Ayotte v. Stemen et al

Filing 139

ORDER granting in part and denying in part 128 Motion for Summary Judgment; adopting in part 135 Report and Recommendation. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
PAUL AYOTTE,
Case No. 15-13826
Plaintiff,
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

v.
B. STEMEN, ET AL.,

U.S. MAGISTRATE JUDGE
PATRICIA T. MORRIS

Defendants.
/
ORDER ADOPTING IN PART REPORT AND RECOMMENDATION [135]; SUSTAINING
IN PART AND OVERRULING IN PART DEFENDANTS’ OBJECTIONS TO REPORT AND
RECOMMENDATION [136]; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [128]
Plaintiff Paul Ayotte filed this prisoner civil rights action on October 26, 2015.
On January 31, 2020, Defendants M. Visconti and B. Stemen filed a Motion for
Summary Judgment [128] of the remaining First Amendment retaliation and
conspiracy claims. Plaintiff filed a Response [133] on March 13, 2020. Defendants
filed a Reply [134] on March 27, 2020. On April 6, 2020, the Magistrate Judge issued
a Report and Recommendation (“R&R”) [135] recommending that the Court deny
Defendant’s motion. Defendants filed Objections [136] to the R&R on April 20,
2020. Plaintiff filed a Response [138] on May 4, 2020.
For the reasons stated below, the R&R [135] is ADOPTED in part;
Defendant’s Objections [136] are OVERRULED
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IN PART

and SUSTAINED

IN

PART;
PART

and Defendant’s Motion for Summary Judgment [128] is GRANTED

and DENIED IN PART.
FACTUAL AND PROCEDURAL BACKGROUND
The Court adopts the facts of this case as set forth in the R&R:
Plaintiff’s claims center around the fact that he was elected to the
Warden’s Forum, he was also employed as a food service cook, and
that he complained about food service issues at the Warden’s Forum.
The issues he raised regarded “broken equipment, spoiled and outdated
food, improper cool down, and overuse of leftovers.” (ECF No. 1,
PageID.4.) Plaintiff contends that former Defendant Benson accused
him of “snitching” on her, and thus began writing false misconduct
reports for the apparent purpose of causing him to lose his job. (Id.)
Plaintiff alleges that Benson warned him to “be careful and watch
[himself]” because she and Defendant Stemen were very close and that
if Benson “wants someone out of here” that Defendant Stemen is “the
one that makes it happen.” (Id.) Defendant Stemen issued Plaintiff a
misconduct ticket shortly thereafter. Plaintiff alleges that Defendant
Stemen told him “now go report that to the Warden’s Forum” making
clear that the ticket was in retaliation for his speech. Plaintiff was
initially found guilty at the hearing and he was removed from his job in
the kitchen, but that decision was overturned by the Warden and the
ticket was dismissed. (ECF No. 1, PageID.6.) After the dismissal,
Defendant Visconti denied Plaintiff’s request for back pay and
reinstatement. Plaintiff alleged that initially Defendant Visconti
indicated that she would “take care of” the reinstatement and back pay
but then a week later, she refused saying, “good luck with that.” (ECF
No. 1, PageID.4.).
Defendants contend that they are entitled to summary judgment
because: (1) Defendants “had no knowledge of Plaintiff’s complaints at
the Warden’s Forum” and thus, Plaintiff cannot state a First
Amendment claim for retaliation; and (2) Defendants are entitled to
qualified immunity because the misconduct ticket issued by Defendant
Stemen was rescinded by the warden on appeal and Defendant Visconti
denied Plaintiff’s request for back pay because “she was unaware that
the warden rescinded the misconduct ticket” and because “[n]either
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IN

Defendant was aware of Plaintiff’s speech at the warden’s forum.”
(ECF No. 128, PageID.1341.).
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]
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). 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, the Court views all of the facts in the light most favorable to the nonmoving party and draws all reasonable inferences in the non-moving party’s favor.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Anderson, 477 U.S. at 255.

