Annabel v. Frost et al

Filing 240

ORDER denying 210 Motion for Summary Judgment; denying 211 Motion ; adopting in part 232 Report and Recommendation. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT ANNABEL,
Case No. 14-10244
Plaintiff,
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

v.
JACK FROST, ET AL.,

U.S. MAGISTRATE JUDGE
R. STEVEN WHALEN

Defendants.
/
ORDER ADOPTING IN PART REPORT AND RECOMMENDATION [232]; SUSTAINING
IN PART AND OVERRULING IN PART PLAINTIFF’S OBJECTIONS TO REPORT AND
RECOMMENDATION [236]; DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT [210]; DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[211]
On January 17, 2014, Plaintiff Robert Annabel filed this 42 U.S.C. § 1983
prisoner civil rights action against Defendants Jack Frost, Steven Kindinger,
Sherman Campbell, James Eaton and Keith McConnell. Defendants are all
employees of the Michigan Department of Corrections (“MDOC”) at Gus Harrison
Correctional Facility where Plaintiff is incarcerated. Plaintiff filed his Motion for
Summary Judgment [Dkt. # 210] on January 3, 2019. Defendants filed their Motion
for Summary Judgment [211] on January 4, 2019. On August 9, 2019, the Magistrate
Judge issued a Report and Recommendation (“R&R”) [232] recommending that the

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Court deny Plaintiff’s motion, grant Defendants’ motion and dismiss the case.
Plaintiff filed Objections [236] to the R&R on August 23, 2019.
For the reasons stated below, the R&R [232] is ADOPTED in part;
Plaintiff’s Objections [236] are SUSTAINED in part and OVERRULED in part;
Plaintiff’s Motion for Summary Judgment [210] is DENIED and Defendants’
Motion for Summary Judgment [211] is DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
The Court adopts the facts of this case as set forth in the R&R:
A. Plaintiff’s Allegations
At the time of the alleged incidents giving rise to the complaint,
Plaintiff was incarcerated at the Gus Harrison Correctional Facility.
Amended Complaint, Docket #18, filed April 8, 2014. On July 1, 2013,
he asked Assistant Resident Unit Manager (“ARUM”) Steven
Kindinger (“Kindinger”) to post a sign-up sheet for inmates seeking to
obtain a position as unit representative. Kindinger told him, “I don’t
want you as block rep.” Id, ¶ IV-1. Because Kindinger had still not
posted a sign-up sheet by July 12, 2013, Plaintiff filed a grievance on
July 17, 2013. Id. ¶ IV-3. Defendants James Eaton (“Eaton”),
Grievance Coordinator and Sherman Campbell (“Campbell”), Deputy
Warden rejected the grievance and, Plaintiff alleges, he notified
Defendants Kindinger and Jack Frost (“Frost”), a Corrections Officer,
that Plaintiff had written a grievance and should be disqualified from a
unit representative position. Id. ¶ IV-4-5.
On July 22, 2013, Plaintiff opened the tray slot in prisoner
McQuitter’s cell and delivered a folded t-shirt to McQuitter. Id. ¶ IV-8.
Defendant Frost then walked toward Plaintiff and said, “You’re in
trouble, go lock up.” Id. ¶ IV-9. Frost wrote a Class II misconduct ticket
against Plaintiff for disobeying a direct order. Id. ¶ 10. Plaintiff alleges
that “Frost would not have written a Class II misconduct for disobeying
a direct order if Plaintiff hadn’t pressed the issue about a unit
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representative position with his superiors and then filed a grievance.”
Id. ¶ IV-12.
