Taylor v. Griffith et al
MEMORANDUM OPINION re: 54 MOTION for Summary Judgment filed by Defendant William Milam, Defendant Joe Arcand, Defendant Rickey Bailey, Defendant Michael Miller, Defendant Robert Savage, 53 MOTION for Summary Judgment filed by Plaintiff Samuel Lewis Taylor. Summary judgment will be granted to the defendants. A separate order and judgment shall issue. Signed by District Judge Stephen N. Limbaugh, Jr on 8/23/13. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
MICHAEL MILLER, et al.,
Case No. 1:11-CV-174 SNLJ
Plaintiff is incarcerated at the Potosi Correctional Center (“PCC”). He brings this 42
U.S.C. § 1983 action against defendants Michael Miller, Joe Arcand, William Milam, Rickey
Bailey, and Robert Savage. Each defendant is an employee of the Missouri Department of
Corrections (“MDOC”), and plaintiff alleges that they told him to never again write to a
particular government official, “Mandi Moore,” and that if he did, he would receive a conduct
violation and be confined to administrative segregation. Plaintiff alleges that he did write to
“Mandi Moore” to complain of the extremely cold temperature in his cell, as well as water
leakage, and he alleges the defendants retaliated against him by taking his television and placing
him in administrative segregation. Plaintiff has filed a motion for summary judgment (#53).
Defendants have filed a motion for summary judgment (#54). The motions are now ripe for
Defendants set forth the pertinent facts in their Statement of Uncontroverted Material
Facts (#55-1). Plaintiff has not responded to those facts as required by Federal Rule of Civil
Procedure 56(c)(1) and Local Rule 7-4.01(E). As a result, and in accordance with those rules,
those facts are deemed admitted for the purpose of summary judgment.1
Plaintiff claims that, in late 2009, he was writing “Mrs. Mandi Moore” in Constituent
Services complaining of the temperature in his cell. Constituent Services is an office that
responds to letters from the Governor’s Office, legislators, Director’s Office, or offenders only if
the offender letters relate to medical issues or allegations of abuse. Plaintiff admits he found the
name “Mandi Moore” from another inmate, not through Constituent Services or any employee of
the Department of Corrections. A “Mandie Morris” is a building administrator in the same
building as Constituent Services, but she does not work for Constituent Services and does not
receive or respond to offender letters. On November 18, 2009, plaintiff’s television was seized
“pending the outcome of grievance procedure.” A review of the relevant Property Removal Slip
shows (and plaintiff’s deposition testimony confirms) that plaintiff claimed the television had
been damaged by water/condensation in the cell. Plaintiff claims his television was seized by
nonparty Officers Glasky and Fox. The defendants state that it is MDOC policy to seize property
underlying an IRR complaint until the grievance process has concluded. Plaintiff also admits he
received the property back after the grievance process was concluded.
On January 10, 2010, Plaintiff received a conduct violation for writing a woman named
Maria Irauschek and requesting that she deposit money into offender and fellow inmate Reggie
Plaintiff states in his second response to defendants’ motion for summary judgment
(#62) that it is “not true” that he failed to respond to defendants’ Statement of Uncontroverted
Material Facts. However, plaintiff does not appear to respond to the Statement of
Uncontroverted Material Facts in that document, nor does plaintiff direct the Court to any
document that contains his response. A review of the docket sheet also does not reveal any
response to the Uncontroverted Material Facts by plaintiff. As a result, the Court can only
conclude that plaintiff has not responded to the Facts.
Clemens’s account in order to avoid plaintiff’s obligations to pay certain MDOC fines and fees.2
Plaintiff was confined to administrative segregation as a result. On January 25, 2010, Defendant
Arcand informed Plaintiff not to write Mandie Morriss (the building administrator) anymore
because she could not assist him. Plaintiff did not cease writing “Mrs. Mandi Moore” at
Summary Judgment Standard
Pursuant to Federal Rule of Civil Procedure 56(c), a district court may grant a motion for
summary judgment if all of the information before the court demonstrates that “there is no
genuine issue as to material fact and the moving party is entitled to judgment as a matter of law.”
Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467 (1962). The burden is on the
moving party. City of Mt. Pleasant, Iowa v. Assoc. Elec. Co-op., Inc., 838 F.2d 268, 273 (8th
Cir. 1988). After the moving party discharges this burden, the nonmoving party must do more
than show that there is some doubt as to the facts. Matsushita Elec. Industrial Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). Instead, the nonmoving party bears the burden of setting
forth specific facts showing that there is sufficient evidence in its favor to allow a jury to return a
verdict for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986).
In ruling on a motion for summary judgment, the court must review the facts in a light
most favorable to the party opposing the motion and give that party the benefit of any inferences
that logically can be drawn from those facts. Buller v. Buechler, 706 F.2d 844, 846 (8th Cir.
1983). The court is required to resolve all conflicts of evidence in favor of the nonmoving party.
