Baze v. Huddleston et al
Filing
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MEMORANDUM AND OPINION by Senior Judge Thomas B. Russell on 7/10/2012; re 69 Second MOTION for Summary Judgment filed by Hobert Huddleston ; an appropriate order shall issuecc:counsel (KJA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CASE NO. 5:10-CV-00086-R
RALPH BAZE
PLAINTIFF
v.
HOBERT HUDDLESTON, et al.
DEFENDANTS
MEMORANDUM OPINION
This matter comes before the Court on Defendants’ renewed motion for summary
judgment (DN 69). Plaintiff has responded (DN 70) and Defendant has replied (DN 73). This
matter is now ripe for adjudication. For the reasons that follow, Defendants’ motion is
GRANTED. This matter is hereby dismissed.
BACKGROUND
Plaintiff Ralph Baze, pro se, is a prisoner currently incarcerated at Kentucky State
Penitentiary (KSP). Baze is on Kentucky’s death row and has exhausted his direct appeals; both
parties admit that he is very near his execution. On May 19, 2009, Baze alleges he twisted and
injured his knee. The next day, he was examined by KSP’s medical staff and diagnosed with a
minor strain. The medical staff told him to rest the knee and gave him non-prescription antiinflammatories. KSP’s staff allowed him to use a set of crutches as a convenience to take weight
off his knee. When Baze returned to death row, the area’s supervisor Hobert Huddleston initially
permitted Baze to use his crutches in his cell but prohibited their use in other parts of death row
out of fear they could be used as a weapon.
Upon learning of these restrictions, Baze informed KSP staff that he would take legal
action for limiting his use of the crutches. Shortly thereafter, Baze was escorted back to the
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infirmary where he was given the option to remain with the crutches or to return to death row
without them. Baze opted to return to his cell since inmates confined to the infirmary do not
have access to KSP’s other facilities.
Baze brought this suit alleging a variety of constitutional and statutory claims. On
January 17, 2012, the Court granted Defendants’ motion for summary judgment in part,
dismissing all theories of recovery except a First Amendment claim of retaliation. Memorandum
Opinion & Order, DN 67. The Court stated that the parties had not adequately described this
cause of action and requested additional information.
STANDARD
Summary judgment is appropriate where “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). 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
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
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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.” Monette v. Elec. Data Sys.
Corp., 90 F.3d 1173, 1177 (6th Cir. 1996).
DISCUSSION
The Court has pieced together the following narrative for Baze’s claim of retaliation. He
alleges that when he returned to death row, guards informed him that his use of crutches would
be restricted to his cell. Baze told the guards that he would sue for not allowing him unlimited
use of the crutches. Two minutes after this threat, Baze was escorted to the prison infirmary
where he was given the option to remain with the crutches or return to his normal
accommodations. Baze initially chose to stay in the infirmary but after fifty minutes he decided
to return to death row.
Prisoners submitting statements on Baze’s behalf affirm that prison life in the infirmary is
different than the general prison population. Inmates confined to the infirmary have no access to
church services, the chaplain, the law library, or outside recreation. Baze insists the threat to
remove him from his normal cell block and transfer him to the infirmary was an adverse action
capable of supporting a First Amendment claim of retaliation.
In the first motion for summary judgment, the Court determined that the medical staff at
KSP did not prescribe the crutches and offered them to Baze as a convenience. The Court also
concluded KSP’s staff had legitimate concerns about the potential for Baze to fashion a weapon
from the crutches. Huddleston recounted that Baze was the closest prisoner to execution when
the decision was made to constrict his movement. Huddleston Aff. ¶¶ 6-9, DN 59-3 at 2. Under
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those conditions inmates could be unpredictable and dangerous. Huddleston Aff. ¶¶ 6-9, DN 593 at 2. Affidavits from the institution’s doctors corroborated that the crutches were confiscated
because KSP staff harbored safety concerns. Hiland Aff. ¶ 5, DN 59-2.