At the misconduct hearing on August 4, 2013, Plaintiff admitted
to opening McQuitter’s tray slot, but denied that Frost had ever given
him a direct order to not pass items to another prisoner. Plaintiff states
that Captain Keith McConnell (“McConnell”), who conducted the
hearing, “falsely claimed in a hearings report that Plaintiff admitted
disobeying a direct order.” Id. ¶¶ IV-17-20. He also alleges that in the
August 6, 2013 hearings report, McConnell “acknowledged that
Plaintiff said the incident could not have occurred at 1620 hrs., as stated
on the misconduct report and changed the time to ‘approximately 1830
hours’....” Id. ¶ IV-20. Following the misconduct report, Plaintiff, who
had won election as unit representative, was removed from that
position. Id. ¶¶ IV-19, 21.
Plaintiff brings the following claims:
(1) That all Defendants retaliated against him, in violation
of his First Amendment right to file a grievance and “for his
exercise of the right to freedom of speech on behalf of himself
and other prisoners.”
(2) That Defendant Frost violated substantive due process
by issuing a false misconduct charge.
(3) That Defendant McConnell violated procedural due
process at the misconduct hearing.
(4) That Defendant Campbell violated due process by
upholding McConnell’s “false and unsupported findings.” Id. ¶¶
V -1-4.
Plaintiff requests monetary damages, attorney fees, and costs
against all five Defendants. Id. ¶¶ VI-a-j.
B. Procedural History
On January 22, 2016, the District Court adopted the
undersigned’s recommendation to dismiss the action in its entirety
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under Fed. R. Civ. P. 12(b)(6) and entered judgment in favor of
Defendants. Docket #28, 38, 59-60. On September 21, 2016, the Sixth
Circuit vacated the dismissal of the First Amendment retaliation claim
but affirmed the dismissal of the procedural and substantive due process
claims. Annabel v. Frost, Case No. 15-1518, 4 (6th Cir. Sept. 21,
2016)(unpublished) Docket #63. As to the retaliation claims, the Court
held that Plaintiff’s allegation that the Class II misconduct conviction
remained on file, increased classification points, interfered with point
reduction, affect parole decisions, and disqualified him from “unit
representative positions” sufficiently pled an “adverse action” to
“proceed past the pleading stage.” Docket #63, 4 (citing Hill v. Hoffner,
2016 WL 1165405, at *6 (W.D. Mich. March 25, 2016))(issuance of
Class II misconduct charge states an “adverse action” for pleading
purposes)1.
As to the requirement of alleging a correlation between the protected
conduct and adverse action, the Sixth Circuit noted:
Annabel alleged that Defendants Eaton and Campbell told
Kindinger and Frost that Annabel should be disqualified from a
unit representative position because he filed a grievance. He also
alleged that Frost wrote a false misconduct ticket for another
prisoner who was ‘pressing the issue of a unit representative
el[e]ction as an intended candidate’ in order to disqualify him for
the position. These allegations, coupled with the temporal
proximity between Annabel’s grievance and the misconduct
charge [five days], sufficiently stated a plausible First
Amendment retaliation claim. Docket #63, 5.
STANDARD OF REVIEW
The Court’s review of objections to a Magistrate Judge’s R&R on a
dispositive motion is de novo. 28 U.S.C. § 636(b)(1)(c). “‘[O]bjections disput[ing]