The fines and fees plaintiff sought to avoid may include the fees associated with the nine
other lawsuits plaintiff has filed and lost while incarcerated in the Missouri Department of
Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 210 (8th Cir. 1976). With
these principles in mind, the Court turns to the discussion.
Plaintiff claims that the defendants violated his First Amendment rights when they
retaliated against him for continuing to write letters to “Mrs. Mandi Moore” by confiscating his
television and placing him in administrative segregation. Defendants contend they are entitled to
summary judgment on that claim. Plaintiff also moves for summary judgment. However,
plaintiff contends that a “genuine issue of material fact exist[s]” (#53 at p. 1). Thus, he appears
to misunderstand the purpose of a summary judgment motion, which is to show that a genuine
issue of material fact does not exist. Regardless, the Court has reviewed plaintiff’s materials in
support of his “motion” and will treat those materials as documents supporting his opposition to
To establish a retaliation claim plaintiff must show: “(1) the prisoner exercised a
constitutionally protected right; (2) prison officials disciplined the prisoner; and (3) exercising
the right was the motivation for the discipline.” Meuir v. Greene County Jail Employees, 487
F.3d 1115, 1119 (8th Cir. 2007) (citations omitted). The plaintiff’s evidentiary burden is a
“heavy” one, and “[m]erely alleging that an act was retaliatory is insufficient.” Id. Additionally,
the discipline must have been that which would “chill a person of ordinary firmness from
engaging in that activity.” Lewis v. Jacks, 486 F.3d 1025, 1028 (8th Cir. 2007).
Plaintiff claims that he was retaliated against in two ways — first, when defendants took
his television after plaintiff filed his grievance related to the cold and wet conditions in his cell,
and second, when defendants issued him a conduct violation that resulted his confinement to
Defendants contend that plaintiff cannot show that he was exercising a constitutionally
protected right. Inmates do not have an unlimited First Amendment right. Shaw v. Murphy, 532
U.S. 223, 229 (2001). However, a prisoner has the “right under the First Amendment to petition
for redress of grievances under a prison’s grievance procedures.” Nelson v. Shuffman, 603 F.3d
439, 449 (8th Cir. 2010). Further, “conduct that retaliates against the exercise of a
constitutionally protected right ... is actionable even if the alleged retaliatory conduct does not
itself rise to the level of a constitutional violation.” Van Wyhe v. Reisch, 581 F.3d 639, 658 (8th
Cir. 2009). See also Santiago v. Blair, 707 F.3d 984, 994 (8th Cir. 2013) (quoting Nelson and
Van Wyhe). The Court is mindful, however, that “because the ‘problems of prisons in America
are complex and intractable,’ and because courts are particularly ‘ill equipped’ to deal with these
problems, [the courts] generally have deferred to the judgments of prison officials in upholding
these regulations against constitutional challenge.” Nelson, 603 F.3d at 449 (citation omitted).
Here, plaintiff was writing to a person who did not exist. No “Mrs. Mandi Moore”
worked for the prison system’s Constituent Services. And, even though a woman with a similar
name (Mandie Morriss) worked in the same building as Constituent Services, she did not work in
the Constituent Services department and could not assist plaintiff. Plaintiff admits that he was
told that no such person worked there and that he should not write to Mandie Morriss on January
25, 2010. Instead, the letters he sent were forwarded to the appropriate staff person at his prison,
and plaintiff received a response from a prison administrator.3 Plaintiff was simply advised that
he should not direct his correspondence to “Mrs. Mandi Moore” because she did not exist.
Notably, plaintiff’s letters requested that his letter be forwarded to the appropriate person
if the intended recipient could not help him. That appears to be what happened.
Plaintiff was further advised that he was delaying the grievance process by sending letters to
Constituent Services that the department could not address.
As the Supreme Court has observed, “[c]ommunication by letter is not accomplished by
the act of writing words on paper. Rather, it is effected only when the letter is read by the
addressee.” Procunier v. Martinez, 416 U.S. 396, 408 (1974), overruled on other grounds by
Thornburgh v. Abbott, 490 U.S. 401 (1989). Because plaintiff’s intended addressee did not exist,
it is unlikely that plaintiff was engaged in a constitutionally protected right when he wrote to Ms.
Moore. Notably, plaintiff does not allege that the defendants told him to stop writing to anyone
who did exist.
However, plaintiff was not just writing to “Mandi Moore.” He was also submitting
informal resolution requests (“IRRs”) and grievances about his cell conditions and his allegedly
damaged television. Thus, the Court must continue to the next prong of the retaliation analysis.
