Miller v. Stewart et al

Filing 97

ORDER Adopting 94 Report and Recommendation for Granting in Part and Denying in Part 75 Motion for Summary Judgment. Signed by District Judge Sean F. Cox. (MacKay, K)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Sharee Miller,
Plaintiff,
v.

Case No. 15-14164

Anthony Stewart, et al.,

Sean F. Cox
United States District Court Judge

Defendants.
______________________________/
ORDER ADOPTING
3/1/19 REPORT & RECOMMENDATION
Acting through counsel, Plaintiff Sharee Miller (“Miller”) filed this action against
Defendants on November 25, 2015, claiming retaliation under the First Amendment and a claim
under Michigan’s Whistleblower’s Protection Act (“WPA”). Miller, an inmate in the Michigan
Department of Corrections, alleges that her termination from her position as Prisoner
Observation Aide (“POA”) violated Michigan’s WPA and that Defendants retaliated against her
in violation of her First Amendment rights. The action was referred to Magistrate Judge
Stephanie Dawkins Davis for all pretrial proceedings.
After discovery concluded, Defendants filed a Motion for Summary Judgment. In a
forty-two page Report and Recommendation (“R&R”) issued on March 1, 2019, the magistrate
judge recommends that the Court grant the motion in part and deny it in part. (ECF No. 94).
More specifically, she recommends that the Court grant summary judgment in favor of
Defendants as to Miller’s WPA claim because Miller was not an “employee” for purposes of the
WPA and that claim therefore fails. She further recommends that the Court grant summary

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judgment in Defendants’ favor as to Miller’s First Amendment retaliation claim, as to her claim
for money damages only, because Defendants are entitled to qualified immunity. She
recommends that the Court deny the motion to extent that Defendants seek summary judgment as
to Miller’s First Amendment retaliation claim against Defendants in their official capacity.
Pursuant to FED. R. CIV. P. 72(b), a party objecting to the recommended disposition of a
matter by a magistrate judge must file objections to the R&R within fourteen (14) days after
being served with a copy of the R&R.
Miller filed timely objections to the R&R on March 15, 2019. (ECF No. 96). Miller
objects to recommendations as to both counts.
A.

Objections Pertaining To WPA Count
As to Miller’s WPA Count, Miller asserts that the R&R erroneously concluded that

Defendants are entitled to summary judgment as to that count because Miller was not an
employee for purposes of the WPA. Miller also objects to the R&R because the magistrate judge
did not apply the economic reality test to Miller’s WPA claim and did not address whether
Miller’s termination was a pretext for unlawful retaliation under the WPA.
In the R&R, the magistrate judge considered, as a threshold matter, “whether the WPA,
which applies to those in an employee-employer relationship as defined by statute, applies to
inmates working for pay while in the custody of the Michigan Department of Corrections.”
(R&R at 14). She correctly noted that, “in the absence of binding case law from the Michigan
Supreme Court, this Court must predict how the state’s highest court would rule on this issue.”
(Id. at 14-15). The magistrate judge thoroughly analyzed the issue and concluded that “the
Michigan Supreme Court would follow the great weight of case law from around the country

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concluding that statutes applying to the employee-employer relationship simply do not apply to
inmates working while incarcerated.” (Id. at 17).
The magistrate judge considered Miller’s arguments regarding the economic reality test
but ultimately concluded, as explained in the R&R, that “the ‘economic reality’ of Miller’s job
does not suggest a traditional employee-employer relationship. Rather, the fact that she had a
job as a POA is based on the MDOC’s penological system and her work has a penological
purpose.” (R&R at 21).
As such, she ultimately concluded that Miller was not an “‘employee’ for purposes of the
WPA and her claim based on that statute must fail.” (Id.).
This Court concurs with the magistrate judge’s analysis and her ultimate conclusion that
Miller was not an employee for purposes of the WPA.
To the extent that Miller faults the magistrate judge for not addressing pretext, that
objection is also without merit. Because the magistrate judge concluded that Miller was not an
employee for purposes of the WPA, that claim fails and it was not necessary for the magistrate
judge to further analyze that claim.
B.