However, the Court observed elsewhere that aside from the termination from the unit
representative position, Plaintiff “did not allege any facts concerning the nature of the penalty
he received as a result of the [misconduct] charge.” Docket #63 at 6.
1

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the correctness of the magistrate’s recommendation but fail[ing] to specify the
findings . . . believed in error’ are too general.” Novak v. Prison Health Services,
Inc., No. 13-11065, 2014 WL 988942, at *3 (E.D. Mich. Mar. 13, 2014) (quoting
Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995)). Ordinarily, objections that lack
specificity do not receive de novo review. Mira v. Marshall, 806 F.2d 636, 637 (6th
Cir. 1986). However, courts construe the objections of pro se litigants liberally. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007). In addition, the Court may accept, reject,
or modify any or all of the Magistrate Judge’s findings or recommendations. Fed. R.
Civ. P. 72(b)(3).
A party is entitled to summary judgment when “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). A fact is material if it “might affect the outcome of the suit under
the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Additionally, where “the parties filed cross-motions for summary judgment, ‘the
court must evaluate each party’s motion on its own merits, taking care in each
instance to draw all reasonable inferences against the party whose motion is under
consideration.’” McKay v. Federspiel, 823 F.3d 862, 866 (6th Cir. 2016) (quoting
Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991)).

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Here, this Court’s task is to determine whether there is a genuine issue of
material fact in Plaintiff’s retaliation claim against Defendants. Plaintiff has the
burden of proving 3 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 378, 394 (6th Cir. 1999).
The first two elements are not in dispute. R&R at 7. However, the causal connection
between them is. Recognizing the difficulty of proving an official’s retaliatory
motive with direct evidence, the Sixth Circuit has stated that circumstantial evidence
will suffice. Hill v. Lappin, 630 F.3d 468, 475 (6th Cir. 2010). Examples of
circumstantial evidence include the timing of events and disparate treatment of
similarly situated individuals. Thaddeus-X v. Blatter, 175 F.3d at 399. Plaintiff here
alleges temporal proximity between his grievance and his misconduct ticket, but
“often evidence in addition to temporal proximity cases is required.” Holzemer v.
City of Memphis, 621 F.3d 512, 526 (6th Cir. 2010). “In analyzing the facts in
temporal proximity cases, [the Sixth Circuit has] always looked at the totality of the
circumstances to determine whether an inference of retaliatory motive can be
drawn.” Vereecke v. Huron Valley Sch. Dist., 609 F.3d 392, 401 (6th Cir. 2010).

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ANALYSIS
I.

Report & Recommendation [232]
a. Plaintiff’s Motion for Summary Judgment
Summary judgment is a case filter. It helps determine which cases should be

decided as a matter of law, and which contain factual disputes that require jury
submission. Since this case presents two sides to the same story, it fits the latter
description. While the Magistrate Judge applied the correct summary judgment
standard, he overlooked key aspects of Plaintiff’s evidence that show sufficient
disagreement between the parties. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251–52 (1986). First, Plaintiff’s story hinges on whether or not his misconduct
ticket for disobeying a direct order was false. If Plaintiff’s evidence was limited
merely to his word versus Defendant Frost’s it would likely be a loser at trial.
However, Plaintiff’s picture is in a higher definition than the R&R shows. Plaintiff
presents 2 sworn affidavits from witnesses of his encounter with Defendant Frost.
[Dkt. #152, ex. 8, 9]. Both of their affidavits are consistent with Plaintiff’s story—
Defendant Frost never gave Plaintiff a direct order. Id. Without a direct order to
disobey, Plaintiff’s misconduct ticket is false. Furthermore, both sides have a curious
disagreement about exactly when the encounter took place. Plaintiff and his
witnesses say it occurred at 16:30, Defendant say 14:30. [Dkt. #210, pg. 3, 5, 12].
This discrepancy is important, because it changes the window of time during which
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the Defendants’ preserved and observed the security footage. This discrepancy could
also be meaningless, but that is for a jury to decide.
Prisoner Gray’s involvement also presents another key aspect to Plaintiff’s
story. Prisoner Gray, along with Plaintiff, was an unofficial block representative
seeking a special election. Id. at 35. After Plaintiff was denied the special election,
Prisoner Gray was also issued a misconduct ticket that Plaintiff alleges was false.
Specifically, Plaintiff alleges that Prisoner Gray, a wheelchair bound inmate, was
verbally harassed and provoked into a false misconduct ticket for threatening
behavior. Id. at 4. If this is true, it would highlight the totality of Plaintiff’s
circumstances and Defendant’s actions as not just adverse against a grievance but
retaliation against electing official block representatives that have the privilege of
attending warden forums and advocating for the residents of their wing — a
privilege that Plaintiff and Prisoner Gray lacked as unofficial representatives. Once
again, these facts may turn out to be ultimately unconvincing, but they shed light
on exactly what summary judgment motions are meant to reveal—genuine issues
of material facts. Therefore, Plaintiff’s Motion for Summary Judgment [210] is
denied.
b. Defendants’ Motion for Summary Judgment
Both the Magistrate Judge and the Defendants took great strides to argue that
Plaintiff has the burden of proving all 3 elements of his claim, but both failed to
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mention an equally essential aspect of a retaliation case — the shifting burden. Once
Plaintiff proves prima facially that not only did Defendants take adverse action
against Plaintiff but that it had a but for causal connection with Plaintiff’s protective
conduct rendering it retaliatory; the Defendant has the burden of proving reasons for
taking adverse action independent of Plaintiff’s protective conduct. Thaddeus-X v.
Blatter, 175 F.3d at 399. In effect, Defendants bear the burden of severing the causal
connection.
If they successfully severed this connection, they would be entitled to
summary judgment. However, they did not. Instead “defendants have done little
more than deny the allegations put forth by plaintiffs[,] [s]uch is not sufficient to
meet their burden under Federal Rule of Civil Procedure 56 to show affirmatively
that there is no genuine issue in dispute.” Id. As a result, the Court is presented with
two accounts of the same story. One arguing that each piece of evidence is a link in
a chain of a retaliation conspiracy. The other arguing that each piece of evidence
amounts to a mere coincidence of isolated incidents. This Court cannot render an
opinion on this factual dispute. Instead, the law dictates jury submission. Therefore,
Defendants’ Motion for Summary Judgment [211] is denied.
II.

