,

Defendant-Appellee

NOT RECOMMENDED FOR FULL-TEXT

PUBLICATION

Sixth Circuit Rule 28(g) limits citation to specific situation

Please see Rule 28(g) before citing in a proceeding i a court

un the Sixth Circuit. If cited, a copy must be served on other

parues and the Court.

This notice is to be prominently displayed if this decision

is reproduced.

Before: MARTIN, Chief Judge; MOORE, Circuit Judge; WISEMAN, District Judge.”

Shakur Muhammad appeals a district court grant of summary judgment for defendant

in this civil nghts action filed under 42 U.S.C. § 1983. This case has been referred to a panel

of the court pursuant to Rule 34(j)(1), Rules of the Sixth Circuit. Upon examination, this

panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Muhammad filed his complaint in the district court alleging that the defendant

corrections officer falsely charged him with major misconduct threatening behavior in

retaliation for pnor lawsuits and gnevances plaintiff filed against defendant. Plaintiff named

defendant in his individual and official capacities and sought compensatory and punitive

damages and expungement of the resulting misconduct conviction on a reduced charge of

insolence. Defendant moved to dismiss the complaint or for summary judgment, and

plaintiff responded in opposition and moved for leave to amend his complaint. The

magistrate judge recommended that defendant's motion to dismiss or for summary judgment

be denied and that plaintiffs motion to amend his complaint be granted, and

* The Honorable Thomas A. Wiseman, Jr., United States District Judge for the Middle

District of Tennessee, sitting by designation.

ee ee ee

- /2a-

No. 02-1043

ofe

defendant filed objections. The district court adopted the magistrate judge's recommendation

and denied defendant's motion, and plaintiff filed an amended complaint.

Thereafter, the magistrate judge appointed counsel to represent plaintiff, and defendant

moved to dismiss the complaint for failure to exhaust administrative remedies. The magistrate

judge recommended that the motion to dismiss be denied, and defendant filed objections. The

district court adopted the magistrate judge’s recommendation and denied defendant's motion to

dismiss.

Following discovery, defendant again moved the district court for summary judgment,

plaintiff responded in opposition, and defendant submitted a reply. The magistrate judge

recommended that summary judgment for defendant be granted, and the district court granted

plaintiff leave to file pro se objections after counsel declined to do so. The district court adopted

the magistrate judge's recommendation and granted summary judgment for defendant. Plainuff

filed a timely notice of appeal pro se. On appeal, plaintiff contends that he established a genuine

issue of material fact remaining for trial with respect to whether defendant retaliated against him

in violation of the First Amendment. Defendant responds that the district court’s judgment was

proper.

Upon Denied. novo review, see Brooks v. Am. Broad. Cos., 932 F.2d 495, 500 (6” Cir.

1991), we affirm the judgment of the district court. The plaintiff seeks punitive and

compensatory damages and requests that “the misconduct charge [be] expunged from his file.”

J.A. at 14. Thus this case falls directly within the doctrine of Heck v. Humphrey, 512 U.S. 477

(1994), which this circuit applied to a prisoner seeking damages and expungement of a

disciplinary infraction in Huey v. Stine, 230 F.3d 226, 228 (6" Cir. 2000). “In order to grant the

plaintiff in this case the relief he seeks, we would have to unwind the judgment of the state

agency.” /d. at 230. Thus Heck bars the plaintiff's action under 42 U.S.C. § 1983.

Accordingly, the district court's judgment is affirmed. See Rule 34(j2)(C), Rules of the

Sixth Circuit.

ENTERED BY ORDER OF THE COURT

Clerk

- /#a-

No. 02-1043 No. 02-9065

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT In the Supreme Court of the United States

SHAKUR MUHAMMAD, also known as

John E. Mease, Shakur Muhammad, aka John E. Mease.

Plaintiff- Appellant, . | Petitioner.

v } ORDER | \

MARK CLOSE, Correctional Officer, ; Mark Close,

Defendant-Appellee ‘ Respondent.

)

CERTIFICATE OF SERVICE

i ae : Cynthia A. Aven, being first duly sworm, deposes and says that on May | 2, 2003, she

Before: MARTIN, Chief Judge, MOORE, Circuit Judge, WISEMAN, District Judge. served three copies of the brief in opposition upon the following by enclosing same in a properly

addressed envelope and depositing same in the United States mail in Lansing, Michigan:

Shakur Muhammad petitions the court to rehear its September 23, 2002, order that Shakur Muhammad

#213302

affirmed a district court grant of summary judgment for defendant in this civil nghts action filed 1576 Bluewater Hwy

lonia, MI 48846

under 42 U.S.C. § 1983. :

. . | All parties required to be served have been seryed. P :

Upon consideration, the panel concludes that it acted under no misapprehension of law or Ras |

mh tig UC (biry)

fact in issuing its order. See Fed. R. App. P. 40(a). Cynthia A. Aven

Accordingly, the petition for a rehearing is denied. Subscribed and swom to before me this

'2th day of May, 2003.

ALi Nb 28

Natalie D Thelen. Notary Public

State of Michigan May +5 2003

Couaty o1 Ciion, Acting in Ingham County

ENTERED BY ORDER OF THE COURT

Clerk

Orr —:

* The Honorable Thomas A. Wiseman, Jr., United States District Judge for the Middle

District of Tennessee, sitting by designation.

: My commission expires: 12/08/05 | SUPREME Cones =n |

;

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.