Cannon v. Bernstein et al
ORDER Denying Defendants' Motion for Reconsideration of This Court's September 30, 2013 Order 71 . Signed by District Judge Denise Page Hood. (LSau)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 09-14058
HONORABLE DENISE PAGE HOOD
FRANK BERNSTEIN, et al,
ORDER DENYING DEFENDANTS’ MOTION FOR RECONSIDERATION
OF THIS COURT’S SEPTEMBER 30, 2013, ORDER [#71]
This matter is before the Court is Defendants’ Motion to Reconsider this
Court’s September 30, 2013, Order Accepting the Magistrate Judge’s Report and
Recommendation and Granting in Part and Denying in Part the Defendants’ Motion
for Summary Judgment. [Docket No. 71, filed October 7, 2013] In this Court’s
Order, in determined that: (1) Defendants’ Motion for Summary Judgment [Docket
No. 50, filed on November 9, 2012] was granted as it related to Plaintiff’s alleged
violation of due process by fabricating a videotape or using such a videotape and
denied as to all other alleged violations of due process; (2) denied as to qualified
immunity; (3) granted as to Plaintiff’s prayer for damages and declaratory relief
barred by Eleventh Amendment immunity, (4) denied as to Plaintiff’s prayer for
injunctive relief; and (4) granted as to judicial immunity for Defendant Szappan.
Defendant Szappan does not object to the portion of this Court’s Order, which
dismissed him from the case. Defendants argue that in light of Sixth Circuit Court of
Appeals case Peterson v. Johnson, 714 F.3d 905 (6th Cir. 2013), and review of the
whole record in this case, the Magistrate Judge should have recommended that all
Defendants receive summary judgment. Defendants also contend that they are also
entitled to qualified immunity for the reason that, based on the above, Plaintiff has
failed to demonstrate a constitutional violation. Defendants move this Court to
decline to adopt the portion of the Report and Recommendation that finds otherwise.
For the reasons discussed below, the Defendants’ Motion for Reconsideration
of this Court’s September 30, Order is DENIED.
The Court restates its adopted 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).
STANDARD OF REVIEW
The Local Rules of the Eastern District of Michigan provide that any motion
for reconsideration must be filed within 14 days after entry of judgment. E.D. Mich.
L.R. 7.1(h)(1). No response or oral argument is allowed unless the Court orders
otherwise. E.D. Mich. L.R. 7(h)(2). Rule 7.1(h)(3) provides that “the court will not
grant motions for rehearing or reconsideration that merely present the same issues
ruled upon by the court, either expressly or by reasonable implication.” The Court
may grant a motion for reconsideration if the movant shows that the Court and the
parties were misled by a “palpable defect.” E.D. Mich. L.R. 7.1(h)(3). A “palpable
defect” is a “defect which is obvious, clear, unmistakable, manifest, or plain.” Olson
v. The Home Depot, 321 F. Supp. 2d 872, 874 (E.D. Mich. 2004). “The movant must
not only demonstrate a palpable defect . . . but also show that correcting the defect will
result in a different disposition of the case.” E. D. Mich. L.R. 7.1(h)(3).
As a threshold matter, the Court again reiterates the allegations of the Plaintiff’s
claim. Though Plaintiff implicitly contends that there was no evidence to sustain his
major misconduct conviction, as this Court read Plaintiff’s Complaint, Plaintiff alleges
that the Defendants falsified evidence and failed to present, and otherwise hindered
the use of, exculpatory evidence during his hearing. The Court again stresses the fine
line between the sufficiency of the evidence and the manner in which it was developed
and utilized. It wasand is againwith this important distinction in mind that the
Court readdresses the Magistrate’s Report and Recommendation and Defendants’
Defendants, relying on Peterson v. Johnson, 714 F.3d 905 (6th Cir. 2013),
argue that the Magistrate Judge should have recommended that all Defendants be
granted summary judgment and were also entitled to qualified immunity because
Plaintiff failed to demonstrate a constitutional violation. In Peterson, a Michigan
prisoner brought a § 1983 action against prison officers for an officer’s alleged use of
excessive force. The Plaintiff was charged with the major misconduct of committing
an assault and battery, for grabbing an Officer’s arm and pulling it into his cell. The
Plaintiff denied grabbing the Officer’s hand. Neither the Plaintiff nor Defendants
(there were two officers involved in the incident) denied the physical confrontation
that began when the officers were attempting to put Plaintiff back into his cell. The
Plaintiff, however, contended that during the confrontation, the officers used
excessive force in attempting to subdue him and put him back into his cell. A hearing
was held on the issue and the hearing officer found that the Plaintiff grabbed the
Officer’s right hand and pulled the Officer’s hand into the cell door as it was closing.
