King #171671 v. Zamiara et al

Filing 153

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 146 . Plaintiff's motion to amend the complaint 137 is denied; Defendants' motion for summary judgment 131 is granted in part and denied in part; Plaintiff's claims against Defendants Bolden, Swift, and Lewis are dismissed. Plaintiff's motion for partial summary judgment 129 is granted in part and denied in part; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

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

K E V IN KING, P l a in tif f , F ile No. 4:02-cv-141 v. H O N . ROBERT HOLMES BELL C H U C K ZAMIARA et al., D e f e n d a n ts . / M E M O R A N D U M OPINION AND ORDER A D O P T I N G THE REPORT AND RECOMMENDATION B e f o re the Court are objections to a Report and Recommendation ("R&R") of United S ta te s Magistrate Judge Ellen S. Carmody issued on March 23, 2009. The R&R

re c o m m e n d e d (1) that Plaintiff Kevin King's motion to amend his complaint (Dkt. No. 137) b e denied, (2) that Defendants' motion for summary judgment (Dkt. No. 131) be granted in p a rt and denied in part, and (3) that Plaintiff's motion for summary judgment (Dkt. No. 129) b e granted in part and denied in part. (Dkt. No. 146.) Both Plaintiff and Defendants have filed objections to the R&R. (Dkt. Nos. 148, 149.) For the reasons that follow, Plaintiff's a n d Defendants' objections are denied and the R&R is adopted as the opinion of the Court. T h is Court is required to make a de novo determination of those portions of a R&R to which specific objections are made, and may accept, reject, or modify any or all of the M a g i s tr a t e Judge's findings or recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P . 72(b).

A . Adverse Action P lain tiff ' s claim is that Defendants retaliated against him by increasing his security le v e l when they transferred him to another facility. Defendants object to the determination in the R&R that the increase in security level constituted an adverse action. (R&R 15-16.) D e f e n d a n ts' arguments on this issue were not raised in their summary judgment briefing; in f a ct, Defendants did not raise any challenge to this aspect of Plaintiff's summary judgment m o tio n . "[T]he Magistrate Judge Act, 28 U.S.C. § 631 et seq. . . . does not allow parties to ra is e at the district court stage new arguments or issues that were not presented to the m a g is tra te ." Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000) (citing United S ta t e s v. Waters, 158 F.3d 933, 936 (6th Cir. 1998)); accord Marshall v. Chater, 75 F.3d 1 4 2 1 , 1426-27 (10th Cir. 1996) ("Issues raised for the first time in objections to the m a g istra te judge's recommendation are deemed waived.")). Because Defendants failed to ra ise this argument before the Magistrate Judge, they will be deemed to have waived it. B . Involvement in the Adverse Action 1 . Defendant Bolden P lain tiff objects to the finding of the R&R that Defendant Bolden was not sufficiently in v o lv e d in the adverse action to be liable for retaliation. The R&R determined that P lain tiff 's evidence, a letter written by Bolden several months after Plaintiff's increase in s e c u rity level, shows only that Bolden was aware of the allegedly illegal conduct after the f a ct, not that he had any personal involvement in the adverse action. The R&R determined

2

th a t Bolden could not be subject to supervisory liability based merely on awareness of, and f a ilu re to remedy, Plaintiff's circumstances after the retaliation had already occurred. P lain tiff objects that the caselaw cited in the R&R regarding supervisory liability applies only to constitutional violations that have already occurred, and does not apply to violations that a re ongoing and that can be "undone" by a supervisory official after learning of it. Plaintiff asse rts that Bolden can be liable for failing to take remedial action to address Plaintiff's c o n tin u in g confinement at a higher security level after learning of Plaintiff's circumstances. It is well established that supervisory liability under § 1983 "must be based on active u n c o n stitu tio n a l behavior and cannot be based upon `a mere failure to act.'" Shehee v. L u ttre ll, 199 F.3d 295, 300 (6th Cir. 1999) (quoting Salehpour v. Univ. of Tenn., 159 F.3d 1 9 9 , 206 (6th Cir. 1998)). Contrary to Plaintiff's assertion, supervisors are not held liable u n d e r § 1983 merely because they are aware of an alleged violation and fail to take remedial a c tio n . See Shehee, 199 F.3d at 300 ("[Plaintiff's] only allegations against [Defendant s u p e rv is o rs ] involve their denial of his administrative grievances and their failure to remedy th e alleged retaliatory behavior."); Poe v. Haydon, 853 F.2d 418, 429 (6th Cir. 1988) ("At b e st, [appellee] has merely claimed that the appellants were aware of alleged harassment, but d id not take appropriate action. This is insufficient to impose liability on supervisory p e r s o n n e l under § 1983."); Horton v. Martin, 137 F. App'x 773, 775 (6th Cir. 2005) (" [ P la in tif f ] merely alleged that Martin failed to remedy the situation after he had been in f o rm e d of the problem via [plaintiff's] grievance. [This] allegation does not state a claim

