JACKSON v. HUMPHREY
Filing
91
ORDER GRANTING in part and DENYING in part 67 Motion for Summary Judgment. The Defendants' motion for summary judgment is GRANTED to the extent that they are entitled to qualified immunity for the period the Plaintiffs visitation was suspend ed during the hunger strike. The Defendants are not entitled to qualified immunity for the period after the strike ended and the threat of disruption subsided. Because there is a genuine dispute as to the facts supporting the Defendants' conduct during this time, their motion for summary judgment as to this period is DENIED. Ordered by U.S. District Judge Marc Thomas Treadwell on 1/8/2014. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
DELMA JACKSON,
Plaintiff,
v.
WARDEN CARL HUMPHREY et al.,
Defendants.
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CIVIL ACTION NO. 5:12-CV-301(MTT)
ORDER
The Defendants have moved for summary judgment (Doc. 67) in this First
Amendment retaliation lawsuit brought pursuant to 42 U.S.C. § 1983.1 The Plaintiff,
Delma Jackson, is married to Miguel Jackson, an inmate at the Georgia Diagnostic and
Classification Prison. (Doc. 67-1, ¶ 1; Doc. 73, ¶ 1). The Defendants are all employees
of the Georgia Department of Corrections (“DOC”): Carl Humphrey is warden of the
prison; Randy Tillman is director of facilities for the DOC; and Timothy Ward is the
DOC’s assistant commissioner.2 (Doc. 67-1, ¶¶ 2, 4, 6; Doc. 73, ¶¶ 2, 4, 6). The
Plaintiff alleges the Defendants permanently terminated her ability to visit her husband
1
The Plaintiff’s second amended complaint also references – very generally – violations of legal
rights established by the Georgia constitution. (Doc. 63 at 2, 4). However, the complaint does
not identify any particular state constitutional right, and the Plaintiff has not actually stated any
state constitutional claim. At best, she suggests an attempt to vindicate state constitutional
rights through § 1983. (Doc. 63 at 2). She cannot do this because, as discussed below, § 1983
does not itself create any substantive rights but only provides a remedy for deprivation of federal
rights. See, e.g., Knight v. Jacobson, 300 F.3d 1272, 1276 (11th Cir. 2002).
2
The Plaintiff’s second amended complaint (Doc. 63) does not specify the capacity in which the
Defendants are named. However, as state employees, the Defendants cannot be sued for
damages in their official capacities because any recovery would be paid from state funds and
the state is immune from suits for damages pursuant to the Eleventh Amendment. See
Kentucky v. Graham, 473 U.S. 159, 169 (1985); Jackson v. Ga. Dep’t of Transp., 16 F.3d 1573,
1577 (11th Cir. 1994); Zatler v. Wainwright, 802 F.2d 397, 400 (11th Cir. 1986). Accordingly,
damages against the Defendants are available only in their individual capacities.
because she publicly accused DOC officials of violating inmates’ constitutional rights.
(Doc. 63 at 2). For the reasons that follow, the Defendants’ motion is GRANTED in
part and DENIED in part.
I. FACTS
Given the nature of the allegations, it is necessary to discuss the facts in some
detail.
A. Miguel Jackson and life in the prison’s SMU
In June 2012 Miguel Jackson was confined to cell 215 on the E Wing of the
prison’s Special Management Unit (“SMU”) for maximum security inmates. (Doc. 67-1,
¶ 9; Doc. 67-3, ¶¶ 3, 5; Doc. 73, ¶ 9).3 SMU operations are strictly regimented. For
example, at least two correctional officers are used when escorting an inmate from his
cell. No two inmates are permitted outside their cells in the common area at the same
time, and if an inmate is released from his cell in one wing and taken to another part of
the prison, no other cell door in that wing may be opened during that time. (Doc. 67-10,
¶ 11). Food service is also tightly controlled. SMU inmates normally receive three
meals Monday through Thursday and two meals Friday through Sunday. Correctional
officers deliver the meal tray directly to inmates’ cells. When distributing meals, officers
cannot proceed to the next cell until the meal tray has been delivered and the flap on
the cell door closed. (Doc. 67-10, ¶ 14).
The SMU has its own medical unit staffed with nurses from 7 a.m. to 7 p.m. each
weekday. A swing shift of nurses dispenses medications on weekends. (Doc. 67-3, ¶
3
The SMU, a building separate from the rest of the prison facilities, is composed of six wings
designated A Wing through F Wing. Each wing houses 32 single-man cells. (Doc. 67-3, ¶ 4;
Doc. 67-10, ¶ 11). The E Wing has upper and lower levels of cells with eight cells on each side.
The 16 cells on the lower level are behind a Lexan barrier and are separated from the open
area of E Wing by a corridor with locking doors. (Doc. 67-3, ¶ 6).
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24). Under “normal circumstances,” mental health counselors round through the E
Wing at least once a week to assess inmates’ mental health. (Doc. 67-10, ¶ 13).
B. Inmates’ right to refuse food
Pursuant to DOC Standard Operating Procedure (“SOP”) VH47-0002, mentally
competent inmates “have the right to refuse to eat or take in liquids.” (Doc. 67-3 at 26).
An inmate is deemed to be on a hunger strike when he has refused nine consecutive
meals. (Doc. 67-3, ¶ 8; Doc. 67-3 at 26). The SOP requires that striking inmates be
housed in a setting where refusal or consumption of food can be observed and
documented. Counselors and health care personnel are to make “every effort” to
convince the prisoner to resume eating, and meals must be offered at regular times
throughout the strike. (Doc. 67-3, ¶ 8; Doc. 67-3 at 27). The inmate’s hydration and
nutritional status is to be assessed twice weekly by medical professionals, and the
inmate must be weighed daily. After seven to ten days, a DOC physician may order the
inmate transferred to another facility for 24-hour medical observation and response.
Lab work will be performed as needed, with refusals of any procedures documented in
the inmate’s health record. Medical staff may force feed an inmate who loses decisionmaking capacity. Once the inmate declares the strike over or starts taking food and is
medically stable, officials may cease observing him. (Doc. 67-3, ¶¶ 8-9; Doc. 67-3 at
28).
C. Miguel Jackson goes on strike
Miguel Jackson began refusing meals around June 10, 2012. He was deemed to
be on strike the next day. (Doc. 67-3, ¶ 10; Doc. 67-14 at 41:12-20). Other SMU
inmates also began refusing meals at this time. (Doc. 67-3, ¶ 10). For several reasons,
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the Defendants believed Miguel Jackson prompted these additional strikes.4 (Doc. 67-4
at 77:10-12; Doc. 67-14 at 42:5-12, 46:20-24, 66:15-21).
On June 13, Warden Humphrey instructed his staff to monitor the striking
inmates daily.5 (Doc. 67-3, ¶ 10). On June 15, Humphrey met personally with each
inmate, including Miguel Jackson. (Doc. 67-3, ¶ 11; Doc. 67-10, ¶ 8). They had various
complaints, but all were upset about their assignment to the SMU. (Doc. 67-3, ¶ 11). In
a June 19 e-mail, Humphrey informed Tillman the inmates were on a hunger strike but
were in good physical and mental health. (Doc. 67-3, ¶ 12; Doc. 67-3 at 29). Tillman
forwarded that e-mail to Ward the same day. (Doc. 67-3 at 29).
The Plaintiff visited Miguel Jackson at the SMU on June 23 and June 24. (Doc.
