Sublett et al v. Vinson et al
Filing
100
MEMORANDUM OPINION & ORDER denying 96 Motion for Summary Judgment. Signed by Senior Judge Thomas B. Russell on 9/14/2012. cc:counsel (KJA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CASE NO. 5:06-CV-00038-TBR
WILLIAM EVANS
PLAINTIFF
v.
HARRY VINSON, ET AL.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Defendants’ motion for summary judgment. Defs.’
Mot. Summ. J., Docket Number (“DN”) 96. Despite ample opportunity to respond, the Plaintiff
has failed to do so. The Court will now proceed without the benefit of a response. Having
considered the matter and being sufficiently advised, the Defendants’ motion is DENIED.
I.
This case is before the Court subsequent to the Plaintiff’s appeal from a grant of
summary judgment. The Sixth Circuit Court of Appeals affirmed in part, reversed in part, and
remanded to this Court. See Evan v. Vinson, 427 F. App’x 437 (6th Cir. 2011).
The Sixth Circuit’s opinion narrowed the two remaining issues. The first issue is whether
a drug test given to the Plaintiff on May 19, 2005, was an unreasonable search that violated the
Fourth Amendment. Viewing the facts in a light most favorable to the Plaintiff, the Court finds
that a genuine dispute exists as to whether the drug test administered to the Plaintiff was “for
cause” or was “random.” This distinction is of paramount importance. If tested for cause, the
Defendants must still show that the test was reasonable under the circumstances. But, if tested
pursuant to prison policy, the test did not violate the Fourth Amendment because random drug
tests in a prison setting have been adjudged to be reasonable. Second, the Court must consider
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the Plaintiff’s First Amendment retaliation claim. The Court finds that summary judgment is
inappropriate on this claim because a genuine dispute exists as to each element of the claim.
II.
Plaintiff William Evans (“Evans”), a pro se inmate, brings this § 1983 action claiming
that seven prison officials at the Kentucky State Penitentiary (“KSP”) - Defendants Harry
Vinson, Nancy Doom, Glenn Haeberlin, Byron Jasis, Joe Keene, Rick Pershing, and Junior Ross
- violated his First and Fourth Amendment rights during events taking place at the prison in May
2005.
On May 17, 2005, Alando Sublett (“Sublett”), an inmate at KSP, was given a “stick test”
- a urine test used in the field to screen for illegal drugs - by Defendant Vinson and another
correctional officer, who served as a verifying witness. Vinson was allegedly displeased with the
results, destroyed Sublett’s first test, and ordered another with a different witnessing officer.
After being administered the second test, Sublett was ordered to return to his cell before the
sample was sealed, a practice violating KSP’s drug-testing policy. Shortly thereafter, Sublett
was removed from his cell and placed in administrative segregation in “3 Cellhouse” because his
second stick test was positive for the presence of drugs. The Defendants sent an additional
sample to Aegis Sciences Corporation (“Aegis”) for further testing and confirmation of the field
results.
The following day, May 18, 2005, James DeBow (“DeBow”), an inmate grievance aide,
received a message from Sublett about these events. Prompted by Sublett’s message, DeBow
sought Evans’s assistance in obtaining Sublett’s release from administrative segregation. Evans,
who is an inmate legal aide at KSP, sent a memorandum to Defendants Pershing, Jasis, and
Haeberlin requesting that Sublett be released from administrative segregation on due process
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grounds.
The next day, May 19, 2005, an Aegis report showed that Sublett’s stick test was a
“false-positive” and that he had tested negative for the presence of drugs. Sublett was thereafter
released from administrative segregation. On the same day, Vinson administered stick tests to
both DeBow and Evans, with Defendant Kenne serving as the witnessing officer. After the tests,
DeBow and Evans returned to their cells, and forty-five minutes later they were placed in the
“SuperMax Administrative Segregation Unit (7 Cellhouse)” because they allegedly tested
positive for drugs.
Evans’s detention order states that he was placed in administrative
segregation “for investigation into Illegal Drug Activity within the institution. This Action was
taken for the Safety of Staff and inmates, and the safe and secure operation of this institution.”
Detention Order of May 19, 2005, DN 96-3. Evan now claims that he was given the test and
placed
in
segregation
in
retaliation
for
providing
legal
assistance
to
Sublett.
On May 24, 2005, five days after detention, Defendant Haeberlin advised Evans that the
stick tests were under review, and on May 26, 2005, the samples collected from Evans on May
19 were sent to Aegis. It is important to note that the May 19 samples listed the “Reason for
Testing” as “Reasonable Cause,” not “Random.” Aegis Report, DN 96-5, p. 1-2. After further
review, Aegis determined that Evans’s test was negative for the presence of drugs, and he was
released from segregation on May 27, 2005.
