Clemons v. Lombardi et al

Filing 65

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that the defendants' motion for summary judgment [# 52 ] is granted. A separate Judgment in accordance with this Memorandum and Order is entered this same date. Signed by District Judge Catherine D. Perry on 06/04/2014. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

REGINALD CLEMONS,
Plaintiff,
vs.
GEORGE A. LOMBARDI, et al.,
Defendants.

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) Case No. 4:13CV458 CDP
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MEMORANDUM AND ORDER
Plaintiff Reginald Clemons, a prisoner at the Potosi Correctional Center,
sued various PCC employees under 42 U.S.C. § 1983, claiming violations of his
constitutional rights. Most of his claims and many of the defendants were
dismissed on defendants‟ motion under Rule 12(b)(6), Fed. R. Civ. P. Clemons‟
sole remaining claim is that defendants Thomas Collins, Jeff Harper, and Daniel
Dicus placed him in administrative segregation in retaliation for participating in
privileged telephone conferences with more than one attorney. The defendants
have now moved for summary judgment, arguing, among other things, that
Clemons was not retaliated against; instead, he was placed in administrative
segregation for committing an actual rule violation: engaging in a three-way call.
Because the disciplinary action was supported by “some evidence” that Clemons
committed a rule violation, I will grant the defendants‟ motion.

I.

Summary Judgment Standard

In determining whether to grant a motion for summary judgment, the court
views the facts – and any inferences from those facts – in the light most favorable
to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). The movant bears the burden of establishing that (1) it
is entitled to judgment as a matter of law and (2) there are no genuine issues of
material fact. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). Once the movant has met this burden, however, the non-moving party may
not rest on the allegations in its pleadings but must, by affidavit and other
evidence, set forth specific facts showing that a genuine issue of material fact
exists. Fed. R. Civ. P. 56(e). Where a factual record taken as a whole could not
lead a rational trier of fact to find for the nonmovant, there is no genuine issue for
trial. Matsushita, 475 U.S. at 587.
II.

Background

Under the Missouri Department of Corrections‟ Institutional Services Policy
and Procedural Manual, “Third party and three way calls are not authorized.
Participating in such calls may result in disciplinary action.” (Defs.‟ Ex. A, Doc.
53-2, p. 2.) Though other terms are defined, neither “third party call” nor “three
way call” is defined in the manual. The Potosi Correctional Center contracts with
Securus Technologies for a platform to detect three-way and third party calls on
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telephones used by inmates at PCC. (Defs.‟ Ex. B, Doc. 53-3.) Douglas
Nickelson, an Office of the Inspector General investigator assigned to PCC, was
responsible for monitoring the Securus platform. (Id.)
On March 9, 2012, Clemons spoke by phone to counsel representing him in
his capital appeal. During that conversation, Nickelson observed the call platform
and detected a three-way call using Clemons‟ unique inmate PIN. (Id.; see also
Defs.‟ Ex. C, Doc. 53-4 (call detail report showing three-way calls).) He informed
the administrative inquiry officer, Tim Lancaster, who in turn told defendant
Dicus, who is a Corrections Officer II.
Three days later, on March 12, 2012, Dicus issued Clemons a conduct
violation for having engaged in three-way calls on five occasions,1 including on
March 9. According to the conduct violation, making the three-way calls was “in
direct violation” of several PCC rules: Disobeying an Order (Rule 20.1), Abuse of
Telephone, Mail, Finance (Rule 38.4), and Procedures and Rules (Rules 41.1 and
41.2). (See Defs.‟ Ex. G, Doc. 53-8.) Although the record is not completely clear
on this point, it appears that Clemons was immediately placed in administrative
segregation after the reading of the conduct violation. Clemons alleges that
defendant Harper placed him in mechanical restraints, strip searched him, and

1

January 6, February 6, February 9, February 17, and March 9, 2012.