67-10, ¶¶ 4, 6; Doc. 67-10 at 14, 17). Miguel Jackson’s mother, Janice Jackson,
accompanied the Plaintiff on June 23. (Doc. 67-10 at 14, 17). Sometime that next
week, Humphrey instructed his staff that visitation privileges for all inmates participating
4
For example, Humphrey testified that Miguel Jackson told him he was the leader. (Doc. 67-4
at 77:10-12). Miguel Jackson, in his deposition, testified that he told other inmates he was
refusing food. He added that his nickname is “Chief” because he has “a lot of influence” on the
other inmates. (Doc. 67-14 at 42:5-12, 46:20-24, 66:15-21). On the other hand, Miguel
Jackson also said he has never referred to himself as a leader of the strike, and the Plaintiff
disputes the Defendants’ characterization. (Doc. 67-14 at 65:8-24). The Plaintiff contends the
leader was another inmate who is referred to in an intelligence report as preparing to incite a
hunger strike in F Wing. (Doc. 67-3 at 35-36). The evidence does not support this, however,
because the Defendants did not get word that F Wing inmates were going to join the strike until
June 28, well after Miguel Jackson and others on E Wing had started refusing food. (Doc. 67-3,
¶¶ 19, 21; Doc. 67-3 at 35-36)
5
Initially, inmates were taken each day to SMU medical to be weighed and to have their vital
signs measured. One of the two officers needed to escort each inmate had to be a member of
the Correctional Emergency Response Team (“CERT”). The available CERT personnel
consisted of one sergeant and four officers who were not all present at the facility at the same
time. (Doc. 67-10, ¶ 19).
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in the hunger strike, other than attorney visits, were to be suspended.6 (Doc. 67-3, ¶
18). According to Humphrey, this was for safety and security reasons, to avoid
compromising the inmates’ health, and to control outside communication in an effort to
contain the spread of the strike. (Doc. 67-3, ¶ 18). There is also evidence Tillman and
Ward were aware at this time the Plaintiff had publicly criticized the DOC’s treatment of
her husband because the DOC’s chief investigator, Bill King, e-mailed them a June 26
intelligence report about prisoner rights advocates and the Plaintiff’s statements to
media outlets. (Doc. 50-1).
As of June 26, four of the original six inmates, including Miguel Jackson,
remained on hunger strike, according to an e-mail from Humphrey to Tillman. In the
same e-mail, Humphrey relayed a report that a doctor had asked Miguel Jackson why
he was not eating, and Jackson told the doctor he would find out if he watched the news
Friday.7 (Doc. 67-3, ¶ 13; Doc. 67-3 at 30-31; Doc. 67-10, ¶ 9; Doc. 67-18, ¶¶ 5-6).
Also, according to Humphrey, Miguel Jackson on June 22 had stopped allowing his
ketone levels to be measured, and on June 26 both he and another inmate refused
measurements of their ketone or blood sugar levels. (Doc. 67-3, ¶ 13; Doc. 67-3 at 3031). By June 27, Miguel Jackson and another inmate were refusing to go to SMU
medical, and three additional inmates had started to refuse meals, according to the email update Humphrey sent to Tillman that day. (Doc. 67-3, ¶ 15; Doc. 67-3 at 32). The
next day, there were eight inmates on hunger strike, Miguel Jackson and another
6
An e-mail to Defendant Humphrey from the DOC’s ombudsman office indicates visitation was
halted sometime prior to the morning of June 28. (Doc. 48-7 at 1).
7
Miguel Jackson denies the nurse’s version of his comments, but he admits he may have told
the doctor at some point to check the newspaper for the reasons he was striking. (Doc. 67-14
at 194:15-24). In any event, it is undisputed the nurse’s version is what was reported to
Humphrey.
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inmate still refused to go to medical, and two more inmates were refusing to allow
measurement of their blood sugar and ketone levels. (Doc. 67-3, ¶ 19; Doc. 67-3 at 3536). The strike was intensifying and growing.
On June 28, Humphrey forwarded to Tillman a June 25 letter from the Plaintiff to
Miguel Jackson that references a rally planned for June 29, the hunger strike, and the
possibility that inmates at Augusta State Prison would be striking as well.8 (Doc. 67-3, ¶
17; 67-3 at 33-34; 67-11 at 251:14-252:13, 253:12-15). Ward received the letter in an
intelligence report. (Doc. 67-6, ¶ 4; Doc. 67-7 at 41:9-42:22). This letter was a factor in
Humphrey’s decision to terminate the Plaintiff’s visitation. (Doc. 67-4 at 58:2-59:2). It
also was the source of his belief that the strike was spreading to other prisons.
However, Humphrey did not check to see if the Plaintiff’s claim was true, and he
concedes he had no idea at the time the Plaintiff’s visitation was revoked whether the
strike had actually spread to Augusta. (Doc. 67-4 at 56:9-25, 77:25-79:1, 178:17179:6). Similarly, it is not clear Tillman read the letter. He admits he relied only on what
he heard in his later meeting with the other Defendants when they discussed
suspending the Plaintiff. (Doc. 67-9 at 35:25-36:21).
On the afternoon of June 28, investigator King sent an e-mail to Tillman and
Ward advising them that media websites indicated a rally would be held at the state
Capitol the next day to show solidarity with striking prisoners. Humphrey also received
this information. (Doc. 67-3, ¶ 20; Doc. 67-6, ¶ 5; Doc. 67-6 at 9). King further
indicated there were “unconfirmed reports” the hunger strike would expand to Augusta
State Medical Prison and Macon State Prison, and he reported “talk” that inmates in the
8
The letter had been intercepted by SMU staff. (Doc. 67-3, ¶ 17). Prison officials began
opening and reading Miguel Jackson’s mail “sometime along when the hunger strike started.”
(Doc. 67-4 at 56:23-57:8).
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SMU’s F Wing planned to join the strike. (Doc. 67-3 at 36; Doc. 67-6, ¶ 5; Doc. 67-6 at
9). Outside of the SMU, however, inmates did not actually join the strike because,
according to Ward, intelligence reports indicated “there was no grassroots effort that
was sustainable out there to do that.” (Doc. 67-7 at 124:22-125:1).
D. The Plaintiff’s first rally at the Capitol
On Friday, June 29, the Plaintiff and 15 to 25 others held a public protest at the
state Capitol. (Doc. 67-6 at 11; Doc. 67-11 at 52:13-18). The Plaintiff helped to
organize the event. (Doc. 67-11 at 52:19-21). At the rally, the Plaintiff says she spoke
about prison conditions and tried to build awareness about “what [the inmates] were
enduring.”9 (Doc. 67-11 at 67:10-15). The DOC was also monitoring the rally through
“intelligence assets” it had placed there. According to an e-mail King sent to Tillman
and Ward that afternoon, the rally’s primary purpose “was to gain media attention in
Georgia to the hunger strike.” (Doc. 67-6 at 11). King also reported that another rally
organizer, Kenneth Glasgow, received a phone call during the protest from someone
purporting to be an Augusta State Medical Prison inmate participating in the strike.
(Doc. 67-6 at 11).