In their present motion for summary judgment, the Defendants argue that Evans was
tested on May 19, 2005, solely because his name appeared on a list of individuals randomly
selected for testing pursuant KSP’s drug-screening policy. To that end, they have included a
memorandum from Defendant Junior Ross, the drug screening coordinator at KSP. See May 4,
2005 Memo. from Junior Ross, DN 96-6. That document provides:
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Attached is the random list of Drug Screen Inmates for May, 2005. Please assign
trained staff to conduct these tests. We are required to test 10% of the population.
This list contains 126 names to allow for transfers and releases and still meet the
required 84 tests. You need to have the drug-screens completed no later than the
20th[] of the month. Please forward all Employer copies of the urine samples
paper work to the Administrative Supervisor[.] The inmate gets the green copy,
the front blue copy goes with the specimen, all other copies come to me . . . .
Id. at p. 1. Evans and DeBow are included on the randomly generated list of inmates to be tested
during May 2005. Id. at p. 2. Sublett is not included. Accordingly, Evans was on the randomly
generated list and potentially selected for testing at least fifteen days prior to being tested on May
19, 2005. Based on this, the Defendants argue that Evans’s May 19 test was conducted pursuant
to policy and did not violate Evans’s Fourth Amendment rights.
Evans was tested again on July 4, 2005. See Aegis Report, DN 96-5, p. 3-4. He was also
included on the list of names randomly selected for testing in that month. See July 1, 2005
Memo. from Junior Ross, DN 96-7, pp. 1, 3. The major difference between the tests given to
Evans in May and July is that the Aegis report for the May 19 test states that Evans was tested
for “Reasonable Cause,” while the July 4 test states that his test was “Random.” Aegis Report,
DN 96-5, pp. 2, 4.
III.
Summary judgment is appropriate where “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). In determining whether summary judgment is appropriate, a court must resolve
all ambiguities and draw all reasonable inferences against the moving party. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
“[N]ot every issue of fact or conflicting inference presents a genuine issue of material
fact.” Street v. J. C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989). The test is whether
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the party bearing the burden of proof has presented a jury question as to each element in the case.
Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996). The plaintiff must present more than a mere
scintilla of evidence in support of his position; the plaintiff must present evidence on which the
trier of fact could reasonably find for the plaintiff. See id. (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986)). Mere speculation will not suffice to defeat a motion for
summary judgment; “the mere existence of a colorable factual dispute will not defeat a properly
supported motion for summary judgment. A genuine dispute between the parties on an issue of
material fact must exist to render summary judgment inappropriate.” Moinette v. Elec. Data Sys.
Corp., 90 F.3d 1173, 1177 (6th Cir. 1996).
IV.
The Defendants have moved for summary judgment on Evans’s causes of action arising
under the Fourth and First Amendments. The Court addresses each claim in turn.
A.
The Fourth Amendment protects individuals, including prisoners, from unreasonable
searches and seizures. Drug tests, including the “stick test” used in this case, “are undeniably
searches for Fourth Amendment purposes . . . .” Pendleton v. Vance, No. 94-6468, 1995 U.S.
App. LEXIS 35935, *5 (6th Cir. Oct. 5, 1995) (citing Skinner v. Ry. Labor Execs.’ Ass’n, 489
U.S. 602, 617 (1989)). “Urinalysis is analogous to body cavity searches and blood tests for
Fourth Amendment purposes, and these latter inmate searches are constitutional if ‘reasonable.’”
Id. (citing Bell v. Wolfish, 441 U.S. 520, 559-60 (1979). Accordingly, the first issue is whether
the drug test administered to Evans on May 19, 2005, was reasonable.
Random drug tests conducted pursuant to prison policy have repeatedly been held to be
reasonable under the Fourth Amendment. See, e.g., Lucero v. Gunter, 17 F.3d 1347, 1350 (10th
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Cir. 1994) (“[T]he random urine collection and testing of prisoners is a reasonable means of
combating the unauthorized use of narcotics and does not violate the Fourth Amendment.”).
Random drug testing passes Fourth Amendment scrutiny because it is “reasonably related to
legitimate penological interest and does not constitute an exaggerated response to prisoner
concerns.” Gibbs v. Johnson, No. 95-1339, 1995 U.S. App. LEXIS 38459, *4 (6th Cir. Dec. 12,
1995) (citing Turner v. Safley, 482 U.S. 78, 84-91 (1987)). Thus, the Defendants argue that
Evans’s May 19 “stick test” did not violate the Fourth Amendment because it was administered
pursuant to a policy of random drug testing. The Court disagrees and finds that a genuine
dispute exists regarding whether Evans’s May 19 test was administered pursuant to prison
policy.
