King #171671 v. Zamiara et al

Filing 165

OPINION OF THE COURT ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF MICHIGAN S O U T H E R N DIVISION

K E V IN KING, #171671, P l a in tif f , v. C H U C K ZAMIARA, CURTIS CHAFFEE, S H A R O N WELLS, MICHAEL SINGLETON, AND MARY BERGHUIS, D e f e n d a n ts . ____________________________________/ C A S E NO. 4:02-CV-141 H O N . ROBERT HOLMES BELL

O P I N IO N OF THE COURT T h is is a 42 U.S.C. § 1983 civil rights action filed by Kevin King, a prisoner in the c u sto d y of the Michigan Department of Corrections ("MDOC"). King filed this action in D e c em b e r 2002 alleging that he was transferred to a higher security prison facility in May 2 0 0 0 in retaliation for his exercise of his First Amendment rights.1 A bench trial was c o n d u c te d on June 29-30, 2009. At trial King was represented by pro bono counsel, and the M D O C was represented by an Assistant Attorney General for the State of Michigan. The

Although King's original complaint included additional defendants and claims, p re tria l rulings by this Court and the Court of Appeals narrowed the issue for trial to the s in g le claim of retaliation against Defendants Chuck Zamiara, Curtis Chaffee, Sharon W e lls , Michael Singleton, and Mary Berghuis. See King v. Zamiara ("King I"), 150 F. A p p 'x 485, 491 (6th Cir. 2005); King v. Zamiara, No. 06-2271 (6th Cir. Apr. 26, 2007) (" K ing II").

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p a rtie s presented testimony from Kevin King, Shirlee Harry, Curtis Chaffee, Chuck Zamiara, S h a ro n Wells, Sandra Galiton, Bonnie Lewis, Michael Singleton, Mary Berghuis, Dan B o ld e n , Norma Killough, and Laura Heinritz, and the depositions of Ed Mize, Rick Smith, N ic k Ludwick, and Peter Govorchin for consideration as trial testimony. The Court makes the following findings of fact and conclusions of law in accordance w ith Rule 52(a) of the Federal Rules of Civil Procedure, based upon its review of the w itn e s s e s ' testimony, the deposition testimony, the documentary evidence, and the parties' p o s t- tr ia l submissions. I. T h is case arises against the backdrop of Cain v. Michigan, a class action lawsuit in itia te d by a group of prisoners in 1988 against the Department of Corrections. The Cain litig a tio n was primarily concerned with prisoner personal property issues, but it also raised is s u e s relating to prisoner classification and access to the courts. (Govorchin Dep. 5.) The C a in case spawned many interim orders during the fifteen years that it was pending. King w a s not a named plaintiff in the Cain proceedings, but he was well informed about the case a n d actively assisted the Cain attorneys by posting the interim notices issued in the Cain case a n d by monitoring and reporting on the conditions at his current residential facility. II. K in g has been in the custody of the MDOC since 1983, when he was convicted of F irst Degree Murder and sentenced to life in prison. At the time the events giving rise to this

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c a se took place, King had been in custody of the MDOC for over 16 years. He had spent the f irs t eight years of his confinement at higher security Level IV and Level V prisons, and the n e x t eight years at lower security Level II and Level III prisons. On September 17, 1999, King was transferred from Saginaw Correctional Facility (S R F ) ("Saginaw"), a Level II facility, to Brooks Correctional Facility (LRF) ("Brooks"), a n o th e r Level II facility. The reason given for the transfer was Saginaw's suspicion that K in g was "a vocal participant to organize a protest over Prisoner Personal Property issues." (E x . 47.) On September 24, 1999, Acting Resident Unit Supervisor ("ARUS") Sandra Galiton ( f /k /a Naves) issued King a Notice of Intent to Classify to Administrative Segregation (" N O I" ) because, "based on information received, it is believed that prisoner King is a ttem p tin g to incite a demonstration amongst the prisoners." (Ex. 11.) King was placed in a d m in is tra tiv e segregation pending a hearing scheduled for September 29, 1999. (Id.) O n September 27, 1999, before a hearing could be held on the NOI, King was tra n sf e rre d to Southern Michigan Correctional Facility (SMN-II) for hernia surgery. His tra n sf e r order noted that he had been transferred from Saginaw due to his attempts to o rg a n iz e a demonstration, and that "[s]ince his arrival at LRF he has attempted to do the s a m e ." (Ex. 48.) King was returned to general population at Brooks on November 9, 1999. (E x . 49.) It does not appear from the record that the MDOC ever held a hearing or issued a f o rm a l disposition of the September 24, 1999, NOI.

