Harrison #185856 v. Michigan, State of et al

Filing 129

OPINION; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JESSIE HARRISON #185856,
Plaintiff,

Hon. Ellen S. Carmody

v.

Case No. 1:10-cv-570

CYNTHIA PARTRIDGE, et al.,
Defendants.
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OPINION
This matter is before the Court on Defendants’ Motion for Summary Judgment. (Dkt.
#123). On December 9, 2014, the parties consented to proceed in this Court for all further
proceedings, including trial and an order of final judgment. 28 U.S.C. § 636(c)(1). By Order of
Reference, the Honorable Janet T. Neff referred this case to the undersigned. (Dkt. #116). For the
reasons discussed herein, Defendants’ motion is granted.

BACKGROUND
In 1986, Plaintiff was charged with second degree murder, a felony, and being a felon
in possession of a firearm. Plaintiff was convicted of the latter charge, but avoided a conviction for
second degree murder. Plaintiff was instead convicted of the lesser included offense of reckless use
of a firearm resulting in death, a misdemeanor. Plaintiff was sentenced to serve consecutive prison
terms of 16-24 months for reckless use of a firearm and 24 months for being a felon in possession
of a firearm. Had Plaintiff been convicted of second degree murder, a felony, imposition of
consecutive sentences would have been appropriate. People v. Harrison, 2008 WL 4276544 at *1-2

(Mich. Ct. App., Sept. 16, 2008).

However, because Plaintiff was instead convicted of a

misdemeanor lesser included offense, the imposition of consecutive sentences was contrary to
Michigan law. Id.
Plaintiff was released from prison in 1990, eighteen months beyond the properly
calculated statutory maximum sentence. In 1991, Plaintiff was convicted of assault with the intent
to commit murder and being a felon in possession of a firearm, for which he was sentenced to serve
20-60 years in prison. Plaintiff eventually pursued relief in state court concerning his improper 1986
sentence. On September 16, 2008, the Michigan Court of Appeals ruled that Plaintiff’s 1986
sentence was “invalid” and ordered the trial court “to correct [Plaintiff’s] judgment of sentence.”
Harrison, 2008 WL 4276544 at *1-2.
Plaintiff thereafter filed prison grievances requesting that his then current sentence
be reduced by eighteen months. Plaintiff’s grievances were denied after which Plaintiff sought relief
through the Parole Board which recommended that Plaintiff’s then current sentence not be reduced.
In 2010, the Governor followed the Parole Board’s recommendation and declined to reduce
Plaintiff’s sentence.
Plaintiff initiated the present action on June 16, 2010, alleging that his constitutional
rights were violated by his unlawful imprisonment and the subsequent refusal to reduce the sentence
imposed for his 1991 convictions. On July 21, 2010, the Honorable Janet T. Neff ordered that
Plaintiff’s claims be dismissed for failure to state a claim on which relief may be granted. (Dkt. #78). On July, 10, 2013, the Sixth Circuit reversed in part this determination and remanded the matter
for further proceedings. Harrison v. State of Michigan, 722 F.3d 768 (6th Cir. 2013).

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On June 26, 2014, Plaintiff filed a two-count amended complaint asserting violations
of his Fourteenth and Eighth Amendment rights. Plaintiff’s amended complaint was asserted against
eight individuals: (1) Linda Beckwith; (2) Pamela Withrow; (3) Cindy Avery; (4) Cynthia Partridge;
(5) Lori Engmark; (6) Sandra Grant; (7) Patricia Caruso; (8) Unknown Battles, as well as an
unknown number of John and Jane Doe prison employees. Plaintiff’s claims against Defendant
Battles have since been dismissed. Plaintiff has not identified or effected service on the Doe
Defendants. The remaining Defendants now move for summary judgment.

