Alexander v. Hoffman et al

Filing 72

ORDER Adopting in Part and Modifying in Part 64 Report and Recommendation. Signed by District Judge Terrence G. Berg. (AChu)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

D’ANDRE M. ALEXANDER,
Plaintiff,
Case No. 4:16-cv-12069
Hon. Terrence G. Berg

v.
ANN HOFFMAN, et al.
Defendants.

ORDER ADOPTING IN PART AND MODIFYING IN PART
REPORT AND RECOMMENDATION
Plaintiff D’Andre M. Alexander, who was at all relevant times
incarcerated at Saginaw Correctional Facility in the custody of the
Michigan Department of Corrections (“MDOC”), filed a pro se civil
rights complaint against the following Defendants: Ann Hoffman
(Assistant Resident Unit Specialist); Scotty Freed (Hearings Investigator); O’Bell T. Winn (Deputy Warden); Donald Ricumstrict
(Deputy Warden); and Shannon Flaugher, Randall VanSumeren,
and Delardon Thomas (all Correctional Officers). Plaintiff alleges,
via a 42 U.S.C. § 1983 claim, that Defendants violated his First and
Fourteenth Amendment rights by conspiring to plant a knife in his

cell, refusing to provide him with evidence he requested to help defend the allegedly false misconduct charge, and ultimately causing
his transport to Chippewa Correctional Facility, in Kincheloe,
Michigan.
This matter is before the Court on Magistrate Judge Mona K.
Majzoub’s September 27, 2018 Report and Recommendation (ECF
No. 64), and Plaintiff’s timely-filed objections (ECF No. 65). The
Magistrate Judge recommends that Defendants’ motion for summary judgment (ECF No. 59) be granted with respect to all of Plaintiff’s claims, excepting his claim that Defendant Hoffman falsified
a misconduct report in retaliation for prior grievances filed by
Plaintiff. The Court will, however, sustain Plaintiff’s Objection # 3,
which urges that his due process claim against Defendant Freed
should not be dismissed. Accordingly, the Court in part accepts and
adopts Magistrate Judge Majzoub’s Report and Recommendation,
and in part modifies it.
BACKGROUND
Plaintiff’s claims arise from events that took place during his
incarceration at the Saginaw Correctional Facility in 2013. See ECF
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No. 1. On April 7, 2013, he filed a grievance against a non-party
corrections officer; Defendant Hoffman was responsible for reviewing that grievance. See id. at PageID.20. Plaintiff alleges that, in
connection with her review of his grievance, Defendant Hoffman
threatened Plaintiff by suggesting that prison staff had “a history
of ‘finding knives’ in prisoners[’] cells.” Id. ECF No. 6. Further,
Plaintiff contends Defendant Hoffman refused to investigate his
grievance and indicated that if Plaintiff continued to pursue the
grievance, a knife would be planted in his cell. Id. Next, according
to Plaintiff, Defendant Hoffman stopped him on his way from
breakfast to say, “[E]njoy your last meal because you’ll be saying
bye bye to SRF [Saginaw Correctional Facility] real soon. I’m going
to have [Defendant] Winn get you out of here.” Id. PageID.8.
That same day, Defendant Hoffman wrote a misconduct report averring that during a shakedown of Plaintiff’s cell, prison
staff discovered “a 5 1/2 inch piece of metal sharpened to a point on
one end with a handle made out of a towel/washcloth.” Id.
PageID.25. Plaintiff contemporaneously objected to the report, pled
“not guilty” to the disciplinary offense of possessing a weapon, and
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urged that “the night prior to this incident he told his family he was
going to be set up [by prison staff].” Id. PageID.26. During Plaintiff’s misconduct hearing, the hearing officer, found that Defendant
Hoffman “was unaware of any pending grievance; therefore the
grievance would not provide motive for retaliation.” Id. Still, Plaintiff maintained that the weapon had been planted as part of a retaliation effort by Defendants Hoffman and Flaugher. Id. The hearing officer nonetheless found Plaintiff guilty of possessing a weapon
and sentenced him to 30 days in segregation. See id. Plaintiff was
subsequently transferred to Chippewa Correctional Facility. ECF
No. 59-2. The facts underlying Plaintiff’s claims are more fully set
forth in Magistrate Judge Majzoub’s September 27, 2018 Report
and Recommendation. See ECF No. 64. Plaintiff timely filed objections to that Report and Recommendation on October 9, 2018.1
Defendants’ three objections can be summarized as follows:
(1) he has presented sufficient evidence to survive summary judg-