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O n November 12, 1999, King wrote a letter to Warden Berghuis complaining about th e treatment of prisoners at Brooks and asking that his concerns be "immediately in v e s tig a t e d and corrected, with a written explanation as to why such transpired." He also a d v ise d : Frankly, I don't like your facility at all. Your staff rival in abusing their a u th o rity and feel they don't have to answer to anyone. I've watched them p ro v i d e situations and retaliate against those who remotely stand up for th e m se lv e s. It is shocking to me that you allow such conduct, and continue to le t such transpire. (Ex. 12.) On February 19, 2000, Resident Unit Manager ("RUM") Sharon Wells issued King a ticket for being out of place. King was found not guilty. (Ex. 13.) On March 31, 2000, C o rre c tio n s Officer Bonnie Lewis issued King a major misconduct for creating a disturbance. (E x . 14.) King was found not guilty of this charge. (Id.) During the investigation on the tic k e t Lewis advised that King would watch the officer's station, and that he would pretend to be on the telephone just so he could to listen in on what the officers were saying. Lewis f e lt very uncomfortable when he was around the desk and stated that King "interferes with o u r authority of running the unit." (Ex. 14.) On April 20, 2000, RUM Wells wrote a memo to Deputy Warden Shirlee Harry re q u e stin g that King be moved from Conklin Unit to one of the other five housing units at B ro o k s: He is becoming increasingly more powerful in the eyes of the prisoners in C o n k lin Unit. He has made the statement to a unit officer that "these guys in 4

th e unit will do what ever I ask" "If I wanted to cause a disturbance I could a n ytim e " . Prisoners have also approached me on several occasions with d if f e re n t types of request and when refused they will either state that "they will g e t with someone who will take of it" and when the grievance is written it is m o re often then not written by prisoner King or they will state that they will m a k e sure "King knows about this" The most recent situation, in where King w a s found not guilty on a Creating a Disturbance, has boosted King's status in the unit with the prisoners. I believe it should be considered a security risk to the unit officers when prisoner Kings' authority over other prisoners is h ig h e r then the officers working in the unit. I have attached other examples o f his behavior to this report. (E x . 15 (errors in original).) On April 27, 2000, King wrote a letter to Deputy Warden Harry complaining about s ta f f misconduct in connection with the misconduct ticket written by Officer Lewis. King a d v is e d that three employees were guilty of rule infractions and demanded that they be inv estig ated and suspended. (Ex. 16.) In early May 2000, Deputy Warden Harry requested that King be transferred to a n o th e r Level II facility. On May 8, 2000, in response to Deputy Warden Harry's request th a t King be transferred, Curtis Chaffee, the Transfer Coordinator at Brooks, prepared a S e c u rity Classification Screen Review for King. The review provided that King's true s e c u rity level was Level II, that he was "manageable in Level II/Remain Level II," and su g g ested transfer to Carson Correctional Facility (DRF) ("Carson"), another Level II f a c ility. (Ex. 17.) That same day, Chaffee sent the following email to Chuck Zamiara, a C la ss if ic a tio n Specialist at the Correctional Facility Administration ("CFA") Central Office: D e p u ty Harry has asked for this prisoner to be transferred to an alternate Level II. We are asking for DRF placement. The reason for request is that he has 5