SUMMARY JUDGMENT STANDARD
Summary judgment “shall” be granted “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.” Fed. R.
Civ. P. 56(a). A party moving for summary judgment can satisfy its burden by demonstrating “that
the respondent, having had sufficient opportunity for discovery, has no evidence to support an
essential element of his or her case.” Minadeo v. ICI Paints, 398 F.3d 751, 761 (6th Cir. 2005); see
also, Amini v. Oberlin College, 440 F.3d 350, 357 (6th Cir. 2006) (quoting Celotex Corp. v. Catrett,
477 U.S. 317, 325 (1986)). The fact that the evidence may be controlled or possessed by the moving
party does not change the non-moving party’s burden “to show sufficient evidence from which a
jury could reasonably find in her favor, again, so long as she has had a full opportunity to conduct
discovery.” Minadeo, 398 F.3d at 761 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257
(1986)).
Once the moving party demonstrates that “there is an absence of evidence to support
the nonmoving party’s case,” the non-moving party “must identify specific facts that can be

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established by admissible evidence, which demonstrate a genuine issue for trial.” Amini, 440 F.3d
at 357 (citing Anderson, 477 U.S. at 247-48; Celotex Corp. v. Catrett, 477 U.S. at 324). While the
Court must view the evidence in the light most favorable to the non-moving party, the party
opposing the summary judgment motion “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Amini, 440 F.3d at 357. The existence of a mere
“scintilla of evidence” in support of the non-moving party’s position is insufficient. Daniels v.
Woodside, 396 F.3d 730, 734-35 (6th Cir. 2005) (quoting Anderson, 477 U.S. at 252). The nonmoving party “may not rest upon [his] mere allegations,” but must instead present “significant
probative evidence” establishing that “there is a genuine issue for trial.” Pack v. Damon Corp., 434
F.3d 810, 813-14 (6th Cir. 2006) (citations omitted).
Moreover, the non-moving party cannot defeat a properly supported motion for
summary judgment by “simply arguing that it relies solely or in part upon credibility
determinations.” Fogerty v. MGM Group Holdings Corp., Inc., 379 F.3d 348, 353 (6th Cir. 2004).
Rather, the non-moving party “must be able to point to some facts which may or will entitle him to
judgment, or refute the proof of the moving party in some material portion, and. . .may not merely
recite the incantation, ‘Credibility,’ and have a trial on the hope that a jury may disbelieve factually
uncontested proof.” Id. at 353-54. In sum, summary judgment is appropriate “against a party who
fails to make a showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Daniels, 396 F.3d at 735.
While a moving party without the burden of proof need only show that the opponent
cannot sustain his burden at trial, see Morris v. Oldham County Fiscal Court, 201 F.3d 784, 787 (6th
Cir. 2000); Minadeo, 398 F.3d at 761, a moving party with the burden of proof faces a

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“substantially higher hurdle.” Arnett v. Myers, 281 F.3d 552, 561 (6th Cir. 2002); Cockrel v. Shelby
County Sch. Dist., 270 F.3d 1036, 1056 (6th Cir. 2001). “Where the moving party has the burden -the plaintiff on a claim for relief or the defendant on an affirmative defense -- his showing must be
sufficient for the court to hold that no reasonable trier of fact could find other than for the moving
party.” Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986) (quoting W. SCHWARZER,
Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D.
465, 487-88 (1984)). The Sixth Circuit has repeatedly emphasized that the party with the burden
of proof “must show the record contains evidence satisfying the burden of persuasion and that the
evidence is so powerful that no reasonable jury would be free to disbelieve it.” Arnett, 281 F.3d at
561 (quoting 11 JAMES WILLIAM MOORE, ET AL., MOORE’S FEDERAL PRACTICE § 56.13[1], at 56-138
(3d ed. 2000); Cockrel, 270 F.2d at 1056 (same). Accordingly, summary judgment in favor of the
party with the burden of persuasion “is inappropriate when the evidence is susceptible of different
interpretations or inferences by the trier of fact.” Hunt v. Cromartie, 526 U.S. 541, 553 (1999).

ANALYSIS
I.

