Basso v. Michigan Department of Corrections et al

Filing 38

OPINION granting in part and denying in part 17 motion to dismiss; Plaintiff granted leave to amend complaint; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, sdb)

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN N O R T H E R N DIVISION

A L B E R T BASSO, P l a in tif f , F ile No. 2:08-cv-75 v. H O N . ROBERT HOLMES BELL S T A T E OF MICHIGAN DEPARTMENT O F CORRECTIONS, and PATRICIA L. C A R U S O , JAMES MACMEEKIN, and JEFF WHITE, in their individual and official capacities, D e f e n d a n ts . / OPINION T h is matter is before the Court on a motion to dismiss filed by Defendants Michigan D e p a rtm e n t of Corrections, Patricia L. Caruso, James MacMeekin, and Jeff White. (Dkt. N o . 17.) Plaintiff Albert Basso responded to the motion and the Court heard oral arguments b y the parties. I. E x ce p t where noted, the following facts are taken from the allegations in Plaintiff's c o m p l a in t . In 2005 and 2006, Plaintiff was a corrections officer with the Michigan

D e p a rtm e n t of Corrections. ("MDOC"), employed at the Ojibway Correctional Facility (the " O C F Facility"). Plaintiff alleges that the OCF Facility became a multi-level facility in 2005, d e sig n a te d to receive prisoners with higher security level classifications. Plaintiff complained

a b o u t what he perceived as inadequate staffing and security measures at the OCF Facility in v ie w of the higher security level of the prisoners being held there. Plaintiff alleges that D e f en d a n ts intentionally exposed the corrections officers at the OCF Facility to prisoners of a higher security level than the facility was equipped to accommodate. Plaintiff alleges that Defendant White, the warden at the OCF Facility, showed f a v o ritis m towards black inmates as opposed to white corrections officers. Plaintiff

c o m p l a in e d about Defendant White's activities, including frequenting gentleman's clubs, s e d u c in g local women, favoring black inmates, and socializing with female corrections o ff icers. Plaintiff alleges that Defendant White intentionally moved Plaintiff to a more d a n g e ro u s shift in retaliation for speaking out against him. On April 9, 2006, there was a riot at the OCF Facility involving the inmates (the " D is tu rb a n c e" ). During the Disturbance, Plaintiff was attacked by inmates and sustained stab w o u n d s to his neck and head and blows to his face and body. Plaintiff alleges that, prior to th e Disturbance, he saw Defendant White speaking with some of the inmates that attacked P la in tif f . In this action, Plaintiff has filed claims against the prison warden at the time, D e f en d a n t White, the regional director for MDOC in charge of the OCF Facility, Defendant M a c M e e k in , and the director of the MDOC, Defendant Caruso, for (1) violation of Fourteenth A m e n d m e n t rights to procedural and substantive due process, pursuant to 42 U.S.C. § 1983, (2 ) violation of the Equal Protection Clause, pursuant to 42 U.S.C. § 1983, (3) interference

2

w ith the "right to form and enter contracts," pursuant to 42 U.S.C. § 1981, (4) common law g ro s s negligence, (5) First Amendment retaliation, pursuant to 42 U.S.C. § 1983, and (6) c o n s titu tio n a l violations by the MDOC. II. E lev e n t h Amendment Immunity 1 . Official Capacity D e f en d a n ts request dismissal of all claims against the MDOC, and against employees o f the State of Michigan, Defendants White, Caruso, and MacMeekin, in their official c a p a c ity, based on Eleventh Amendment immunity. "The Eleventh Amendment bars suits b ro u g h t in federal court against a state and its agencies unless the state has waived its s o v e re ig n immunity or consented to be sued in federal court." Grinter v. Knight, 532 F.3d 5 6 7 , 572 (6th Cir. 2008). A suit against state officials in their official capacity is a suit against t h e ir office. Id. Michigan has not waived immunity or consented to suit. Abick v. State of M ic h ig a n , 803 F.2d 874 (6th Cir. 1986). The MDOC is an "arm of the state" entitled to E le v e n th Amendment immunity. Turnboe v. Stegall, No. 00-1182, 2000 WL 1679478, at *2 (6 th Cir. Nov. 1, 2000) (unpublished). Plaintiff does not seek prospective relief. See K e n tu c k y v. Graham, 473 U.S. 159, 167, n.14 (1985) (noting that "official-capacity actions f o r prospective relief are not treated as actions against the State"). Plaintiff apparently does n o t dispute Defendants' Eleventh Amendment immunity argument, as Plaintiff offers no re sp o n se . The Court will dismiss all claims against MDOC, and all claims against Defendants