b e e n at LRF for 6 months during this time, he has developed a cadre of f o llo w e rs over whom he has substantial influence. It seems that he can in s tig a te them to create problems (grievances, complaints to Warden's Forum, e tc .) while he remains uninvolved directly. Currently he is printing out g rie v a n ce s about various issues and having other prisoners sing [sic] them and s e n d them in. Deputy Harry has asked for a "break" from prisoner King and would accept h im back after a period of time. (E x . 19.) According to Dan Bolden, who was the Deputy Director of the MDOC from 1984 to 2 0 0 2 , Deputy Warden Harry's request for a "break" from King was not an unusual request. " H ig h maintenance" prisoners need to be moved periodically to give staff a rest. Although prisons may request transfers, the decision to transfer an inmate from one in s titu tio n to another is made by personnel at MDOC's Central Office, namely, Classification S p e c ia lis ts . As a Classification Specialist, Zamiara processed 30 to 50 transfers a day. He h a d authority to approve transfer requests unless the prisoner was on the CFA Hold List. The MDOC houses 50,000 prisoners in 45 institutions. Deputy Director Bolden d e v e lo p e d the CFA Hold List as an administrative tool to enable the MDOC's Central Office to monitor between 200 and 300 prisoners who warranted special attention based on three c r ite r ia : 1) risk of violence; 2) risk of escape; and 3) perceived to cause problems in prisons. T h e last category includes prisoners who are transferred frequently because they wear out s ta f f with multiple grievances or lawsuits. Prisoners on the CFA Hold List cannot be tra n sf e rre d without the approval of the Classification Director or the Deputy Director. The C F A Hold list enables the Central Office to consider many factors associated with these in d iv id u a ls that may not be available to the individual prisons. 6

K in g was placed on the CFA Hold List on August 8, 1990, because of concerns that h e had been involved in an escape attempt in March 1989. (Mize Dep. 20; Ludwick Dep. 111 2 .) Although King was found not guilty of a major misconduct for the escape attempt, the C e n tra l Office continued to keep him on the CFA Hold List. Because King was on the CFA Hold List, Zamiara had to obtain the approval of C lassifica ti o n Director Ludwick before approving him for a transfer. After Zamiara

d isc u ss e d King's case with Ludwick, the decision was made that he should be transferred to L e v e l III. Within 40 minutes of receiving Chaffee's transfer request, Zamiara responded, " L e t' s send him to URF as a level III, note in the departure, prisoner is perceived as a d is ru p tiv e prisoner who is manipulating others to create unrest at LRF [Brooks]." (Ex. 19.) C h af fe e altered the already completed Security Classification Screen to reflect that King's tru e security level and actual placement level was "III" rather than "II", and changed the p la c e m e n t from "DRF" (Carson) to "URF." (Ex. 17.) O n May 12, 2000, Warden Mary Berghuis signed the order transferring King from B ro o k s to Chippewa Correctional Facility (URF-III) ("Chippewa"). (Ex. 20.) The reason g iv e n for the transfer was "SCC [Security Classification Committee] recommendation," and " P ris o n e r manipulates other prisoners to be disruptive." (Id.) After King's transfer an issue arose over the discrepancy between the May 8, 2000, s c re e n which said that King was "manageable at Level II/Remain at Level II," and the tra n sf e r order that said he needed to be transferred to a Level III because he "manipulates

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o th e r prisoners." (Exs. 23, 26). On June 14, 2000, Defendant Zamiara advised Defendant W a rd e n Berghuis that a new security classification screen review should be prepared. (Ex. 2 3 .) At Defendant Warden Berghuis's direction, Defendant Chaffee prepared a new screen to reflect that King needed a higher level of security because he manipulated other prisoners to be disruptive. Defendant Chaffee back-dated the new screen to May 8, 2000. (Ex. 24.) D e f e n d a n t Singleton approved the new screen. (Id.) In a letter dated July 26, 2000, Defendant Zamiara responded to King's inquiry reg ard ing his transfer to Level III: P lea se be advised that your true security level was changed to level III, this w a s done through the "departure" procedure. Staff at three facilities perceived yo u as a individual who was able to manipulate other prisoners to unrest, w h ic h if left unchecked, could create a threat to the good order and security of th e facility. The underlying issue seemed to center around the prisoner p ro p e rty policy. The proper method to raise issue with the prisoner property p o lic y is through the prisoner grievance process . . . ." (E x . 28.) O n October 23, 2000, Deputy Director Bolden responded to King's inquiries re g a rd in g his transfer and advised that because King's past two facilities found that he had b e e n attempting to manipulate or instigate other prisoners, he had been approved for a one leve l departure to Level III for a "period of adjustment." (Ex. 30.) Bolden declined King's re q u e s t to remove him from the CFA Hold List. (Id.) On November 16, 2000, Defendant Z am iara denied a request to transfer King back to a level II facility. (Ex. 33.) On February 2 8 , 2001, Deputy Director Bolden approved King's transfer to Thumb Correctional Facility (T C F ), a Level II facility. (Ex. 35.) 8