The following Monday, July 2, Humphrey moved the striking inmates to climate
controlled cells on the lower level of E Wing. Arrangements were made to provide
nursing staff at the SMU 24 hours per day to supplement use of the full infirmary in the
9
The conditions of confinement in the SMU at the Georgia Diagnostic and Classification Prison
have received considerable attention by news outlets and are frequently the subject of lawsuits
filed in this Court. For example, there is currently pending before the Court ten consolidated
cases by prisoners contesting their SMU confinement. See Gholston v. Humphrey, No. 5:12-cv97 (MTT) (filed Mar. 21, 2012). Other prisoners have mounted legal challenges to their
treatment in the SMU which, though not ultimately successful, have raised issues regarding
conditions to which they were subjected that were sufficient to necessitate a trial. See, e.g.,
Turner v. Upton, No. 5:10-cv-502 (MTT) (filed Dec. 28, 2010).
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main prison building.10 (Doc. 67-3, ¶ 23; Doc. 67-3 at 42). On July 5, Deputy Warden
of Security June Bishop reported to Humphrey that in addition to the eight inmates
isolated in E Wing, two more inmates declared themselves on strike, and another was
being moved to the first floor of E Wing after skipping his ninth meal. (Doc. 67-3, ¶ 26).
In an effort to contain the strike, Humphrey met with each of the inmates on July 6.
(Doc. 67-3, ¶ 27). At the end of the meetings, each inmate, including Miguel Jackson,
accepted a sack lunch of three chocolate milks and three sandwiches. (Doc. 67-1, ¶ 69;
Doc. 73, ¶ 69). Humphrey believed the inmates’ acceptance of the sack lunches
indicated the strike was over. Bishop, who was present for the meetings, says she also
believed the strike was over.11 (Doc. 67-3, ¶ 27; Doc. 67-10, ¶ 28). Based on this
belief, Humphrey restored visitation privileges for all of the inmates. (Doc. 67-3, ¶ 27).
The Plaintiff visited Miguel Jackson that weekend, July 7 and 8. (Doc. 67-10, ¶¶ 4-5;
Doc. 67-10 at 15-16; Doc. 67-14 at 110:1-11).
E. The Plaintiff’s second rally at the Capitol
On Monday, July 9, the Plaintiff spoke at another rally at the state Capitol. (Doc.
67-4 at 8:6-14; Doc. 67-11 at 65:24-66:1). That same day, Humphrey was informed that
eight inmates had refused their breakfast, lunch, and dinner trays. (Doc. 67-1, ¶ 82;
Doc. 73, ¶ 82). The group included Miguel Jackson and two others who had been part
10
Specifically, four nurses normally assigned to the infirmary were sent to cover the SMU, and
an infirmary physician was asked to be available in the SMU two days instead of one. Agency
nurses were then retained to replace the nurses transferred to the SMU. (Doc. 67-3, ¶ 24). The
eight striking inmates were moved on July 2 to the lower range of E Wing without incident.
(Doc. 67-3 at 43). Defendant Humphrey then ordered that they be visually checked by prison
staff in 15 minute intervals. (Doc. 67-10, ¶ 26).
11
Miguel Jackson concedes he accepted the lunch but says he had no intention of eating it and
later gave it away. (Doc. 67-1, ¶ 70; Doc. 73, ¶ 70; Doc. 67-14 at 93:23-25).
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of the strike since June 10. (Doc. 67-3, ¶ 29). Their visitation was once again
suspended. (Doc. 67-4 at 21:13-23).
On July 10, Bishop informed Humphrey that of the striking inmates, only Miguel
Jackson had received visitors that weekend. (Doc. 67-3, ¶ 30;12 Doc. 67-3 at 46).
Humphrey sent an e-mail that same day to Tillman informing him the inmates were
resuming their strike. Humphrey included an Internet link to an Atlanta JournalConstitution article about the Plaintiff’s July 9 protest. He also expressed his belief the
protest “may be the reason the inmates continued the strike” and suggested the timing
of the Plaintiff’s weekend visit to Miguel Jackson was noteworthy.13 (Doc. 67-3, ¶ 31;
Doc. 67-3 at 52; Doc. 67-4 at 9:14-10:17). Also on July 10, a DOC employee who
worked in public affairs forwarded a copy of the newspaper article to Tillman and Ward.
(Doc. 67-7 at 9:1-10:2; Doc. 67-8 at 4). The Plaintiff is quoted in the article as speaking
critically of the DOC’s treatment of her husband and is characterized as the organizer of
the protest. (Doc. 67-8 at 4).
On July 12, a DOC investigations and compliance employee sent an e-mail
containing video of the July 9 protest to Tillman and Ward. Ward concedes he viewed
the video at some point, though not using the link. (Doc. 67-7 at 12:8-13:24; Doc. 67-8
at 5). The same day, investigator King e-mailed Tillman and Ward about a recorded
phone call inmate Dexter Shaw made July 12. (Doc. 67-6, ¶ 9; Doc. 67-6 at 21; Doc.
67-19, ¶ 10; Doc. 67-19 at 8). The e-mail characterized Shaw’s call as revealing that
the Plaintiff “has allegedly told [Miguel] Jackson to keep the hunger strike going for ten
12
There are two paragraphs in this document numbered “30.” The citation is to the second
such paragraph.
13
Humphrey concedes he does not know specifically what the Plaintiff told Miguel Jackson
during the weekend visit. (Doc. 67-4 at 144:22-145:4).
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more days until July 18” and that she did not want the inmates to come off the strike
without written guarantees from the governor and DOC commissioner.14 (Doc. 67-6 at
21).
King sent Tillman and Ward an intelligence summary July 15 with links to two
articles on the hunger strike. He noted the one piece of new information they contained
was the Plaintiff’s statement that she would demand a meeting with DOC Commissioner
Brian Owens and that demonstrators would not leave DOC headquarters until that
happened.15 (Doc. 50-4 at 1).
F. The Plaintiff’s third rally at DOC headquarters
On July 16, a Monday, the Plaintiff spoke at a public demonstration at the DOC’s
headquarters in Forsyth. (Doc. 67-11 at 66:2-5). On that occasion, she had banners
with the names of the inmates who were on strike. (Doc. 67-11 at 62:7-10, 64:2565:17). Humphrey, Tillman, and Ward happened to be at headquarters for a meeting
about an upcoming execution, but, prompted in part by the protest outside, they also
talked about the hunger strike. (Doc. 67-3, ¶ 35). They all knew the Plaintiff was
participating and that the demonstration was in support of the inmates on strike. (Doc.
67-1, ¶ 103; Doc. 67-3, ¶ 35). They also believed the Plaintiff had verbally threatened
14
Although the Defendants have submitted recordings of these telephone calls to the Court,
they state it was this intelligence report of the phone calls’ content, rather than the actual
recordings, that they relied on at the time of their decision. (Doc. 83 at 13 n.9).
15
During this time, Humphrey continued to receive daily reports about the striking inmates. He
perceived the strike to be growing. Bishop also advised him additional inmates had announced
their intent to join the strike. (Doc. 67-3, ¶¶ 32, 33; Doc. 67-3 at 54-56). This included inmates
in B Wing who had seen reports of the strike on the news. (Doc. 67-17 at 61:18-63:21). By July
16, all eight striking inmates were refusing to go to the SMU medical unit to have their physical
condition assessed. (Doc. 67-3, ¶ 34).
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that “their protests would escalate” if Commissioner Owens did not meet with the group.
(Doc. 15-1, ¶ 19; Doc. 48-8 at 8).
