Jordan v. Hall et al

Filing 147

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants Motion for Summary Judgment (ECF No. 119) is GRANTED in part and DENIED in part, in accordance with the foregoing. IT IS FURTHER ORDERED that Plaintiffs Motion for Summary Judgment against Defendant Joey Arcand and for Partial Summary Judgment against Defendant Brian D. Hall (ECF No. 127) is DENIED. 127 119 Signed by District Judge Jean C. Hamilton on 3/4/15. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RONALD JORDAN,
Plaintiff,
v.
BRIAN D. HALL, et al.,
Defendants.

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No. 4:12CV2070 JCH

MEMORANDUM AND ORDER
This matter is before the Court on Defendants Brian D. Hall and Joey Arcand’s
(collectively “Defendants”) Motion for Summary Judgment, filed December 5, 2014. (ECF No.
119).1 The motion is fully briefed and ready for disposition.
BACKGROUND
Plaintiff Ronald Jordan is an offender in the Missouri Department of Corrections
(“MDOC”), currently incarcerated at Potosi Correctional Center (“PCC”) in Mineral Point,
Missouri. (ECF No. 121, ¶ 1). Defendant Brian D. Hall (“Hall”) is employed by MDOC as a
Corrections Officer I (“COI”), and currently assigned to PCC. (Id., ¶ 2). Defendant Joey Arcand
(“Arcand”) is employed by MDOC as a Correctional Case Manager, and currently assigned to
Eastern Reception Diagnostic and Correctional Center (“ERDCC”). (Id., ¶ 3).2 Defendant Paul
Johnson (“Johnson”) was previously employed by MDOC as a Caseworker (“CCA”) at PCC.

1

Defendant Paul Johnson joined in Defendants’ Motion for Summary Judgment. In an Order entered this
day and incorporated herein, however, the Court directed the Clerk of Court to enter default judgment
against Defendant Johnson.
2
Plaintiff denies Arcand is currently assigned to ERDCC, maintaining instead that he is assigned to PCC.
(ECF No. 136, ¶ 3). Plaintiff offers no evidence to support his assertion, however. In any event, Arcand
acknowledges that at all times relevant to Plaintiff’s Complaint, he was assigned to PCC. (ECF No. 1212, ¶ 2).

(Id., ¶ 4).
At approximately 8:40 or 8:45 p.m. on May 2, 2010, Hall called for a lockdown in
Housing Unit 5 at PCC. (ECF No. 121, ¶ 8; ECF No. 136, ¶ 8). Hall maintains the lockdown
was broadcast over the loudspeaker, and the parties agree that prisoners in the housing unit began
returning to their cells. (ECF No. 121, ¶¶ 9, 10). Shortly thereafter, Plaintiff exited his cell and
asked whether there were five more minutes before lockdown. (Id., ¶ 11). Hall maintains
Plaintiff was told no, and then proceeded to argue with Hall.3 (Id., ¶¶ 11, 12). The parties agree
Plaintiff did return to his cell at that point. (Id., ¶ 13).
Plaintiff eventually received a conduct violation (CDV), for violation of the following
rules: 19.1—Creating a Disturbance, and 20.1—Disobeying an Order. (ECF No. 121-3, P. 19).4
Hall believed that because of his actions during the lockdown, Plaintiff was a security risk and
needed to be placed in protective custody. (ECF No. 121, ¶ 16). At approximately 9:50 p.m. on
May 2, Plaintiff was interviewed by COII Chad Cooke (“Cooke”) regarding the CDV. (Id., ¶
17). During the interview, Plaintiff stated that he did not hear the lockdown announcement over
the loudspeaker.5 (Id., ¶ 18). He did not request that Cooke interview any witnesses. (Id.).
On May 3, 2010, Plaintiff prepared a written defense statement to the CDV. (ECF No.
121-3, PP. 20-21). On May 6, 2010 Arcand, as Disciplinary Hearing Officer (“DHO”), held a
hearing on the CDV. (ECF No. 121, ¶ 20). Plaintiff requested that Arcand review video footage
from Housing Unit 5 for the night of May 2, 2010, to show that he did not argue with Hall but
instead returned to his cell as directed. (Id., ¶ 22). Arcand maintains he informed Plaintiff it is