3

W h ite, Caruso and MacMeekin in their official capacity. 2 . Individual Capacity (Qualified Immunity) D e f e n d a n ts also argue that they have qualified immunity with respect to all claims. in th e complaint. Q u a lifie d immunity is an affirmative defense that will protect a state official sued in h is individual capacity from damages liability when two questions have been a n sw e re d : (1) "Taken in the light most favorable to the party asserting the injury, do th e facts alleged show the officer's conduct violated a constitutional right?"; and (2) if the answer to the first question is yes, we must decide whether the violated right was " c le a rly established." Gunasekera v. Irwin, 551 F.3d 461, 471 (6th Cir. 2009) (citing Saucier v. Katz, 533 U.S. 194, 2 0 0 -0 1 (2001)). Analysis of each claim plead in the complaint follows in Section III, infra. I I I. D e f en d a n ts also seek dismissal of all counts in the complaint pursuant to Rule 12(b)(6) o f the Federal Rules of Civil Procedure, based on failure to state a claim under which relief m a y be granted. The Federal Rules of Civil Procedure provide for a liberal system of notice pleading. F e d . R. Civ. P. 8(a). A plaintiff need only provide "a short and plain statement of the claim s h o w in g that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "Such a statement must s im p l y `give the defendant fair notice of what the plaintiff's claim is and the grounds upon w h ic h it rests.'" Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (quoting Conley v. G ib s o n , 355 U.S. 41, 47 (1957)). In considering such a motion pursuant to Rule 12(b)(6), the Court assumes that all the 4

a lle g a tio n s in the complaint are true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1 9 5 5 , 1965 (2007). To survive a motion to dismiss under Rule 12(b)(6), a complaint must c o n tain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory. Allard v. Weitzman (In re DeLorean Motor Co.), 9 9 1 F.2d 1236, 1240 (6th Cir. 1993). Dismissal of the complaint is proper only if it appears b e yo n d doubt that the plaintiff can prove no set of facts in support of its claims that would e n title it to relief. Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 562 (6th Cir. 2003); Goad v . Mitchell, 297 F.3d 497, 500 (6th Cir. 2002). The denial of a motion to dismiss for failure to state a claim does not preclude a later summary judgment motion arguing that the plaintiff in fact cannot show evidence to support the claim. Stemler v. Florence, 350 F.3d 578, 590 (6th Cir. 2003). A . Count I - Due Process 1 . Procedural Due Process U n d e r the Due Process Clause, the State may not deprive an individual of life, liberty, o r property without due process of law. Daniels v. Williams, 474 U.S. 327, 331 (1986). To s h o w a claim of violation of Fourteenth Amendment procedural due process, Plaintiff must s h o w a deprivation of a protected liberty interest or property interest. Johnson-Taylor v. G a n n o n , 907 F.2d 1577, 1581 (6th Cir. 1990). Plaintiff alleges that his procedural due p ro c e ss rights were violated because Plaintiff, and other staff at the OCF Facility, were not p ro v id e d a hearing regarding the decision to assign high-security inmates to the OCF Facility.

5

(D k t. No. 1, Compl. ¶ 51, 54.) Plaintiff's complaint alleges that the prison employee h a n d b o o k "created a liberty interest in a safe workplace[.]" (Compl. ¶ 51.) (emphasis added) In his response to the motion for summary judgment, Plaintiff argues that he had a property in te re st in his job pursuant to the collective bargaining agreement and the employee handbook. " [ P ]u b lic employment in and of itself is not a property interest automatically entitling a n employee to procedural due process." Chilingirian v. Boris, 882 F.2d 200, 205 (6th Cir. 1 9 8 9 ). The Court notes that Plaintiff does not allege that his job was terminated by D e f en d a n ts , or that Defendants changed his pay. At best, Plaintiff's working conditions and s h if t change might be characterized as a deprivation of employment benefits, which in some c irc u m s ta n c e s can constitute property interests. See Gunasekera, 551 F.3d at 468