Around the time of the meeting, another DOC official e-mailed Ward and Tillman
a copy of an Atlanta Journal-Constitution article about the protest taking place at DOC
headquarters. Ward read the e-mail containing the article. (Doc. 67-7 at 15:20-16:22;
Doc. 67-8 at 7-8). Humphrey also admits reading the article but says he doesn’t know
when he read it. (Doc. 67-4 at 16:3-17). In the article, the Plaintiff is quoted as listing
inmate grievances and accusing the DOC of being deceptive and trying to conceal the
hunger strike. She also demands Commissioner Owens call Humphrey to “tell him to
follow…prison regulations by the book” and “make the warden enforce standard
operating procedure.” (Doc. 67-8 at 7-8).
Ward was not pleased by the presence of the Plaintiff and her fellow
demonstrators at DOC headquarters. As he candidly testified in his deposition, two of
the factors that played a role in the decision to terminate the Plaintiff’s visitation was her
demand for a meeting with Commissioner Owens and her public demonstrations. (Doc.
67-7 at 136:10-16). Ward further stated:
Like I said, the intelligence piece when she made the comment that the
Commissioner – making the demand that the Commissioner sit down and
speak to her. That was one of the factors from the intelligence piece –
from our intelligence piece that also went in to the determinative factor to
remove her from visitation….That that demand after you come uninvited
without a – without a permit to assemble, after you've been told to leave
and they still stay and then coupled with that statement about demand to
see the Commissioner, that's one of the things that factor, yeah.
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(Doc. 67-7 at 136:3-9, 19-24).16 The next day, July 17, the Plaintiff faxed a letter to
Commissioner Owens complaining that Humphrey and other officials were not
responding to their concerns about prison conditions and the hunger strikers. (Doc. 506). Owens concedes he may have read the letter that day, but cannot recall. (Doc. 74
at 38:13-22).
On the afternoon of July 18, the Defendants again attended a meeting at DOC
headquarters. The purpose was to discuss the same execution they had discussed
previously, which had been scheduled but then stayed. At the end of the meeting, they
discussed the hunger strike and Humphrey’s plans for dealing with it. Some of what
they discussed included what Humphrey perceived as a correlation between the
Plaintiff’s visits to Miguel Jackson and Miguel Jackson’s ability to lead other inmates
and assert influence inside and outside the prison.17 They then discussed the possibility
of restricting Miguel Jackson’s visitation privileges with the Plaintiff to control the spread
of the strike, and ultimately, both Humphrey and Tillman recommended to Ward that the
Plaintiff’s visitation be terminated. (Doc. 67-3, ¶ 38; Doc. 67-7 at 122:5-18; Doc. 67-9 at
21:14-23).
Following their recommendations, Ward instructed Humphrey to revoke
Jackson’s visitation privileges with the Plaintiff. (Doc. 67-3, ¶ 39; Doc. 67-7 at 122:515). Humphrey is not aware of any additional information Ward based his decision
16
Although Ward may have been personally offended by the Plaintiff’s statements, there is no
indication that the protest at DOC headquarters was conducted in an unlawful manner or that its
participants were cited for illegal conduct.
17
Also that afternoon, a DOC official sent Ward a link to an article published by Black Agenda
Report that described the demonstration at DOC headquarters and featured a picture of the
Plaintiff protesting with a bullhorn. (Doc. 50-15). It is not clear whether Ward viewed this e-mail
before or after deciding that day to terminate the Plaintiff’s visitation.
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upon other than what Humphrey had previously provided to him. (Doc. 67-4 at 117:23118:2). One of the main reasons Tillman says he agreed with Ward’s decision was the
timing between the Plaintiff’s visits on July 7 and July 8 and Miguel Jackson’s refusal of
food on July 9.18 (Doc. 67-9 at 28:9-16).
G. The Plaintiff’s visitation is terminated and remains terminated
The next morning, July 19, Humphrey instructed his staff to prepare letters to
Miguel Jackson and the Plaintiff informing them their visitation was revoked. The letters
do not indicate the duration of or reason for the revocation.19 (Doc. 48-11; Doc. 67-3, ¶
40; Doc. 67-5 at 28-29). The letters were sent even though visitation for all of the
striking inmates, including Miguel Jackson, had already been cut off. (Doc. 67-4 at
21:13-23; Doc. 67-7 at 99:15-20). Miguel Jackson continued to strike until July 26,
2012, when he requested his tray of food and ended his strike. (Doc. 67-3, ¶ 43). The
suspension of the Plaintiff’s visitation privileges remains in place.
According to Humphrey, he and Ward were motivated to revoke the Plaintiff’s
visitation “by the correlation between [the Plaintiff’s] visits with [Miguel Jackson] and his
continued participation and instigation of the hunger strike.” (Doc. 15-1, ¶ 24; Doc. 673, ¶ 48; Doc. 67-4 at 115:21-116:4). Humphrey maintained that the strike was
“significantly disrupting the operation of the facility and jeopardizing the security and
18
Tillman argues his role in the Plaintiff’s suspension was limited to receiving and relaying the
information provided by Humphrey, agreeing with Humphrey’s assessment of the situation as
discussed at the meeting, and supporting Ward’s decision to revoke the Plaintiff’s visitation.
(Doc. 67-2 at 29).
19
This violates the Rules and Regulations of the State of Georgia, as well as DOC SOP IIBO10005, which require that such notifications inform the visitor of the reason and length of time for
which their privileges are revoked. (Doc. 48-9 at 10; Ga. Comp. Rules & Regs. 125-3-4-.03).
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safety of staff and inmates.”20 (Doc. 67-3, ¶ 48). Ward, as noted above, concedes the
Plaintiff’s demonstrations and request for a meeting with Commissioner Owens were
among the factors that prompted him to act. But he also says he told Humphrey to
remove the Plaintiff from the visitation list because of her influence on the hunger strike
and intelligence that revealed she was encouraging her husband to continue to
participate in the strike.21 (Doc. 67-7 at 95:2-25).
The Plaintiff, of course, contends the Defendants based their decision on her
speech. She bases this argument partly on their own sworn statements. For example,
she focuses on Ward’s testimony that the Plaintiff “was providing a platform for [Miguel
Jackson] to continue his disruptive behavior in our system. I don’t need her to provide a
platform for him to do that.” (Doc. 67-7 at 156:8-11). Ward suggested that to regain her
visitation, the Plaintiff would need to ensure she did not give Miguel Jackson a platform
to be disruptive, as before when “she was kind of the one that was the lightning rod
getting communication – getting – not per se – getting information out for him to
continue that behavior.” (Doc. 67-7 at 117:3-11). Ward specifically referred to the
Plaintiff facilitating phone calls and “organization of things” to get Miguel Jackson’s
message out, “or…putting people together to facilitate him doing that.” (Doc. 67-7 at
117:12-15). “If you read, like I said, in the intelligence report I guess there was those
20
But he has also admitted the inmates’ refusal to eat did not compromise security. (Doc. 67-4
at 51:13-17). Rather, the “disturbance” occurred because inmates were encouraging other
inmates to exercise their right to refuse food. As more and more inmates stopped eating,
additional medical personnel were needed to more closely monitor their health pursuant to the
DOC’s obligation under its hunger strike policy. That in turn required a shifting of medical
resources from other parts of the prison. (Doc. 67-4 at 46:19-47:1, 48:8-49:21, 51:6-11).