III. The gravamen of King's complaint is that Defendants reclassified him and transferred h i m to a higher security facility in retaliation for his exercise of his First Amendment rights, s p e c if ic a lly, for his participation in Cain and his assistance of other prisoners with their g ri e v a n c e s . The elements of a retaliation claim are "(1) the plaintiff engaged in protected conduct; (2) an adverse action was taken against the plaintiff that would deter a person of ordinary f irm n e ss from continuing to engage in that conduct; and (3) there is a causal connection b e tw e e n elements one and two-that is, the adverse action was motivated at least in part by th e plaintiff's protected conduct." Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999). P r i o r to trial this Court determined that King had satisfied the first two elements of the r e ta lia tio n analysis: he had engaged in protected conduct and he was subject to an adverse a c tio n . (Dkt. No. 153, 04/21/2009 Mem. Op. & Order 14.) Accordingly, the only issue for trial is the third element: whether King's reclassification and transfer to a higher security le v e l prison were motivated at least in part by King's protected conduct. If King establishes th is element, the burden then shifts to Defendants to show that they would have taken the s a m e action in the absence of protected activity. King I, 150 F. App'x at 491 (citing T h a d d eu s-X , 175 F.3d at 399). Under the causation element of a retaliation case, "the s u b je c tiv e motivation of the decisionmaker is at issue." Smith v. Campbell, 250 F.3d 1032, 1 0 3 8 (6th Cir. 2001). The credibility of all parties and witnesses is critical to the

d e te rm in a tio n of the Defendants' subjective motivations. 9

IV . K in g was the first and primary witness to testify at trial. King is remarkably

in te llig e n t and has an encyclopedic memory of the events in his MDOC institutional life sin c e 1983 and the policies of the MDOC. King's testimony was generally credible, but his tes tim o n y was colored by his high opinion of himself. King testified that he has resided in tw e lv e MDOC facilities and has quite a grasp of the differences in the facilities, real and p e rc e iv e d . King testified that he has had very few misconducts during his incarceration, and e x p re ss e d pride in the fact that he had prevailed on several major misconduct tickets th ro u g h o u t his MDOC tenure. (See, e.g., Exs. 13, 14.) He testified that before he arrived at B ro o k s , he generally got along with staff, and had been commended for saving staff from a s s a u lts . At Brooks, however, staff was rude to him from the beginning, accusing him of b e in g a troublemaker. King assumes that they held this opinion because of his involvement in the Cain litigation. King related with great satisfaction the role he played as an "active p a rtic ip a n t" in the Cain lawsuit, remaining in "constant contact" with the Prison Legal S e rv ic e s Attorneys who represented the Cain plaintiffs. He related that he would receive in f o rm a tio n from the Cain lawsuit and would disseminate it to fellow prisoners. He boasted h i s popularity with prisoners such that he was elected by other inmates to serve as a re p re se n ta tiv e on the "Warden's Forum." The role of prisoner representatives on the

W a rd e n 's Forum is "to assist with the identification and resolution of prisoner concerns." (E x . 1, OP-LRF/MTF-04.01.150.) King testified that he was the chairman of the Warden's