Evidence in the record clearly contradicts the Defendants’ argument that Evans was
tested pursuant to prison policy. Specifically, the Aegis lab report for the May 19 test states that
the “Reason” for the test was “Reasonable Cause.” Aegis Report, DN 96-5, p. 2. A subsequent
Aegis lab report for the test administered to Evans in July 2005 lists the “Reason” for testing as
“Random.” Id. at p. 4. Clearly, a difference exists between “Reasonable Cause” and “Random,”
and the Defendants have not presented evidence that would account this difference. Despite
Evans’s failure to respond to the Defendants’ motion, this conflicting evidence creates a genuine
factual dispute as to whether Evans was randomly tested pursuant to prison policy or was tested
for cause.
Even if tested for cause, the Defendants may still be entitled to summary judgment if they
show that the May 19 test was reasonable under the circumstances. As stated by the court of
appeals in this case, “[n]on-random searches are constitutional if they are reasonable.” Evans v.
Vinson, 427 F. App’x 437, 443-44 (6th Cir. 2011) (citing Bell, 441 U.S. at 559). “The test of
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reasonableness under the Fourth Amendment is not capable of precise definition or mechanical
application. In each case it requires a balancing of the need for the particular search against the
invasion of personal rights that the search entails.” Bell, 441 U.S. at 559.
In the present case, the Defendants only move for summary judgment on grounds that the
drug test was reasonable because administered pursuant to a policy of random drug testing. The
Defendants have not argued that the test was reasonable on grounds independent of or separate
from prison policy. Having failed to assert alternative grounds for the test, the Defendants have
produced no evidence upon which the Court could find that the test given to Evans, even if given
for cause, was reasonable under the circumstances. For this reason, summary judgment is
inappropriate, and Evans’s Fourth Amendment claim will proceed.
B.
Evans also alleges that the Defendants tested and placed him in administrative
segregation in retaliation for filing a grievance on Sublett’s behalf. According to Evans, the
Defendants’ actions violated his First Amendment rights. To state a First Amendment retaliation
claim the plaintiff must show three elements:
(1) the plaintiff engaged in protected conduct; (2) an adverse action was taken
against the plaintiff that would deter a person of ordinary firmness from
continuing to engage in that conduct; and (3) there is a causal connection between
elements one and two - that is, the adverse action was motivated at least in part by
the plaintiff’s protected conduct.
Thaddeus-X v. Blatter, 175 F.3d 379, 394 (6th Cir. 1999) (en banc) (plurality opinion) (citations
omitted). The Court addresses each element in turn.
1.
“An inmate has an undisputed First Amendment right to file grievances against prison
officials on his own behalf.” Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000) (citing Noble
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v. Schmitt, 87 F.3d 157, 162 (6th Cir.1996)). When that right is limited or otherwise curtailed,
the inmate may pursue his claims with the help of others, including so-called “jailhouse
lawyers.” It must be noted, however, that jailhouse lawyers do “not have an independent right to
help other prisoners with their legal claims.” Id. at 395 (citing Gibbs v. Hopkins, 10 F.3d 373,
378 (6th Cir. 1993)). Instead, any claim accruing to Evans for retaliation is wholly derivative of
Sublett’s right of access to the courts. Hopkins, 10 F.3d at 378 (“[C]ourts have recognized that
prisoners are entitled to receive assistance from jailhouse lawyers where no reasonable
alternatives are present and to deny this assistance denies the constitutional right of access to the
courts.”). “Thus, only if [Evan’s] assistance is necessary to vindicate [Sublett’s] right of access
to the courts can [Evans], too, state a claim for retaliation.” Thaddeus-X, 175 F.3d at 395.
In the present case, the court of appeals acknowledged that “Evans has not alleged or
presented evidence tending to show that Sublett was unable to file his own complaint or
grievance, or that Evans’s help was otherwise necessary.” Evans, 427 F. App’x at 445. Despite
this, and based on circuit precedent in Hopkins, the court found “it equitable to reverse the
district court’s grant of summary judgment on this claim and remand to allow Evans to amend
his complaint and present evidence that Sublett had no reasonable alternative to his assistance.”
Id.
