Griffin v. Klee et al

Filing 41

ORDER Overruling Plaintiff's 39 Objections to 35 Report and Recommendation; Adopting 35 Report and Recommendation in Part; Granting Defendants' 32 Motion for Summary Judgment; and Dismissing Plaintiff's 22 Amended Complaint With Prejudice. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RANDLE GRIFFIN,
Plaintiff,

Case No. 14-cv-14290
Hon. Matthew F. Leitman

v.
PAUL KLEE et al.,
Defendants.
__________________________________________________________________/
ORDER OVERRULING PLAINTIFF’S OBJECTIONS (ECF #39) TO
REPORT AND RECOMMENDATION (ECF # 35); ADOPTING REPORT
AND RECOMMENDATION IN PART; GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT (ECF #32); AND DISMISSING
PLAINTIFF’S AMENDED COMPLAINT (ECF #22) WITH PREJUDICE
INTRODUCTION
Plaintiff Randle Griffin (“Griffin”) is an inmate in the custody of the
Michigan Department of Corrections (“MDOC”).

Griffin alleges that several

MDOC employees – Defendants Paul Klee (“Klee”), Roy Vest (“Vest”), Joe
Barrett (“Barrett”), and Michelle Parsons (“Parsons”) (collectively, “Defendants”)
– retaliated against him for exercising his First Amendment rights. Griffin has
brought an action against Defendants under 42 U.S.C. § 1983. (See Amended
Compl., ECF #22)

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Defendants jointly filed a Motion for Summary Judgment on June 15, 2015
the “Motion”). (See ECF #32.) Griffin filed a response opposing the Motion on
July 6, 2015. (See ECF #33.) The assigned Magistrate Judge issued a Report and
Recommendation (the “R&R”) on September 28, 2015, recommending that the
Court grant Defendants’ Motion.

(See ECF #35.)

objections to the R&R (the “Objections”).

Griffin has filed timely

(See ECF #39.)

The Court has

carefully reviewed the Objections and, for the reasons explained below,
OVERRULES Griffin’s Objections.
BACKGROUND OF PLAINTIFF’S CLAIMS AGAINST DEFENDANTS
The Court sets forth a summary of only the essential facts that are relevant to
a determination of the Objections.
In December 2011, Griffin was elected to the Warden’s Forum at the
Lakeland Correctional Facility (“LCF”).

According to Griffin, the Warden’s

Forum “raised serious issues on behalf on [sic] uneducated prisoners whom [sic]
otherwise could not seek redress without plaintiff’s assistance.” (See Amended
Compl., ECF #22 at ¶ 23, Pg. ID 128.)

On January 9, 2012, Griffin was

permanently removed from the Warden’s Forum. Griffin alleges that he was
removed from the Warden’s Forum because LCF’s warden, Klee, wrote a
memorandum recommending his removal. (See id. at ¶ 32, Pg. ID 129.) Griffin
contends that Klee had him removed from the Warden’s Forum because Griffin
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had filed a grievance against Klee. (Id.) Defendants counter that Griffin was
removed from the Warden’s Forum because an investigation by Investigator
Goldberg revealed that Griffin had threatened members of the Warden’s Forum
and threatened to kill another prisoner. (See Investigation Report, ECF #32-2, Pg.
ID 233.)
On January 10, 2012, Vest, an MDOC Inspector at LCF, recommended that
Griffin be transferred to another correctional facility. (See Vest Affidavit, ECF
#32-5 at ¶ 12, Pg. ID 272.)