3

b e c a u s e the doctrine of respondeat superior does not apply in § 1983 lawsuits to impute liab ility onto supervisory personnel."); Walker v. Dept. of Corr., No. 00-5843, 2000 WL 1 8 2 8 8 7 6 , at *2 (6th Cir. Dec. 6, 2000) ("[T]o the extent that [plaintiff] claims that Sapp and W e b b failed to take appropriate affirmative or remedial action with regard to his requests for re c o rd s , this court has held that `supervisory liability under § 1983 cannot attach where the a lle g a tio n of liability is based upon a mere failure to act.'") (citation omitted). Apparently, P la in tif f interprets "failure to act" to mean only failure to act on a violation that has already p a ss e d and cannot be remedied. As the foregoing authority indicates, the Sixth Circuit does n o t construe "failure to act" so narrowly; an official is not subject to supervisory liability for m e re failure to act, even where that failure to act includes failure remedy the ongoing effects o f a constitutional violation. Moreover, mere awareness of a violation and failure to remedy it is not equivalent to " a p p ro v [ in g ] or knowingly acquiesc[ing] in the unconstitutional conduct," for which s u p e r v i s o r s can be liable. See Shehee, 199 F.3d at 300 (noting that, although defendants w e re aware of the retaliatory acts and failed to remedy them, "[t]here is no allegation that any of these defendants directly participated, encouraged, authorized or acquiesced in the claimed re ta lia to ry acts against [plaintiff]"). In Shehee, the plaintiff was allegedly fired from a prison c o m m is s a ry job in retaliation for filing grievances. Id. at 298. Defendants received and re v iew e d his complaints claiming retaliation but did not act on them and did not restore his jo b ; the court held that they could not be held liable based on these allegations. Id. at 300.

4

S im ilarly, the only evidence against Defendant Bolden indicates, at best, that he was aware o f Plaintiff's circumstances but he did not remedy them. This conduct falls squarely outside th e perimeter of § 1983 supervisory liability. Plaintiff's reliance on Brannum v. Overton County Sch. Bd., 516 F.3d 489 (6th Cir. 2 0 0 8 ), is misplaced. In that case, the court found that two school officials could be liable for v io la tio n s of privacy based on their personal involvement in the placement and use of a video m o n ito rin g system that included cameras located in the girls' locker room. Id. at 492. The a ss is ta n t principal, Jolley, was involved in setup of the camera system, and he notified the p rin c ip a l, Beatty, when he discovered that the cameras were recording areas of the locker ro o m s where students dressed. Id. at 492. The court determined that, while the officials that d id not authorize or were not aware of the placement of the cameras could not be liable, "the s c h o o l officials directly involved in the decision to install the cameras and responsible for d e te rm in in g their locations, that is, defendants Beatty and Jolley, are not entitled to qualified im m u n ity." Id. at 500. Plaintiff contends that Defendant Bolden is in a similar position as B e a tty, because Beatty's only involvement was failure to take remedial action after learning o f the placement of the cameras. The Court notes that the Sixth Circuit did not discuss p rin c ip les of supervisory liability, and did not expressly find that either Beatty or Jolley could b e subject to supervisory liability. Instead, the court indicated that Beatty and Jolley were " d ir e c tly involved" in the decision to install the cameras and "responsible for determining th e ir locations." Id. The Court does not have before it the evidence considered by the court