The law provides that either party may serve and file written objections
“[w]ithin fourteen days after being served with a copy” of the Report and Recommendation. 28 U.S.C. § 636(b)(1).
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ment on his retaliatory transfer claim against Defendants Ricumstrict and Winn; (2) his conspiracy claims against Defendants
Ricumstrict, Freed, Flaugher, VanSumeren, and Winn should not
be dismissed because there is sufficient evidence to survive judgment; and (3) Plaintiff’s due process claim against Defendant Freed
for refusing to obtain evidence that he believes could have exonerated him of the weapons violation should not be dismissed. See ECF
No. 65 PageID.612–615.
DISCUSSION
A district court must review de novo parts of a Report and
Recommendation to which a party objects. 28 U.S.C. § 636(b)(1).
The Court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” Id.
Further, the Court may receive further evidence or recommit the
matter to the magistrate judge with instructions.” Id.
Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” See Fed. R. Civ. P. 56(a).

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A fact is material only if it might affect the outcome of the case under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249 (1986). On a motion for summary judgment, the Court
must view the evidence and any reasonable inferences drawn from
the evidence in the light most favorable to the non-moving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (citations omitted); Redding v. St. Edward, 241 F.3d 530,
531 (6th Cir. 2001). The moving party has the initial burden of
demonstrating an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
If the moving party carries this burden, the party opposing
the motion “must come forward with specific facts showing that
there is a genuine issue for trial.” Matsushita, 475 U.S. at 587.
“[T]he nonmoving party must do more than show that there is some
metaphysical doubt as to the material facts.” Moore v. Philip Morris
Co., Inc., 8 F.3d 335, 340 (6th Cir. 1993) (citing Matsushita, 475
U.S. at 586). To defeat the motion for summary judgment, it must
produce “significant probative evidence in support of its complaint.”
Moore, 8 F.3d at 340 (citing Andersen, 477 U.S. at 242, 249–250).
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This evidence must go beyond the pleadings and may include affidavits, depositions, interrogatory responses, and other types of evidence establishing a genuine issue for trial. Moore, 8 F.3d at 339
(citation omitted). The Court must then determine whether the evidence presents a sufficient factual disagreement to require submission of the challenged claims to the trier of fact or whether the moving party must prevail as a matter of law. See Anderson, 477 U.S.
at 252.
For the reasons set forth below, the Court largely agrees with
Magistrate Judge Majzoub’s conclusion that Plaintiff has not presented evidence sufficient to overcome summary judgment on most
of his claims. But the Court also finds sustaining Plaintiff’s Objection #3 appropriate. Accordingly, the Court will accept and adopt
the Report and Recommendation with one modification: summary
judgment on Plaintiff’s due process claim against Defendant Freed
will be denied.
A. Plaintiff’s Objection #1

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Plaintiff first objects that he has in fact established a retaliatory transfer claim against Defendants Ricumstrict and Winn. Specifically, he refers to statements in his combined affidavit and motion for summary judgment response that Defendant Hoffman told
him she was “going to have Winn get you out of here” and that “Defendant Winn approached Plaintiff’s cell and told him ‘You started
this s**t. You brought this s**t on yourself,’” and that he would be
“getting sent up north far away.” ECF No. 65 PageID.612. According to Plaintiff, Defendant Ricumstrict also told him, “It ain’t business, it’s personal with yo ass. So don’t be surprised when [we] get
you out of here.” Id. PageID.613.
In support of their motion for summary judgment on Plaintiff’s retaliatory transfer claim, Defendants argued Plaintiff could
not show Defendants caused him to be transferred to Chippewa
Correctional Facility. The June 26, 2013 transfer order attached to
Defendants’ motion states that Plaintiff was transferred “at the request of URF [Chippewa Correctional Facility] . . . . to separate
fighters.” ECF No. 59-2 PageID.494. Additionally, the transfer order provided that STF [Saginaw Correctional Facility] will return
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one who requires alternate placement due to a guilty finding on
029.” Id. The misconduct hearing report refers to Plaintiff being
found guilty of “Charge: 029,” which is described as “Possession of
a Weapon.” ECF No. 1 PageID.26. These documents, which Defendants directed the Court’s attention to, suggest Plaintiff was transferred to Chippewa Correctional Facility merely as part of ordinary
prison-management functions.
The Court agrees with the Magistrate Judge that statements
included in Plaintiff’s affidavit are insufficient to raise a material
issue of fact for trial regarding his retaliatory transfer claim against
Defendants Ricumstrict and Winn. Even if these Defendants
threatened to have Plaintiff transferred, Plaintiff has not presented
evidence indicating they were causally involved in the transfer decision. Moreover, the evidence produced by Defendants showing it
was Chippewa Correctional Facility, and not Saginaw Correctional
Facility, that initiated the transfer is compelling. See ECF No. 592. On these grounds, the Court overrules Plaintiff’s first objection
to the Magistrate Judge’s Report and Recommendation.
B. Plaintiff’s Objection #2
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Next, Plaintiff objects that Defendants Flaugher, Winn, Ricumstrict, and VanSumeren should not be dismissed from this lawsuit because they each “actually participated in the retaliatory cell
search/false misconduct” and thereby conspired with Defendant
Hoffman. ECF No. 65 PageID.614. Even taking as true all of the
statements in Plaintiff’s affidavit that appear to be made on personal knowledge, the Court agrees with Magistrate Judge Majzoub
that Plaintiff has not presented evidence showing that the Defendants shared a “single plan” and “conspiratorial objective” with one
another, as is required to prove civil conspiracy under § 1983. Hooks
v. Hooks, 771 F.2d 935, 944 (6th Cir. 1985). Several portions of
Plaintiff’s affidavit contain “conclusory allegations and subjective
beliefs” that are insufficient to permit him to defeat summary judgment. See Mitchell v. Toledo Hosp., 964 F.2d 577, 584–85 (6th Cir.
1992). For example, Plaintiff’s statement that Defendant Freed’s
refusal to procure a recording of Plaintiff’s phone call with his sister, which Plaintiff says would have supported his theory that the
weapon was planted, constituted “direct participation in the conspiracy, in retaliation for Plaintiff’s protected conduct.” ECF No. 63
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PageID.553. Because Plaintiff has not produced evident sufficient
to establish a triable issue of fact as to whether the Defendants
shared a single plan and conspiratorial objective, his Objection #2
will be overruled.
C.