Griffin alleges that Vest recommended the transfer

based on Klee’s memorandum and in retaliation for “assisting uneducated inmate’s
[sic] seek redress of their grievances . . . .” (See Amended Compl., ECF #22 at ¶
51, Pg. ID 132.) Vest denies that allegation and says that he recommended the
transfer because he received multiple complaints from other inmates indicating that
Griffin, among other things, intended to take control of the Warden’s Forum and
stage an assault against a prison official. (See Vest Affidavit, ECF #32-5 at ¶¶ 610, Pg. ID 270-71.) On January 20, 2015, Griffin was transferred to the G. Robert
Cotton Correctional Facility (“JCF”).
When Griffin arrived at JCF, he was housed in a security Level II unit. But
shortly after his arrival, Griffin was reclassified to security Level IV – a more
restrictive security level. Griffin alleges that Barrett, a former deputy warden at
JCF, reclassified Griffin to Level IV “because of a March 22, 2011 memorandum
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issued by . . . Klee and a January 10, 2012 Notice of Intent issued by [LCF]
Inspector Vest.” (Barrett Affidavit, ECF #32-6 at ¶ 4, Pg. ID 278.) Barrett denies
that allegation and says that Griffin’s security level was raised “due to a lack of
bed space at Level II.” (See Barrett Affidavit, ECF #32-6 at ¶ 5, Pg. ID 278.)
Griffin also alleges that Parsons, an Assistant Resident Unit Supervisor
(“ARUS”) at JCF, improperly authorized his (Griffin’s) placement in Level IV and
refused to reclassify Griffin to Level II “in retaliation for complaints he filed
against . . . Deputy Warden Barrett . . . .” (Parsons Affidavit, ECF #32-7 at ¶ 4, Pg.
ID 293.) Parsons, however, asserts that she did not have the authority to determine
Griffin’s security level and that she did not cause his placement or retention in
Level IV. (See id. at ¶ 5, Pg. ID 293.)
Griffin asserts the following claims against Defendants. First, Griffin asserts
that Klee recommended his removal from the Warden’s Forum in retaliation for his
(Griffin’s) filing a grievance against Klee and for his (Griffin’s) providing an
eyewitness account that Klee allegedly assaulted a fellow prisoner. (See Pls.’
Response Br., ECF #33 at 1, Pg. ID 317.)
Second, Griffin alleges that Vest recommended that Griffin be sent to
solitary confinement and eventually transferred from LCF to JCF “due to Warden
Paul Klee’s memo permanently prohibiting plaintiff’s participation in any
Warden’s Forums.” (See Amended Compl., ECF #22 at ¶ 32, Pg. ID 129.)
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Third, Griffin alleges that when he was transferred to JCF, Barret improperly
increased Griffin’s security level from Level II to Level IV in retaliation for
alleged rumors that he (Griffin) was “trying to take over the Warden’s Forum.”
(Id. at ¶ 39, Pg. ID 130.)
Fourth (and finally), Griffin alleges that Parsons refused to lower Griffin’s
security level in retaliation for filing inmate grievances and a lawsuit against
MDOC officials. (See id. at ¶ 55-56, Pg. ID 132-33.)
THE R&R
The Magistrate Judge evaluated Griffin’s claims against each Defendant
individually. The Magistrate Judge first identified the three elements of Griffin’s
First Amendment retaliation claim: that (1) he was engaged in protected conduct;
(2) Defendants took an adverse action against him that would deter a person of
ordinary firmness from continuing to engage in that conduct; and (3) there is a
causal connection between the allegedly-protected conduct and Defendants’
adverse actions. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999).
The Magistrate Judge concluded that each of Griffin’s claims against Defendants
failed because he had not established that Defendants took any retaliatory action
against him for engaging in protected conduct. (See R&R, ECF #35 at 14, 17, 19,
20, Pg. ID 396, 399, 401, 402.) Specifically, the Magistrate Judge determined that

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each Defendant would have taken the same action even in the absence of the
allegedly-protected activity. (See id.)
The Magistrate Judge also assessed whether Defendants Klee and Parsons
had the decision-making authority to authorize the allegedly retaliatory actions
taken against Griffin.

The Magistrate Judge concluded that Griffin did “not

[provide] sufficient evidence to dispute Defendant Klee’s sworn statement that he
was not the decision maker and therefore did not have authority to permanently
prohibit Plaintiff from being a member of the Warden’s Forum.” (R&R, ECF #35
at 13, Pg. ID 395.) Likewise, the Magistrate Judge concluded that Griffin did “not
provide any evidence to indicate that Defendant Parsons was a decision maker
capable of increasing or decreasing his security level.” (Id. at 20, Pg. ID 402.) As
a result, the Magistrate Judge concluded that neither Klee nor Parsons took
retaliatory action against Griffin because they did not have final decision-making
authority.
Griffin’s Objections to the R&R (ECF #39) are described in detail below
with respect to each Defendant.
GOVERNING LEGAL STANDARD
This Court reviews de novo the portions of the R&R to which a party has
have. See Fed. R. Civ. P. 72(b)(3).