3

Plaintiff vehemently denies arguing with Hall, claiming he immediately complied with Hall’s order to
lock down. (ECF No. 1, P. 6).
4
Although Plaintiff denies receiving the CDV on May 2, the form itself is signed and dated by Plaintiff
that same date. (See ECF Nos. 136, ¶ 14, 121-3, P. 19).
5
Plaintiff claims he did not hear the announcement over the loudspeaker because it was never made.
(ECF No. 136, ¶ 18).
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not MDOC’s practice or procedure to review video footage for minor conduct violations, and
that nothing in the procedures required him to do so simply because Plaintiff so requested. (Id., ¶
23).6 The parties agree that video recorders at PCC do not record sound, only picture, so Arcand
would not have been able to tell what was being said even if he had conducted the requested
review. (Id., ¶ 24).
Plaintiff was found guilty of the CDV, and the finding was recommended as submitted by
Cindy Griffith, the Functional Unit Manager (“FUM”) of Housing Unit 5. (ECF No. 121, ¶ 25).
On or about May 17, 2010, Plaintiff filed an Informal Resolution Request (“IRR”), stating that
the DHO had failed to review requested evidence, i.e., the videotape. (Id., ¶ 26; ECF No. 121-3,
PP. 15-17). Plaintiff’s IRR was denied by G. Bollinger, CCA, as follows:
I have reviewed all pertinent information regarding your complaint and can find
no evidence to support your claims. Furthermore, there is nothing in SOP19-1.3A
that says the DHO must use video evidence when an offender requests it. You
were found guilty on the CDV, (PCC10-00712), by the DHO. The FUM
reviewed these findings and the acting Assistant Warden approved the findings
and sanctions.
(ECF No. 121-3, P. 14). Plaintiff then filed a Grievance Appeal, which was denied on August
12, 2010, as follows:
After reviewing the pertinent material I find you were given due process and
found guilty. The evidence was sufficient to support the findings with no
procedural errors to warrant dismissal. Also, department property such as
recorded video feed from security cameras, is not provided just because an
offender requests such.
(Id., P. 5). Plaintiff further appealed to Deputy Division Director Dwayne Kempker, who denied
Plaintiff’s Appeal on September 2, 2010, in relevant part as follows:
I have thoroughly reviewed your complaint and relative documentation. PCC
SOP/IS-Disciplinary Hearings Minor, III, G.1. states that “The offender shall be
allowed to make a statement and present evidence on her/his behalf” and d. “The
6

According to Plaintiff, Arcand gave no reason or explanation for refusing to review the video footage as
requested. (ECF No. 136, ¶ 23).
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reason for any such exclusion shall be listed on the Disciplinary Action Report.”
You were afforded the opportunity to make a statement and present evidence; it is
noted that you did not have any evidence to present at the hearing. Section III, 7.
states “The disciplinary hearing officer should call witnesses available and
necessary to the charge being reviewed, but need not call witnesses with repetitive
information” and b. “Reasons for failing to call any witnesses or obtain statements
from the witnesses requested by the offender should be recorded on the Witness
Request form.” There is no indication that you requested witnesses at the
interview of the violation report; therefore a Witness Request form was not
completed or available for staff to note anything on. In addition, you may feel
that the video footage of the housing unit wing is your “witness”; however policy
is referring to individuals and not video footage when referring to the word
“witness”. The video footage was not available for review when the violation was
heard on 5/06/10, and video footage of the housing unit’s wing are usually not
kept for an extended period of time unless certain incidents have occurred on the
housing unit and staff know such may need to be referred to at a later date, i.e.
assaults, use of forces, etc. Staff is not required to view videotapes, which have
no audio, just because an offender requests it. I find that the violation was
appropriately issued to you and you received due process on such with no noted
errors. The violation and sanction will remain as written; your request for remedy
is denied.
(Id., P. 3).
As a result of the May 2, 2010, CDV, Plaintiff was placed in administrative segregation
(“ad-seg”). (ECF No. 121, ¶ 34).

According to Defendants, a Temporary Administrative

Segregation Confinement (“TASC”) Order was prepared on May 2, 2010 (the day Plaintiff was
assigned to ad-seg), signed by Jeffrey Turner, CSI, and approved by Superintendent Ian Wallace.
(Id., ¶¶ 34-36).

