Mize et al v. Crawford et al

Filing 203

ORDER entered by Judge Nanette Laughrey. Defendants' Motion for Summary Judgment and Suggestions in Support [Doc. 181] is GRANTED for all Defendants as to any claims of retaliation and conspiracy to retaliate; GRANTED for Defendants Clements, Crawford, Galloway, Garnett, Kemna, Lombardi, and Long as to the remainder of Plaintiff's claims; DENIED for Defendants Cassady and Dormire as to the remainder of Plaintiffs claims; and DENIED as to limiting Plaintiff's requested relief.(Kanies, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
SHAHEED MUSLIM HABEEBULLAH,
Plaintiff,
v.
LARRY CRAWFORD, et al.,
Defendants.

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Case No. 08-4063-CV-C-NKL

ORDER
Pending before the Court is Defendants’ Motion for Summary Judgment and
Suggestions in Support [Doc. # 181]. For the reasons set forth below, the Court
GRANTS in part and DENIES in part Defendants’ Motion.
I.

Background
This case concerns Plaintiff Shaheed Muslim Habeebullah, a/k/a Rodney

Robinson, who is currently an inmate at the Jefferson City Correctional Center (“JCCC”).
Defendants are current and former employees of the Department of Corrections (“DOC”),
with responsibilities at JCCC. Plaintiff brings his action under 42 U.S.C. § 1983 and 42
U.S.C. § 1985(3), alleging that his rights under the First and Fourteenth Amendments
were violated. Specifically, Plaintiff contends that Defendants maintain a practice and
custom of making race-based cell assignments at the JCCC, conspired to maintain this
practice and custom, retaliated against Plaintiff for his complaints regarding this practice
and custom, and conspired to retaliate against Plaintiff.

Plaintiff is an African-American male whose requests for cell assignments with
inmates of other races were routinely denied. Requests by non-African Americans to be
housed with Plaintiff were also denied. According to Plaintiff, the denial of Plaintiff’s
requests, coupled with his experience at being assigned approximately forty black inmates
as opposed to only two white inmates throughout his incarceration at JCCC, reflects the
practice and custom at JCCC of making race-based cell assignments. Additionally,
Plaintiff asserts that Defendant Jay Cassady (a functional unit manager, who was
responsible for making cell assignments) informed him that requests for mixed-race cell
assignments would be denied.
In further support, Plaintiff points to statistical evidence that although the prison
population is nearly 50% white and 50% black, integrated cells only account for 6%-7%
of all cell assignments. Deposition from Defendant Dave Dormire (warden at JCCC)
states that blacks tended to be categorized as more “aggressive” than whites, and that
more blacks were assigned to administrative segregation than whites. [Doc. # 185-7, at
19:11-16, 19:22-24, 20:19-22]. Plaintiff has also submitted affidavits from numerous
inmates at JCCC that cell assignments are based on race. Plaintiff points out that he filed
multiple informal resolution requests, grievances, and grievance appeals complaining
about the practice and custom at JCCC of making race-based cell assignments. He also
sent letters directly to Defendants, notifying them of his allegations. Plaintiff asserts that
these grievances were either received, reviewed, or part of a process that was overseen by
Defendants. All of Plaintiff’s requests were denied. According to Plaintiff, Defendant
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was put on notice of the practice and custom at JCCC of making race-based cell
assignments, yet Defendants condoned it by failing to correct it.
II.

Discussion
A.