5

i n Brannum; however, the court's recitation of the facts indicates that Beatty was more in v o lv e d than Plaintiff suggests. Jolley suggested to Beatty that the camera placement be c h a n g e d , but Beatty apparently rejected or ignored this suggestion. Id. at 492. Beatty also to ld the coach of a visiting team using the lockers that the cameras were inactive when, in f a c t , they were not. Id. Beatty's actions constituted more than "mere failure to act"; they c o n trib u te d to a continuing violation. In contrast, Plaintiff's evidence that Defendant Bolden w a s aware of a possible First Amendment violation but failed to restore Plaintiff's security le v e l is, as a matter of law, insufficient to show supervisory liability. P lain tiff also argues that Defendant Bolden can be personally liable because he could n o t "stand idly by" while Plaintiff's rights were being violated, citing Durham v. Nu'man, 9 7 F.3d 862, 868 (6th Cir. 1996) and McHenry v. Chadwick, 896 F.2d 184, 188 (6th Cir. 1 9 9 0 ). However, the cases cited by Plaintiff involved officers with a specific duty to protect th e plaintiff; these officers failed to intervene when in the presence of others that were u n la w f u lly punishing or physically harming the plaintiff. The Court is not aware of any a u th o rity extending this standard outside the context of an officer's duty to protect. 2. Defendants Zamiara, Berghuis, Chaffee, Wells, and Singleton Defendants object to the finding of the R&R that Plaintiff submitted sufficient e v id e n c e to raise a genuine issue of material fact as to the involvement of Defendants Z am iara, Berghuis, Chaffee, Wells, and Singleton in the decision to increase Plaintiff's sec u ri ty level. Defendants argue in their objections that none of these defendants were

6

in v o l v e d as decisionmakers because Nick Ludwick at the central office had the final a u th o rity to make this decision. The Court agrees with Defendants that evidence of

L u d w ick 's authority is relevant to the other Defendants' involvement; however, this evidence d o e s not establish as a matter of law that Defendants Zamiara, Berghuis, Chaffee, Wells, and S in g le to n were not involved in the adverse action, or in the decision to take the adverse a c tio n . Nor does it establish, as a matter of law, that none of these Defendants can be held lia b le . The evidence cited in the R&R supports Plaintiff's contention that Defendants were in v o lv e d because they approved the transfer, with the increase in Plaintiff's security c las sif ica tio n , or approved the increase in classification itself. Even if the Court were to a c c e p t Defendants' evidence that Ludwick was the ultimate decisionmaker because his a p p ro v a l was necessary to implement Plaintiff's transfer and increase in security level, one o r more of the Defendants might be liable based on their own involvement. For example, a s u b o rd in a te can be liable for making a recommendation that is "rubber stamped" by the p erso n with the final authority. See Roberts v. Principi, 283 F. App'x 325, 333 (6th Cir. 2 0 0 8 ) ("When a decisionmaker acts in accordance with a retaliator's bias `without [him]self e v a lu a tin g the employee's situation,' the retaliator `clearly causes the [adverse] action, re g a rd le ss of which individual actually' enforces the adverse [action].") (discussing employer lia b ility for a Title VII retaliation claim).1 In such circumstances, the subordinate is the de

Ludwick himself testified that he routinely followed the suggestions of his subordinates, such as Defendant Zamiara, though he could not recall whether he relied on a recommendation from Defendant Zamiara in Plaintiff's case. (Dkt. 140, Ex. 2, Ludwick Dep. 20.) 7

1

fa c to decisionmaker, and the titular decisionmaker is merely a conduit for the retaliator. Id. A lte r n a tiv e l y, if any of the Defendants' actions were themselves part of the adverse a c tio n , they might be liable for their actions. In Siggers-El v. Barlow, 412 F.3d 693 (6th Cir. 2 0 0 5 ), the Sixth Circuit held that an officer that completed a security screen which made the p lain tiff eligible for a transfer could be held liable for the "foreseeable consequences" of his a c tio n s , even though he did not have the final authority to approve the transfer. Id. at 701 (" T h e fact that the Defendant's completion of a security screen . . . was not a sufficient c o n d itio n to transfer the Plaintiff, in that the transfer coordinator must ultimately approve the tra n sf e r, does not lead to the conclusion that the transfer cannot be imputed to the D e f e n d a n t." ) (emphasis added). Defendants also argue that they were merely relaying the decision of Ludwick at the c e n tra l office and/or that they were ordered to increase Plaintiff's security level. However, e v e n if Ludwick ordered Defendants to implement his decision, Defendants may be still be liab le. "Reliance on a superior's orders does not in itself dissipate all liability," particularly if Defendants "`knew or should have known that their actions were violating the plaintiff's c o n stitu tio n a l rights.'" Thaddeus-X v. Blatter, 175 F.3d 378, 393 (6th Cir. 1999) (emphasis a d d e d ) (quoting Forsyth v. Kleindienst, 599 F.2d 1203, 1216-17 (3d Cir. 1979)). Cf. Shehee v . Lutrell, 199 F.3d 295, 301 (6th Cir. 1999) (holding that plaintiff did not state a retaliation c laim against defendants that were not involved in the adverse action); Cohen v. Smith, 58 F . App'x 139, 143 (6th Cir. 2003) (affirming grant of summary judgment in favor of