Plaintiff denies that an official TASC order approving Plaintiff’s ad-seg

confinement was prepared on May 2, 2010. (ECF No. 136, ¶¶ 34-36).7 He therefore requested
an IRR from Arcand, and submitted the completed form on or about September 20, 2010. (ECF
No. 1, P. 12). Plaintiff maintains the following month Johnson showed him the previously
delivered document, insisted it was a TASC order, and then scolded Plaintiff for filing an IRR
7

Plaintiff admits that on or about July 13, 2010, Johnson gave Plaintiff a purported copy of his TASC
order. (ECF No. 1, P. 11). According to Plaintiff, however, the document he received was “no TASC
order at all,” but rather a “made-up computer printout with information pertinent to the aforesaid conduct
violation and Plaintiff’s confinement to ad-seg.” (Id., PP. 11-12).
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relating to it. (Id., PP. 12-13). According to Plaintiff, Johnson then threatened that even if
Plaintiff managed to return to general population, he would not be allowed to resume his job in
the chair factory. (Id., P. 13).
Plaintiff claims he never received any feedback on his filed IRR. (ECF No. 1, P. 13). He
therefore followed up, first with Johnson, and then with FUM Kay Malloy and Grievance Officer
Robert Savage. (Id., P. 14). Plaintiff finally wrote to Arcand in January of 2011, requesting the
tracking number for the IRR, and Arcand informed Plaintiff that the computer contained no
record he had filed an IRR. (Id.). Plaintiff maintains Johnson discarded his original IRR in order
to obstruct Plaintiff’s ability to seek redress of his situation. (Id., P. 15).8
Plaintiff filed a second IRR on March 4, 2011, for “[f]ailure to adhere to the mandates of
SOP21-1.1 Temporary Administrative Segregation Confinement, resulting in arbitrary Ad-Seg
confinement, in violation of procedural due process.”

(ECF No. 121-4, P. 10).

Plaintiff

complained that he was not given a copy of the TASC form when he was placed on TASC on
May 2, 2010. (ECF No. 121-4, PP. 12, 16). Plaintiff’s IRR regarding the alleged failure to
provide the TASC order was denied. (Id., P. 15).
Plaintiff filed an Offender Grievance on April 1, 2011, which was denied on May 24,
2011. (ECF No. 121-4, PP. 7-8). Plaintiff then appealed to Division Director Kempker, who
denied the Grievance on July 13, 2011, as follows:
I have thoroughly reviewed your complaint and relative documentation and note
that your assignment to the administrative segregation unit on 5/02/10 occurred
over a year ago. The copy of the TASC order dated 5/02/10 that you provided
with your grievance is legitimate with no evidence being found that such is
otherwise. Just because PCC staff did not use form MO 931-1431, which was
originated in May 2006 and is referred to in IS21-1.1 Temporary Administrative
8