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F o ru m at Brooks in 2000, and that Deputy Warden Harry had commended him for his p e rf o rm a n c e . King testified that officials at Brooks were not complying with policy directives, and th a t he was therefore required to assist other prisoners in writing many grievances. Rather th a n filing grievances himself, King wrote letters directly to the warden and deputy warden d e m a n d in g that they investigate and suspend their officers for misconduct. (See, e.g., Exs. 1 2 , 16.) B o th Level II and Level III are medium security facilities, with substantially the same p ro g ra m m in g . King testified, however, that as a result of his transfer to Chippewa, he had f a r less freedom. At Level II prisoners can move freely between programs, the yard, and the d a y rooms, they can make unlimited telephone calls, and they can choose where to sit at m e a ltim e . At Level III, on the other hand, prisoners' movements are more restricted, and te le p h o n e calls are limited. Of particular concern to King was that at mealtime he could not s it wherever he wanted, which greatly affected his ability to obtain affidavits for his work on th e Cain case. King was adamant that his transfer was unjustified because he had no misconducts a n d had done nothing more than help other prisoners with their grievances. The Court observed Defendant Wells to be a very credible witness. As Resident Unit M a n a g er, Wells had 242 prisoners under her supervision, and she was justifiably concerned a b o u t prisoner-created unrest. Wells learned from the corrections officers under her

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s u p e rv is io n that King was trying to listen in on their conversations, that he was interfering in discussions between officers and other prisoners, that he was boasting that he could cause a disturbance anytime, and that he was becoming increasingly powerful over the prisoners. W ells believed it should be considered a security risk to the unit officers when King's a u th o rity over the other prisoners was higher than the officers working in the unit. Wells th o u g h t King was a troublemaker, but there is no evidence that her assessment was based on h is protected activities. Her concern was his power over other prisoners. In light of this c o n c ern , Wells asked that King be moved to another unit within the Brooks facility. The C o u rt finds that Wells did not ask that King be transferred to a different facility, she did not a sk that his security level be increased, and she had no involvement in the decision to in c re a s e his security level. As a transfer coordinator, Defendant Chaffee did not have much personal contact with p riso n e rs. Chaffee did not know King, and he had no knowledge of King's involvement in th e Cain litigation. Chaffee sent the transfer request to Zamiara at the behest of Deputy W a rd e n Harry, and the reasons given for the transfer came from Deputy Warden Harry. C h a f f e e changed King's screening level from II to III based on the email from Zamiara. A c c o rd in g to Chaffee, the Central Office has the final authority on transfers, and he follows its orders. Chaffee did not challenge Zamiara's decision to change King's security level b e c au s e he was not in a position to do so and because he assumed that Zamiara had a good re a so n for doing so. When Chaffee drafted King's new security screen on June 14, 2000, he

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b a c k -d a te d it to May 8, 2000, because it was designed to replace the security screen that he h a d altered on May 8. Notwithstanding King's suspicions, the Court finds that by backd a tin g the document, Chaffee was not intending to be deceptive or to cover anything up. Defendant Assistant Deputy Warden Michael Singleton's only involvement in King's tra n sf e r was his approval of the back-dated security screen. Singleton probably ran into King i n connection with the Warden's Forum, but he did not remember King and he had no p a rtic ip a tio n in the decision to reclassify King to Level III. The decision to reclassify King to Level III was made by the Central Office, and Singleton understood that he was bound by th a t decision. Defendant Warden Mary Berghuis testified that because there were 1244 prisoners a t Brooks at any given time, it was difficult for one prisoner to stand out. However, King did s ta n d out because he has a "huge ego" and "superimposes his will on the MDOC" through s u s p ic io n s and questioning of the authority of MDOC officials. She knew him from the W a rd e n 's Forum, but she did not harbor any ill will toward him based on his activities there. S h e approved of King's transfer to another facility, not because of his activities on the W a rd e n 's Forum, or because of his filing of grievances, or even his assistance with other p ris oners' grievances, but because he manipulated other prisoners. Berghuis did not question C e n tra l Office's decision to change King's security level from II to III. As Berghuis e x p la in e d , the people in Central Office are the experts. They have a different perspective and they have security considerations that are not within the knowledge of the local prisons. In