Practice and Custom of Making Race-Based Cell Assignments

Defendants state that there are deficiencies in the evidence Plaintiff relies on to
demonstrate that there is a practice and custom of making race-based cell assignments at
JCCC. First, Defendants argue that the statistics concerning the low proportion of
integrated cells at JCCC were calculated by Plaintiff’s attorney, who is not an expert, and
that the statistics cover only a limited time frame. However, Plaintiff’s attorney
determined the percentages by examining a portion of the data provided by Defendants to
Plaintiff regarding cell assignment make-up, and Defendants do not present other
evidence to show that the data from the limited time frame are aberrant or
unrepresentative of cell make-up at other times. Moreover, the Court finds that
Defendants fail to identify how Plaintiff’s attorney’s basic mathematical calculations are
incorrect. Defendants’ arguments are directed more towards the weight to be given to the
evidence at trial, and not to its sufficiency for the purposes of summary judgment.
Second, Defendants argue that many of the affidavits submitted by prisoners who
state that they witnessed or experienced race-based cell assignments should not be
considered by the Court because they are not notarized, appear pre-printed, and include
conclusory statements. Lack of notarization does not bear on whether the declarations
may be considered by the Court, as all of the prisoner declarations submitted to the Court
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are signed and dated under penalty of perjury. On a motion for summary judgment, the
Court may consider such declarations. See 28 U.S.C. § 1746. Additionally, although the
Court notes that some of the declarations submitted by Plaintiff with his initial pro se
Complaint appear pre-printed and appear to include conclusory statements, the Court will
not dismiss them entirely. Those declarants stated their personal observations, which are
admissible.
As to the merits of Plaintiff’s claim, Defendants argue that no Defendant, other
than Defendant Cassady, made cell assignments. Defendants state that because all
Defendants except for Cassady lacked personal involvement in cell assignments,
Plaintiff’s section 1983 claim against these Defendants necessarily fails. Beck v. LaFleur,
257 F.3d 764, 765 (8th Cir. 2001).
Yet, this argument had been previously raised by Defendants when their initial
Motion for Summary Judgment was before United States Magistrate Judge William
Knox. In Judge Knox’s report and recommendation, which the Court adopted, he
acknowledged that the law is clear that supervisors cannot be held liable under section
1983 for an employee’s unconstitutional actions. He cited to Plaintiff’s affidavits,
statistics, and Defendants’ evidence that they do not consider race when making cell
assignments, and stated: “Accordingly, there are genuine issues of material fact regarding
whether there is a race-based discriminatory unwritten policy or custom regarding inmate
cell assignments.” [Doc. # 92, at 3].
However, the Court notes that because only Defendant Cassady was directly
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involved in making Plaintiff’s cell assignment, Plaintiff rests his theory of liability against
all other Defendants on the fact they were deliberately indifferent to the violation of
Plaintiff’s constitutional rights. See Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995). This
theory can only be viable if Plaintiff can show that Defendants knew of the custom and
policy of race-based cell assignments.
Plaintiff adequately points to evidence that raises a question of fact whether
Defendants Cassady and Dormire propagated or were aware of the alleged practice and
policy at JCCC of making race-based cell assignments. Such evidence includes
statements made by Cassady to Plaintiff that mixed race cell assignments would not be
granted, and Dormire’s deposition testimony that he was aware that more blacks than
whites tended to be categorized as more “aggressive” and assigned to administrative
segregation and that the adult internal classification system (“AICS”) affects white and
black offenders differently. Contrary to Defendants’ arguments, that the evidence
showing Cassady’s statements come from Plaintiff’s own affidavit does not undermine
the sufficiency of the evidence, but rather speaks to the weight to be afforded the
evidence by the trier of fact.
The Court finds, however, that Plaintiff points to no evidence that any of the other
Defendants were aware of the alleged practice or policy at JCCC of making race-based
cell assignments prior to receipt of Plaintiff’s grievances, letters, and Plaintiff’s attorney’s
statistics. While the transmission of Plaintiff’s letters to these Defendants may have then
put them on notice of Plaintiff’s allegations, it does not sufficiently show that these
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Defendants had actual knowledge that there existed a practice and policy of assigning
cells based on race. Indeed, “[Section] 1983 liability may not be imposed simply because
a supervisor denied an administrative grievance or failed to act based upon information
contained in a grievance.” Jones v. Caruso, No. 1:10-cv-812, 2011 U.S. Dist. LEXIS
42029, at *11 (W.D. Mich. Apr. 14, 2011) (citing Shehee v. Luttrell, 199 F.3d 295, 300
(6th Cir. 1999)). Thus, the Court grants summary judgment as to this claim for all
Defendants other than Defendants Cassady and Dormire.
B.