PLAINTIFF’S OBJECTIONS [236]

Objection 1: “The evidence should have been viewed in a light most favorable to
Plaintiff on defendants’ motion for summary judgment.” [Dkt. #236, pg. 1].
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Plaintiff argues that the R&R “wholly accepts defendant’s contradicted
accounts as truth while ignoring or dismissing contrary evidence.” Id. at 2.
Specifically, Plaintiff notes that the R&R discounted Plaintiff’s assertions regarding
the false misconduct ticket and the time of the ticket was issued, while embracing
Defendants’ non-retaliatory reasons for rejecting the grievance. Id. In regards to the
false misconduct ticket, this Court agrees. The R&R states that “Plaintiff’s claim
that he did not commit the Class II infraction of disobeying a direct order is
contradicted by Frost’s testimony that he gave Plaintiff ‘several verbal commands
to stop’ including a direct command.” R&R at 19. Here, the Magistrate Judge
allowed “mere assertions that the incident described by a prisoner never took place
or was misdescribed.” Such assertions are “insufficient to show that no genuine issue
of material fact exists on a retaliation claim.” Bass v. Robinson, 167 F. 3d 1041,
1046 (6th. Cir. 1999). Moreover, the Magistrate Judge did not take note of Plaintiff’s
supporting affidavits that corroborate his claim that Defendant Frost did not give any
direct commands. This highlights a failure to look at the evidence of the light most
favorable to Plaintiff, therefore, objection 1 is sustained.
Objection 2: The Magistrate Judge’s conclusion that Plaintiff did not cite Prisoner
affidavits on the record is wrong.
The Magistrate Judge casts doubt on Plaintiff’s account of his interaction with
Defendant Frost that lead to Plaintiff’s misconduct ticket. R&R at 20. The Magistrate
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Judge states that Plaintiff in his deposition claims that 3 individuals witnessed his
account with Defendant Frost but Plaintiff failed to present these witness statements
to support his account of the interaction. This is not true. First, Plaintiff’s motion for
summary judgment did cite to supporting witness affidavits from Prisoners Williams
and Philips. [Dkt. #152, ex. 8, 9]. Second, both of their accounts support Plaintiff’s
allegations. Id. They both state that they did not hear Defendant Frost give Plaintiff
a direct order not to pass an item to another prisoner. Id.
The Magistrate Judge also found that Plaintiff’s statements are inconsistent in
that Plaintiff both states that Defendant Frost followed him “away from other
witnesses” and that 3 prisoners witnessed his interaction with Defendant Frost.
These statements are not inconsistent. R&R at 20. Plaintiff only claimed that
Defendant Frost followed him away from other witnesses – not all witnesses.
Although the time of their interaction is in dispute, both Plaintiff and Defendant
Frost agree that their interaction occurred when most inmates were locked up in their
cells, so it is inevitable that there were at least some witnesses. (See pg. ID. 2369).
Since Plaintiff did in fact provide the affidavits of 2 of the 3 witness, objection 2 is
sustained.
Objection 3: The Magistrate Judge erred in concluding that prisoner Gray is not
similarly situated to plaintiff.