8

d ef en d an ts that did not have the ability or authority to take the adverse action); Poppy v. City o f Willoughby Hills, 96 F. App'x 292, 295 (6th Cir. 2004) (affirming summary judgment in f a v o r of a defendant that was not the "final decisionmaker"). In Poppy, Cohen, and Shehee, c e rta in defendants prevailed on claims of retaliation because they did not have the authority to take the adverse action; however, in those cases there was no indication that those d e f en d a n ts were involved in the decision such that they were de facto decisionmakers under th e standard in Roberts, or that they participated in the adverse action, like the defendants in S ig g e r s -E l and Thaddeus-X. The Court also notes that Ludwick became involved only because certain Defendants r e q u e ste d a transfer that needed approval from his office. This leaves open the question as to whether Defendants were still obligated to transfer Plaintiff at a higher level of security a f te r they received Ludwick's approval. In short, Plaintiff's evidence raises questions of fact a s to the involvement of Defendants Zamiara, Berghuis, Chaffee, Wells, and Singleton in the a d v e rs e action. Where Defendants move for summary judgment, the Court must view the e v id e n c e in the light most favorable to Plaintiff and draw all reasonable inferences in P la in tif f 's favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1 9 8 6 ). The Court is not permitted to weigh Defendants' evidence purporting to show that L u d w ick was the sole decisionmaker, or that Defendants were ordered to effect a transfer, b u t must determine if Plaintiff has submitted sufficient evidence to show that there remains a genuine issue of material fact. The Court agrees with the determination in the R&R that

9

P la in tif f has satisfied this burden with respect to Defendants Zamiara, Berghuis, Chaffee, W e lls , and Singleton. The Court recognizes, however, that Plaintiff will have the burden, a t trial, of proving his claim of retaliation against each Defendant, based on the actions of th a t Defendant, in order for that Defendant to be liable. Defendants also contend that they should be subject to qualified immunity because they were merely following orders from Ludwick at central office. However, as the Court h a s already discussed, questions of fact remain as to the involvement of Defendants in the a d v e rs e action. C . Evidence of Causation/Motive P la in tif f objects to the determination in the R&R that Defendants submitted evidence s u f f ic ie n t to raise a genuine issue of material fact as to whether they would have increased P lain tiff 's security level in the absence of his protected conduct. W ith respect to the third element of a claim of First Amendment retaliation, Plaintiff m u s t show that "the adverse action was motivated at least in part by the plaintiff's protected c o n d u c t." Thaddeus-X, 175 F.3d at 394. Establishing motive is subject to the burdens h if tin g framework set forth in Thaddeus-X. Once the plaintiff has met his burden of establishing that his protected conduct was a motivating factor behind any harm, the burden of production shifts to the defendant. If the defendant can show that he would have taken the same action in the absence of th e protected activity, he is entitled to prevail on summary judgment. Id . at 399 (citations omitted). To fulfill their burden under Thaddeus-X, Defendants must su b m it evidence that they would have transferred Plaintiff in the absence of Plaintiff's 10

p ro te c te d conduct; the affidavits, testimony, and other evidence cited in the R&R indicating th a t Defendants increased Plaintiff's security level because Defendants believed Plaintiff to b e manipulative and disruptive suffice to meet this burden. Plaintiff contends that the e v id e n c e cited in the R&R should not be considered by the Court because, among other re a so n s , it is hearsay and it is not based on the personal knowledge of the Defendants. For in s ta n c e, the R&R cited testimony from Defendant Berghuis that Defendants were concerned a b o u t Plaintiff's disruptive behavior, including "manipulating others, and causing unrest, and th e mean spirit he used . . . ." (Dkt. No. 130, Ex. 6, 10/02/2008 Berghuis Dep. 40.) Plaintiff a rg u e s that this evidence is inadmissible hearsay because Berghuis testified that she did not p erso n ally witness this behavior.2 (Id. at 41.) Plaintiff makes a similar argument regarding tes tim o n y from Defendants Chaffee and Zamiara; Plaintiff argues that these Defendants t e stif ie d that they did not have personal knowledge of any disruptive and manipulative b e h a v io r by Plaintiff. Plaintiff appears to be arguing that the Court cannot rely on the e v id e n c e cited in the R&R to conclude that Plaintiff actually engaged in manipulative and d is ru p tiv e behavior. However, at issue is the subjective motivation of the Defendants. See S m ith v. Campbell, 250 F.3d 1032, 1038 (6th Cir. 2001). The R&R cited evidence which, if believed, could support a finding that Defendants' decision to increase Plaintiff's security leve l was motivated solely by Plaintiff's manipulative and disruptive behavior. The Court r e c o g n i z e s that Defendants have offered little evidence to show that Plaintiff actually
2

