Cannon v. Bernstein et al

Filing 67

ORDER Accepting 62 Magistrate Judge's Report and Recommendation and Granting in Part and Denying in Part Defendants' 50 Motion for Summary Judgment. Signed by District Judge Denise Page Hood. (Ciesla, C)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SAMUEL CANNON,
Plaintiff,
Case No. 09-14058
v.
HONORABLE DENISE PAGE HOOD
FRANK BERNSTEIN, et al.,
Defendants.
/
ORDER ACCEPTING MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION AND GRANTING IN PART AND DENYING IN
PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT 50]
This matter is before the Court on Magistrate Judge Hluchaniuk’s Report
and Recommendation dated April 1, 2013. Defendants timely filed objections to
the Magistrate Judge’s Report and Recommendation. For the reasons stated below,
the Court orders that Defendants’ Motion for Summary Judgment be GRANTED
IN PART AND DENIED IN PART.
I.

BACKGROUND
The Court adopts the Magistrate Judge’s factual history as follows:
According to plaintiff’s complaint, pursuant to a notice of intent,
plaintiff and two other prisoners were placed in administrative
segregation while at the Thumb Correctional Facility on December
24, 2008, while an attempt to escape the facility was investigated.
(Dkt. 1). The three prisoners were transferred to the Standish
Correctional Facility on December 29, 2008. Plaintiff claims that the
disciplinary report prepared by defendant Frank Bernstein falsely

alleged that evidence linked plaintiff to the attempt to escape.
Plaintiff alleges that Bernstein submitted additional false reports, hid
exculpatory evidence, and intimidated witnesses into not making
statements. As a result of the disciplinary report, plaintiff was kept in
disciplinary confinement pending the outcome of a hearing.
Plaintiff alleges that defendant Conachan, the hearings investigator,
intentionally helped to conceal exculpatory evidence, failed to collect
statements from material witnesses, and refused to present plaintiff’s
material questions from key witnesses. Plaintiff alleges that defendant
Peiffer forged and falsified information in the report, which resulted
in an unlawful disciplinary proceeding. Plaintiff also alleges that,
defendant Szappan, the hearings officer, found him guilty of the
charged offense of escaping, in spite of the “irrefutable proof” that the
allegations were false. Plaintiff accuses Szappan of knowingly using
false evidence to support a guilty finding. Plaintiff also accuses
Szappan of being biased because he was a “party to the fraud” that
denied plaintiff procedural due process. Finally plaintiff claims that
he was denied the due process because he was not allowed the
opportunity to defend himself at the hearing. (Dkt. 1).
One of the Plaintiff’s main allegations is that he was disciplined because of a
fabricated security video showing him attempting to escape. After the Defendants’
Motion for Summary Judgment, the Plaintiff had the opportunity to view the
previously undisclosed videotape and subsequently submitted his Response to
Defendants’ Motion for Summary Judgment. The Plaintiff brought this claim
under 42 U.S.C. § 1983 seeking the following relief: (1) declaratory judgment,
including reinstatement to previous confinement and expungement of the major
misconduct from his record; (2) compensatory and punitive damages; and (3)
injunction.

2

II.

STANDARD OF REVIEW
The standard of review to be employed by the Court when examining a

Report and Recommendation is set forth in 28 U.S.C. § 636. This Court “shall
make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” § 636(b)(1)(C). The
Court “may accept, reject or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” Id.
In order to preserve the right to appeal, a party must file objections to the
Report and Recommendation within fourteen days of service of a copy, as
provided in 28 U.S.C. § 636(b)(1) and E.D. Mich. L.R. 72.1(d)(2). Failure to file
specific objections constitutes a waiver of any further right of appeal. Thomas v.
Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health & Human Servs., 932 F.2d
505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). The
Court is not required to review portions of a Report and Recommendation to which
no objections are made. Thomas v. Arn, supra. Defendants filed timely objections
to the Magistrate Judge’s recommendation on April 15, 2013.
III.