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brought him to a cell without bedding or clothing for four or five hours after the
conduct violation was issued. (See Pl.‟s Resp., Doc. 60, pp. 10–11.)
On March 16, 2012, one of Clemons‟ lawyers, from the New York firm
Simpson Thacher & Bartlett, faxed a letter to the PCC warden. He referenced a
March 12 letter from the warden that apparently stated that “on numerous
occasions during legal calls,” the outside vendor Securus had detected three-way
calls.2 The lawyer wrote:
No one from our office had spoken to Mr. Clemons since we
received your letter, but when I tried to reach him today, Potosi
personnel informed me that he is in administrative segregation in
connection with this three-way calling issue. Please be aware that Mr.
Clemons has never asked for a “three-way call” during a legal call
with attorneys from this firm, and I am not aware of anyone other than
his lawyers ever being on a secure legal call with him.
(Pl.‟s Ex. B, Doc. 60-1, p. 3.) The lawyer asked when and why Clemons was
placed in administrative segregation, how long he was expected to remain there,
and whether he could help resolve the investigation into Clemons‟ three-way calls.
He also stated that he had called Securus but was informed it did not have records
of when the calls were made, and “any information about the calls would have to
come from Potosi.”

2

The letter from the warden has not been made part of the record.

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The lawyer asked the warden whether various situations were considered
three-way calls: multiple lawyers on the same phone line, multiple lawyers on
several phone lines, conference calls where multiple lawyers had dialed in, and
transfers from a secretary to an attorney. (Pl.‟s Ex. B, Doc. 60-1, pp. 2-3.) From
the record, it appears that neither the warden nor anyone else from PCC responded
to the lawyer‟s letter.
Three days later, on March 19, 2012, case manager and defendant Thomas
Collins issued a disciplinary action report after a hearing, finding Clemons guilty
of a violation of PCC Rule 20.1 (Disobeying an Order). Although the disciplinary
action report is not entirely legible, it appears that Collins based his finding solely
on Dicus‟ statement that Clemons made a three-way phone call. He recommended
a 10-day sentence to administrative segregation, to begin March 19 and end March
28, 2012. (See Pl.‟s Ex. L, Doc. 60-1, p. 47.)
On March 21, 2012, because he was in administrative segregation, Clemons
was taken to a prescheduled legal visit in four-point restraints and without being
able to access his legal property.
On April 3, 2012, defendant Dicus reissued the original conduct violation
report, noting that it had been “delayed due to inquiry/investigation.” (See Defs.‟
Ex. H, Doc. 53-9.) A second disciplinary hearing was held on April 4, with the
same result. The record of the hearing includes a remark that Collins was “unable
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to obtain” a statement from Clemons‟ lawyer. Collins recommended that Clemons
be credited for his time served. (See id.) Defendant Harper reviewed both
violation reports. (See Defs.‟ Ex. F, Doc. 53-7.)
Clemons grieved the violation, apparently requesting “numerous remedies,”
including that the Rule 20.1 conduct violation be dismissed and expunged. On
November 27, 2012, deputy division director Dwayne Kempker granted the appeal
because the re-issued conduct violation report was dated incorrectly. He dismissed
and expunged the violation, finding the matter resolved. Among other things, he
wrote, “Third party and 3-way calls are not authorized per PCC IS/SOP13-2.1Offender Access to Telephones, III, D.2., which also includes legal calls.” (Pl.‟s
Ex. H, Doc. 60-1, p. 41.)
III.

Discussion
To succeed on a Section 1983 retaliation claim, plaintiff must prove that he

engaged in protected activity and that defendants, to retaliate for the protected
activity, took adverse action against plaintiff that would chill a person of ordinary
firmness from engaging in that activity. See Revels v. Vincenz, 382 F.3d 870, 876
(8th Cir. 2004). “However, claims of retaliation fail if the alleged retaliatory
conduct violations were issued for the actual violation of a prison rule.” Hartsfield
v. Nichols, 511 F.3d 826, 829 (8th Cir. 2008).