Plaintiff asserts Johnson further retaliated against him by “knowingly, deliberately, and unjustly
prolonging Plaintiff’s confinement in the restrictive conditions of H.U. 3 for months,” and by attempting
to prevent Plaintiff from returning to his position in the chair factory. (ECF No. 1, PP. 15, 17-18).
Plaintiff was able to return to his job in the chair factory in November, 2010. (ECF No. 121, ¶ 82).
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Segregation Confinement (TASC), does not mean that the TASC orders are not
official. Be advised that the form PCC staff used for your 5/02/10 TASC orders is
a computer-generated form that is used by PCC staff for TASC orders.
Information available to me indicates that CCA Johnson attempted to discuss an
IRR that he received from you; however, you took the IRR and a copy of your
TASC orders and said that you were not going to argue about it. CCA Johnson
has indicated that he never saw the IRR or TASC order again and that he thought
the issue was over with; CCA Johnson refutes your allegations that he threw the
IRR away. I suggest that you request to talk to your housing unit FUM or
Caseworker if you have any questions regarding your eligibility for assignment to
HU #5A (Honor Dorm). Your request for remedy is denied at this time.
(ECF No. 121-4, P. 2).
On August 31, 2011, Hall conducted a random pat search of Plaintiff, and found he was
carrying a substantial amount of rolled-off state issue toilet tissue and one state issue brown
paper towel. (ECF No. 121, ¶ 48; ECF No. 121-5, P. 15). Hall allegedly considered this to be
contraband, and thus issued Plaintiff a CDV for violations of rules 22.1—Theft and 24.1—
Contraband. (Id.). Plaintiff was interviewed that same day, and prepared a written defense to the
CDV. (ECF No. 121, ¶¶ 49-50; ECF No. 121-5, PP. 15, 17). He was found guilty of the
violations at a hearing held on September 2, 2011. (ECF No. 121, ¶ 51).
On September 13, 2011, Plaintiff filed an IRR regarding the CDV, seeking dismissal and
expungement because he had no notice the items he carried were unauthorized. (ECF No. 121, ¶
52). The CDV was reviewed, and modified to contraband only. (Id., ¶ 53). Plaintiff filed a
grievance in regard to the CDV on November 8, 2011, which was denied on January 13, 2012.
(Id., ¶ 54). Plaintiff then filed a Grievance Appeal, and on February 28, 2012, the Deputy
Division Director found there was insufficient evidence to support the CDV and ordered that it
be dismissed and expunged. (Id., ¶¶ 55, 56).
On November 4, 2011, Plaintiff filed an IRR regarding his complaint that on November
1, 2011, at approximately 9:00 p.m., his cell was searched by Hall and CO Leach. (ECF No.

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121, ¶ 57). Plaintiff claimed a half bottle of prayer oil and two bottles of cologne were removed,
and sought to have them returned. (Id.).9 Plaintiff received a Property Removal Form, and was
informed that the confiscated items were sent to the Highway Patrol Crime lab for testing. (Id.,
¶¶ 59-60). Plaintiff filed a Grievance regarding the removal on December 14, 2011, which was
denied on January 25, 2012, as follows:
Your grievance complaint and pertinent information have been reviewed. You
clearly state in your complaint that if the evidence is not propertly (sic) handled,
sealed, and inventoried then the items to be tested should be immediately
discarded, these items were disposed of under the guidelines which you refer to.
These bottles were removed from all offenders at PCC, these bottles contained
minute or trace amounts which could not be positively confirmed as a controlled
substance. As the bottles were no longer utilized to preserve the original products
purchased, there would be no need to maintain such packaging.
(ECF No. 121-6, P. 8). Plaintiff then filed a Grievance Appeal with the Division Director, and
on April 4, 2012, Deputy Division Director Kempker responded as follows:
Further inquiry was made with PCC in regards to this matter. Information was
received that the bottles of cologne and prayer oil that had been confiscated from
offenders at PCC on/around 11/01/11 contained very small amounts of prayer oil
or cologne and such ended up being disposed of and were not referred to the
Highway Patrol’s Criminal Laboratory for testing. The prayer oil had been
donated by an outside source; however, review of your canteen spends for 2011
indicates that you purchased one bottle of Joop fragrance on 7/11/11 for $3.11.
You indicate at the IRR level that the bottles confiscated from you were
approximately half full; therefore, I direct for $1.55 to be credited to your inmate
account for reimbursement of the confiscated bottle of cologne. You will not be
reimbursed for the prayer oil since it was donated. This should resolve your
complaint.
(Id., P. 2).

9

Plaintiff denies Defendants’ claim that Hall had been verbally instructed to remove items such as prayer
oil and cologne. (ECF No. 121, ¶ 58; ECF No. 136, ¶ 58).
-7-