Retaliation

A prima facie case of retaliatory discipline requires a showing that: (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 Emps., 487 F.3d 1115, 1119 (8th Cir. 2007). Here, Plaintiff states that he
never had a history of sexual misconduct violations until his complaints of racial
segregation at JCCC. Plaintiff also points to the fact that there was a significant increase
in the number of conduct violations on his record after his initial complaints. Plaintiff
cites to affidavits of witnesses that he was subject to frequent cell searches and his legal
documents were removed from his cell by JCCC officers. Plaintiff ultimately argues that
because Defendants failed to launch a “proper investigation and take corrective actions”
after Plaintiff notified Defendants that he was being retaliated against, Defendants tacitly
authorized the retaliation. [Doc. # 185, at 29]. In essence, Plaintiff points to the
discipline he received by JCCC officers after he filed his grievances, coupled with
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Defendants’ failure to respond to his complaints of retaliation, and argues that there is
sufficient evidence to demonstrate retaliation by Defendants.
While Plaintiff presents evidence of discipline subsequent to his initial complaints,
he fails to present any evidence that the JCCC officers who disciplined Plaintiff were
motivated by Plaintiff’s complaints. Further, none of the Defendants placed Plaintiff in
administrative segregation and none of the Defendants searched his cell. Defendants also
identify legitimate penalogical reasons why Plaintiff was placed in administrative
confinement. Thus, because Plaintiff fails to show that the JCCC officers who disciplined
him–who are not defendants in this case–did so in order to retaliate against him, he
likewise cannot show that Defendants “tacitly authorized” retaliatory conduct because
Plaintiff fails to show there exists underlying misconduct by the JCCC officers. Plaintiff
cannot bootstrap a retaliation claim against Defendants upon a failed showing of
retaliation. Summary judgment is granted as to this issue because Plaintiff fails to
demonstrate a prima facie case of retaliatory discipline.
C.

Conspiracy

Plaintiff asserts two conspiracy claims. First, that Defendants conspired to make
race-based cell assignments, and second, that Defendants conspired to retaliate against
Plaintiff for filing his complaints about the alleged policy and practice of race-based cell
assignments. As previously discussed, evidence shows only that two of the Defendants,
Cassady and Dormire, were aware either that race was a factor or could have been a
factor in cell assignments. Because there remains a factual dispute as to whether there is
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a policy or custom at JCCC to make race-based cell assignments, such a policy or custom
could be interpreted by a reasonable juror to be an “agreement.” Thus, it remains in
dispute whether there was an “agreement” among Defendants Cassady and Dormire to
make race-based cell assignments. Therefore, summary judgment is not appropriate on
this conspiracy claim.
However, because Plaintiff’s retaliation claim has been dismissed as to all
Defendants, his retaliation conspiracy claim must be dismissed as well.
D.