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In this case, the Sixth Circuit vacated this Court’s 12(b)(6) dismissal of
Plaintiff’s retaliation claim in part because Plaintiff alleged that Defendant Frost
wrote another false misconduct ticket for Prisoner Gray who was also seeking a
special election. Annabel v. Frost, Case No. 15-1518, 5 (6th Cir. Sept. 21, 2016)
(unpublished). However, the R&R dismisses this allegation as providing sufficient
circumstantial evidence of a retaliatory motive because neither Prisoner Gray nor
Plaintiff on his behalf, grieved the denial of a special election. R&R at 21. The R&R
incorrectly infers that Prisoner Gray would need to be able to support his own
retaliation claim in order to bolster Plaintiffs. But the Sixth Circuit makes no mention
of such a high bar for circumstantial evidence. Here, after asking multiple times for
a special election, Defendant Frost accused Prisoner Gray of a Class I ticket which
subsequently disqualified him from running for a block representative position. [Dkt.
#210, pg. 4]. This fits squarely within the description of supporting circumstantial
evidence that lead the Sixth Circuit to uphold Plaintiff’s retaliation claim, therefore,
objection 3 is sustained.
Objection 4: The Magistrate Judge erred in using propensity evidence against
Plaintiff.
Plaintiff argues that the 5-day temporal proximity between his grievance and
his alleged false misconduct ticket supports his claims of a retaliatory scheme. In
response, the Magistrate Judge argues that this inference is diminished by the fact
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that Plaintiff is both a “‘prolific filer of grievances’ and a frequent receiver of
misconduct tickets.” R&R at 25. He goes on to argue that since Plaintiff averages
between 1 and 2 misconduct tickets and grievances every month, the close temporal
proximity between the grievance and misconduct ticket in this case is of less and
import. Id. Plaintiff then incorrectly argues that such evidence of past conduct is
inadmissible propensity evidence under Federal Rule of Evidence 404(a). [Dkt.
#236, pg. 4-5]. It is not. 404(a) prohibits the admission of past conduct in order to
show conformity with that conduct in this instance. However, here the Magistrate
Judge is not using Plaintiff’s past grievance or misconduct ticket to show any type
of conformity. Instead, he highlights frequent grievance and misconduct tickets to
show that statistically almost all of Plaintiff’s grievances and misconduct tickets are
temporally proximate and therefore using temporal proximity for support for
Plaintiff’s retaliation claim is weakened. For these reasons, objection 4 is overruled.
Objection 5: “Even if Kindinger is dismissed, Plaintiff’s retaliation claims against
other defendants may proceed.” [Dkt. #236, pg. 5].
Plaintiff seems to claim that there are multiple factual scenarios that could
support his retaliation claim rendering Defendant Kindinger disposable. Id.
However, this is directly at odds with the rest of Plaintiff’s evidence which all point
to Defendant Kindinger as the orchestrator of the alleged retaliation scheme and
without whom the other Defendants may not have been aware of Plaintiff’s
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insistence on holding a special election. [Dkt. #210, pg. 1; ex. 1 at 12]. Considering
Defendant Kindinger’s critical role in Plaintiff’s evidence, objection 5 is overruled.
Objection 6: “The R&R contradicts itself that Defendant McConnell was
grievable.” [Dkt. #236, pg. 5].
Under the PLRA, prisoners must exhaust all of their available administrative
remedies before filing a §1983. Prison Litigation Reform Act of 1996, 42 U.S.C.
§1997e(a). The R&R states that Plaintiff did not exhaust his available remedies in
regards to Defendant McConnell’s involvement in the alleged retaliation scheme
outside of being a hearing officer. R&R at 22. While Plaintiff did appeal Defendant
McConnell’s misconduct determination, he did not mention Defendant McConnell
in either of his grievances before the hearing. [Dkt. #152, ex. 2, 10]. Therefore, since
Plaintiff claims that Defendant McConnell is part of the alleged retaliation scheme,
but did not grieve Defendant McConnell’s role outside of the hearing, that part of
Plaintiff’s allegations are not exhausted. Objection 6 is overruled.
CONCLUSION
For the reasons stated above, the Court ADOPTS in part the R&R [232];
SUSTAINS in part and OVERRULES in part Plaintiff’s Objections [236];
DENIES Plaintiff’s Motion for Summary Judgment [210]; and DENIES
Defendants’ Motion for Summary Judgment [211].
Accordingly,
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IT IS ORDERED that the R&R [232] is ADOPTED in part.
IT IS FURTHER ORDERED that Plaintiff’s Objections [236] are
SUSTAINED in part and OVERRULED in part.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary
Judgment [210] is DENIED.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary
Judgment [211] is DENIED.
SO ORDERED.

Dated: September 30, 2019

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

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