(c h a ra c te riz in g a reduced teaching load as "benefits"). "To have a property interest in a b e n e fit, a person clearly must have more than an abstract need or desire for it. He must have m o re than a unilateral expectation of it. He must, instead, have a legitimate claim of e n title m e n t to it." Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). P la in tif f offers no legal basis or factual support for the proposition that a particular sh if t assignment or a particular working environment constitutes a protectible property in te re st. Plaintiff cites no authority supporting its position. Moreover, Plaintiff does not a lle g e that the terms of the employee handbook or collective bargaining agreement created a "legitimate claim of entitlement" to specific working conditions (as opposed to an abstract

6

e x p e c ta tio n of "safety"), such as a right to work in a prison without high-security prisoners, o r a right to work a particular shift. While Plaintiff may have expected that his working c o n d itio n s at the prison would remain relatively unchanged, he has not alleged a sufficient b a s is for a "legitimate claim of entitlement" to any particular conditions. In the absence of s u c h allegations, Plaintiff fails to plead a claim of violation of procedural due process. See B r o w n v. Brienen, 722 F.2d 360, 365 (7th Cir. 1990) (holding that "[d]isputes over overtime, o v e r work assignments, over lunch and coffee breaks do not implicate the great objects of the F o u r te e n th Amendment") (cited in Alexander v. City of Toledo, No. 99-3875, 2000 WL 1 8 7 1 6 9 3 , at *4 (6th Cir. Dec. 13, 2000) (unpublished)). 2 . Substantive Due Process T h e substantive component of the Due Process Clause "bar[s] certain government a c tio n s regardless of the fairness of the procedures used to implement them." Id. First, D e f en d a n t argues that Plaintiff has not asserted a fundamental interest subject to substantive d u e process protection. Plaintiff was physically attacked by prison inmates. Plaintiff alleges th a t Defendants actions increased the risk that Plaintiff would be subject to this sort of harm. " In d iv id u a ls have `a clearly established right under the substantive component of the Due P r o c e ss Clause to personal security and to bodily integrity . . . it goes without saying that an in d iv id u a l's `interest in preserving her life is one of constitutional dimension.'" Kallstrom v. C ity of Columbus, 136 F.3d 1055, 1062-63 (6th Cir. 1998) (quoting Doe v. Clairborne C o u n ty , 103 F.3d 495, 506-07 (6th Cir. 1996); Nishiyama v. Dickson County, 814 F.2d 277,

7

2 8 0 (6th Cir. 1987), overruled on other grounds by Lewellen v. Metro. Gov't of Nashville & D a v id so n County, 34 F.3d 345, 350 (6th Cir. 1994)). H o w e v e r, the Due Process Clause places limitations on state action. Kallstrom, 136 F .3 d at 1065. Plaintiff has not alleged that any of the Defendants directly harmed Plaintiff; P la in tif f has alleged that Defendants' actions, including admitting prisoners with a higher leve l of security to the OCF Facility, changing Plaintiff's shift, and directing inmates to harm P la in tif f , created a substantial risk of serious bodily harm for Plaintiff. Under the statec re a te d danger doctrine, the state may be liable for injury caused by a private person if the p lain tiff can show: (1) an affirmative act by the governmental actor either created or increased the risk that th e plaintiff would be exposed to the injurious conduct of the private person; (2) the governmental actor's act especially endangered the plaintiff or a small class of w h ic h the plaintiff was a member; and (3) the governmental actor had the requisite degree of culpability. Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., 542 F.3d 529, 534 (6th Cir. 2008). The re q u is ite level of culpability includes government conduct that "shocks the conscience." Id. a t 535. Outside the context of an individual being held in government custody, claims of e x p o su re to state-created danger must meet a "very stringent" standard of government c u lp a b ility. Id. at 538. Where the government action "was not done for the purpose of injuring someone or in furtherance of invidious discrimination" the Court will consider whether the relationship