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a d d itio n , she thought that changing King to Level III was a good decision because it would e n a b le them to manage him better. Deputy Warden Harry is not a defendant in this action. However, her testimony c o rro b o ra te d the testimony of the other Defendants who worked at Brooks. Deputy Warden H a rry testified that grievances and lawsuits are a daily occurrence, and that they do not p ro v o k e punitive action. She testified that King was not transferred because of his filing of g rie v a n ce s, but because her staff needed a break from him. Although King did not have any m isco n d u cts, Deputy Warden Harry explained that some prisoners maneuver other prisoners to engage in misconduct while they themselves stand back, and it is difficult to prove the m is c o n d u c t against the manipulator. A transfer is a tool used by prison officials to disrupt a manipulative prisoner's relationships with other prisoners and to dismantle problems before th e y occur. Deputy Warden Harry was willing to accept King back at Brooks after a period o f adjustment at another institution. She also testified that Levels II and III are not very d if f e re n t and that they generally offer the same programs and schedules. Defendant Chuck Zamiara has been retired since late 2004. This gentleman impressed th e court with his detached demeanor yet detailed knowledge of the system of transfers and s e c u rity classifications. Zamiara did not know King. He did not know that King was on W a rd e n 's Forum, and he testified that he had no interest in King's involvement in the Cain litig atio n . Zamiara did not have an independent recollection of the circumstances of King's tra n sf e r because it was not a significant event. However, based upon his review of the file,

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h e testified that his actions relating to King's transfer were based solely upon the email from C h a f f e e and his review of King's files. The reference in Chaffee's email to grievances was n o t the basis for the decision to transfer King to Level III. Zamiara would have suggested a transfer to Level III whether or not King had been using the grievance process. As in d ic a te d in King's file, King had been transferred from Saginaw to Brooks on the basis of s u s p ic io n s that he was organizing prisoners to protest. Six months following that last tra n sf e r, Zamiara was seeing new allegations that King had a cadre of followers and was in s tig a tin g problems. Zamiara testified that Chaffee's email caused bells to go off at Central O f f ic e . The reason for increasing King's security level was that King was again attempting to control other prisoners. Because King's last transfer to a Level II facility had not worked to curb his attempts to control other prisoners, it was felt that a transfer to a Level III facility w o u ld be appropriate. As Zamiara explained to King in a letter dated July 26, 2000, "Staff at three facilities perceived you as a individual who was able to manipulate other prisoners to unrest, which if left unchecked, could create a threat to the good order and security of the fa cility." (Ex. 28.) Neither Zamiara nor Ludwick could testify with any certainty which of them first re c o m m e n d e d that King be transferred to a Level III facility, but Ludwick had the final a u t h o r ity on the transfer. Ludwick agreed with Zamiara that when an institution says a p ris o n e r instigates others to create unrest, this raises a red flag. sig n if ica n c e of this phrase as follows: Ludwick explained the

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[ M ]a n y of our prisoners throughout the agency have a sophisticated influence o n others that can serve to incite, that can serve to have others take part in a c tiv itie s that would otherwise be considered inappropriate by our d e p a rtm e n tal rules and regulations. So when you use language like instigate a n d substantial influence, that results in a noticeable concern on behalf of c la ss if ic a tio n specialists responsible for ensuring that we put the right prisoner in the right bed so that his program needs, medical needs and security needs c a n be addressed. (Ludwick Dep. 24.) Ludwick testified that the May 2000 email from Chaffee, together with K in g 's history of a suspected attempted escape, gave them "ample rationale " to move him to a higher security level to enable them to better manage or observe him. (Ludwick Dep. 2 7 .) Ludwick approved the increase in King's security level and Zamiara instructed Chaffee to note in the departure, prisoner is perceived as a disruptive prisoner who is manipulating o th e rs to create unrest at LRF." (Ex. 19.) Deputy Director Bolden supported the decision to increase King's security level. As he emphasized in his testimony, in the prison setting th e re is no constitutional right to assemble and encourage open defiance. Because King was a leader, his influence over other prisoners was a legitimate concern for staff. None of the Defendants who worked at Brooks (Wells, Chaffee, Singleton, Berghuis) w e re involved in the decision to increase King's security level. They simply prepared the tra n sf e r documents in response to the directions they received from Central Office. King c o n te n d s that their "[r]eliance on a superior's orders does not in itself dissipate all liability." T h a d d eu s-X , 175 F.3d at 393. If a defendant knew or should have known that his conduct v io la te d the plaintiff's rights, he cannot hide behind the cloak of reliance on orders. Id. (c itin g Forsyth v. Kleindienst, 599 F.2d 1203, 1216-17 (3d Cir. 1979)). King contends that 16