21
Like Humphrey, Ward agrees the SMU was able to maintain adequate security coverage
during the strike. (Doc. 67-7 at 164:12-165:1). “Only thing we had to do was increase staffing,”
he says, because most of the potential logistical problems were eliminated by moving all of the
striking inmates to cells behind the Lexan barrier in E Wing. (Doc. 67-7 at 167:4-5, 168:2-22).
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different organizations and different things and groups of those nature” who were
“voicing their opinions about the conditions I guess.” (Doc. 67-7 at 117:19-25). To
Ward, the Plaintiff was the “conduit” or “avenue” through which Miguel Jackson was
“able to communicate disruptive actions and behaviors to incite others either inside or
outside.” (Doc. 67-7 at 120:17-121:7, 141:3-13). “That was the link as far as the
outside as far as encouraging that behavior. Once we restricted her visitation, the
disruptive behavior that they were displaying stopped….The platform for them to get the
encouragement to continue that disruptive behavior was cut off once she stopped
visiting.” (Doc. 67-7 at 100:5-8, 13-15).
In an early affidavit, Humphrey also suggested he was considering events
happening outside the prison’s walls. He declared that “[i]n light of statements
attributed to [the Plaintiff] that the protest efforts would escalate if Commissioner Owens
did not meet with them, we were concerned that she would continue to encourage
[Miguel Jackson’s] decision to continue to the disruption to the operation of the prison to
support the protest effort.” (Doc. 15-1, ¶ 24).22 Humphrey cannot now recall how he
found out about the statements he attributes to the Plaintiff or what these statements
specifically were. (Doc. 67-4 at 35:5-36:1). James McMillan, the SMU unit manager,
says he was not aware of an act the Plaintiff did to coerce inmates into participating in
22
This early affidavit was filed with the Defendants’ response to the Plaintiff’s motion for a
preliminary injunction in December 2012. The Plaintiff finds it significant that Humphrey’s
statement regarding his concerns about escalating protests was not included in his more recent
affidavit supporting the Defendants’ motion for summary judgment. The Plaintiff also points out
that Humphrey recharacterizes his role in the decision-making process. In his first affidavit,
Humphrey describes what “we were motivated by” in making the decision. (Doc. 15-1, ¶ 24). In
his second affidavit, Humphrey refers instead to the fact that he was in “agreement with the
decision” that Ward made. (Doc. 67-3, ¶ 48).
-15-
the hunger strike “[o]ther than trying to shed light on or bring attention to the hunger
strike through contacting the media and things.” (Doc. 75 at 25:16-22).
H. Subsequent proceedings
The Plaintiff filed suit July 26, 2012 against Warden Humphrey seeking damages
and injunctive relief to restore her visitation privileges. (Doc. 1). The Court denied her
request for a preliminary injunction but indicated its intent to set the case down for an
early trial with expedited discovery.23 (Doc. 23). The Plaintiff then decided to engage in
additional discovery and eventually filed her second amended complaint, adding
Defendants Ward and Tillman and omitting her claim for injunctive relief.24 (Doc. 63).
The Defendants moved for summary judgment on July 22, 2013. (Doc. 67).
II. DISCUSSION
A. Summary judgment standard
A court must grant summary judgment “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A factual dispute is not genuine unless, based on
the evidence presented, “a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Info. Sys. &
Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002). The movant
23
Unfortunately, disposition of this case has been anything but expeditious. There seems to
have developed a contest of wills between the Parties or their counsel. That neither side wants
to be seen as capitulating to the other may explain why some 90 docket entries have been
made thus far or why the Court has been called to manage several needless disputes along the
way. This also may explain why the Parties lost sight of the key issue: Why has the visitation
ban remained in place long after the professed justification for the ban has vanished?
24
It is not clear whether the Plaintiff intended to delete her claim for injunctive relief, as the
opening paragraph of her second amended complaint references “emergency injunctive relief.”
(Doc. 63 at 1). However, she removed this form of relief from her enumerated counts where
she had requested it previously. If the Plaintiff still desires that the Court restore her visitation,
she would need to amend her complaint yet again.
-16-
must cite “to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory
answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A).
The burden then shifts to the non-moving party, who must rebut the movant’s
showing “by producing…relevant and admissible evidence beyond the pleadings.”
Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1315 (11th Cir. 2011)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The non-moving party
does not satisfy its burden “if the rebuttal evidence is merely colorable, or is not
significantly probative of a disputed fact.” Id. (quoting Anderson, 477 U.S. at 249-50).
However, “credibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge. … The
evidence of the non-movant is to be believed, and all justifiable inferences are to be
drawn in [its] favor.” Anderson, 477 U.S. at 255.
B. The Defendants are entitled to qualified immunity for their actions
during the period of disturbance created by the hunger strike
Pursuant to 42 U.S.C. § 1983:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress.
Section 1983 does not create any protected rights itself, but instead provides a remedy
for constitutional violations committed under color of state law. The relevant inquiry
-17-
under § 1983 is whether a right secured by the United States Constitution has been
violated.
The First Amendment provides that Congress shall make no law abridging the
freedom of speech or the right of people to peaceably assemble or petition the
Government for a redress of grievances. U.S. Const. amend. I. To establish a First
Amendment retaliation claim and prove a constitutional violation, “a plaintiff must show
that (1) her speech was constitutionally protected; (2) she suffered adverse conduct that
would likely deter a person of ordinary firmness from engaging in such speech; and (3)
there was a causal relationship between the adverse conduct and the protected
speech.” Castle v. Appalachian Technical Coll., 631 F.3d 1194, 1197 (11th Cir. 2011)
(citing Bennett v. Hendrix, 423 F.3d 1247, 1250, 1254 (11th Cir. 2005)). To establish a
causal connection, a plaintiff must demonstrate the defendants were subjectively
motivated to take the adverse action because of the protected speech. Id. (citing Smith
v. Mosley, 532 F.3d 1270, 1278 (11th Cir. 2008)). If the plaintiff can do that, the burden
shifts to the defendants, who may avoid liability and prevail on summary judgment by
showing they would have taken the same action in the absence of the plaintiff’s
conduct. Id. (citing Mosley, 532 F.3d at 1278). See also Mt. Healthy Sch. Dist. Bd. of
Educ. v. Doyle, 429 U.S. 274, 287 (1977); Moton v. Cowart, 631 F.3d 1337, 1342 (11th
Cir. 2011).
Even if a constitutional violation has occurred, however, the Defendants may still
receive the benefit of qualified immunity. “‘Qualified immunity offers complete protection
for individual public officials performing discretionary functions insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a
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reasonable person would have known.’” Leslie v. Hancock Cnty. Bd. of Educ., 720 F.3d
1338, 1345 (11th Cir. 2013) (quoting Loftus v. Clark-Moore, 690 F.3d 1200, 1204 (11th
Cir.2012)). “‘[T]o obtain qualified immunity, an official must first establish that he acted
within his discretionary authority.’” Id. (quoting Morton v. Kirkwood, 707 F.3d 1276,
1280 (11th Cir.2013)). Because there is no question the Defendants in this case acted
within their discretionary authority, it is the Plaintiff’s burden to show that (1) Humphrey,
Tillman, and Ward violated her constitutional rights, and (2) “‘that the right involved was
‘clearly established’ at the time of the putative misconduct.’” Id. (quoting Terrell v.
Smith, 668 F.3d 1244, 1250 (11th Cir.2012)). The Court may exercise its “‘sound
discretion in deciding which of the two prongs of the qualified immunity analysis should
be addressed first.’” Id. (quoting Loftus, 690 F.3d at 1204). In this case, the Court will
first address the “clearly established” prong.