8

b e tw e e n the government and the plaintiff was voluntary. Id. at 536. Claims of government e m p lo ye e s regarding an unsafe workplace are "particularly unlikely to shock the conscience." Id . at 537. Failure to provide a safe working environment is not, in itself, "conscience s h o c k in g , in a constitutional sense," because it is not "arbitrary." Id. [W]here the governmental actor does not intentionally harm the victim or invidiously d isc rim in a te against him, conduct endangering the victim will not shock the c o n sc ie n c e if the victim has voluntarily undertaken public employment involving the k ind of risk at issue and the risk results from the governmental actor's attempt to carry o u t its mandatory duties to the public. H u n t, 542 F.3d at 543-44 (emphasis added). Because of the voluntary aspect of exposure to d a n g e r s in the context of government employment, "cases in which the plaintiff is a g o v e rn m e n t employee suing for injuries received in the line of duty . . . are particularly u n lik e ly to succeed." Id. at 536. Even deliberate exposure of public employees to high risk d o e s not shock the conscience. Id. at 537. However, as Hunt indicates, the voluntariness of the public employment relationship d o e s not preclude claims of arbitrary or invidious conduct. Arbitrary actions are those that h a v e no legitimate governmental purpose. Id. at 540. Such conduct includes actions " in te n tio n a lly designed to punish," such as giving a worker a "particularly dangerous a ss ig n m e n t in retaliation for a political speech . . . ." Id. at 538 (quoting Collins v. City of H a rk e r Heights, 503 U.S. 115, 119 (1992)); see County of Sacramento v. Lewis, 523 U.S. 833, 8 3 4 (1998) ("[C]onduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level.").

9

W h ile Plaintiff's complaint is not a model of clarity, Plaintiff has alleged that Defendant W h ite intentionally assigned him to a more dangerous shift, and appears to allege that D e f e n d a n t White encouraged inmates to attack Plaintiff prior to the riot, in each case, in re ta lia tio n for speaking out about Defendant White's allegedly improper conduct. Plaintiff h a s also alleged that Defendants MacMeekin and Caruso made changes to the OCF Facility a n d failed to provide adequate security and staffing for racially discriminatory reasons. For p u rp o s e s of this motion, the Court finds that these allegations are sufficient to plead the r e q u is ite level of government culpability to state a substantive due process claim. Because it would be clear to a reasonable officer that arbitrary and racially discriminatory action d e sig n e d to harm an individual is unlawful, the Court finds that Defendants are not subject to qualified immunity with respect to this claim at this stage of the proceedings. See Perez v . Oakland County, 466 F.3d 416, 427 (6th Cir. 2006) ("The relevant, dispositive inquiry in d e ter m in in g whether a right is clearly established is whether it would be clear to a reasonable o f f ic e r that his conduct was unlawful in the situation he confronted.") (quoting Saucier v. K a tz, 533 U.S. 194, 202 (2001)). B . Count II - Equal Protection C o u n t II of Plaintiff's complaint alleges a violation of the Equal Protection Clause. " T o establish a claim for relief under the Equal Protection Clause, a plaintiff must d e m o n stra te that the government treated the plaintiff disparately as compared to similarly situ a ted persons and that such disparate treatment either burdens a fundamental right, targets

10

a suspect class, or has no rational basis." Club Italia Soccer & Sports Org., Inc. v. Charter T o w n s h ip of Shelby, 470 F.3d 286, 298 (6th Cir. 2006). Claims of violation of the Equal Protection Clause based on discrimination in the w o rkp lace are subject to the same standards as claims of discrimination under Title VII. G u tzw ille r v. Fenik, 860 F.2d 1317 (6th Cir. 1988) ("As this court has observed several times, the showing a plaintiff must make to recover on a disparate treatment claim under Title VII m irro rs that which must be made to recover on an equal protection claim under section 1 9 8 3 ."); Watson v. City of Cleveland, 202 F. App'x 844, 856 (6th Cir. 2006) ("Proving in te n tio n a l discrimination for an equal protection claim brought under § 1983 requires the p la in tif f to make the same showing required to prove a violation of Title VII."). A plaintiff claiming discrimination may provide direct evidence of discrimination, or a plaintiff may establish a prima facie case under the burden-shifting analysis described in M c D o n n e ll Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Department of C o m m u n ity Affairs v. Burdine, 450 U.S. 248 (1981). White v. Baxter Healthcare Corp., 533 F .3 d 381, 391 (6th Cir. 2008). Under this framework, the plaintiff bears the initial burden of e sta b lis h in g a prima facie case of discrimination. A prima facie case of employment d is c rim in a tio n requires a plaintiff to show that: (1) he is a member of a protected class;1 (2) h e was qualified for his job; (3) he suffered an adverse employment decision; and (4) he was
1