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ANALYSIS
Objection 1: “Defendants object to the extent a reasonable jury could not return a
verdict for the nonmoving party.” (ECF No. 136, PageID.1642).
Defendant Stemen argues that the Magistrate Judge erred in concluding that a
reasonable jury could return a verdict for Plaintiff. Specifically, Defendant Stemen
alleges that Plaintiff has not shown sufficient evidence to prove a connection
between Stemen and Plaintiff’s food service director, Anna Benson.
In order to prove retaliation, Plaintiff has the burden of showing three
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). A § 1983 conspiracy claim requires “an agreement between two or more
persons to injure another by unlawful action. Express agreement among all the
conspirators is not necessary to find the existence of a civil conspiracy. Each
conspirator need not have known all of the details of the illegal plan or all of the
participants involved. All that must be shown is that there was a single plan, that the
alleged coconspirator shared in the general conspiratorial objective, and that an overt
act was committed in furtherance of the conspiracy that caused injury to the
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complainant.” Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir. 2003) (quoting
Hooks v. Hooks, 771 F.2d 935, 943-44 (6th Cir. 1985)). Defendant claims that
Plaintiff has not shown evidence of a conspiracy between Stemen and Benson. The
Court disagrees.
Two pieces of circumstantial evidence point to a conspiracy between Stemen
and Benson and a potential motive to take adverse action against Plaintiff’s protected
speech at the Warden’s Forum. First, Plaintiff testifies that after he began
complaining about food service issues at the Warden’s Forum, Benson remarked to
him “[o]h now that you’re on the Warden’s Forum you’re going to start snitching on
me?” (Compl. ¶13). Second, Plaintiff states that a food service co-worker, Mr.
Patterson, stated that “I don’t know what you did to piss off Benson, but she told all
of us Stewards to start writing negative reports on you” and sure enough, Plaintiff
claims that he began receiving false write-up reports. (Id. at ¶17-18); (ECF No. 1332, PageID.1465,1468). Patterson additionally warned Plaintiff that he “should be
careful and watch [himself] around [Benson],” because she was “very close with
officer Stemen” and that “when [Benson] wants someone out of here, he’s the one
that makes it happen.” (Compl. at ¶22). Plaintiff also testified that he observed that
Benson and Stemen had “a close personal relationship.” (ECF No. 133-2,
PageID.1474, 1478-79).

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Defendant argues that this evidence should be discounted because they are
self-serving in nature and inadmissible testimony. The Sixth Circuit and the U.S.
Supreme Court disagree, however. In Davis v. Gallagher, the Court of Appeals ruled
that “[w]hen there is evidence to support each version of the parties’ dueling
allegations, summary judgment is not appropriate—even when the evidence includes
self-serving statements from the parties.” 951 F.3d 743, 745 (6th Cir. 2020).
The same can be said of this case. Stemen claims that he did not know Benson,
while Plaintiff has presented reasons to believe that they not only knew each other,
but conspired against him. Additionally, the U.S. Supreme Court stated that its
interpretation of FRCP 56 does “not mean that the nonmoving party must produce
evidence in a form that would be admissible at trial in order to avoid summary
judgment.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Therefore, Plaintiff
has shown sufficient evidence of a conspiracy such that a reasonable jury could
return a verdict in his favor. Objection one is overruled.
Objection 2: “Defendants object to the extent the magistrate judge failed to address
whether the protected right was a motivating factor in the alleged conduct.” (ECF
No. 136, PageID.1644).
Defendant Visconti argues that Plaintiff’s protected speech at the Warden’s
Forum was not a motivating factor in denying him back pay, because she would have