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A movant is entitled to summary judgment when it “shows that there is no
genuine dispute as to any material fact....” SEC v. Sierra Brokerage Services, Inc.,
712 F.3d 321, 326–27 (6th Cir. 2013) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251–52 (1986)) (quotations omitted). When reviewing the record, “the
court must view the evidence in the light most favorable to the non-moving party
and draw all reasonable inferences in its favor.” Id. “The mere existence of a
scintilla of evidence in support of the [non-moving party’s] position will be
insufficient; there must be evidence on which the jury could reasonably find for
[that party].” Anderson, 477 U.S. at 252. Summary judgment is not appropriate
when “the evidence presents a sufficient disagreement to require submission to a
jury.” Id. at 251-52. Indeed, “[c]redibility determinations, the weighing of the
evidence, and the drafting of legitimate inferences from the facts are jury
functions, not those of a judge…” Id. at 255.
ANALYSIS
A.

Warden Paul Klee
Griffin alleges that his participation in the Warden’s Forum was protected

conduct under the First Amendment and that Klee had him (Griffin) permanently
removed from the Warden’s Forum in retaliation for exercising his First
Amendment rights. Klee denies this allegation, and he has submitted an affidavit
in which he states, among other things, that he recommended that Griffin be
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removed from the Warden’s Forum based entirely upon the results of an
investigation into Griffin’s alleged misconduct by Investigator Goldberg. (See Klee
Affidavit, ECF #32-2 at 2-7, Pg. ID 223-28.) Goldberg reported that Griffin had
coerced and threatened another inmate and that Griffin had been involved in a
violent attack on another inmate. (See Investigation Report, ECF #32-2 at 12, Pg.
ID 233.) The Magistrate Judge concluded that in light of Klee’s sworn statement
that he acted against Griffin based upon the Goldberg report, Griffin could not
establish that his allegedly-protected activity played any role in the adverse action
taken against him. (See R&R, ECF #14 at 14-15, Pg. ID 396-97.)
Griffin objects that the Magistrate Judge should not have considered
Inspector Goldberg’s report because it was “self serving hearsay.” (Objections,
ECF #39 at 3, Pg. ID 418.) Griffin complains that the record does not contain any
affidavits from any person with first-hand knowledge of his alleged misconduct
that was described in the Inspector Goldberg’s report. (Id. at 4, Pg. ID 419.)
But the relevant question with respect to the causation element of Griffin’s
First Amendment retaliation claim against Klee is not whether Investigator
Goldberg’s report was reliable, trustworthy, or admissible into evidence. Instead,
the question is: did Klee rely entirely on the report when he recommended that
Griffin be removed from the Warden’s Forum? Simply put, if Klee relied entirely
on the report, then Klee did not recommend Griffin’s removal based in part upon
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Griffin’s allegedly-protected activity, and Griffin’s claim against Klee fails.
Griffin’s insistence that the Goldberg report was untrustworthy hearsay simply has
no bearing on the dispositive question of whether Klee acted against Griffin based
on that report.
Griffin has not presented sufficient evidence to counter Klee’s sworn
statement that he based his recommendation to remove Griffin from the Warden’s
Forum on the Goldberg report and that he did not act against Griffin, even in part,
based upon Griffin’s protected conduct.

Accordingly, the Magistrate Judge

properly concluded that Klee is entitled to summary judgment and Griffin’s
objection is overruled.
B.