In reverse-discrimination cases, the first element of the prima facie case is that the plaintiff must show evidence of "background circumstances" indicating that the defendant is the "unusual employer who discriminates against the majority." Sutherland v. Mich. Dep't of Treasury, 344 F.3d 603, 614 (6th Cir. 2003). 11

tre a te d differently than similarly situated individuals who are not members of his protected c la s s . See McDonnell Douglas, 411 U.S. at 800-04. H o w e v e r, to survive a motion to dismiss, Plaintiff is not required to plead all the e le m e n ts of a prima facie case. Swierkiewicz, 534 U.S. at 515. Plaintiff alleges that changes to the OCF Facility and changes to Plaintiff's shift assignment constitute a violation of the E q u a l Protection Clause. Plaintiff's complaint alleges that "Warden White had shown f a v o ritis m toward black inmates generally, and it was felt by white corrections officers that th e y were less favored by Defendant White" and that "Defendants had a policy, procedure or c u sto m of treating white officers and facilities whose officer staff is primarily composed of w h ite officers less favorably than black officers and facilities whose officer staff is primarily c o m p r is e d of black officers." (Compl. ¶¶ 42, 75.) The Court agrees with Defendants that f a v o ra b le treatment of inmates is not relevant to a claim by a prison guard because inmates a n d prison guards are not "similarly situated," and non-specific allegations of "favoritism" a n d "less favorable" treatment do not in themselves provide sufficient notice of the basis for a n equal protection claim. Plaintiff has also alleged that Defendant White intentionally assigned Plaintiff to a m o re dangerous shift as retaliation for speaking out about Defendant White. Plaintiff's co m p lain t does not allege that Defendant White's actions were motivated by race or Plaintiff's m e m b e rs h ip in a suspect class, that Plaintiff was treated differently from any similarlysitu ated prison guards, or that Defendants had a policy or custom of assigning white officers

12

t o more dangerous shifts than minority officers. However, Plaintiff argues in its brief that P lain tiff 's race was a factor in Defendant White's decision to move Plaintiff to a new shift. S o stated, Plaintiff has alleged membership in a suspect class and disparate treatment s u f f ic ie n t to state an equal protection claim. Plaintiff has also stated another basis for an equal protection claim. Plaintiff alleges th a t the OCF Facility, which is primarily comprised of white officers, was managed d i f f e re n t ly than other prison facilities that were primarily comprised of minority officers. P la in tif f alleges that officers at the OCF Facility were intentionally subject to riskier working c o n d itio n s when the OCF Facility became an "experiment" whereby higher security-level p r is o n e r s were accepted at a facility insufficiently equipped to handle such prisoners. Thus, b ase d on these allegations, Plaintiff has alleged membership in a suspect class (white officers a t the OCF Facility) and disparate treatment (riskier working conditions) sufficient to state a c la im of equal protection violation. Moreover, Defendants are not subject to qualified im m u n ity for this claim. C . Count III - Right to Form and Enter Into Contracts, and Full and Equal Protection o f Laws (42 U.S.C. § 1981) In Count III, Plaintiff alleges that Defendants' discriminatory actions "have the effect o f denying the Plaintiff the right to make and enforce contracts, and the full and equal p ro tec tio n of all laws and proceedings for the security of persons and property." (Compl. ¶ 77.) As noted in Section III.B, supra, Plaintiff has stated a claim for discrimination based o n disparate treatment of white officers at the OCF Facility and assignment to a more 13