Berghuis also testified that prisoners and staff reported such behavior to her. (Id. at 2911

30, 41.)

e n g a g ed in such disruptive behavior; however, to find in favor of Plaintiff on the issue of c a u sa tio n , the Court would have to make a credibility determination with respect to the re a so n for the adverse action asserted by Defendants in their deposition testimony, in their a f f id a v its , and in the transfer documents. The Court is not permitted to make such a d e te rm in a tio n in Plaintiff's favor at this stage. See Reeves v. Sanderson Plumbing Prods, In c ., 530 U.S. 133, 150 (2000) (In reviewing evidence on summary judgment, "the court m u s t draw all reasonable inferences in favor of the nonmoving party, and it may not make c re d ib ility determinations or weigh the evidence."). To survive summary judgment, it is not n e c es s a ry that Defendants prove that Plaintiff actually engaged in the manipulative or d is ru p tiv e behavior; Defendants' burden is to show that there remains a genuine issue of m a te ria l fact as to Defendants' reason for the adverse action. The Court agrees with the R & R that Defendants have satisfied that burden here. T h e Court also notes that the Sixth Circuit's opinion in King v. Zamiara (King I), 150 F . App'x 485 (6th Cir. 2005), stated that, at that time, Defendants had failed "to meet their b u rd e n of producing evidence that they would have increased King's security in the absence o f his participation in protected activity because they have provided only their own u n s u p p o r te d assertions as evidence that King was disruptive." Id. at 495 (emphasis added). H o w e v e r, that opinion issued before substantial discovery had occurred in this case, and it a d d re ss e d whether or not Defendants could prevail on their own motion for summary ju d g m e n t, id. at 490; it did not address not whether Defendants' evidence was sufficient to

12

s u rv iv e Plaintiff's motion for summary judgment. Because the Court is not permitted to w e ig h Defendants' evidence in Plaintiff's favor on Plaintiff's motion for summary judgment, th e Court will deny Plaintiff's objection. See Wysong v. Dow Chem. Co., 503 F.3d 441, 452 (6 th Cir. 2007) (noting that the issue of motive is "rarely susceptible to resolution at the s u m m a ry judgment stage"). D. Accord and Satisfaction T h e R&R also rejected Defendants' argument that Plaintiff's retaliation claim was ra is e d and settled in the Cain class action. In their objections, Defendants mis-characterize th e reasoning of the R&R. Upon review, the Court finds that this issue is correctly and a d e q u a te ly addressed in the R&R. A c c o r d i n g l y, I T IS HEREBY ORDERED that Plaintiff's and Defendants' objections to the Report a n d Recommendation of the Magistrate Judge (Dkt. Nos. 149, 148) are DENIED. I T IS FURTHER ORDERED that the Report and Recommendation (Dkt. No. 146), a s supplemented by the foregoing memorandum opinion, is APPROVED and ADOPTED a s the opinion of this Court. I T IS FURTHER ORDERED that Plaintiff's motion to amend the complaint (Dkt. N o . 137) is DENIED. I T IS FURTHER ORDERED that Defendants' motion for summary judgment (Dkt. N o . 131) is GRANTED IN PART and DENIED IN PART. Plaintiff's claims against D e f en d a n ts Bolden, Swift, and Lewis are DISMISSED.

13

I T IS FURTHER ORDERED that Plaintiff's motion for partial summary judgment ( D k t . No. 129) is GRANTED IN PART and DENIED IN PART. Plaintiff is entitled to s u m m a ry judgment with respect to the first two elements of retaliation analysis, i.e., Plaintiff w a s engaged in protected conduct and he was subject to an adverse action. The third element o f retaliation, causation, is subject to disputed issues of material fact.

Dated: April 21, 2009

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

14