Inspector Roy Vest
In the Motion, Vest asserts that his recommendation to transfer Griffin to a

different facility was not in retaliation for engaging in protected conduct. In Vest’s
sworn affidavit, he explains that he conducted an investigation into Griffin after he
(Vest) received information that Griffin was planning to engage in disruptive
behavior, including a possible assault against prison staff. (See Vest Affidavit, ECF
#32-5 at 1-5, Pg. ID 269-73.) Vest says that his investigation corroborated some of
the information he had received concerning the potential threat posed by Griffin.
(Id.) Vest also says that during his investigation, he reviewed a memo from Klee
explaining that Griffin had been permanently barred from serving on any Warden’s
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Forum. (Id.) Vest says that based upon his investigation, he concluded that Griffin
posed a security risk, and he recommended to the Security Classification
Committee (the “SCC”) that Griffin be transferred to another facility. (Id.) The
SCC thereafter decided to transfer Griffin to JCF. (Id.) Prior to his transfer,
Griffin was placed into administrative segregation. (Id.)
The Magistrate Judge concluded that Vest was entitled to summary
judgment because Griffin had not countered Vest’s showing that he (Vest) took
action against Griffin based upon the results of his investigation, not based upon
any of Griffin’s allegedly-protected conduct. In other words, the Magistrate Judge
concluded that Griffin had failed to create a material factual dispute on the
causation element of his retaliation claim.
Griffin objects that Vest’s investigation relied upon unsubstantiated hearsay
and that Vest lacked sufficient reliable and admissible evidence to support his
conclusion that Griffin posed a threat to institutional security. (See Objections,
ECF #39 at 6-8, Pg. ID 421-23.) But like his objection with respect to Defendant
Klee, this objection misses the mark. The issue with respect to the causation
element of Griffin’s claim against Vest is not whether Vest’s investigation and
conclusions were reliable and based upon admissible evidence.

Rather, the

question is: did Vest act against Griffin based upon the results of his investigation?
If Vest took action based upon his investigative work, and not based upon Griffin’s
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allegedly-protected activity, then Griffin’s retaliation claim against Vest fails even
if Vest’s investigation was deficient in some respects. Griffin has not presented
evidence to rebut Vest’s sworn statement that he acted against Griffin based upon
his investigation and not based upon any allegedly-protected conduct by Griffin.
Thus, the Magistrate Judge correctly concluded that Griffin’s retaliation claim
against Vest fails.
C.

Deputy Warden Joe Barrett
Barrett concedes that he was responsible for reclassifying Griffin from Level

II security to Level IV security. But Barrett has submitted a sworn affidavit in
which he says that he did not know about Griffin’s prior alleged protected activity
when he made the decision to place Griffin in Level IV. (See Barrett Affidavit,
ECF #32-6 at 2-3, Pg. ID 278-79.) Barrett added that Griffin was assigned to
Level IV due to a lack of bed space in Level II. The Magistrate Judge concluded
that Barrett was entitled to summary judgment because this statement showed that
Griffin’s allegedly-protected conduct did not in any way cause Barrett to act
against Griffin and because Griffin did not offer any evidence to contradict
Barrett’s claimed lacked of knowledge.
Griffin objects on the ground that he has offered evidence that Barrett knew
about his allegedly-protected activity. He has not. Griffin directs the Court to
allegations in his sworn Amended Complaint, but those allegations do not properly
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establish Griffin’s alleged knowledge. The allegations recount hearsay statements
from Defendant Parsons to the effect that Barrett knew about Griffin’s allegedlyprotected conduct. (See Amended Compl., ECF #22 at ¶ 39, Pg. ID 130.) But
such hearsay cannot be used to create a material factual dispute on the issue of
Barrett’s knowledge. See Sperle v. Mich. Dep’t of Corrections, 297 F.3d 483, 495
(6th Cir. 2002) (party cannot rely upon hearsay to create a genuine issue of
material fact).1 Accordingly, the Magistrate Judge correctly concluded that Barrett
is entitled to summary judgment and Griffin’s objection is overruled.
D.