d a n g e ro u s shift, subject to amendment of the complaint. D e f en d a n ts argue that Plaintiff does not have standing to bring a breach of contract c o n tra c t claim because Plaintiff is not party to an employment contract. In his response, P la in t if f does not assert that he has an employment contract or challenge Defendants' a s s e rtio n that he has none. Alternatively, Defendants argue that Plaintiff cannot sue his employer for breach of a c o lle c tiv e bargaining agreement between his union and his employer because his complaint is untimely and he has not exhausted the applicable administrative remedies. Plaintiff does n o t respond to these arguments, except to assert that he is not bringing a breach of contract c la im , but a 42 U.S.C. § 1981 claim for discrimination and impairment of the ability to enjoy " a ll benefits, privileges, terms, and conditions of [a] contractual relationship." § 1981(b). Plaintiff's complaint alleges that the "security unit agreement between the corrections' o f f ic e r s union and the State of Michigan indicates that the State will make every effort to p ro v id e a place of employment free from known health and safety hazards" and will "take ste p s to eliminate or minimize, and to avoid aggregating[,] inherent safety hazards." (Compl. ¶ 28.) Notwithstanding Plaintiff's characterization, the Court agrees with Defendants that the n a tu re of Plaintiff's claim is that his employer has breached the collective bargaining a g re e m e n t with the union. Plaintiff's complaint asserts that his employer had a duty to P lain tiff under the collective bargaining agreement to provide a safe working environment, Id. at

14

a n d that it did not fulfill this duty. Claiming that Defendants actions have "impaired" P la in tif f 's right under § 1981 to enjoy benefits2 that Defendants are contractually obligated to provide is no different from claiming that Defendants have breached the contract. Defendants argue that a lawsuit by Plaintiff against his employer alleging violation of a collective bargaining agreement is subject to the Labor Management Relations Act, 29 U .S .C . §§ 141, et seq. ("LMRA"). "It has long been established that an individual employee m a y bring suit against his employer for breach of a collective bargaining agreement." D e lC o s te llo v. Int'l Brotherhood of Teamsters, 462 U.S. 151, 165 (1983). Defendants argue th a t, because the LMRA applies, Plaintiff is subject to the sixth-month statute of limitations in the LMRA.3 In DelCostello, the Supreme Court held claims brought by employees under th e LMRA are subject to a sixth-month statute of limitations, as set forth in 29 U.S.C. § 160(b). Id. at 172. The factual basis for Plaintiff's claim are changes to the OCF Facility le a d in g up to injuries on August 9, 2006. Plaintiff did not file his complaint until August 29, 2 0 0 8 , over two years after the changes and his injuries. Plaintiff does not respond to D e f en d a n ts ' argument regarding the statute of limitations or contend that his claim should be s u b je c t to an exception to the statute of limitations.

The Court notes that other rights under § 1981 are not at issue in the instant case; this is not a case where Plaintiff has alleged facts indicating impairment of rights to "mak[e], perform[], modif[y], or terminat[e]" a contract. 42 U.S.C. § 1981(b). Defendants also assert that Plaintiff has not exhausted his remedies under the collective bargaining agreement; however, Defendants offer no evidence of an exhaustion requirement in the collective bargaining agreement. 15
3

2

H o w e v e r, Plaintiff brought his action pursuant to § 1981, not the LMRA. Defendants a ss e rt that the LMRA is the exclusive means to sue an employer for breach of a collective b a rg a in in g agreement, citing Section 301 of the LMRA, 29 U.S.C. § 185. Section 301 does n o t specify that the LMRA is exclusive of other federal remedies. Defendants offer no a u th o rity indicating that the LMRA preempts other federal remedies, such as a cause of action u n d e r § 1981, or that the statute of limitations under the LMRA should apply to actions under § 1981. For the foregoing reasons, the Court finds that Plaintiff has stated a claim of d isc rim in a tio n under § 1981. Moreover, Defendants are not subject to qualified immunity w ith respect to this claim. D . Count IV - Gross Negligence D e f en d a n ts argue that they are immune from liability for Plaintiff's state law gross n e g lig e n c e claim. "Highest executive officials" qualify for absolute immunity for acts within th e ir respective authority under subsection (5) of the Michigan governmental immunity s ta tu te , Mich. Comp. Laws § 691.1407. See Ross v. Consumers Power Co., 363 N.W.2d 641, 6 3 2 (Mich. 1984). Defendant Caruso, as the director of the MDOC, is a "highest executive o f f ic ia l " that qualifies for absolute immunity. Chivas v. Hoehler, 453 N.W.2d 264, 266 (M ic h . App. 1990). Plaintiff alleges that Defendant MacMeekin was the regional prison a u th o rity of the MDOC with responsibility over the OCF Facility. According to Chivas, "[a]n e x e cu tiv e should have broad-based jurisdiction or extensive authority similar to that of a judge o r legislator" to have absolute immunity. Id. at 266. In Chivas, the plaintiff complained that