Huddleston has submitted another affidavit with this renewed motion for summary
judgment. DN 69-2. Although Baze decided against staying in the infirmary, Huddleston
proclaims he never rescinded the earlier order that Baze could continue to use the crutches in his
cell. DN 69-2 ¶ 9. Huddleston insists the transfer to the infirmary was for Baze’s benefit
because it would allow increased use of the crutches. DN 69-2 ¶ 9.
There are three elements to a prisoner retaliation claim under the First Amendment:
(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.
Evans v. Vinson, 427 F. App’x 437, 445 (6th Cir. 2011) (quoting Thaddeus–X v. Blatter, 175
F.3d 378, 394 (6th Cir. 1999)). With respect to prisoners, an adverse action is “‘an action
comparable to transfer to administrative segregation,’ or an ‘action of lesser severity’ that ‘would
‘deter a person of ordinary firmness’ from the exercise of the right at stake.’” Id. at 446. A
causal connection is established where the “protected conduct was a ‘motivating factor’ in the
adverse action.” Id. (citing Mount Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S.
274, 287 (1977)).
Neither party disputes Baze’s statement that he would file a lawsuit qualifies as protected
speech. See Hill v. Lappin, 630 F.3d 468, 472 (6th Cir. 2010) (the First Amendment protects a
prisoner’s right to file grievances against a prison official (citing Herron v. Harrison, 203 F.3d
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410, 415 (6th Cir. 2000))). Rather, Huddleston contends no material fact exists capable of
showing Baze suffered an adverse action. He says Base’s fifty minutes in the infirmary
constitutes a de minimis action even if retaliatory in nature. Huddleston continues that besides
the temporal nexus between Baze’s statements and the decision to transport him to the infirmary
no evidence exists of a causal connection between the remarks and the adverse action.
For First Amendment retaliation claims, a prisoner must show the adverse action was
“capable of deterring a person of ordinary firmness from engaging in the protected conduct.”
Hill, 630 F.3d at 472 (citing Pasley v. Conerly, 345 F. App’x 981, 985 (6th Cir. 2009)). With the
inherent issues of security within correctional institutions, prisoners do not have a
constitutionally-protected right to remain at a facility or a particular part of a facility.
Toolasprashad v. Bureau of Prisons, 286 F.3d 576 (D.C. Cir. 2002). “[A] prison transfer or the
threat of a transfer can be an adverse action if that transfer would result in foreseeable, negative
consequences to the particular prisoner.” Hill, 630 F.3d at 474 (citing Siggers–El v. Barlow, 412
F.3d 693, 701-02 (6th Cir. 2005)). Adverse action cannot follow from de minimis harm; a
prisoner must demonstrate that the retaliatory act was punitive in nature and caused a
constitutionally cognizable injury. Siggers-El v. Barlow, 412 F.3d 693, 704 (6th Cir. 2005).
“[I]f no reasonable trier of fact could conclude that a retaliatory act would deter a person from
exercising his rights, then the act should be characterized as de minimis and dismissed at the
summary judgment stage.” Id.
The stay in the infirmary is legally insufficient for a claim of retaliation. Baze was in the
infirmary only fifty minutes, after which, KSP staff moved him back to death row. Even if the
activities available to prisoners in the infirmary are minimal, there is no indication Baze was
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affected by these restrictions. Furthermore, Baze’s placement in the infirmary cannot be
characterized as a “transfer” in light of its duration. Courts have repeatedly held that the
Constitution’s protections are not frustrated by temporary reassignments in prison. See, e.g.,
Morris v. Powell, 449 F.3d 682, 685-86 (5th Cir. 2006) (one-week job reassignment from
commissary to kitchen was not sufficiently adverse for actionable claim of retaliation since it
was only a “few days of discomfort”); Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996)
(prisoner being forced to sleep on floor for one night because of overcrowding was a “temporary
situation” and therefore not actionable); Lamb v. Crites, No. CV-11-027, 2012 WL 130371, at
*10-11 (S.D. Tex. Jan. 14, 2012) (two-hour cell reassignment would not deter person of ordinary
firmness); Toolasprashad v. Bureau of Prisons, No. 09-CV-5335, 2009 WL 5103185, at *5
(D.N.J. Dec. 17, 2009) (where prisoner was transferred to landscaping job for one hour but
returned to janitorial staff, such action “could hardly be characterized” as retaliatory). Fifty
minutes in the infirmary is insufficient to trigger Baze’s First Amendment rights.