ANALYSIS
The Magistrate Judge made four recommendations: (1) summary judgment

for the substantive due process claim should be denied because the security video
does not blatantly contradict the Plaintiff’s claim of innocence, and the Plaintiff

3

has created an issue of fact as to the truth or falsity of other evidence or testimony;
(2) qualified immunity should also be denied because it depends on the same issue
of fact; (3) Eleventh Amendment immunity only disposes of the portion of
Plaintiff’s claims that seeks damages; and (4) judicial immunity is appropriate for
Defendant Szappan because of his position as a hearings officer.
As a threshold issue, the Court must reiterate the allegations of the Plaintiff’s
claim. Although the Plaintiff implicitly contends that there was no evidence to
sustain his major misconduct conviction, this is not the crux of his complaint.
Instead, the Plaintiff alleges that the Defendants falsified evidence and failed to
present, and otherwise hindered the use of, exculpatory evidence. The Court
stresses the fine line between the sufficiency of the evidence and the manner in
which it was developed and utilized. It is with this important distinction in mind
that the Court addresses the Magistrate’s Report and Recommendation.
A. Substantive Due Process
The Court completely agrees with the Magistrate Judge that Scott v. Harris,
550 U.S. 372 (2007), is not applicable to our case. In Scott, the Court held that
summary judgment is appropriate if the record blatantly contradicts the nonmoving
party’s version of events. However, the circumstances in that case were very
different from the instant case. The moving party, a pursuing deputy, was being
sued by a fleeing suspect who sustained injuries during a car chase. The suspect

4

claimed that he was driving cautiously, but a videotape clearly showed that he
engaged in a “Hollywood-style car chase of the most frightening sort.” Id. at 380.
The videotape clearly contradicted the suspect’s version of events because the true
nature of his driving style was readily apparent from the tape.

In our case,

however, the Plaintiff does not dispute that someone attempted to escape from the
prison. He only disputes in his Response to Motion for Summary Judgment that it
was him. It is not apparent from the tape that the Plaintiff is the escapee, and the
Defendants do not allege that there were any unique distinguishing characteristics
(e.g. tattoos, scars) that positively identified the Plaintiff as the individual on the
tape. Only when the escapee was identified by Corrections Officer Winters did the
combined evidence (testimony plus video) purport to establish the Plaintiff as the
escapee.

Therefore, the evidence on record does not blatantly contradict the

Plaintiff’s version of events because it is based in part on the testimony of Officer
Winters.
Because Plaintiff — by his affidavit and the affidavit of another prisoner — has
established a genuine issue of material fact as to whether he is the escapee shown
in the video, Defendants’ Motion for Summary Judgment is granted in part, only to
the extent that disclosure of the videotape negates the parts of Plaintiff’s complaint
alleging that the Defendants based his conviction on a fabricated videotape or
fabricated the existence of the tape.

5

B. Qualified Immunity
The Court agrees with the Magistrate Judge regarding the Defendants’ claim
of qualified immunity. If the applicable law is clearly established at the time of the
alleged violation, the defense of qualified immunity should fail because a
reasonably competent state officer is presumed to know the law.

Harlow v.

Fitzgerald, 457 U.S. 800, 818-819 (1982). The applicable law in this case is 42
U.S.C. § 1983, which has long been in existence. The existence of qualified
immunity clearly depends on a question of fact — whether the Defendants violated
a clearly established constitutional right by allegedly falsifying evidence and
suppressing exculpatory evidence.

Therefore, the Defendants’ Motion for

Summary Judgment is denied as to qualified immunity.
C. Eleventh Amendment Immunity
The Eleventh Amendment applies to suits against a state by a citizen of that
state. Hans v. Louisiana, 134 U.S. 1, 21 (1890). Because 42 U.S.C. § 1983 does
not expressly abrogate state immunity, the Eleventh Amendment continues to
apply to § 1983 actions. Quern v. Jordan, 440 U.S. 332, 345 (1979). As the
Magistrate Judge correctly concludes, the Plaintiff is not entitled to damages from
the Defendants in their official capacity, which fulfills the Eleventh Amendment’s
traditional purpose. Ford Motor Co. v. Dep’t of Treasury of State of Indiana, 323
U.S. 459, 464 (1945).

6

When the law under which the plaintiff brings the claim is federal law, the
courts must balance the need to vindicate federal rights with the constitutional
immunity of the states. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,
106 (1984). Determining the importance of the federal right, the courts must
determine whether the plaintiff seeks a retroactive or prospective remedy. Id. A
retroactive remedy cannot be granted because doing so would completely nullify a
state’s constitutional immunity. Id. at 105. In this case, the Plaintiff seeks a
declaratory judgment that is wholly retroactive: he seeks to be restored to the
position he was in before the disciplinary judgment i.e. reversal of his disciplinary
judgment and erasure of it from his record.