The hearing officer further determined that the Officer would not have voluntarily
placed his hand in a position where the cell door could have closed on it. The hearing
officer sentenced plaintiff to 30 days of detention. Peterson subsequently filed a
Complaint and Defendants filed a motion for summary judgment. In the report and
recommendation ruling on the Defendants’ motion for summary judgment, the
Magistrate Judge stated:
Plaintiff alleges defendant Johnson “retaliated” against him
in violation of his First Amendment rights by filing three
major misconduct charges against plaintiff: (1) on June 23,
2006, for possession of dangerous contraband; (2) on
November 13, 2006, for disobeying a direct order; and (3)
on December 17, 2006, for an assault and battery. Hearing
officers found plaintiff guilty of all three major misconduct
charges, and none of the convictions have been overturned.
Further, plaintiff alleges that Johnson's failure to take him
to the typing room on June 15, 17, and 21, 2006, the lack of
towels in his cell and a missed meal on December 13, 2006,
and an affidavit that went missing after plaintiff returned
from the shower on December 17, 2006, all constituted
retaliation. Plaintiff alleges that on December 17, 2006,
defendants Johnson and Lindy used excessive force in
subduing him in violation of his Eighth Amendment rights.
Peterson v. Johnson, 1:09-CV-225, 2011 WL 1627924, at *1 (W.D. Mich. Mar. 28,
2011). The Magistrate Judge recommended that all of the Plaintiff’s claims against
the Defendants in their official capacities were dismissed with prejudice because they
were barred by Eleventh Amendment immunity.
The Magistrate Judge also
recommended that the Defendants’ motion for summary judgment be grated and that
judgment be entered in the Defendants’ favor on all of the Plaintiff’s federal claims.
The District Court accepted these recommendations. See Peterson v. Johnson, 1:09CV-225, 2011 WL 1627901 (W.D. Mich. Apr. 28, 2011). The prisoner appealed.
In denying the prisoner’s appeal and affirming the District Court’s grant of
summary judgment, the Sixth Circuit Court majority1 stated that ordinarily, the
summary judgment standard of review would have required reversing the judgment
below due to the disputes of fact regarding “whether force was applied in a good-faith
effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”
The appeals court noted, however, that this was “not an ordinary case” that came to
the court on a “comparatively blank slate” but rather one that came “after an agency
had issued a final determination on precisely the disputed factual matter on which this
case turns and has done so in an adjudicative setting where the parties had the
incentive to, and in fact did, vigorously assert their contradicting positions.” The
The Court notes that Circuit Judge Bernice B. Donald filed a dissenting opinion.
appeals court also considered that the case did not come to it on direct review, but in
a “collateral proceeding that seeks to wholly set aside the agency’s prior factual
The Sixth Circuit opinion ultimately held that “the hearing officer’s factual
finding that Peterson was the one who grabbed [the Officer’s] hand preclude[d] a
contrary finding in federal court.” Peterson, 714 F.3d at 917. Turning to the
substance of the motion before it, the Sixth Circuit court further stated that “the
question then becomes whether, on the facts of this case, a reasonable jury could find
that [the Officer’s] brief struggle to free his hand and then return Peterson to his cell
was a malicious and sadistic use of excessive force.” Id. at 917-18 (citing Bazzi v.
City of Dearborn, 658 F.3d 598, 602 (6th Cir. 2011) (recognizing that summary
judgment is appropriate if “the evidence is such that a reasonable jury could [not]
return a verdict for the plaintiff”)). Finding that a reasonable jury could not, the Sixth
Circuit affirmed the District Court’s ruling.
The Sixth Circuit in its decision to affirm the District Court limited its finding
of preclusion to the “facts of [that] case.” Further, the Sixth Circuit noted that its
holding included “only factual issues decided by a state agency” and stressed that
“[h]ad the hearing officer purported to make a legal conclusion regarding Peterson’s
federal constitutional rights, [the] analysis would necessarily be different and [the
court] could not likely be so deferential.” Lastly, the Court notes the dissent written
by Judge Donald. In the dissent, Judge Donald stated, in relevant part,
I believe that this case presents an instance in which
granting preclusive effect to the hearing officer’s finding of
fact as it relates to Peterson’s assault on Officer Johnson is
not dispositive of Peterson’s subsequent § 1983 excessive
force claim. The majority’s determination that this fact is
indeed dispositive is the sole reason it would not succumb
to our standard of review and reverse the judgment below.
Because I would find differently and believe there remains
a genuine issue of material fact regarding whether the
degree of force used against Peterson was excessive, I
would reverse the district court's grant of summary
judgment to the Defendants.