Objections Pertaining To First Amendment Retaliation Count
As to Miller’s First Amendment retaliation claim, Miller objects to the magistrate judge’s

conclusion that Defendants are entitled to qualified immunity. In doing so, Miller asserts that
the magistrate judge inappropriately narrowed the “clearly established” constitutional right
inquiry.
The Court disagrees. Qualified immunity requires a plaintiff such as Miller “to plead
facts making out a violation of a constitutional right clearly established in a particularized sense.

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That is, the right said to have been violated must be defined in light of the specific context of the
case, not as a broad general proposition. See, e.g., Johnson v. Mosely, 790 F.3d 649, 654 (6th
Cir. 2015). Here, Miller drew the right in a too generalized way.
Miller also asserts that the magistrate judge erred in concluding that the four out-ofcircuit authorities relied on by Miller were not sufficient under the standard set forth in Ohio
Civil Serv. Employees Ass’n v. Seiter, 858 F.2d 1171 (6th Cir. 1988). The undersigned
disagrees. The magistrate judge thoroughly analyzed this issue and explained as follows:
The undersigned is not persuaded that a handful of unpublished district
court cases from California and the Ninth Circuit establishes the “wide variety of
sources” exception to the requirement that a plaintiff must offer authority from
this court, the Sixth Circuit, or the Supreme Court to avoid the application of
qualified immunity. See Seiter, supra (“For the decisions of other courts to
provide such ‘clearly established law,’ these decisions must both point
unmistakably to the unconstitutionality of the conduct complained of and be so
clearly foreshadowed by applicable direct authority as to leave no doubt in the
mind of a reasonable officer that his conduct, if challenged on constitutional
grounds, would be found wanting.”). Moreover, these cases are readily
distinguishable because they did not involve alleged violations of a confidentiality
policy purporting to protect the privacy and health information of other prisoners.
The undersigned agrees with Miller that it is well-established in this
Circuit that prison officials generally cannot terminate a prisoner from a prison
job based on the exercise of the prisoner’s First Amendment rights. See e.g., Good
v. Walworth, 2018 WL 151872 (E.D. Mich. Mar. 27, 2018) (Applying Seiter and
concluding that decisions within this circuit and other circuits clearly establish
that termination from prison employment in retaliation for protected conduct can
constitute adverse action.). Here, however, the appropriate inquiry for purposes of
qualified immunity is narrower. The pertinent question before the Court is
whether a reasonable prison official would understand that terminating a prisoner
from a prison job for violating a confidentiality policy that is, as plaintiff admits,
not unconstitutional on its face, is clearly established. There are no cases of
appropriate precedential value addressing the rights of a prisoner working as a
POA (or in any other capacity) to report alleged abuses outside of the prison.
There are also no cases of which the undersigned is aware challenging the
constitutionality of the confidentiality provision in the Prisoner Observation Rules
and Procedures. Thus, a reasonable prison official would not have known that
terminating Miller for violating its confidentiality provision was unconstitutional.

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(R&R at 37-38). This Court agrees that the out-of-circuit cases relied on by Miller do not meet
the standard set forth in Seiter.
As such, the Court concurs with the magistrate judge’s conclusion that Defendants are
entitled to qualified immunity.
Finally, Miller argues that “[b]ecause the Defendants are not entitled to qualified
immunity,” the magistrate judge “erred in recommending that summary judgment on Miller’s
claim for monetary damages be granted.” (Objs. at 17). Because this Court concurs with the
magistrate judge that Defendants are entitled to qualified immunity, this objection is without
merit.
CONCLUSION & ORDER
For the reasons set forth above, the Court concludes that Miller’s objections are without
merit and ADOPTS the magistrate judge’s March 1, 2019 R&R.
IT IS FURTHER ORDERED that Defendants’ Summary Judgment Motion is
GRANTED IN PART AND DENIED IN PART. The motion is GRANTED to the extent that
the Court grants summary judgment in Defendants’ favor as to: 1) Miller’s WPA claim; and 2)
Miller’s First Amendment retaliation claim, as to her claims for monetary damages only. The
motion is DENIED to the extent that Defendants seek summary judgment on Miller’s First
Amendment retaliation claim against Defendants in their official capacity.
IT IS SO ORDERED.

Dated: March 27, 2019

s/ Sean F. Cox
Sean F. Cox
U. S. District Judge

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