On November 9, 2011, Plaintiff filed an IRR regarding his complaint that on November
1, 2011, Hall searched his cell and removed several items that were listed on a property removal
form, but failed to list a manila legal folder he removed. (ECF No. 121, ¶ 65). Plaintiff sought
return of the folder. (Id.). Hall responded as follows:
The manila folder in question had the markings on it from the Institutional
Chapel.10 Those folders with those markings are not sold in canteen. They have
to be removed from the chapel area. The folder was taken and disposed of as
nuisance contraband due to: 1) obtained in an unauthorized manner, 2) altered.
(ECF No. 121-7, P. 11). Plaintiff’s IRR was denied, as were his Grievance and Grievance
Appeal with respect to the confiscated manila folder. (ECF No. 121, ¶¶ 67-71).11
Plaintiff finally claims that on July 11, 2012, Hall once again searched Plaintiff’s cell,
and that as a result Plaintiff was placed in ad-seg confinement. (ECF No. 1, PP. 23-24). On July
13, 2012, Plaintiff filed an IRR regarding his contention that he was taken to ad-seg but not
given notice regarding the reason for the placement. (ECF No. 121, ¶ 72). 12 Plaintiff’s IRR was
denied as follows:
There is no evidence to support this claim. Reporting officer states that he did in
fact give you a copy of your TASC sheet.13 It is also fact that you were offered a
copy of the TASC sheet in question, at a later date, and you refused to accept it at
that time. In addition, records indicate you were released to general population on
08/13/2012 with no CDV issued.

10

Plaintiff denies the manila folder had markings on it from the chapel. (ECF No. 136, ¶ 66).
Plaintiff claims Hall again searched and trashed his cell on or about March 6, 2012. (ECF No. 1, PP.
22-23).
12
Plaintiff acknowledges that six days later, on July 17, 2012, he learned that he was placed in ad-seg as
a result of dangerous contraband allegedly found during a cell search. (ECF No. 1, P. 24).
13
Plaintiff continues to deny he was provided a copy of the TASC order. (ECF No. 136, ¶ 73).
11

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(ECF No. 121-8, P. 13). Plaintiff’s Grievance and Grievance Appeal with respect to this issue
were both denied. (ECF No. 121, ¶¶ 74-76).14
On November 2, 2012, Plaintiff filed a Complaint pursuant to 42 U.S.C. § 1983, alleging
violations of his civil rights. (ECF No. 1). Named as Defendants, and sued in their individual
capacities, were Hall, Arcand, and Johnson.15 As relevant here, Plaintiff claims Hall violated his
constitutional rights by improperly placing him in administrative segregation after issuing a false
conduct violation, and by retaliating against him for exercising his constitutional right to file
grievances against government actors. (Id., P. 27). Plaintiff further claims Arcand violated his
Fourteenth Amendment procedural due process rights, in connection with the disciplinary
hearing held on May 6, 2010. (Id.).
As noted above, Defendants filed the instant Motion for Summary Judgment on
December 5, 2014, claiming there exist no genuine issues of material fact and they are entitled to
judgment as a matter of law. (ECF No. 119). Defendants further claim they are entitled to
judgment in their favor based on the defense of qualified immunity. (Id.).
SUMMARY JUDGMENT STANDARD
The Court may grant a motion for summary judgment if, “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The substantive law determines which facts are critical and which are irrelevant. Only disputes

14

Both parties reference an incident that occurred after the filing of Plaintiff’s Complaint on November 2,
2012. (See ECF No. 121, ¶¶ 77-79; ECF No. 137, ¶ 17). Plaintiff neither requested nor received leave to
amend his Complaint, however, and thus said incident is not before the Court.
15
Plaintiff originally named Clifford Owens, FUM, as a Defendant. On April 25, 2014, the Court
dismissed Mr. Owens as a Defendant for lack of timely service. (ECF No. 45).
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over facts that might affect the outcome will properly preclude summary judgment. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is not proper if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party. Id.
A moving party always bears the burden of informing the Court of the basis of its motion.
Celotex, 477 U.S. at 323. Once the moving party discharges this burden, the nonmoving party
must set forth specific facts demonstrating that there is a dispute as to a genuine issue of material
fact, not the “mere existence of some alleged factual dispute.” Fed. R. Civ. P. 56(e); Anderson,
477 U.S. at 247. The nonmoving party may not rest upon mere allegations or denials of its
pleadings. Anderson, 477 U.S. at 256.
In passing on a motion for summary judgment, the Court must view the facts in the light
most favorable to the nonmoving party, and all justifiable inferences are to be drawn in its favor.
Anderson, 477 U.S. at 255. The Court’s function is not to weigh the evidence, but to determine
whether there is a genuine issue for trial. Id. at 249.
DISCUSSION
I.

Did Defendants Violate Plaintiff’s Constitutional Rights?
A.

False Conduct Violation

In their Motion for Summary Judgment, Defendants first assert Plaintiff cannot sue Hall
under § 1983 for allegedly issuing a false conduct violation.