b e c au s e he did not engage in any misconduct warranting an increase in his security level, the B roo k s Defendants knew or should have known that his transfer from Level II to Level III v io la te d his rights, and that they accordingly cannot hide behind the defense of reliance on o rd e rs . Contrary to King's assumptions, it is not necessary to have proven misconducts to ju stif y a security classification increase. Prisoners do not have a federally protected right to re m a in at a particular security level. Williams v. Wilkinson, 51 F. App'x 553, 557 (6th Cir. 2 0 0 2 ) (citing Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976)). Accordingly, the MDOC can c h a n g e a prisoner's security level for institutional purposes, even in the absence of m isc o n d u c t, as long as it is not in retaliation for protected activities. As Rick Smith, Deputy W a rd e n at Brooks in the fall of 1999, explained, "[t]here's a distinction between the e v id e n tiary standards for a finding of guilt in a major misconduct versus the Security C la ss if ic a tio n Committee's belief about the behavior that a prisoner engages in." (Rick S m ith Dep. 14.) In order to prevent problems before they arise, the prison must be able to c h a n g e to change an inmate's security level based on allegations as opposed to proven c h a rg e s . None of the Defendants showed any particular animus toward King, nor did they ex h ibit any lack of respect for his right to file grievances, to bring issues to the Warden's F o r u m , or to participate in the Cain litigation. Defendants unanimously testified that they w a n te d King transferred not because he engaged in protected activities, but because he was

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u s in g his influence over other prisoners to create problems and was undermining the a u th o rity of prison officials. m o tiv a tio n to be credible. Deputy Warden Harry requested that King be transferred in part because it appeared th a t he was able to instigate other prisoners "to create problems (grievances, complaints to W a rd e n 's Forum, etc.) while he remains uninvolved directly." (Ex. 19.) She also noted that h e was printing out grievances and having other prisoners sign them. Id. Contrary to King's a ss e rtio n s , this was not retaliation on the basis of protected behavior. As noted in King II, alth o u g h prisoners are entitled to receive assistance from jailhouse lawyers where necessary to ensure their right of access to the courts, a prisoner has no constitutional right to function a s a jailhouse lawyer or to assist other prisoners with legal matters. King II, slip op. at *3 (c itin g Gibbs v. Hopkins, 10 F.3d 373, 378 (6th Cir. 1993)); see also King I, 150 F. App'x a t 492 ("[A]n inmate does not have an independent right to help other prisoners with their le g a l claims."). To the extent that Defendants were motivated in transferring King based u p o n his manipulation of other prisoners to file grievances to achieve King's own goals, they d id not retaliate against him on the basis of any protected conduct. Accordingly, this Court concludes that while King's reclassification from Level II to a Level III was more restrictive and seemingly adverse to King, the preponderance of ev iden ce does not support a retaliatory motive on the part of these Defendants. King's d e m e a n o r in court was consistent with the MDOC employee witnesses' description of his The Court finds Defendants' testimony regarding their

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p e rs o n a lity and power. While King's participation in Cain and communication with fellow p r is o n e rs concerning Cain issues were protected, the preponderance of the evidence d e m o n s tra te s that King's behavior did not stop there, but also involved agitating other p riso n e rs and attempting to disrupt the delicate balance of authority the MDOC must retain o v e r prisoners in its charge. Defendants' decision to transfer King and to increase his sec u rity level was based on this behavior, not on his protected conduct. King's

rec lassifica tio n and transfer to a higher security level prison were not motivated by King's p ro tec ted conduct. Moreover, even if they were motivated in part by any protected conduct, the Court finds that Defendants would have taken the same action in the absence of King's p ro te c te d activity. V. It is the finding of this Court that Plaintiff has failed to preponderate on his claim of re talia tio n giving rise to institutional transfer and temporary increased security level. A c c o rd in g ly, Defendants are entitled to a judgment of no cause of action. An order and judgment consistent with this opinion shall be entered.

Dated: October 20, 2009

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

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