Whether a constitutional violation is clearly established is determined “‘in light of
the specific context of the case, not as a broad general proposition.’” Id. (quoting
Terrell, 668 F.3d at 1250). “‘The relevant, dispositive inquiry … is whether it would be
clear to a reasonable [state official] that his conduct was unlawful in the situation he
confronted.’” Id. (quoting Loftus, 690 F.3d at 1204). This requires that the Court look to
law decided by the Supreme Court of the United States, the Eleventh Circuit, and the
Supreme Court of Georgia and determine whether the state of the law as elucidated by
those courts gave the Defendants fair warning that their revocation of the Plaintiff’s
visitation privileges under the circumstances of this case was unconstitutional. Id.
(citing Vinyard v. Wilson, 311 F.3d 1188, 1194 (11th Cir. 2002)).
-19-
The Plaintiff “must ‘demonstrate that the contours of the right were clearly
established in [one of three] ways.’” Id. (quoting Loftus, 690 F.3d at 1204). First, if
judicial precedents in an area are tied to particular facts, the Plaintiff must “‘show that a
materially similar case has already been decided.’” Id. Second, if judicial precedents
are not tied to particular facts, the Plaintiff may “‘point to a broader, clearly established
principle [that] should control the novel facts [of the] situation.’” Id. “To succeed under
this approach, ‘the principle must be established with obvious clarity by the case law so
that every objectively reasonable government official facing the circumstances would
know that the official's conduct did violate federal law when the official acted.’” Id.
“Third, in a narrow category of matters, ‘the conduct involved in the case may so
obviously violate [ ] th[e] constitution that prior case law is unnecessary.’” Id. at 1346.
The specific question, at least initially, posed by the facts of this case is whether
it was clearly established that during a prison hunger strike among maximum security
inmates, a reasonable prison administrator could not revoke the visitation privileges of
an inmate’s wife who he believed was using her prison access to encourage or prolong
the strike if he acted, in part, out of hostility toward her protected speech. See Foy v.
Holston, 94 F.3d 1528, 1536 (11th Cir. 1996). In addressing this question, the “proper
analysis of [the Defendants’] entitlement to qualified immunity is not whether they knew
that terminating [the Plaintiff’s visitation] in retaliation for protected speech was lawful,
but rather whether [terminating her visitation] based upon all the information available to
them at the time, to include any knowledge of [her] protected speech, was objectively
reasonable.” Sherrod v. Johnson, 667 F.3d 1359, 1364 (11th Cir. 2012). The objective
reasonableness of a defendant’s conduct is measured by reference to clearly
-20-
established law and shields defendants from suit for their constitutional violations
provided they reasonably, albeit mistakenly, could have believed their conduct to be
lawful. See Stanley v. City of Dalton, Ga., 219 F.3d 1280, 1294 (11th Cir. 2000).
Of course, the Eleventh Circuit and the Supreme Court of the United States
“have long held that state officials may not retaliate against private citizens because of
the exercise of their First Amendment rights.” Bennett, 423 F.3d at 1255. But this
broad proposition does not itself provide clearly established law sufficient to place the
Defendants on notice that their conduct in the specific circumstances of this case was
unlawful. After all, the law may permit state officials to retaliate against private citizens
exercising their First Amendment rights if the officials can establish that, in addition to
any retaliatory motive, they also had a lawful reason for their conduct. See Sherrod,
667 F.3d at 1363 (citing Mt. Healthy, 429 U.S. at 286-87). Consequently, at the
summary judgment stage, evidence of mixed motives in a case where discriminatory
intent is an element of the underlying constitutional tort clouds the question of whether
the state officials acted lawfully or unlawfully.25 See Foy, 94 F.3d at 1534. The lack of
clarity as to the constitutionality of his behavior can in turn render the official’s action
objectively reasonable at the time it was done because the official would not be on
25
The Defendants, relying on Sherrod, truncate their qualified immunity analysis into a simple
mixed-motive analysis. This is understandable, because Sherrod itself is somewhat conclusory
in its consideration of mixed motives and qualified immunity. But it likely would be a mistake to
conclude from Sherrod that the Eleventh Circuit has fashioned a mixed-motive test for qualified
immunity. Prior case law in this Circuit, including Foy and Stanley, on which Sherrod depends,
makes clear that there is not a separate mixed-motive test as might be found in, say, a Title VII
case. Rather, these prior cases relied on traditional qualified immunity principles and simply
held that government officials are not likely to be on notice of the illegality of their behavior when
they have both lawful and unlawful motivations for their actions.
Moreover, there is a real danger for the Defendants when they place all their eggs in a mixedmotive analysis. They basically concede evidence of an unlawful motive but contend their
lawful motive entitles them to qualified immunity. That is fine so long as they have lawful
motives, but, as discussed below, they have advanced no lawful motive for the continued denial
of visitation long after the end of the hunger strike.
-21-
notice of the potential illegality of his conduct. See id. Thus, when the record
establishes the official was motivated in part by lawful considerations, qualified immunity
is available. Stanley, 219 F.3d at 1296. Here, indisputable evidence shows (a) there
was a lawful basis for reasonable prison officials to have terminated the Plaintiff’s
visitation during the hunger strike, and (b) the Defendants were motivated, at least in
part, by that lawful basis. Stanley, 219 F.3d at 1296-97 & n.29.
The Defendants concede the Plaintiff engaged in protected speech when she
participated in protests challenging prison conditions and spoke critically of the prison’s
management in published news reports. (Doc. 67-2 at 19). They also admit they were
aware of her activity and concede for the sake of argument this suggests a retaliatory
motive on their part. (Doc. 67-2 at 20). However, they claim they also had a proper
reason for terminating the Plaintiff’s visitation: She was instigating or encouraging
continuation of the hunger strike. They base this on (1) the timing of her June 23 and
June 24 weekend visits and Miguel Jackson’s statement to medical staff later that week
to watch the news Friday to find out why he was not eating; (2) the confiscated letter
from the Plaintiff to her husband in which she mentions a rally planned for Friday [June
29], the hunger strike, and the possibility that inmates at Augusta State Prison would be
striking as well; (3) the June 28 intelligence reports provided by investigator King
regarding the June 29 protest and concerns the strike was spreading within the SMU
and to other prisons; (4) the timing of Miguel Jackson’s July 6 announcement he was
ending the hunger strike, the Plaintiff’s July 7 and July 8 visits with her husband, and
Miguel Jackson’s resumption of the strike on July 9, the same day the Plaintiff held her
second rally at the state Capitol; and (5) the report from investigator King that a
-22-
recorded phone call revealed inmate Dexter Shaw telling another party the Plaintiff had
instructed her husband to keep the strike going for ten more days.
A reasonable prison administrator, when confronted with these facts, could
believe the Plaintiff was helping to perpetuate the hunger strike and that her ability to
visit her husband was enabling her to do this. This is a lawful justification for
terminating the Plaintiff’s ability to visit her husband. The strike was disruptive to normal
prison operations, created an additional burden on prison resources, and there were
legitimate concerns that the strike could spread outside the SMU and even to other
prisons. In short, prison officials could reasonably conclude the interactions between
the Plaintiff and Miguel Jackson posed significant implications for the order and security
of their facility, and they would be justified in responding as the Defendants did here.
See Bell v. Wolfish, 441 U.S. 520, 546 (1979) (“[M]aintaining institutional security and
preserving internal order and discipline are essential goals” of prison administration).