Plaintiff’s Objection #3

Finally, Plaintiff objects that he “also has a due process claim
against Defendant Freed for refusing to obtain exonerating evidence reasonably available for Plaintiff’s defense.” ECF No. 65
PageID.615. On that basis, Plaintiff objects to the Magistrate
Judge’s recommendation that Defendant Freed be dismissed from
this suit. Id. In his Complaint, Plaintiff indeed alleged that Defendant Freed’s refusal “to obtain critical evidence that would have exonerated Plaintiff” of the alleged false misconduct charge violated
his rights under the Fourteenth Amendment’s due process clause.
ECF No. 1 PageID.17. Defendants did not specifically seek summary judgment on this claim, though they offered the conclusory
statement that Defendant Freed’s failure to provide Plaintiff with
a recording of his phone call with his sister “is not in itself a violation of Plaintiff’s constitutional rights.” ECF No. 59 PageID.478.
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The United State Supreme Court held in Wolff v. McDonnell,
418 U.S. 539, 566 (1974), that an “inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not
be unduly hazardous to institutional safety or correctional goals.”
The Court anchored that right in the Fourteenth Amendment’s due
process clause. Though it left prison officials “necessary discretion”
to “limit access to other inmates to collect statements or to compile
other documentary evidence,” the Court indicated exercise of that
discretion should be well-reasoned. Id. Because Defendants have
not provided any law or reasoning to support their statement that
Defendant Freed’s refusal to provide Plaintiff with the requested
audio recording and other documents is not a violation of Plaintiff’s
due process rights, Plaintiff’s Objection #3 will be sustained. The
Court will therefore modify the Magistrate Judge’s Report and Recommendation to permit Plaintiff’s due process claim against Defendant Freed for refusal to provide the audio recording and other
requested documents in preparation for Plaintiff’s misconduct hear-

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ing to proceed along with his claim that Defendant Hoffman falsified a misconduct report in retaliation for prior grievances filed by
Plaintiff.

CONCLUSION
For these reasons, Plaintiff’s objections are OVERRULED
IN PART and SUSTAINED IN PART, and the Report and Recommendation (ECF No. 64) is ACCEPTED and ADOPTED IN
PART as the opinion of the Court and MODIFIED IN PART. Accordingly, Defendants’ motion for summary judgment (ECF No. 59)
is GRANTED with respect to all claims, except Plaintiff’s claim
against Defendant Hoffman for falsifying a misconduct report in retaliation for prior grievances filed by Plaintiff, and Plaintiff’s claim
against Defendant Freed for refusing to provide him with or to produce evidence Plaintiff requested to build his defense against the
misconduct charge.

SO ORDERED.

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Dated: March 25, 2019

s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

Certificate of Service
I hereby certify that this Order was electronically filed,
and the parties and/or counsel of record were served on March
25, 2019.
s/A. Chubb
Case Manager

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