Damages

In his Third Amended Complaint, Plaintiff asks for “actual and punitive” damages
for Defendants’ alleged violations of Plaintiff’s rights under the First and Fourteenth
Amendments. [Doc. # 191, at 6-11]. Title 42 U.S.C. sec 1997e(e) “limit[s] recovery for
mental or emotional injury in all federal actions brought by prisoners” if no prior physical
injury is shown. Royal v. Kautzky, 375 F.3d 720, 723 (8th Cir. 2004). Plaintiff argues
that his claims are not premised on emotional or mental injuries. [Doc. # 191 (Complaint
contains no allegation of mental or emotional injury); Doc. # 185 (Plaintiff states that his
claims are violations of his constitutional rights, not for mental or emotional injury)].
True, Plaintiff does not allege mental or emotional injuries. However, Plaintiff states in
briefing that he “suffered extensive psychiatric and mental health problems as a result of
Defendants’ violations of Plaintiff’s constitutional rights.” [Doc. # 185, ¶ 94]. Thus, to
the extent that Plaintiff’s claims do involve recovery for mental and emotional injury, the
Court finds that the physical injury requirement of 42 U.S.C. § 1997e(e) applies–Plaintiff
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will be limited to recovery of nominal and punitive damages if Plaintiff fails to meet the
physical injury requirement. See Royal, at 723.
However, it is inappropriate for the Court, on Defendants’ pre-trial motion, to limit
Plaintiff’s potential recovery based on 42 U.S.C. § 1997e(e). First, there is no
requirement that Plaintiff plead a physical injury. See id.; see also Calhoun v. DeTella,
319 F.3d 936, 940 (7th Cir. 2003) (“[P]hysical injury is merely a predicate for an award
of damages for mental or emotional injury, not a filing prerequisite for the federal civil
action itself.”). Thus, that Plaintiff has not alleged any physical injury in his Third
Amended Complaint is not dispositive of whether he may recover for physical injury.
Indeed, Plaintiff requested compensatory damages in his complaint and the evidence may
demonstrate that he suffered the requisite physical injury. Second, the Court finds that
the record shows some evidence that Plaintiff has satisfied the physical injury
requirement of section 1997e(e). Plaintiff has attempted suicide on multiple occasions
after Defendants committed the alleged misconduct. The Court notes that suicide
attempts can satisfy the physical injury requirement. See, e.g., Arauz v. Bell, 307 F.
Appx. 923, 929 (6th Cir. 2009); Scarver v. Litscher, 371 F. Supp. 2d 986, 997 (W.D. Wis.
2005); Ramirez v. Ferguson, No. 08-cv-5038, 2011 U.S. Dist. LEXIS 34625, at *59
(W.D. Ark. Mar. 29, 2011).
True, Defendants accurately point out that Plaintiff admitted in a deposition that he
suffered from no physical injuries due to the alleged violations by Defendants [Doc. #
181-1, at 56:19-25] and the medical records and suicide watch reports submitted by
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Plaintiff do not note that Plaintiff’s suicide attempts were caused by Defendants’ alleged
violations. However, it is for the trier of fact to weigh all of the evidence to determine
whether Plaintiff suffered physical harm due to Defendants’ alleged misconduct.
Summary judgment limiting Plaintiff’s recovery to nominal or punitive damages is
denied.
E.

Injunctive Relief

In his Third Amended Complaint, Plaintiff asks the Court to enjoin Defendants
from making race-based cell assignments at JCCC. Defendants argue that Plaintiff is not
entitled to injunctive relief because he failed to establish that cell assignments at JCCC
are based on race and because Defendant Cassady no longer works at JCCC. That
Cassady no longer works at JCCC does not affect whether Plaintiff is entitled to his
requested relief– enjoining the practice or policy of making race-based cell assignments at
JCCC. Because it remains a disputed issue of fact whether there exists such a policy and
custom, and because Dormire, the warden at JCCC, remains a defendant in this case,
summary judgment as to this issue is denied.
III.

Conclusion
Accordingly, it is hereby
ORDERED that Defendants’ Motion for Summary Judgment and Suggestions in

Support [Doc. 181] is GRANTED for all Defendants as to any claims of retaliation and
conspiracy to retaliate; GRANTED for Defendants Clements, Crawford, Galloway,
Garnett, Kemna, Lombardi, and Long as to the remainder of Plaintiff’s claims; DENIED
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for Defendants Cassady and Dormire as to the remainder of Plaintiff’s claims; and
DENIED as to limiting Plaintiff’s requested relief.

s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: June 17, 2011
Jefferson City, Missouri

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