After remand to this Court, Evans amended his complaint in compliance with the Sixth
Circuit’s opinion. See Am. Compl., DN 81. Evans now alleges that Sublett sought his legal
assistance because no reasonable alternative was available. Specifically, Evans alleges that
Sublett, as an inmate in administrative segregation, was “restricted from any legal materials,
[i.e.,] law publications, copy machine access, visit[s] or meeting[s] with any legal aide, or any
other materials to pursue legal matters.” Id. at p. 2. These allegations are sufficient to support a
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claim that Evans served as Sublett’s only reasonable alternative for exercising his right to access
the court system.
The claims asserted in Evans’s amended complaint are analogous to, and perhaps even
more restrictive than, those in Thaddeus-X. In that case, one plaintiff, Thaddeus-X, assisted
another plaintiff, Bell, in accessing the courts. Thaddeus-X, 175 F.3d at 395. The complaint
alleged that Bell had no knowledge of the law and could not “access the court in any meaningful
way absent [Thaddeus-X’s] assistance.” Id. Additionally, Bell was confined to “administrative
segregation and could only access the library by requesting books by title.” Id. at 396. In the
present case, Evans alleges that not only did Sublett lack knowledge of the law, but that his
administrative segregation prevented him from accessing any legal materials. Am. Compl., DN
81, p. 2. Whereas Bell could request legal materials in administrative segregation, Sublett was
allegedly prohibited from researching his claim altogether, making Evans’s assistance all the
more necessary. Giving a liberal reading to Evans’s pro se pleadings, Estelle v. Gamble, 429
U.S. 97, 106 (1976), the Court finds that he has sufficiently alleged that he was Sublett’s only
reasonable means of accessing the courts. Moreover, the Defendants have failed to present
evidence tending to show that Sublett had any alternative other than Evans or another inmate
legal aid. Accordingly, Evans has alleged sufficient facts to sustain a claim that he engaged in
protected conduct under the first element of a First Amendment retaliation claim.
2.
In addition to protected conduct, the Court must consider whether “an adverse action was
taken against the plaintiff that would deter a person of ordinary firmness from continuing to
engage in that conduct.” Thaddeus-X, 175 F.3d at 394. The Sixth Circuit previously found, and
this Court agrees, that there is sufficient evidence to determine that an adverse action was taken
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against Evans.
It is undisputed that Evans was administered a drug test and placed in
administrative segregation pending investigation into possible drug activity.
Evans contends that Defendants also did not maintain the proper chain of custody
for that test. These contentions are supported by evidence in the record and
sufficient to deter a person of ordinary firmness from assisting other prisoners in
filing legal complaints and grievances.
Evans, 427 F. App’x at 446. The Defendants administered a drug test to Evans and
placed him in administrative segregation. This is the type of action that would deter
another of ordinary firmness from engaging in the same or similar conduct out of fear of
retaliation.
3.
Finally, the Court must consider whether there was a causal connection between the
protected conduct and the adverse action, “that is, the adverse action was motivated at least in
part by the plaintiff’s protected conduct.” Thaddeus-X v. Blatter, 175 F.3d at 394. Under this
element “the subjective motivation of the defendants is at issue.” Id. at 399. Because subjective
intent can rarely be proven by direct evidence, “circumstantial evidence, like the timing of events
or the disparate treatment of similarly situated individuals, is appropriate.” Id. Once the plaintiff
has met his burden on this element, the burden shifts to the defendant, and if he “can show that
he would have taken the same action in the absence of the protected activity, he is entitled to
prevail on the summary judgment.” Id.
On appeal the Sixth Circuit pointed to circumstantial evidence sufficient to establish a
genuine dispute as to whether a causal connection existed between Evans’s protected conduct
and the adverse action taken against him.
From the listing of "reasonable cause" on Evans's testing form, the date of testing
only two days after his assistance was rendered and on the day Sublett was
released, the delay in sending the results to the lab, his placement in 7 Cellhouse
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instead of 3 Cellhouse, the fact that others involved in the assistance were also
tested and had "reasonable cause" listed as the purpose, and the failure to allow
Evans to observe that proper testing procedures were followed and the chain of
custody remained intact, a reasonable jury could conclude that Evans's protected
conduct was a motivating factor in Defendants' administration of the drug test and
extended placement of Evans in administrative segregation. This evidence also
rebuts Defendants' claim that they would have taken the adverse action in the
absence of the protected conduct, and is sufficient to preclude summary judgment
on this claim.
Evans, 427 F. App’x at 446.