Claims Regarding the 1986-1990 Time Period
Discerning the claims asserted by Plaintiff in his amended complaint, (dkt. #93), is

not straightforward. Plaintiff’s amended complaint includes only two counts, but a closer reading
reveals that Plaintiff is, in fact, asserting four distinct claims, two of which concern the events that
transpired during his incarceration from 1986 to 1990. Specifically, Plaintiff asserts that: (1)
Defendants “refused to investigate the possibility that [he] was being held longer than allowed under
Michigan law” in violation of his Fourteenth Amendment right to due process; and (2) Defendants

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deliberately refused to investigate his “multiple complaints” regarding his sentence in violation of
his Eighth Amendment rights.

A.

Fourteenth Amendment

Plaintiff certainly possessed a liberty interest in being free from incarceration after
the expiration of his sentence. See, e.g., McNeil v. Dir., Patuxent Inst., 407 U.S. 245, 246 (1972)
(“when his sentence expired, the State lost the power to hold him, and his continued detention
violates his rights under the Fourteenth Amendment”). The Fourteenth Amendment, however, does
not protect against all deprivations of liberty, but instead protects only against deprivations of liberty
accomplished without due process of law. See Baker v. McCollan, 443 U.S. 137, 145 (1979).
On July 8, 1988, the Michigan Court of Appeals affirmed the conviction and sentence
imposed on Plaintiff following his 1986 trial. See Harrison, 2008 WL 4276544 at *1. While the
Michigan Court of Appeals, in 2008, corrected its error, during the time Plaintiff was incarcerated
following his 1986 conviction, his detention was premised on a valid conviction and sentence. As
such, Plaintiff’s detention beyond his appropriate maximum sentence, while erroneous, was not
without due process of law. See, e.g., Baker, 443 U.S. at 145-46 (recognizing that it “is entirely
consistent with due process of law” that certain determination, such as the lawfulness of an
individual’s incarceration, be made by judicial officers rather than law enforcement or prison
officials).
The Baker Court did suggest, however, that the Fourteenth Amendment might be
implicated, despite the existence of a valid judgment of conviction and sentence, where the
individual makes “repeated protests” that his incarceration is unlawful. Even assuming this were

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the appropriate legal standard, Plaintiff cannot make the showing necessary for relief. Plaintiff
testified at his deposition that during his initial incarceration, from 1986-1990, he was not aware of
any actual or particular error in the imposition or calculation of his sentence. (Dkt. #124, Exhibit
B at 8). Instead, he merely “had a feeling something was wrong.” (Dkt. #124, Exhibit B at 8).
While Plaintiff allegedly asked the warden to “look into” his sentence, Plaintiff concedes that he was
unable to describe for the warden any possible defect or error therein. (Dkt. #125, Exhibit 5 at 2225). Plaintiff testified that it was not until after his later return to prison that he realized that his
previous sentence had been miscalculated. (Dkt. #124, Exhibit B at 35). Plaintiff has failed to
present evidence indicating that, during the relevant time period, he made to Defendants, or any
other prison officials, specific complaints concerning the calculation or imposition of his sentence.1
Plaintiff has likewise identified no authority imposing on prison officials a
constitutional obligation to, essentially, act as legal advocates for every prisoner who asserts the
vague complaint that there exists an unknown error in the calculation of his sentence. While the
warden’s alleged failure to assist Plaintiff may violate the standard of care applicable to a state law
tort claim, it simply does not violate the Fourteenth Amendment. See Baker, 443 U.S. at 146 (“[j]ust
as medical malpractice does not become a constitutional violation merely because the victim is a
prisoner, false imprisonment does not become a violation of the Fourteenth Amendment merely
because the defendant is a state official”). Accordingly, Defendants are entitled to summary
judgment as to this claim.

1

The Court notes that in his opposition to Defendants’ motion, Plaintiff relies extensively on the allegations in his amended
complaint. Such allegations, however, are insufficient to defeat a properly supported motion for summary judgment. See Simon Trierweiler, 2014 WL
1028884 at *6 (W.D. Mich., Mar. 17, 2014). Plaintiff’s amended complaint is not a sworn document. Moreover, even if the amended complaint were a
sworn document it would be insufficient because the pleading is not signed by Plaintiff, but is instead signed by Plaintiff’s counsel who has not
asserted that he possesses first hand knowledge of the relevant facts and circumstances. See Rogers v. Lilly, 292 Fed. Appx. 423, 428 n.3 (6th Cir.,
Aug. 22, 2008) (“only admissible evidence may be considered by the trial court in ruling on a motion for summary judgment”).