(ECF No. 120, PP. 4-6).

Defendants are correct that “the filing of a false disciplinary charge is not itself actionable under
§ 1983.” Dixon v. Brown, 38 F.3d 379, (8th Cir. 1994); see also Beyer v. Woods, 2014 WL
4707718, at *2 (E.D. Mo. Sep. 22, 2014); Williams v. Horner, 403 Fed.Appx. 138, 140 (8th Cir.
2010). Plaintiff apparently concedes this point in his response (see ECF No. 135, P. 6), and so
this portion of Defendants’ Motion for Summary Judgment will be granted.
B.

Procedural Due Process Violations
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Plaintiff alleges Hall’s arbitrary placement of Plaintiff in ad-seg confinement in May,
2010, without explanation or proper approval, violated his right to procedural due process. (ECF
No. 135, PP. 4-6). He further alleges Arcand denied him procedural due process in connection
with the ensuing disciplinary proceeding. (ECF No. 1, P. 27). Specifically, Plaintiff claims
Arcand’s refusal to review the requested documentary evidence, i.e., video footage from the
evening of May 2, 2010, violated Plaintiff’s right to procedural due process.
Under Eighth Circuit law, “‘[i]n order to prevail on a Fourteenth Amendment due process
claim, [the plaintiff] must first demonstrate that he was deprived of life, liberty, or property by
government action.’” Orr v. Larkins, 610 F.3d 1032, 1034 (8th Cir. 2010), quoting Phillips v.
Norris, 320 F.3d 844, 846 (8th Cir. 2003).16 In order to show he was deprived of a protected
liberty interest, Plaintiff here must identify conditions that imposed an “‘atypical or significant
hardship…in relation to the ordinary incidents of prison life.’” Id., quoting Sandin v. Conner,
515 U.S. 472, 484 (1995).
Upon consideration, the Court finds Plaintiff’s procedural due process claims against Hall
and Arcand fail, as the Eighth Circuit consistently has held that administrative and disciplinary
segregation are not atypical and significant hardships that trigger due process protections.
McCauley v. Dormire, 245 Fed. Appx. 565, 566-67 (8th Cir. 2007).17 Furthermore, in deciding
whether an inmate possesses a liberty interest, the Eighth Circuit “compare[s] the conditions to
which the inmate was exposed in segregation with those he or she could expect to experience as
16

Only if Plaintiff has a protected liberty interest will the Court “consider what process is due by
balancing the specific interest that was affected, the likelihood that the…procedures would result in an
erroneous deprivation, and [MDOC’s] interest in providing the process that it did, including the
administrative costs and burdens of providing additional process.” Senty-Haugen v. Goodno, 462 F.3d
876, 886 (8th Cir. 2006) (citation omitted), cert. denied, 549 U.S. 1348 (2007).
17
“The Eighth Circuit has only found protected liberty interests where inmates were confined to
administrative segregation for ten years or longer.” Strutton v. Meade, 2008 WL 4534015, at *16 n. 6
(E.D. Mo. Sep. 30, 2008), citing Williams v. Norris, 277 Fed. Appx. 647, 648-49 (8th Cir. 2008); Heron v.
Schriro, 11 Fed. Appx. 659, 661-62 (8th Cir. 2001); Herron v. Wright, 116 F.3d 480 (8th Cir. 1997).
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an ordinary incident of prison life….[It does] not consider the procedures used to confine the
inmate in segregation.” Phillips v. Norris, 320 F.3d at 847 (internal quotations and citations
omitted). See also Kennedy v. Blankenship, 100 F.3d 640, 643 (8th Cir. 1996) (citations omitted)
(“If [the plaintiff] has a liberty interest, it is an interest in the nature of his confinement, not an
interest in the procedures by which the state believes it can best determine how he should be
confined.”). This portion of Defendants’ Motion for Summary Judgment will therefore be
granted.
C.

