Adams v. Baker et al
Filing
229
TRIAL OPINION. The Court concludes that Baker retaliated against Adams inviolation of his rights under the First Amendment and is not immune from suit. Therefore, Adams is entitled to recover damages as detailed above.Signed by District Judge Travis R McDonough on 8/15/2019. (BDG) Opinion mailed to Adams.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
CHRISTOPHER ADAMS,
Plaintiff,
v.
DAVE BAKER,
Defendant.
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Case No. 1:16-cv-335
Judge Travis R. McDonough
Magistrate Judge Susan K. Lee
TRIAL OPINION
Plaintiff Christopher Adams is an inmate in the custody of Tennessee Department of
Corrections (“TDOC”) at Bledsoe County Correctional Complex (“BCCX”). BCCX includes
several industry buildings where Tennessee Rehabilitative Initiative in Correction (“TRICOR”),
a legislatively created program, provides jobs to inmates. See Tenn. Code Ann. § 41-22-402(3).
Adams worked as a board counter as part of a TRICOR operation that hand-hews wood flooring
boards for Shaw Industries Group (“Shaw”). (Doc. 213, at 250, 253, 288.)
This action arises from Adams’s interactions with his supervisor, Dave Baker, who was
the TRICOR Operations Manager. Adams alleges that Baker retaliated against him for his
informal grievances about unfair workplace procedures in violation of his First Amendment
rights.1 Ultimately, after complaining, Adams spent nine days in segregation and lost his job.
This matter proceeded to a bench trial on April 1 and 2, 2019. Neither party moved for
judgment as a matter of law. In lieu of oral closing arguments, the Court allowed each party to
1
Plaintiff’s previous complaints stated that these were Due Process violations, but his third
amended complaint alleges only violations of his First Amendment rights. (Doc. 57.)
file written submissions with citations to the evidence presented at trial. The following opinion
sets forth the Court’s findings of fact and conclusions of law.
I.
SUMMARY OF TESTIMONY AND EXHIBITS PRESENTED AT TRIAL
Most of the material facts presented at trial were undisputed, although the parties’
interpretations of those facts differ. However, the parties’ accounts of their interaction on
August 31, 2015—the day Adams was escorted from the TRICOR wood-flooring plant (the
“plant”)—contrast sharply.
A.
The Time-Clock and Board-Counting Issues
During the summer of 2015, Adams was a support worker earning $8.45 per hour, $1.20
more per hour than the lowest wage in the plant. (Doc. 213, at 169.) His assignment as one of
the ten board counters was the “least strenuous” and one of the most desirable jobs available to
inmates at the plant. (Doc. 212, at 98, 104, 110; Doc. 213, at 226–27.) Adams secured this
position in part because of his seniority rank. (Doc. 212, at 105; Doc. 213, at 169.) He had
worked his way up from the more strenuous assignment of board scraper and had received good
performance evaluations. (Pl. Ex. 5, at 2–6; Pl. Ex. 3; Pl. Ex. 12, at 8.)
Baker worked for TDOC for about seventeen years in various capacities, including as a
disciplinary-board sergeant and a clerical officer in the library at BCCX. (Doc. 213, at 208–09.)
In June 2015, Baker resigned from TDOC to become TRICOR Operations Manager at the plant.
(Id.)
Before Baker began working at the plant, workers discovered a time-clock issue that was
resulting in inmate employees receiving less pay than they were due. (Doc. 212, at 101, 111–
12.) Joseph Overman, an inmate who also worked at TRICOR, testified that Adams was
concerned about all employees’ shorted pay, in addition to his own. (Id. at 112.) According to
2
Overman, Adams would speak with inmate workers about the time-clock issue, and then he
would speak with plant management about the problem. (Id. at 111, 112.)
Baker testified that, when he became Operations Manager, he established an “open-door
policy” through which he “allowed” inmates to make informal grievances by “repeatedly talking
to [him] about things[.]” (Doc. 213, at 226.) Baker and Adams spoke multiple times during July
and August 2015 about the time clock. (Id. at 272–77.) Barry Waddell, another inmate
employee of TRICOR, testified that he and “a lot of employees” asked Baker about the time
clock “several times over the weeks” (Doc. 212, at 145–46); however, Baker testified that
Adams was the only inmate he remembered complaining about the issue (Doc. 213, at 276).
Baker and some of the inmates believed that Baker fixed the time clock in August (Id. at 272–77;
Doc. 212, at 127), but at least one inmate was shorted pay through at least November 2015 (Pl.
Ex. 29; Doc. 213, at 115–21).
Tennessee Offender Management Information System (“TOMIS” or “eTOMIS”) is a
database through which TDOC and TRICOR employees can access information about an
inmate’s appearance and housing unit location, among other things. (Doc. 212, at 48, 133.)