Baze also fails to present proof to establish an inference that his statements to Huddleston
were a motivating factor in moving him to the infirmary. A prisoner is required to come forward
with evidence on “whether the defendants’ subjective motivation for taking the adverse action
was at least in part to retaliate against the prisoner for engaging in protected conduct.” Hill, 630
F.3d at 475 (citing Thaddeus–X, 175 F.3d at 399). A “motivating factor” is “one without which
the action being challenged simply would not have been taken.” Greene v. Barber, 310 F.3d
889, 897 (6th Cir. 2002). “If the prisoner can show that the defendants’ adverse action was at
least partially motivated by the prisoner’s protected conduct, then the burden shifts to the
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defendants to show that they would have taken the same action even absent such protected
conduct.” Hill, 630 F.3d at 475 (citing Thaddeus–X, 175 F.3d at 399).
The present record fails to establish a causal nexus between Baze’s protected speech and
the alleged retaliatory acts. Though Baze’s temporary reassignment to the infirmary may have
occurred after his objections to the restrictions, temporal proximity by itself is not enough to
show the protected speech was a substantial and motivating factor for a transfer. Reynolds-Bey
v. Harris, 428 F. App’x 493, 505 (6th Cir. 2011); Smith v. Campbell, 250 F.3d 1032, 1038 (6th
Cir. 2001). To succeed on a motion for summary judgment, a prisoner asserting a claim of
retaliation must set forth “specific, nonconclusory allegations [of retaliation].” Thaddeus–X, 175
F.3d at 399. Baze presents nothing more than his own conclusory opinions on causation.
Huddleston’s affidavit and the sworn statements of the medical staff underscore that Baze was
moved to the infirmary for both security concerns and to allow him greater freedom to use the
crutches. See Huddleston Aff., DN 69-2; Huddleston Aff., DN 59-3; Hiland Aff., DN 59-2; DN
69-2. Baze’s bare allegations regarding Huddleston’s retaliatory motives are legal conclusions
without any factual support.
In his response to the second summary judgment motion, Baze proposes a new basis for
his First Amendment claim - Huddleston’s decision to confiscate his crutches after he left the
infirmary and returned to death row was retaliatory. Baze’s complaint originally sought redress
for his placement in the infirmary after he indicated he would sue. See Complaint, DN 3 ¶¶ 4850. Because he has not pursued this theory from the outset, the Court need not consider its
implications. See Gomez v. LSI Integrated LP, 246 F. App’x 852, 854 (5th Cir. 2007) (declining
to consider a claim that was not pursued by litigant before summary judgment response); Roeder
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v. Am. Postal Workers Union, AFL-CIO, 180 F.3d 733, 737 n. 4 (6th Cir. 1999) (refusing to
consider unpled theory of recovery asserted for the first time in response for summary
judgment). Even if the Court were to evaluate this new wrinkle, Baze ignores the uncontroverted
evidence that the crutches were not a prescribed part of his medical treatment. The requisition of
crutches that are not medically unnecessary cannot form the foundation of a retaliation claim.
See Evans, 427 F. App’x at 445 (adverse action must be sufficiently severe to deter a person of
ordinary firmness).
CONCLUSION
Overall, Defendants’ objections to this claim are well founded. For the foregoing
reasons, the Court GRANTS Defendants’ second motion for summary judgment (DN 69). The
Clerk of Court is directed to STRIKE this matter from the active docket. An appropriate order
shall issue.
July 10, 2012
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