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taken the same action without the protected activity. The Court sustains the objection
on alternate grounds and finds that Plaintiff has not proven a motivating factor to
show retaliation by Visconti.
Plaintiff claims that “[b]ecause Ms. Visconti and Mr. Ayotte only interacted
at the Warden’s Forum, it is reasonable to infer that it was Mr. Ayotte’s comments
at these meetings that caused Ms. Visconti to retaliate against him . . . [and]
[i]nferences show that Mr. Ayotte’s comments on the Warden’s Forum caused Ms.
Visconti to take adverse action against him.” (ECF No. 133, PageID.1446). Plaintiff
asks the jury to infer from Visconti’s mere presence at the Warden’s Forum that she
was motivated to retaliate against him. However, this inference is too speculative to
make. Bare allegations of malice do not suffice to establish a constitutional claim.
Thaddeus-X, 175 F.3d at 399 (quoting Crawford–El v. Britton,118 S.Ct. 1584, 1592
(1998)). Plaintiff has not shown evidence of Visconti being disgruntled with
Plaintiff’s comments or any other pieces of circumstantial evidence pointing to a
desire to retaliate. Moreover, Plaintiff has not given the jury any reason to conclude
that failing to give him back pay, despite being entitled to it, was anything more than
a negligence on Visconti’s part.
At the summary judgment stage, Plaintiff is not “‘relieved of his own burden
of producing in turn evidence that would support a jury verdict.’ Circumstantial
evidence, like the timing of events or the disparate treatment of similarly situated
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individuals, is appropriate.” Id. (quoting Anderson, 477 U.S. at 256). In ThaddeusX, the plaintiffs did “more than simply allege retaliation: in their verified complaint
and in an additional affidavit, they . . . put forward a number of specific,
nonconclusory allegations and identified affirmative evidence that could support a
jury verdict at trial.” Id. at 399-400. Plaintiff has failed to do so here. When
answering all fact questions in Plaintiff’s favor, this is not a case where Plaintiff is
asking the jury to decide whether or not a particular statement or event is a causal
connection between Plaintiff’s complaints and Defendant’s adverse action, this is a
case where Plaintiff is asking jury to find a causal connection where none is
presented. Therefore, the objection is sustained, and Defendant Visconti is
dismissed.
Objection 3: “Defendant’s object to the magistrate judge’s recommendation to deny
qualified immunity.” (ECF No. 136, PageID.1646).
Defendants argue that qualified immunity shields them from personal
liability, because they did not violate Plaintiff’s clearly established First Amendment
rights. The Court disagrees as to Defendant Stemen and abstains from addressing
Defendant Visconti, because she has been dismissed on other grounds.
“Qualified immunity protects government officials performing discretionary
functions unless their conduct violates a clearly established statutory or
constitutional right of which a reasonable person in the official's position would have
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known.” Silberstein v. City of Dayton, 440 F.3d 306, 311 (2006). To overcome this
defense, Plaintiff must allege “facts sufficient to indicate that the [government
official's] act in question violated clearly established law at the time the act was
committed.” Russo v. City of Cincinnati, 953 F.2d 1036, 1043 (6th Cir.1992).
These facts must satisfy two prongs. First, he must show that “based upon the
applicable law, the facts viewed in the light most favorable to the plaintiff show that
a constitutional violation has occurred.” Sample v. Bailey, 409 F.3d 689, 695 (6th
Cir.2005); see also Saucier v. Katz, 533 U.S. 194, 201 (2001). As stated above,
Plaintiff has alleged sufficient facts to show that Defendant Stemen retaliated and
conspired against him. Plaintiff engaged in protected speech at the Warden’s Forum,
Stemen issued Plaintiff a false misconduct ticket which was later overturned, and
Plaintiff has shown evidence of Stemen and Benson working together against him –
showing evidence of both a causal connection and a conspiracy. Therefore, taking
all of Plaintiff’s allegations to be true, he has proven that a constitutional violation
has occurred.
Second, Plaintiff must show that “the violation involved a clearly established
constitutional right of which a reasonable person would have known.” Sample, 409
F.3d at 696; see also Saucier, 533 U.S. at 201. A clearly established right “must be
sufficiently clear that a reasonable official would understand that what he is doing
violates that right.” Saucier, 533 U.S. at 202 (internal quotation marks omitted).
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“This inquiry . . . must be undertaken in light of the specific context of the case, not
as a broad general proposition[.]” Id. at 201. Defining the contours of a right requires
us to “look first to decisions of the Supreme Court, then to decisions of this court
and other courts within our circuit, and finally to decisions of other circuits.” Baker
v. City of Hamilton, 471 F.3d 601, 606 (6th Cir.2006) (internal quotation marks
omitted). A prisoner’s First Amendment right to voice a complaint at a Warden’s
Forum has been clearly established in this circuit for years. See King v. Zamiara,
680 F.3d 686, 710 (6th Cir. 2012) (finding that plaintiff’s participation in the
Warden’s Forum was a protected activity); see also Wolfel v. Bates, 707 F.2d 932
(6th Cir. 1983) (holding that a prison rule against making complaints violated an
inmate's First Amendment rights); see also Pell v. Procunier, 417 U.S. 817, 822
(1974) (“a prison inmate retains those First Amendment rights that are not
inconsistent with his status as a prisoner or with the legitimate penological objectives
of the corrections system”). Plaintiff has therefore shown that his First Amendment
rights were clearly established. Objection three is overruled.
CONCLUSION
For the reasons stated above, the R&R [135] is ADOPTED in part;
Defendant’s Objections [136] are OVERRULED
PART;
PART

and SUSTAINED

IN

and Defendant’s Motion for Summary Judgment [128] is GRANTED

IN

and DENIED

IN PART.

IN PART

This ruling has the effect of dismissing Defendant
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Visconti. Plaintiff’s First Amendment retaliation and conspiracy claims against
Defendant Stemen remain.
Accordingly,
IT IS ORDERED that the R&R [135] is ADOPTED in part.
IT IS FURTHER ORDERED that Defendant’s Objections [136] are
OVERRULED IN PART and SUSTAINED IN PART.
IT IS FURTHER ORDERED that Defendant’s Motion for Summary
Judgment [128] is GRANTED IN PART AND DENIED IN PART.
SO ORDERED.

Dated: December 11, 2020

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

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