16

th e defendants had improperly transferred high-security prisoners to a low-security prison. Id . at 265. The court found that one defendant, a deputy director of the MDOC, was a " h i g h e s t executive official" because no one else reviewed his decisions to effect the transfers, w h e re a s another defendant, a prison superintendent, was found not to be a highest executive o f f ic ia l because he had jurisdiction over only prison. Id. at 266. Without additional evidence re g a r d in g the scope of Defendant MacMeekin's jurisdiction at the time of the incidents in q u e stio n , the Court is unable to determine whether he was a "highest executive official" su b jec t to absolute immunity for the actions set forth in the complaint. Defendants also argue that subsection (2) of the Michigan governmental immunity sta tu te applies to Plaintiff's claim of gross negligence. This section provides tort immunity f o r officers and employees of a governmental agency if all of the following are met: (a) The officer, employee, . . . is acting or reasonably believes he or she is acting w ith in the scope of his or her authority. (b) The governmental agency is engaged in the exercise or discharge of a governmental f u n c tio n . (c) The officer's, employee's . . . conduct does not amount to gross negligence that is th e proximate cause of the injury or damage. M ich. Comp. Laws § 691.1407(2) (West 2009) (emphasis added). Plaintiff alleges that D e f en d a n ts were acting within the scope of their employment. (Compl. ¶ 4.) The Michigan C o u rts of Appeal have held that the "operation and maintenance" of a jail is a "governmental f u n c tio n " giving rise to immunity from tort liability. Wojtasinski v. City of Saginaw, 254 N .W .2 d 71, 72 (Mich. App. 1977). Plaintiff challenges only the issue of proximate cause in 17

s u b s e c tio n (2)(c). "Proximate cause" under this section means "the one most immediate, e f f ic ie n t, and direct cause preceding injury." Robinson v. City of Detroit, 613 N.W.2d 307, 3 1 1 (Mich. 2000). In Robinson, the defendants were police officers that were involved in the p u rs u it of an underage driver. The court concluded that the reckless conduct of the fleeing d r iv e r was the proximate cause of injuries to his passengers, not the actions of the officers. Id . at 319. Similarly, Plaintiff's injuries were most directly and immediately caused by the rio tin g inmates at the OCF Facility; none of the actions of Defendants can be said to be the " o n e most immediate" or "direct" cause of Plaintiff's injuries. Thus, Defendants are immune f ro m tort liability with respect to Plaintiff's state law claim of gross negligence. E . Count V - First Amendment Retaliation F o r a claim of First Amendment retaliation a plaintiff must show that (1) he was e n g a g ed in constitutionally protected speech, (2) he was subjected to an adverse action or was d e p riv e d of some benefit, and (3) the protected speech was a substantial or motivating factor in the adverse action. Banks v. Wolfe County Bd. of Educ., 330 F.3d 888, 892 (6th Cir. 2003). I n determining whether a public employee's speech is protected under the First A m e n d m e n t, a court first must determine whether it may be "fairly characterized as c o n stitu tin g speech on a matter of public concern." Connick v. Myers, 461 U.S. 138, 146 (1 9 8 3 ). Whether a plaintiff's speech touches upon a matter of public concern is a question o f law. Banks, 330 F.3d at 892. If a plaintiff's speech is not a matter of public concern, no f u rth e r inquiry is necessary. Id. at 892-93.