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B.

Eighth Amendment

To prevail on his claim that Defendants violated his Eighth Amendment rights by
refusing to investigate his “multiple complaints” regarding the calculation of his sentence, Plaintiff
must demonstrate that Defendants acted with deliberate indifference. See Shorts v. Bartholomew,
255 Fed. Appx. 46, 51-56 (6th Cir., Oct. 17, 2007). Specifically, Plaintiff must establish the
following: (1) Defendant had actual knowledge of the alleged error “and thus of the risk that
unwarranted punishment was being, or would be, inflicted”; (2) Defendant “either failed to act or
took only ineffectual action under circumstances indicating that his or her response to the problem
was a product of deliberate indifference to [Plaintiff’s] plight”; and (3) a “causal connection between
[Defendant’s] response to the problem and the infliction of the unjustified detention.” Id. at 55.
Plaintiff’s claim fails at step one. As discussed in the preceding section, Plaintiff
cannot demonstrate that Defendants had actual knowledge that Plaintiff’s sentence had been
improperly calculated or that there existed any risk that Plaintiff would be subjected to unwarranted
punishment. Accordingly, Defendants are entitled to summary judgment as to this claim.

II.

Claims Arising Following Plaintiff’s 1991 Incarceration
Plaintiff has asserted two claims concerning events following his incarceration in

1991. Specifically, Plaintiff alleges that Defendants, “by their negligent or intentional spoilation
of evidence that Plaintiff had gathered,” denied Plaintiff the opportunity to establish that he suffered
a violation of his rights. Plaintiff asserts this constitutes a violation of his Fourteenth Amendment

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rights. Plaintiff further alleges that Defendants violated his Eighth Amendment rights when they
refused to recommend a reduction in his current sentence.

A.

Spoilation of Evidence

Plaintiff alleges that in “about 2005,” “more than 500 pages of legal materials. . .came
up missing from his cell.” (Dkt. #93 at ¶¶ 42-44). However, Plaintiff has neither alleged nor
presented evidence that any Defendant participated in the alleged theft of his property. This is fatal
to Plaintiff’s claim. See Spencer v. Bouchard, 449 F.3d 721, 730 (6th Cir. 2006) (liability in a §
1983 action cannot be premised upon passive behavior or an alleged failure to act, rather liability
must be based upon active unconstitutional behavior). Accordingly, Defendants are entitled to
summary judgment as to this claim.

B.

Reduction in Current Sentence

Finally, Plaintiff alleges that Defendants violated his Eighth Amendment rights by
failing to recommend that his current prison sentence be reduced by the amount of time he
improperly served during his prior incarceration. To prevail on an Eighth Amendment claim,
Plaintiff must demonstrate that Defendants acted with deliberate indifference.
The Court dismissed, on screening, Plaintiff’s claim that the failure to reduce his
current sentence in recognition of the excess time he served on his 1986 conviction violated
Michigan law. (Dkt. #7). On appeal, the Sixth Circuit affirmed the dismissal of this claim,
specifically stating:
Harrison has provided no legal basis under Michigan state law for his
request to shorten his 1991 sentence to somehow rectify the error
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made with regard to his 1986 sentence, and we know of none. We
therefore hold that the district court did not err in dismissing this
claim.
Harrison, 722 F.3d at 771.
Defendants can hardly be found to have acted with deliberate indifference to
Plaintiff’s plight where they failed to provide Plaintiff with a sentence reduction that is not permitted
under Michigan law. Plaintiff has likewise failed to identify authority that such a sentence
reduction, under the present circumstances, is mandated by federal law. Accordingly, Defendants
are entitled to summary judgment as to this claim.

CONCLUSION
For the reasons articulated herein, Defendants’ Motion for Summary Judgment, (dkt.
#123), is granted. An Order consistent with this Opinion will enter.

Date: February 9, 2016

/s/ Ellen S. Carmody
ELLEN S. CARMODY
United States Magistrate Judge

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