Retaliation

In his Complaint, Plaintiff asserts Hall retaliated against him after he exercised his
constitutional right to file grievances using the prison’s established procedures. Under Eighth
Circuit law, “[a] prisoner’s Eighth Amendment rights are violated if prison officials ‘impose a
disciplinary sanction against a prisoner in retaliation for the prisoner’s exercise of his
constitutional right.’” Meuir v. Greene County Jail Employees, 487 F.3d 1115, 1119 (8th Cir.
2007), quoting Goff v. Burton, 7 F.3d 734, 738 (8th Cir. 1993). To prevail on his retaliation
claim, Plaintiff must show: “(1) he engaged in a protected activity, (2) the government official
took adverse action against him that would chill a person of ordinary firmness from continuing in
the activity, and (3) the adverse action was motivated at least in part by the exercise of the
protected activity.” Spencer v. Jackson County Mo., 738 F.3d 907, 911 (8th Cir. 2013) (internal
quotations and citations omitted). “The retaliatory conduct itself need not be a constitutional
violation; the violation is acting in retaliation for the exercise of a constitutionally protected
right.” Id. (internal quotations and citations omitted).
In the instant case, it is undisputed that Plaintiff engaged in a protected activity when he
filed a grievance against Hall. See Lewis v. Jacks, 486 F.3d 1025, 1029 (8th Cir. 2007) (citation

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omitted) (“The filing of a prison grievance, like the filing of an inmate lawsuit, is protected First
Amendment activity.”).

Plaintiff thus easily satisfies the first prong of the test.

Plaintiff also claims he was subjected to adverse action by Hall subsequent to his
utilization of the grievance procedures.

Plaintiff

specifies several incidents of allegedly

retaliatory conduct by Hall, including his (1) filing of false disciplinary reports, (2) conduction of
unnecessary cell searches, and (3) confiscation and/or destruction of personal property. All three
actions are clearly adverse. See Edgar v. Crawford, 2009 WL 3835265, at *5 (W.D. Mo. Nov.
16, 2009), citing Hudson v. Palmer, 468 U.S. 517, 530 (1984) (Although prisoners “do not have
a legitimate expectation of privacy and the Fourth Amendment’s prohibition on unreasonable
searches does not apply in prison cells,…the Eighth Amendment protects prisoners from
searches conducted only for ‘calculated harassment.’”); Orebaugh v. Caspari, 910 F.2d 526, 528
(8th Cir. 1990) (“[A] prisoner can state a claim of retaliation by alleging that disciplinary actions
were based upon false allegations…”).18 In addition, the actions complained of were not so
trivial that a person of ordinary firmness would have continued in the protected activity
undisturbed. See Garcia v. City of Trenton, 348 F.3d 726, 728, 729 (8th Cir. 2003) (citation
omitted) (“The ordinary-firmness test is…designed to weed out trivial matters from those
deserving the time of the courts as real and substantial violations of the First
Amendment….Ultimately, this sort of question is usually best left to the judgment of a jury.”).

18

While the Court recognizes that “claims of retaliation fail if the alleged retaliatory conduct violations
were issued for the actual violation of a prison rule,” in order successfully to defend against a retaliatory
discipline claim a defendant must show “‘some evidence’ the inmate actually committed a rule violation.”
Hartsfield v. Nichols, 511 F.3d 826, 829 (8th Cir. 2008) (citations omitted). A report from a correctional
officer, “even if disputed by the inmate and supported by no other evidence, legally suffices as ‘some
evidence’ upon which to base a prison disciplinary violation,” but only when the violation is found by an
impartial decisionmaker. Id. At 831. Here, the allegations in Hall’s August 31, 2011, CDV were not
upheld by an impartial decisionmaker, but instead were dismissed and expunged, and so the “some
evidence” standard does not apply. See Spencer, 738 F.3d at 911.
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The last prong of the retaliation test asks if the prisoner’s exercise of his right was the
actual motivation for the adverse action. “The plaintiff-inmate has a heavy evidentiary burden to
establish a prima facie case,” and “[m]erely alleging that an act was retaliatory is insufficient.”
Meuir, 487 F.3d at 1119 (citations omitted); see also Lewis, 486 F.3d at 1029 (internal quotations
and citations omitted) (“To avoid summary judgment, [Plaintiff] must submit affirmative
evidence [of] a retaliatory motive.”).
To substantiate his claim of retaliatory motive, Plaintiff points to multiple instances
where he allegedly was singled out for discipline by Hall. For example, Plaintiff alleges that in
August, 2011, Hall searched only Plaintiff, even though he was walking with a large group of
inmates. (ECF No. 1, P. 18). Plaintiff offers further evidence of a retaliatory motive when he
asserts the cell searches to which he was subject prior to his lodging of complaints against Hall
did not involve the trashing of his cell and discarding of his personal property, and when he
claims the confiscation of his cologne was not random, as his then-cellmate also had a bottle of
cologne on his shelf in plain sight that was not taken. (ECF No. 135, P. 9). Finally, Plaintiff
posits something more sinister with respect to the July, 2012, cell search, when he claims Hall
pretended to have found dangerous contraband in Plaintiff’s cell. (Id., P. 11). In viewing the
facts in the light most favorable to Plaintiff, as it must for purposes of this motion, the Court
finds a genuine issue of material fact remains as to whether the series of actions by Hall were
carried out as a form of retaliation.19