On remand, the Defendants attempt to rebut this evidence in order to demonstrate that
they would have taken the same action against Evans in the absence of his protected conduct. To
that end, the Defendants rely on the affidavit of Harry Vinson, the officer who administered the
stick test to Evans on May 19, 2005. See Aff. Harry Vinson, DN 96-12. Through his sworn
testimony Vinson states that he did not administer “any tests to William Evans in retaliation for
allegedly expressing concerns related to Alando Sublett’s stick test or for expressing any
concerns related to drug testing procedures.” Id. at ¶ 9. Furthermore, at the time he tested
Evans, Vinson claims to have had no knowledge of any grievance that “William Evans sent to
[Defendants] Rick Pershing, Byron Jasis, [or] Glenn Haeberlin regarding due process concerns
related to inmate Alando Sublett’s stick test.” Id. at ¶ 12. Finally, Vinson “was not instructed to
drug test William Evans by [Defendants] Rick Pershing, Bryon Jasis, or Glenn Haeberlin.” Id. at
¶ 13.
While Vinson’s sworn testimony is entitled to some weight, the Court finds that for the
purposes of summary judgment it is insufficient to overcome the circumstantial evidence
identified by the court of appeals. Two reasons counsel this outcome. First, upon a motion for
summary judgment the Court must draw all reasonable inferences and resolve all ambiguities
against the moving party. As identified by the Sixth Circuit, there is a substantial amount of
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circumstantial evidence upon which a jury could draw a causal connection between Evans’s
protected conduct and the adverse action taken against him. Accordingly, the Court is not
prepared to find that one self-serving affidavit produced after remand should be accorded
controlling weight. Second, although Defendant Vinson’s sworn statement is that he did not
drug test Evans in retaliation for his protected conduct, the truth of the matter is that Vinson
candidly states, “I do not recall the drug test that was administered to William Evans on or about
May 19, 2005.” Id. at ¶ 9. On one hand Vinson is clear that he took no retaliatory action against
Evans, while at the same time acknowledging that he has no recollection of actually
administering the test. Such equivocal speech counsels against a grant of summary judgment.
At trial, the jury may well find Vinson’s testimony credible and worthy of controlling weight.
The jury, not the Court, is to be the judge of witness credibility, however, and in this case, it will
be up to the jury to weigh the evidence in order to determine whether a causal connection exists
between Evans’s protected conduct and the adverse actions taken against him. Accordingly, the
Defendants are not entitled to summary judgment on Evans’s First Amendment retaliation claim
because a genuine dispute exists regarding whether there is a causal connection between Evans’s
protected conduct and the adverse action taken against him.
V.
Finally, the Defendants argue that even if they violated Evans’s constitutional rights, they
are entitled to qualified immunity because those rights were not “clearly established” at the time
of the challenged conduct. The affirmative defense of qualified immunity has two elements.
Federal and state officials are shielded from liability unless the plaintiff pleads facts showing that
(1) the officials’ conducted violated a constitutional right, and (2) that right was “clearly
established” at the time of the violation. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “If the
12
law was clearly established, the immunity defense ordinarily should fail, since a reasonably
competent public official should know the law governing his conduct.” Id. at 818-19.
The Court, viewing the evidence in a light most favorable to Evans, has determined that
there is a genuine dispute regarding whether the Defendants violated his First and Fourth
Amendment rights. Therefore, the Court must determine whether those rights were “clearly
established” at the time of the Defendant’s conduct.
Evans claims that the Defendants retaliated against him for providing legal assistance to
Sublett in violation of his First Amendment rights. The Defendants have failed to argue that
Evans’s First Amendment rights were not “clearly established” at the time of their conduct.
Instead, the Defendants focus their qualified immunity argument exclusively on Evan’s Fourth
Amendment claim. Because the Defendants have failed to argue that Evan’s First Amendment
rights were not clearly established, they have waived the defense of qualified immunity on this
issue.
Nor are the Defendants entitled to qualified immunity on Evans’s cause of action arising
under the Fourth Amendment. As shown above, there is a genuine issue as to whether the drug
test administered to Evans violated his Fourth Amendment rights. It is clearly established that
drug tests fall within the protections of the Fourth Amendment, see Pendleton, 1995 U.S. App.
LEXIS 35935, *5 (citations omitted), and “[n]on-random searches are constitutional if they are
reasonable.” Evans, 427 F. App’x at 443-44 (6th Cir. 2011) (citing Bell, 441 U.S. at 559).
Therefore, Evans’s Fourth Amendment rights were clearly established at the time of the
Defendants’ conduct, and they are not entitled to qualified immunity on this issue.
CONCLUSION
The Defendants move the Court for summary judgment on the two remaining issues in
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this case. For all of the foregoing reasons, the Defendants’ motion is DENIED.
September 14, 2012
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