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The defendants first argue that they are entitled to summary judgment
because Clemons was placed in administrative segregation for actual violation of a
prison rule: engaging in a three-way call. As I stated before, it is clear that
participating in a three-way call is contrary to PCC rules. However – as I also
stated before – it remains unclear whether Clemons did so. Clemons has submitted
a letter from the law firm he was speaking with on March 9 that indicates he did
not engage in a three-way call. Excerpts from Clemons‟ sworn deposition, filed by
the defendants, do not clear up the question:
Q:
Okay. Now, prior to this lawsuit and on March 9th, 2012, did you
participate in a three way call?
A:
I didn‟t make a three way call.
Q:
Okay. But did you participate in a three way call?
A:
I can only speak for – I never requested a three way call, and I never
made a three party call myself.3
(Defs.‟ Ex. D, Doc. 53-5.) This factual issue is further complicated by the fact that
– apparently – there is no clear definition of what constitutes a three-way call. (See
Pl.‟s Exs. A and B, Doc. 60-1, pp. 1-4.)4
3

This line of questioning apparently continues, but further answers by Clemons have not been
made part of the record.
4

In his Exhibit A, plaintiff Clemons submitted a 1995 memorandum to all PCC inmates that
stated that MCI had “implemented the Three Way Conference Call Detection feature into the
inmate telephone systems” and that the system was unable to distinguish between a a three-way
call and call waiting: “If you are speaking to a subscriber to call waiting and that person chooses
to put you on hold to answer a „call waiting‟ call, the telephone company will detect this the
same as a three way call and it will be treated in the same manner.” This is apparently a
predecessor system, and there is no indication that Clemons‟ March 9 conversation included call
waiting, but it demonstrates the amorphous nature of a “three-way call” under PCC rules.

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However, the defendants have submitted some evidence – the call log and
affidavits from Dicus, Harper, and Nickelson – that indicates that the Securus
system showed that Clemons engaged in a three-way call. The Eighth Circuit has
repeatedly held that if an impartial decisionmaker, such as a disciplinary review
committee, finds that an inmate committed an actual violation of prison rules based
on “some evidence,” that is sufficient to bar the inmate‟s retaliation claim. See
Henderson v. Baird, 29 F.3d 464, 469 (8th Cir. 1994); Goff v. Burton, 7 F.3d 734,
739 (8th Cir. 1993).
Normally, the conflicting evidence would present a genuine issue of material
fact that would prevent summary judgment. However, defendant Collins, the PCC
case manager, reviewed Clemons‟ statement and a written statement from
defendant Dicus and concluded that Clemons was “guilty based on the evidence
from the violation.” (Defs.‟ Ex. H, Doc. 53-9, p. 2; see also Pl.‟s Ex. L, Doc. 60-1,
p. 47 (“Findings: Guilty based on [corrections officer] II Dicus‟ statement . . .”))
Under Eighth Circuit law, “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, if the violation is found by an
impartial decisionmaker.” Hartsfield, 511 F.3d at 831. This is true even “when
there is substantial evidence to the contrary,” id. (citing Hrbek v. Nix, 12 F.3d 777,
781 (8th Cir. 1993)), and even when the conduct violation was later expunged. See
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Moots v. Lombardi, 453 F.3d 1020, 1023 (8th Cir. 2006). Therefore, the faxed
letter from Clemons‟ lawyer and Clemons‟ own testimony – as well as Clemons‟
contention that the call log is not actually from Securus – are not enough to defeat
summary judgment on his retaliation claim.
IV.

Conclusion
The defendants are entitled to summary judgment because their decision to

place Clemons in administrative segregation was based on “some evidence” that he
committed a violation of PCC rules. Because this finding is dispositive, I will not
address the defendants‟ other arguments.
For the reasons stated above,
IT IS HEREBY ORDERED that the defendants‟ motion for summary
judgment [#52] is granted.
A separate Judgment in accordance with this Memorandum and Order is
entered this same date.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 4th day of June, 2014.

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