The Court is particularly sensitive to the Defendants’ judgment on this matter given “the
‘inordinately difficult undertaking’ that is modern prison administration.” Thornburgh v.
Abbott, 490 U.S. 401, 407 (1989) (quoting Turner v. Safley, 482 U.S. 78, 85 (1987)).
Courts give “considerable deference to the determinations of prison administrators who,
in the interest of security, regulate the relations between prisoners and the outside
world.” Id. at 408.
Additionally, the record also establishes indisputably that the Defendants were
actually motivated, at least in part, by these lawful considerations. Stanley, 219 F.3d at
1296. It is clear they had evidence of and believed the Plaintiff was influencing the
strike. Humphrey connected the Plaintiff to the activity inside the prison as early as
-23-
June 28 when he sent Tillman the Plaintiff’s letter to Miguel Jackson discussing the
planned June 29 rally, the hunger strike, and the possibility that Augusta State Prison
inmates would be striking as well. (Doc. 67-3, ¶ 17; 67-3 at 33-34). On June 28,
investigator King’s e-mail to Tillman and Ward described the Plaintiff’s June 29 rally as
an expression of solidarity with striking prisoners. Humphrey also received this
information. (Doc. 67-3, ¶ 20; Doc. 67-6, ¶ 5; Doc. 67-6 at 9). On July 10, only two
days after the Plaintiff visited her husband, Humphrey sent the e-mail to Tillman
informing him the inmates were resuming their strike, expressing his belief the July 9
protest “may be the reason the inmates continued the strike” and that it was “also worth
noting that Miguel Jackson received a visit from his wife…this weekend.” (Doc. 67-3, ¶
31; Doc. 67-3 at 52; Doc. 67-4 at 9:14-10:17).
The Plaintiff argues that evidence the Defendants were even partly motivated by
these lawful considerations is in dispute. (Doc. 72 at 41). But she does not point to
specific facts in the record that support this contention.26 At most, she appears to try to
undermine the Defendants’ knowledge prior to her suspension, implying they crafted
26
The Plaintiff has made it difficult for the Court to determine the facts that are actually in
dispute in this case. Her response (Doc. 73) to the Defendants’ statement of material facts
(Doc. 67-1) consists less of citations to particular materials in the record supporting a dispute
and more of argumentative objections to how she anticipates the Defendants will use those
facts. Adding to the confusion, the Plaintiff filed “Record Citations” (Doc. 73-1, Doc. 76-1) in
support of her response to the Defendants’ statement of material facts. Whether this document,
featuring a semi-narrative argument intermixed with record citations, was intended to also serve
as the Plaintiff’s statement of material facts is unclear. In any event, it did not comply with this
Court’s requirement that respondents to summary judgment motions “attach…a separate and
concise statement of material facts, numbered separately, to which the respondent contends
there exists a genuine issue to be tried.” M.D. Ga. L.R. 56. And these documents led to the
later filing of the mysteriously-titled “Plaintiff’s Reply to Defendants’ Response and Objections to
Plaintiff’s Corrected Record Citations in Support of Plaintiff’s Response to Defendants’
Statement of Material Facts as to Which There is No Genuine Issue to be Tried,” a 135-page
monstrosity the true necessity of which is unclear to the Court. (Doc. 86).
Nevertheless, the Court has tried to ferret out the actual facts in dispute. But to the extent it
has been unable to do so, the Defendants’ statement of material facts are deemed admitted by
the Plaintiff. See Fed. R. Civ. P. 56(c), 56(e); M.D. Ga. L.R. 56.
-24-
their lawful reasons after the fact. For example, she argues the letter forwarded June
28 did not truly play a role in the Defendants’ decision because “Ward read it of late,
Humphrey did not particularly remember reading it, and Tillman admitted he did not rely
on anything outside of the July 18, 2012 meeting to recommend” the Plaintiff’s visitation
be suspended. (Doc. 72 at 42). But it is mere conjecture to suggest that because
Humphrey or Ward later testified they cannot remember exactly when they first read the
letter, or because Tillman may have relied on what Humphrey or Ward said rather than
the letter itself, that it did not play a role in their decision. Further, given the date on
which the letter was confiscated and transmitted from Humphrey to Tillman and Ward,
and given Humphrey’s e-mail description of the letter as “referencing the hunger strike
and the possibility [Augusta State Medical Prison] will participate,” there is no evidence
to dispute that the Defendants understood the substance of the document as early as
June 28 and prior to the Plaintiff’s suspension. (Doc. 67-3 at 33-34).
Beyond that, the Plaintiff’s arguments as to any factual dispute involving the
Defendants’ motivation miss the mark in the context of qualified immunity analysis.
Although there may be a dispute on the underlying constitutional claim as to whether
the Defendants would have suspended the Plaintiff totally absent her protected speech,
there is indisputable evidence that, even given her speech, the Defendants terminated
the Plaintiff’s visitation because they believed her access to Miguel Jackson was
enabling her to instigate, spread, or prolong the strike inside the prison. See Stanley,
219 F.3d at 1297.
While there is evidence the Defendants were at least partly motivated by lawful
reasons, the Plaintiff has not presented any precedent, and the Court has found none,
-25-
to suggest that reasonable prison administrators armed with this knowledge would know
it was a violation of clearly established law to revoke the Plaintiff’s visitation privileges
during the strike even if they also intended to punish her for engaging in protected
speech. That is, under these circumstances, there was no authority to firmly direct the
Defendants that, because they also possessed an unlawful motive, they could not act
on their lawful motive. Thus, their conduct was objectively reasonable. That there may
be a triable issue as to the existence of an unlawful motive for the Defendants’ actions
is unimportant for qualified immunity analysis: “‘Where the facts assumed for summary
judgment purposes in a case involving qualified immunity show mixed motives (lawful
and unlawful motivations) and preexisting law does not dictate that the merits of the
case must be decided in plaintiff's favor, the [Defendants are] entitled to immunity.’”
Sherrod, 667 F.3d at 1364 (quoting Foy, 94 F.3d at 1535).
Accordingly, the Defendants are protected by qualified immunity for their actions
during the period of time surrounding the hunger strike. To this extent, they are entitled
to summary judgment.
C. The Defendants are not entitled to qualified immunity or summary
judgment for the time period following the hunger strike
The hunger strike ended when Miguel Jackson began eating again on July 26,
2012. At some point after that, the threat of any strike-related disruption disappeared.
However, the Plaintiff remains barred from visiting Miguel Jackson despite the passage
of more than a year since her privileges were revoked and the strike ended, and the
Defendants have presented no cognizable explanation for this.27 During oral argument,
27
During their depositions, the Defendants generally suggest the Plaintiff’s ability to regain her
visitation privileges is contingent upon either her and/or Miguel Jackson’s good behavior, though
-26-
one of the Plaintiff’s lawyers, who apparently had not been actively involved in the case
before then, made a common sense point: If the Defendants had restored the Plaintiff’s
visitation rights after the strike ended, this lawsuit would never have been filed. (Doc.
90 at 29:14-21). As the Parties engaged in their contentious discovery, or their “contest
of wills” as the Court has put it, it seems they lost sight of this obvious fact.
Consequently, the Plaintiff’s visitation ban continued for no reason apparent in the
record.