Peterson v. Johnson, 714 F.3d 905, 920 (2013) (Donald, J., dissenting).2
Here, the Court is unpersuaded that on the facts of this case, the Peterson
decision requires summary judgment relief be granted to Defendants. The Court is
satisfied, as Defendants have argued, that Plaintiff had a hearing before a hearings
officer. As exhibited in the Order Affirming Agency Decision [Docket No. 60, Ex.
1], Judge Giddings of the Thirtieth Judicial Circuit Court For Ingham County did
The majority noted the dissent’s belief that “even if the factual question of who
grabbed whose hand is not subject to further dispute, sufficient issues of material fact
still remain that preclude summary judgment.” However, the majority held that “with
the hand-grabbing question having been conclusively settled by the hearing officer’s
factual finding, Peterson’s remaining factual allegations [were] insufficient to present
an excessive force claim that can survive summary judgment.” Peterson, 714 F.3d at
918, n1. The majority determined that “the fact that the factual finding here was
originally made in the context of one legal claim
(i.e., assault and battery) does not negate the preclusive effect of that same factual
finding in the context of other legal claims (e.g., excessive force).”
affirm the hearing officer’s decision. However, Judge Giddings stated that “[t]he
agency’s finding of major misconduct is supported by competent, material and
substantial evidence on the whole record.” [Docket No. 13, Pg ID 51]
Plaintiff’s Complaint before this Court alleged that the disciplinary report
prepared by Defendant Frank Bernstein falsely alleged that evidence linked Plaintiff
to the attempt to escape. More importantly, Plaintiff also alleged that Defendants
submitted additional false reports, hid exculpatory evidence, and intimidated witnesses
into not making statements. Plaintiff contended that as a result of the disciplinary
report, he was kept in disciplinary confinement pending the outcome of a hearing. As
Defendants argue, the hearings officer determined that Plaintiff was guilty of having
committed major misconduct and that determination was affirmed by the Circuit
Judge. However, Defendants do not allege that the hearings officer or the Circuit
Court Judge made a determination whether Defendants in fact submitted false reports,
hid exculpatory evidence, or intimidated witnesses. If this was in fact the case, the
record before both the hearings officer and subsequently before the Circuit Judge was
incomplete; the same constitutional violation Plaintiff claims in this case. The
findings of fact made by the hearings officer, that Plaintiff committed major
misconduct by essentially attempting to escape the prison, says nothing about
Plaintiff’s claim that there was evidence that, if placed before the hearings officer,
could have changed his determination.
As stated in the report and recommendation, it is well-established that offering
false evidence or perjured testimony in a misconduct hearing against a prisoner can
sustain a substantive due process claim. See e.g. Chancellor v. City of Detroit, 454
F. Supp. 2d 645, 659 (E.D. Mich. 2006) (noting that the Supreme Court held in Pyle
v. Kansas, 317 U.S. 213, 216 (1942), that “‘perjured testimony knowingly used by the
state authorities to sustain [defendant’s] conviction’ and ‘deliberate suppression by
these same authorities of evidence favorable to him’ violates the Constitution.”). The
Court has noted that Plaintiff does not dispute that defendants found some evidence
that someone tried to escape but that it was not he who tried to escape. The
determination of the hearings officer, affirmed by the Circuit Court, was that it was
in fact Plaintiff who tried to escape. However, Plaintiff’s second contention, “that
defendants, in their zeal to find the culprit and avoid appearing incompetent, picked
him as a convenient target, filled in the gaps with fabricated evidence, and concealed
evidence that would exonerate plaintiff,” was not addressed.
The Court still
determines this question to be one of fact that was not yet addressed and not disposed
of simply by finding that Plaintiff attempted to escape.
Rule 56(a) of the Rules of Civil Procedures provides that the court “shall 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). The presence of factual disputes will preclude granting of summary
judgment only if the disputes are genuine and concern material facts. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is
“genuine” only if “the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Id. Whether Defendants submitted false reports, hid
exculpatory evidence, and intimidated witnesses into not making statements is a
genuine dispute concerning material facts that go to the heart of Plaintiff’s
Though the Court grants Defendants’ Motion for Reconsideration for a showing
of “palpable defect” in the Court’s failure to directly address Peterson, Defendants
have failed to demonstrate, based on the Court’s analysis above, “that correcting the
defect will result in a different disposition of the case.” E. D. Mich. L. R. 7.1(h)(3).
IT IS ORDERED that Defendants’ Motion to Reconsider this Court’s
September 30, 2013, Order [Docket No. 71, filed October 7, 2013] is DENIED .
IT IS SO ORDERED.
S/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: March 31, 2014
I hereby certify that a copy of the foregoing document was served upon counsel
of record on March 31, 2014, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
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