This portion of Defendants’ Motion for Summary

Judgment must therefore be denied.

19

In their motion, Defendants note the August 31, 2011, pat search took place over a year after the
original altercation on May 2, 2010, and almost exactly a year after Plaintiff’s final grievance on the
matter was denied on September 2, 2010, and the cell searches were even later. Normally, this lack of a
temporal connection between the protected activity and the alleged retaliation would dispel any inference
of causal connection. See Lewis, 486 F.3d at 1029. Here, however, Plaintiff maintains that due to his
placement in restrictive housing, the August, 2011, search took place during his first encounter with Hall
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II.

Are Defendants Entitled To Qualified Immunity?
Defendants next assert they are entitled to qualified immunity with respect to Plaintiff’s

claims. (ECF No. 120, PP. 16-18). Under Eighth Circuit law, “[q]ualified immunity protects
government officials performing discretionary functions from liability for damages so long as
‘their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Curry v. Crist, 226 F.3d 974, 977 (8th Cir. 2000),
quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The Court employs a two-part inquiry
“to determine whether a lawsuit against a public official alleging a constitutional violation can
proceed in the face of an assertion of qualified immunity.” Serna v. Goodno, 567 F.3d 944, 951
(8th Cir.), citing Saucier v. Katz, 533 U.S. 194, 200-01 (2001), cert. denied, 558 U.S. 972 (2009).
First, courts [] consider whether, taken in the light most favorable to the
party asserting the injury,....the facts alleged show the [official’s] conduct
violated a constitutional right.....Second, courts [] ask whether the right
was clearly established20...
Id. at 951-52 (internal quotations and citations omitted). “Unless the answer to both of these
questions is yes, the defendants are entitled to qualified immunity.” Krout v. Goemmer, 583 F.3d
557, 564 (8th Cir. 2009).
Defendants concede that prisoners have a constitutional right under the First Amendment
to be free from retaliatory conduct. (ECF No. 120, P. 16). With its above rulings the Court has
determined that, taken in the light most favorable to Plaintiff, the facts alleged show Hall’s
after the May, 2010, incident. (ECF No. 135-2, ¶¶ 14-15). Furthermore, although not entirely clear from
his submissions, Plaintiff apparently asserts the subsequent cell searches and destruction were conducted
in retaliation for Plaintiff’s filing numerous complaints and grievances against Hall throughout the time
period in question. (See, e.g., ECF No. 135-1, ¶¶ 47, 72; ECF No. 135-2, ¶¶ 33, 34). Under these
circumstances, fact questions remain as to the existence of a temporal connection as well.
20
While Saucier set forth the two-part test with a mandatory sequence for analysis, the Supreme Court
has since reversed itself and eliminated the mandatory aspect of the sequential analysis. See Serna, 567
F.3d at 952, citing Pearson v. Callahan, 555 U.S. 223 (2009).

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conduct violated said constitutional right.

Defendants do not deny the right was clearly

established at the time of the alleged violations, and so their request for qualified immunity must
be denied.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment (ECF No.
119) is GRANTED in part and DENIED in part, in accordance with the foregoing.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary Judgment against
Defendant Joey Arcand and for Partial Summary Judgment against Defendant Brian D. Hall
(ECF No. 127) is DENIED.

Dated this 4th Day of March, 2015.

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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