Cannon v. Bernstein et al

Filing 98

ORDER Adopting 95 Magistrate Judge's Report and Recommendation. Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SAMUEL CANNON,
Plaintiff,
Case No. 09-14058
v.
Hon. Denise Page Hood
FRANK BERNSTEIN, et al,
Defendants.
/
ORDER ADOPTING MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION
This matter is before the Court on Magistrate Judge Michael J. Hluchaniuk’s
Report and Recommendation on the Motion for Summary Judgment filed by
Defendants Teresa Peiffer, Frank Bernstein, and Christopher Conachan [Docket
No. 85, filed February 4, 2015].

Defendants timely filed Objections to the

Magistrate Judge’s Report and Recommendation and Plaintiff filed a Response to
the Objections. For the reasons stated below, the Court ADOPTS the Magistrate
Judge’s Report and Recommendation in its entirety [Docket No. 95, filed May 26,
2015].

Defendants’ Motion for Summary Judgment [Docket No. 85, filed

February 4, 2015] is DENIED.
I.

BACKGROUND
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).
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.

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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 June 9, 2015.
III.

ANALYSIS
The Magistrate Judge made four recommendations: (1) qualified immunity

should be denied because Plaintiff is not required to show he was subjected to
longer incarceration as a result of the misconduct conviction for a substantive due
process claim; and (2) Peterson v. Johnson, 714 F.3d 905, 917 (6th Cir. 2013),
does not provide a basis for rejecting Plaintiff’s substantive due process claim as
barred by collateral estoppel because Plaintiff was not given the opportunity to
vigorously contest the charges against him.
A. Qualified Immunity
The Court agrees with the Magistrate Judge regarding the Defendants’ claim
of qualified immunity. Plaintiff alleged a substantive due process claim alleging a

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violation of his right to be free from a conviction. Contrary to Defendants’
argument, Plaintiff is not required to show he was subjected to long incarceration
as a result of the misconduct violation when the substantive due process claim is
based on an allegation of falsified evidence or perjured testimony. See Hirmuz v.
City of Madison Heights, 469 F. Supp. 2d 466, 483 (E.D. Mich. 2007) (Defendant
is not entitled to qualified immunity on the claim that he fabricated a confession);
see also Thomas v. Russell, 202 F.3d 270 (6th Cir. 2000) (unpublished opinion).
Defendants object to the Report and Recommendation, stating that it fails to
address the argument that Plaintiff cannot demonstrate that Defendants maliciously
framed him for an offense and caused him to be subjected to a risk of prolonged
incarceration. Although the Magistrate Judge did not address the issue directly in
the section on qualified immunity, the matter has already been addressed in the
September 30, 2013, Order Accepting the Magistrate Judge’s Report and
Recommendation:
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.
[Docket No. 67, filed September 30, 2013]. This decision remains
applicable to this case.
B. Collateral Estoppel Under Peterson

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The Court agrees with the Magistrate Judge that Defendants are not entitled
to summary judgment pursuant to Peterson. In Roberson v. Torres, 770 F.3d 398
(6th Cir. 2014), the Court limited the application of Peterson. The Roberson court
stated, in pertinent part,
Peterson is not a blanket blessing on every factual finding in a majormisconduct hearing. Although the language of our opinion in Peterson
is at times categorical, our decision to accord preclusive effect to
particular findings from Peterson's prison hearing necessarily turned,
at least in part, on the particular circumstances of Peterson's case.
Indeed, the question of preclusion cannot be resolved categorically, as
it turns on case-specific factual questions such as what issues were
actually litigated and decided, and whether the party to be precluded
had sufficient incentives to litigate those issues and a full and fair
opportunity to do so—not just in theory, but in practice.
770 F.3d at 404-05.
The Court also agrees with the Magistrate Judge that Defendants have not
shown that Plaintiff had a full and fair opportunity to litigate the issue, which is
required in order to grant estoppel. See id. at 404, quoting Peterson, 714 F.3d at
914 (citations omitted).

The Magistrate Judge listed several ways in which

Plaintiff was prevented from having a full and fair opportunity to litigate his case,
including claims that Plaintiff was prevented from obtaining video evidence and
logbooks, Plaintiff was denied access to Corrections Officer Peggy Winters who
was listed as witness and purportedly identify plaintiff on the video, and witness
testimony that someone other than plaintiff attempted the escape was not presented
to the hearing officer or Ingham Circuit Court Judge James Giddings.
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Because Plaintiff was not given the opportunity to vigorously contest the
charges against him, Peterson does not provide a basis for barring Plaintiff’s
substantive due process claims.
IV.

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

Hluchaniuk [Docket No. 95, filed May 26, 2015] is ACCEPTED and ADOPTED
as this Court’s findings and conclusions of law.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary
Judgment [Docket No. 85, filed February 4, 2015] is DENIED.
IT IS SO ORDERED.

S/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: September 30, 2015
I hereby certify that a copy of the foregoing document was served upon counsel of
record on September 30, 2015, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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