The only prospective nature of

Plaintiff’s declaratory prayer for relief is that it might increase the severity of
future disciplinary judgments. But the Plaintiff has availed himself of the full state
statutory review procedure that is in place precisely to evaluate the procedures of
which he complains. To allow this Court to undertake what is essentially a second
review of Plaintiff’s state disciplinary judgment would clearly infringe upon state
immunity. As to Plaintiff’s prayer for injunctive relief, that federal right is wholly
prospective.

If he can show that he will again be subjected to improper

disciplinary hearing procedures that violate his constitutional due process rights,
his federal rights may be important enough to set aside state immunity. Therefore,
the Defendants’ Motion for Summary Judgment is granted in part, only to the

7

extent that damages and declaratory relief are barred by Eleventh Amendment
Immunity.
D. Judicial Immunity
Whether absolute judicial immunity can apply to a prison hearing officer
depends on several factors: (1) whether he is a professional hearing officer or
merely a prison employee subordinate to the warden; (2) he is employed by an
entity separate from the prison; (3) his adjudicatory duties are enumerated in
statute; (4) his decisions must be in writing and include findings of fact and the
underlying evidence; and (5) a conviction may be reviewed through rehearing or
judicial review. Shelly v. Johnson, 849 F.2d 228, 230 (6th Cir. 1988) (per curiam).
In this case, Defendant Szappan is employed by the State of Michigan’s Licensing
and Regulatory Affairs Department, not the Michigan Department of Corrections,
as an Administrative Law Judge. His duties are governed by Michigan statute,
which states that his decision must be in writing and include findings of fact.
Mich. Comp. Laws § 791.252(k). The statute provides for both rehearing and
judicial review. § 791.255. Therefore, absolute judicial immunity can apply to
Defendant Szappan.
Whether Defendant Szappan is actually entitled to absolute judicial
immunity also depends on whether he acted within the scope of his authority.
Adjudicatory officers who act within the scope of their authority and are subject to

8

adequate regulation are entitled to absolute immunity. Butz v. Economou, 438 U.S.
478, 514 (1978). In this case, Defendant Szappan has clearly acted within the
scope of his authority. The only factual allegations alleged by the Plaintiff (as
opposed to legal conclusions) are the following: (1) Defendant Szappan lied about
having evidence that inculpated the Plaintiff in the charged misconduct (i.e. the
video); and (2) Defendant Szappan suppressed any exculpatory evidence requested
by the Plaintiff during the hearing. The first factual allegation is negated by the
fact that the Plaintiff has had the opportunity to view the previously undisclosed
videotape. The second factual allegation is addressed by the statute that governs
Defendant Szappan’s duties. Under Mich. Comp. Laws § 791.252, a hearing
officer “may refuse to present the prisoner’s questions to the witness or witnesses.”
§ 791.252(e).

Under the statute, a hearing officer “may deny access to the

evidence to a party if the hearings officer determines that access may be dangerous
to a witness or disruptive of normal prison operations.” § 791.252(h). Because
Defendant Szappan was afforded this discretion regarding exculpatory evidence
requested by the Plaintiff, he could not have acted outside the scope of his
authority based on the alleged misconduct. Aside from the scope of authority,
Defendant Szappan was subject to adequate regulation. He worked “under the
direction and supervision of the hearings division,” § 791.251(6), which in turn
was “under the direction and supervision of the hearings administrator who is

9

appointed by the director of the department,” § 791.251(1).

Therefore,

Defendants’ Motion for Summary Judgment is granted as to absolute immunity for
Defendant Szappan.
IV.

CONCLUSION
Accordingly,
IT IS ORDERED that the Report and Recommendation of Magistrate Judge

Hluchaniuk [Docket No. 62, filed on April 1, 2013] is ADOPTED.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary
Judgment [Docket No. 50, filed on November 9, 2012] is:
(1) GRANTED IN PART, as to the alleged violation of due process by
fabricating a videotape or using such a videotape, AND OTHERWISE
DENIED as to all other alleged violations of due process;
(2) DENIED as to qualified immunity;
(3) GRANTED IN PART, as to prayer for damages and declaratory relief barred
by Eleventh Amendment immunity, AND DENIED as to prayer for
injunctive relief; and

10

(4) GRANTED as to judicial immunity for Defendant Szappan. Defendant
Michael Szappen is DISMISSED with prejudice from this action.
IT IS FURTHER ORDERED that the Magistrate Judge submit a status
report of the case to the Court within 30 days from this date so that a Final
Pretrial Conference may be set by the Court if the matter is prepared for
trial.
IT IS SO ORDERED.
s/Denise Page Hood
DENISE PAGE HOOD
United States District Judge
DATED: September 30, 2013

11