It is clear that once the disturbance caused by the hunger strike ended, the threat
the Defendants believed the Plaintiff posed to prison operations also diminished. As
Warden Humphrey testified during his deposition:
Q. Then answer me this: You suspended or you terminated – I'm sorry;
you suspended [the Plaintiff’s] visitation as of July 9th. You then went on
to terminate her visitation on July 19th. What's today's date, Warden
Humphrey?
A. February the 17th, 18th? I'm not sure.
Q. February 18th, 2012. Why haven't you given Delma Jackson back her
visitation?
A. I think that she -- because she was involved in or assisted in
instigating a disturbance in a prison.
Q. Now – but everyone else got their visitation back; right?
A. Yes.
it is not clear what that entails. See, e.g., Dep. Humphrey, Doc. 67-4 at 148:9-14, 152:22-153:3
(“I – I don’t – I can’t give you a specific behavior. I think that that’s just one of those things that
– that we’ll have to review and look and see what her actions are, see what his actions are, and
make a determination at – at a later given date. I don’t have a specific date in mind.”); Dep.
Ward, Doc. 67-7 at 116:22-24, 120:21-24 (“[I]f she is ever added back, she needs to make sure
she is not influencing [Miguel Jackson] to be disruptive in the system…She has to ensure that
she’s going to follow the rules of visitation. Also not be a conduit for [Miguel Jackson] to exhibit
disruptive behavior as he has done in the past.”). At oral argument, counsel for the Defendants
offered a similar excuse, adding that Miguel Jackson had not properly completed necessary
paperwork – which he was not provided until September 2013. The Court does not find these
reasons availing. There simply is no substantive evidence the Court has seen in the record or
the Defendants’ briefs to support the Plaintiff’s indefinite suspension.
-27-
Q. Have you had any evidence from the time you terminated Ms.
Jackson's visitation to present, that she's still trying to so-called create a
disturbance?
…
[A.] No.
…
Q. Do you have any reason to believe that [she's still trying to so-called
create a disturbance]?
A. No.
(Doc. 67-4 at 95:4-96:5).
Thus, the Defendants’ asserted lawful basis for banning the Plaintiff’s visitation
during the hunger strike vanished once the strike, and any related disruption,
concluded. This leads to a somewhat unusual situation.28 The Defendants concede the
Plaintiff engaged in protected speech and suffered an adverse response likely to deter a
person of ordinary firmness. And they do not deny that there is some evidence of
unlawful motivation behind their decision to terminate the Plaintiff’s visitation. Their sole
argument is that they were also motivated by legitimate concerns that the Plaintiff was
fomenting the hunger strike. But that justification for their action has ceased to exist,
and they have not advanced a lawful motive for keeping the Plaintiff’s visitation ban in
place. Clearly, a reasonable jury could infer that the Defendants continued to deny the
Plaintiff access to the prison after the strike ended solely to maintain her silence, to
punish her for publicly criticizing prison conditions, to serve as an example to other
inmates’ families of the consequences of publicly criticizing prison officials,29 or in
28
Yet it is a situation entirely of the Defendants’ own creation. By relying on a mixed-motive
argument and more or less conceding evidence of an unlawful motivation, they have boxed
themselves in once their lawful reason for acting disappears.
29
This is of particular concern to the Court. Issues related to conditions inside the SMU are
broader than those affecting only this Plaintiff. Justified or not, there has been plenty of criticism
of how SMU inmates are treated. See supra note 9. If the Defendants decided to make an
-28-
retaliation for filing this lawsuit.30 Certainly, this Court cannot hold as a matter of law
that the Defendants have a lawful reason to continue the visitation ban when the
Defendants have not even said what that reason is. In short, there is no basis in the
record for the Court to conclude the Defendants are entitled to qualified immunity from
the Plaintiff’s claim that they continued to retaliate for her protected speech long after
the hunger strike and any threat it posed had ended.31
Without the shield of qualified immunity, summary judgment is not available to
the Defendants for the period of time following the end of the hunger strike disruption.
As noted above, the Plaintiff has put forward evidence of a prima facie case for First
Amendment retaliation during this time frame, and the Defendants have not rebutted it.
example of the Plaintiff by permanently suspending her visitation privileges because they did not
like what she had to say about their prison and its administration, they have not only retaliated
against her but have moved to chill the speech of others who are concerned about the manner
in which prisoners are housed in the SMU. As the Plaintiff’s counsel stated at oral argument:
“It’s not just what it did to Ms. Jackson, [it’s] what it does to all protests all over the state. If you
think something is wrong in the prison system, you’re going to remember Delma Jackson:
Delma Jackson got her visitation taken away because she spoke up. That’s what’s going to be
sent out there as the message.” (Doc. 90 at 30:9-14).
30
The law is “clearly established…that retaliation against private citizens for exercising their
First Amendment rights [is] actionable.” Bennett, 423 F.3d at 1255. Even this general principle
would inform an objectively reasonable prison administrator he could not refuse to restore the
Plaintiff’s visitation solely for the reasons suggested above. Broad statements of principle not
tied to particularized facts can still clearly establish law applicable to different facts when the
principle is set forth “with obvious clarity…so that every objectively reasonable government
official facing the circumstances would know that the official's conduct did violate federal law
when the official acted.” Terrell, 668 F.3d at 1256 (quoting Vinyard, 311 F.3d at 1351) (internal
quotation marks removed). Importantly, an official is not protected by qualified immunity merely
because “‘the very action in question’ has not been held unlawful before.” Id. (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
31
Granted, a trial may reveal lawful reasons for the Defendants’ post-strike conduct or
additional circumstances in which it would not be clear to reasonable officials in the Defendants’
position that their conduct was unlawful, and the Defendants may reassert their qualified
immunity defense at trial following the Plaintiff’s presentation of her case. But the record at this
juncture simply does not support a qualified immunity finding for the Defendants’ actions – or
inactions – after the strike.
-29-
There is a genuine factual dispute as to the Defendants’ subjective motivation for their
actions that must be resolved by a jury.32
III. CONCLUSION
The Defendants’ motion for summary judgment is GRANTED to the extent that
they are entitled to qualified immunity for the period the Plaintiff’s visitation was
suspended during the hunger strike. The Defendants are not entitled to qualified
immunity for the period after the strike ended and the threat of disruption subsided.
Because there is a genuine dispute as to the facts supporting the Defendants’ conduct
during this time, their motion for summary judgment as to this period is DENIED.
SO ORDERED, this 8th day of January, 2014.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
32
A jury will also need to resolve whether one, some, all, or none of the Defendants are liable
based on their individual roles in prolonging the suspension of the Plaintiff’s visitation. See
Iqbal, 556 U.S. at 677 (“Absent vicarious liability, each Government official, his…title
notwithstanding, is only liable for his…own misconduct.”). The record shows the Defendants
shifting responsibility among one another. For example, Humphrey testifies that the decision to
restore the Plaintiff’s visitation belongs to Ward and Tillman, and he disclaims any role in the
process. (Doc. 67-4 at 154:3-8). At the same time, Ward says he has not acted because the
issue has not risen to his level yet. (Doc. 67-7 at 150:22-151:8). He is waiting on Humphrey
and Tillman to advise him: “[A]ny decision that’s made[,] it’s going to take the recommendation
from the warden, recommendation from the facilities director[,] and then I will come up with my
conclusion.” (Doc. 67-7 at 154:12-15). If the Plaintiff were to prevail, a jury will need to
determine which of the Defendants is actually responsible for her injuries.
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