The Court will address each alleged act of discipline in turn below:
1. Conduct violation. Plaintiff complains that he was issued a Conduct Violation (and
assigned to administrative segregation) in retaliation for continuing to write to “Mandi Moore”
after being told not to do so. However, the subject Conduct Violation was issued on January 10,
2010, and it related to plaintiff’s improper use of the mails (i.e., he wrote a letter to Maria
Irauschek requesting money be sent to another inmate’s account to avoid his financial
obligations). That Conduct Violation was issued fifteen days before the plaintiff was advised
that he should not to write to Mandie Morriss. Critically, plaintiff does not dispute that he
engaged in the conduct that resulted in the Conduct Violation. A defendant “may successfully
defend a retaliatory discipline claim by showing ‘some evidence’ the inmate actually committed
a rule violation.” Bandy-Bey v. Crist, 578 F.3d 763, 766 (8th Cir. 2009) (internal quotations
omitted); see also Hartsfield v. Nichols, 511 F.3d 826, 829 (8th Cir. 2008). Here, there is ample
evidence that plaintiff actually committed the “improper use of mail” violation. The discipline
was not related to plaintiff’s allegedly constitutionally protected activity, plaintiff admits that he
engaged in the conduct that resulted in the Conduct Violation, and plaintiff cannot show that it
was undertaken in retaliation for his complaints.
2. Television Seizure. Plaintiff also complains that his television was taken in
retaliation for his complaining about his cell conditions. Plaintiff filed an IRR regarding his cell
conditions on October 23, 2009. Plaintiff stated that the wet conditions in his cell damaged his
fourteen-year-old television. (#53-1 at p. 73.) Defendant Michael Miller responded, stating that
he had observed the cell and television and had seen no moisture, and that the television’s
problem (that the color started to fade out after it had been on for a while) was likely due to its
age and that it needed to be repaired or replaced. On November 4, 2009, plaintiff authored a
grievance (an appeal of the IRR decision), which is recorded as having been filed on November
19. On November 18, plaintiff received a Property Removal Slip stating that his television was
being seized. The slip stated that the “reason for removal” was that plaintiff had claimed it was
damaged “due to water/condensation in cell” and that it was being stored “pending outcome of
Grievance procedure.” (#55-7.) Defendants state that it is MDOC policy to seize property
underlying a prisoner complaint, and, here, plaintiff had complained that his television had been
damaged by the conditions in his cell. Plaintiff admits there was an investigation and that his
television was returned to him (according to the date on the Property Removal Slip) on March
12, 2010. The removal of his television was not discipline but, defendants contend, simple
adherence to MDOC procedure.
The “policy” to which defendants refer is contained in IS22-1.1 Offender Property and
Control Procedures. Specifically, defendants cite to Section III.G.1.b.3. Section III.G pertains to
“Unauthorized Property.” Section III.G.1 states as follows:
Unauthorized property will be listed on the Unauthorized Property Notice
form and will be processed as follows:
Offenders assigned to an institution who receive unauthorized
personal property should be notified via a copy of the
Unauthorized Property Notice form and should be permitted to
have items sent out through the mail, with a visitor, or donate the
items to the institution.
(3) Property items with a pending grievance will be retained until
final resolution of the grievance process.
(A) If upon receipt of the final grievance response, it is
determined the property item(s) are not to be allowed, the
property officer will be notified by the grievance officer and
will complete and forward a new Unauthorized Property
Notice form to the offender, notifying the offender he has
30 days to send out the property.
(#55-4 at p. 12). From the plain language of the regulation, it appears that the policy applies not
to property that is the subject of any grievance, but rather the policy applies to items that are
found to be “unauthorized.” Should the offender submit a grievance regarding the “unauthorized
property,” then the policy states that the item “will be retained until final resolution.” The
regulation is therefore inapplicable to plaintiff’s situation.
That defendants’ cited policy is inapplicable is not dispositive, however. Plaintiff
admitted that it is MDOC policy to seize property that is subject of a grievance, and it is possible
another MDOC policy exists that justifies the television’s seizure. Even if no written policy
exists, it is apparent that plaintiff cannot support his retaliation claim with respect to the
television seizure. At the outset, the Court notes that the removal of plaintiff’s television
occurred months before he was informed by defendants Arcand and Miller that Mandie Morriss
could not help him. Moreover, plaintiff had been writing letters to “Mandi Moore” since 2008.
Even if plaintiff was told to stop complaining to “Mandi Moore” or to stop filing IRRs in
October 2009, however, his retaliation claim fails because the removal of the television under
these circumstances cannot properly be considered “retaliation.” As indicated above, it is not
enough for plaintiff merely to label the removal of his television as “retaliation.” Meuir, 487
F.3d at 1119. Plaintiff admits it was MDOC policy to remove property under the circumstances,
and he has set forth no evidence supporting that the defendants removed his television with the
intention of punishing him for exercising his right to file IRRs and grievances. Defendant
Miller’s statements in his IRR and grievance responses suggest that Miller believed the television
was malfunctioning due to its age. The “Property Removal Receipt” clearly states the reason for
removal was that it was the subject of grievance procedure — which provides a common sense
non-retaliatory motive for its removal even if no written policy exists. Further, plaintiff admits
that the television was returned to plaintiff after the grievance procedure concluded. Plaintiff’s
“heavy” burden has not been met here, and the retaliation claim with respect to the seized
television must fail on summary judgment.
Summary judgment will be granted to the defendants. A separate order and judgment
Dated this 23rd day of August, 2013.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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