ARUS Michelle Parsons
As noted above, when Griffin arrived at JCF, he was placed in Level IV

housing at the direction of Defendant Barrett. Defendant Michelle Parsons was the
ARUS assigned to Griffin’s Level IV housing unit at the Cotton facility. Griffin
alleges that Defendant Parsons declined to place him on the “move-down list” – a
list of prisoners to be moved to a lower security level when appropriate – and that

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The Court’s ruling that Griffin cannot rely on hearsay statements to create a
material factual dispute is not at all inconsistent with its ruling above that Klee and
Vest are entitled to summary judgment even though the Goldberg investigation
allegedly contains out of court statements by a group of declarants. The Court did
not consider the Goldberg report or any of the statements therein for the truth of
the matter asserted. Instead, as explained above, the sole relevant question with
respect to that report was: did Klee and Vest rely upon it. In contrast, Griffin
offers the statements identified above to prove the truth of an essential element of
his retaliation claim. In this context, the statements are inadmissible hearsay. See
Fed. R. Evid. 801(c). He may not use this hearsay to create a material factual
dispute.
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she did so in retaliation for his prior allegedly-protected activity. Griffin insists
that this misconduct by Defendant Parsons prevented him from being transferred to
a less restrictive, Level II housing unit.
Defendant Parsons has submitted a sworn affidavit in which she states that
she did not have the authority to override Defendant Barrett’s decision to house
Griffin in a Level IV setting. (See Parsons Affidavit, ECF #32-7 at 3, Pg. ID 293.)
This affidavit negates Griffin’s claim that he was harmed by Defendant Parsons.
Simply put, because Defendant Parsons could not have moved Griffin to a lower
security level in contravention of Defendant Barrett’s decision to place Griffin in
Level IV housing, Defendant Parsons could have not retaliated against him in the
manner he alleges.
Griffin has submitted two sworn statements – his own statement in the
Objections and a declaration from his wife – that, he says, create a material factual
dispute as to whether Defendant Parsons had the authority to place him on the
move-down list.

The Court concludes that these statements do not create a

material factual dispute on the authority issue.
First, Griffin states under oath that Defendant Parsons did have the authority
to place him on the move-down list (see Objections, ECF # 39 at 11, Pg. ID 426),
but he offers no factual basis for that assertion. He does not aver that he has
knowledge about the MDOC’s chain of command, nor does he identify any facts
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that would suggest that Defendant Parsons had the authority to override the express
decision of her superior, Defendant Barrett (a deputy warden) concerning the level
of housing in which Griffin should reside.

While an MDOC employee in

Defendant Parsons’ position may generally have the authority to place inmates on
the move down list, Griffin has not identified any evidence that could support a
finding that she had the authority to do so here – in contravention of a directive
issued by her superior.
Indeed, Griffin’s own grievances concerning his custody level confirm that
Defendant Barrett, not Defendant Parsons, was responsible for Griffin’s continued
confinement in Level IV. As Griffin remained in Level IV, he complained to
Barrett and then filed a grievance against Barrett when Barrett did not cause him to
be transferred to Level II. (See Grievance, ECF #33, Pg. ID 354.) Even five
weeks in to his stay in Level IV, Griffin was complaining that Barrett, not Parsons,
caused his confinement in the higher level. (See Grievance Appeal, ECF #33, Pg.
ID 357.)
Second, the declaration of Griffin’s wife does not support Griffin’s claim
that Defendant Parsons had authority over Griffin’s custody level placement.
Griffin’s wife complains about Defendant Parsons, but she does not say that
Parsons had the authority to move Griffin.

On the contrary, Griffin’s wife

highlights Defendant Parsons’ repeated statements that (1) Defendant Barrett
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“ordered” that Griffin be placed in Level IV and (2) Griffin would have to remain
in that level “per Deputy Joseph Barrett.”
In sum, Griffin has not shown that there is a material factual dispute with
respect to Defendant Parsons’ denial that she played any role in Griffin’s continued
detention in Level IV. Accordingly, the Magistrate Judge properly concluded that
Defendant Parsons is entitled to summary judgment.
CONCLUSION
For the reasons explained above, IT IS HEREBY ORDERED THAT:
1. Griffin’s Objections to the portions of the R&R addressed above are
OVERRULED;
2. The portions of the R&R addressed above are ADOPTED and the
suggestion in the R&R that summary judgment be granted in favor of all
Defendants is ADOPTED;
3. Defendants’ motion for summary judgment is GRANTED;
4. All claims asserted by Griffin in the Amended Complaint are
DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: February 23, 2016
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I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on February 23, 2016, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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