18

S p e e c h addressing a matter of public concern is speech relating to "any matter of p o litic a l, social, or other concern to the community." Connick, 461 U.S. at 146. Speech is a matter of public concern where "it involves issues about which information is needed or a p p ro p ria te to enable the members of society to make informed decisions about the operation o f their government." Farhat v. Jopke, 370 F.3d 580, 590 (6th Cir. 2004). "Such matters of p u b lic concern are to be contrasted with internal personnel disputes or complaints about the e m p lo ye r's performance." Brandenburg v. Hous. Auth. of Irvine, 253 F.3d 891, 898 (6th Cir. 2 0 0 1 ). Plaintiff alleges that he complained about the safety and security of the prison. Plaintiff a ls o alleges that he complained about Defendant White's activites: . . . which included but were not limited to, White's frequent visits to local " g e n tle m a n ' s clubs," seduction of local women, favoritism towards African American in m a tes as opposed to Caucasian corrections officers, socialization with female c o rre c tio n s officers, and his contacts with the Ironwood Public Safety regarding d o m e s tic disputes of which he was involved. (Compl. ¶ 44.) Plaintiff contends that Defendants retaliated against him for speaking out a b o u t security concerns at the OCF Facility and Defendant White's activities. Plaintiff a p p e ars to allege that Defendant White purposefully moved Plaintiff to a more dangerous shift a n d instructed inmates to harm Plaintiff in retaliation for this conduct. In a case similar to the instant case, the Sixth Circuit examined the speech of a prison c o rr e c tio n s officer complaining about the safety of a prison facility. Albert v. Mitchell, 42 F. A p p 'x 691 (6th Cir. 2007) (unpublished). In that case, the plaintiff contended that his

19

e m p lo ye r retaliated against him for his complaints that the prison officials did not provide a s s is ta n c e in emergency situations. Id. at 693. The Court upheld dismissal for failure to state a claim, noting that "[n]owhere in [plaintiff's allegations] is there mention that this failure m a y lead to the escape of prisoners, which might in turn be dangerous to the public. Only the p e rs o n a l safety of the correctional officers in question is at issue." Id. at 693-94. The Court f in d s the reasoning in Albert to be persuasive. Plaintiff does not allege that there is any c o n n e ctio n between the safety and security measures taken at the prison and public welfare; P la in tif f 's allegations regarding prison safety relate solely to the welfare of the prison e m p lo ye e s and inmates. (See Compl. ¶ 25.) Thus, as a matter of law, Plaintiff's complaints reg ard ing the level of safety at the prison for prison employees and inmates are not "matters o f public concern" and are not protected speech under First Amendment retaliation analysis. S im ila rly, Plaintiff's complaints regarding Defendant White's personal indiscretions a n d inappropriate workplace conduct that Plaintiff alleges affected the "reputation, morale, a n d level of service provided by the institution" are not matters of public concern. (Compl. ¶ 45.) See Albert, 42 F. App'x at 693 (finding that an affair between two corrections officers is not a matter of public concern due to a lack of "nexus" to "any detriment to the public w e lf a re " ). Defendant White's alleged activities, while they may appeal to a prurient interest, a re not matters of public concern. Plaintiff asserts in his brief that his speech regarding the operation of the prison and th e "corruption" of the prison officials is a matter of public concern because it involves

20

" e n su rin g that public organizations are being operated in accordance with the law," citing M a r o h n ic v. Walker, 800 F.2d 613, 616 (6th Cir. 1986). However, Plaintiff's complaint does n o t allege any corruption or other illegal activity in the operation of the OCF Facility that w o u ld be a matter of public concern, such as the misuse or theft of public funds that was e x p o se d by the plaintiff in Marohnic. For the foregoing reasons, Plaintiff's complaint fails to state a claim for retaliation under the First Amendment. F . Count VI - Constitutional Violations of MDOC. C o u n t VI is asserted only against MDOC and does not assert a separate legal basis for lia b ility. The Court will dismiss Count VI because MDOC will be dismissed as a party. IV . Plain tiff moved for leave to amend the complaint during oral argument. Because "[t]he C o u ld should freely give leave [to amend] where justice so requires," Fed. R. Civ. P. 1 5 (a )(2 ), and because several of Plaintiff's claims fail due to failure to allege specific factual a lle g a tio n s , the Court will grant Plaintiff leave to amend his complaint.

Dated: April 2, 2009

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

21