TRICOR employees can add notes to inmates’ TOMIS files (see, e.g., id. at 134), including notes
about absenteeism, behavioral issues, or job performance at TRICOR. (Id. at 108.) TDOC
disciplinary reports are also included in inmates’ TOMIS files. (See, e.g., id. at 6.) On August
12, 2015, Baker placed a “program note” in the TOMIS files of Adams and three other board
counters—Waddell, Phillip Shupe, and Napoleon White. (Stip. Exs. 2–5; see also Doc. 212, at
149; Doc. 213, at 277–78, 283–84.) Each note states: “OFFENDER WAS ADVISED TO NOT
PRE-MARK THE TALLY SHEETS TO REFLECT ANTICIPATED BOARDS TO THEIR
COUNTING STATION UNTIL THE BOARDS ACTUALLY ARRIVED AT THE STATION
3
AND THE DELIVERING OFFENDER HAD SIGNED THE TALLY SHEET.” (Stip. Exs. 2–
5.) Board counters were not supposed to pre-mark their tally sheets because it could result in
overcounting and overpayment of employees, since board scrapers were paid per board. (Doc.
213, at 289–91.) Adams and Waddell testified that the conversation or conversations Baker
described in the TOMIS notes never happened. (Id. at 206; Doc. 212, at 134–35.)
Another of Adams’s coworkers, Joseph Overman, testified that Adams was “adamant”
about always doing his job properly and never pre-marked his boards. (Doc. 213, at 98–99.)
Adams testified that Baker did not inform him that he had placed a note in his file. (Id. at 206.)
Baker testified that, while he was TRICOR Operations Manager, he entered about ten to fifteen
program notes per day in TOMIS (id. at 283–84), and there was no requirement for inmates to be
told when they are given a program note (id. at 277–78).
These August 12, 2015 program notes were the first program notes Adams, Shupe, or
White received. (See Stip. Ex. 2, 4, 5 (each stating “No More Notes Exist for Offender”).) After
receiving the August 12, 2015 program note from Baker, Waddell received a second note for
pre-marking boards. (Doc. 212, at 152.) At that time, he was warned that he would receive
“disciplinary action” if he received another. (Id. at 136, 151.) Baker, Waddell, and Adams each
testified that TRICOR supervisors can request that TDOC terminate an employee after he
accumulates three or more program notes for the same infraction. (Id. at 129, 140, 143; Doc.
213, at 195, 206, 278–79.)
When asked whether a program note can interfere with job changes and promotions,
Baker responded that it “depends on what the program note’s for.” (Doc. 213, at 279.) When
asked whether a program note could cause an inmate to lose sentence-reduction credits, he
replied, “I have no idea about sentence reduction credits. I never took anybody’s sentence
4
reduction credits.” (Id.) When asked whether he “had the ability to not award an inmate his
credits in a particular month,” Baker stated, “I have no idea, because I’ve never done it. I always
gave all inmates all their sentence reduction credits. I never denied any inmate, even if they
were—received multiple program notes.” (Id.)
Because a program note can lay the groundwork for termination, Adams considered the
note a disciplinary action even though he faced no immediate consequences from it. (Id. at 195.)
Overman testified that program notes were “mostly” given for “poor performance.” (Id. at 99.)
Other inmate witnesses’ testimony also characterized notes as generally negative. (Doc. 212, at
133, 147.) In contrast, Baker testified that program notes were not necessarily bad and that their
primary function is “to document and just informally correct anything that might be bad or
maybe not bad.” (Doc. 213, at 284.) There is evidence of only one positive program note in the
record. (Stip. Ex. 6.) No evidence showed Baker had ever issued a positive program note or that
any of the witnesses testifying had ever received a positive program note. (See generally Docs.
212, 213.)
B.
The Events of August 31, 2015
At the beginning of the morning shift on August 31, 2015, Baker announced to all inmate
employees a new policy that board counters would be rotated during their shift. (Doc. 213, at
227.) Adams and Baker agree that they had three or four conversations that morning after Baker
made the announcement. (Id. at 204, 240–41.) It is undisputed that Adams told Baker that he
had already filed and resolved a grievance against a previous policy involving rotation of the
board counters, and Baker told him that, if he disagreed with the new policy, he could file a
grievance. (Id. at 130–31, 227, 230.) Adams testified that he could not file a second grievance
because of a TDOC policy against filing multiple grievances involving a “same or similar
5
incident” or issue. (Id. at 184.) He explained that his previous grievance against a policy of
rotating some, but not all, of the board counters was resolved after he proposed a solution that
Shaw management agreed to adopt. (Id. at 131, 179–84.)
According to Adams, Adams went up to Baker’s office after the announcement, and the
two walked outside to the front porch of the plant entrance. (Id. at 130–31, 227.) When Baker
told him he could file a grievance, Adams “informed” Baker that he would instead write a letter
to Jason Woodall, TDOC’s Deputy Commissioner of Operations, who oversees grievance
procedures. (Id. at 146–47.) Adams believed it was his only recourse to have his previous
grievance upheld. (Id. at 147.) Adams testified that, after he stated he would write a letter, “it
was like everything was okay, and [Baker] went back up to his office, and [Adams] went back on
the production floor.” (Id.) But “a few minutes later,” Adams went to Baker’s office to ask him
about his plans to begin rotating all the board counters, Baker responded he “probably would that
day,” Adams said “that would be fair then,” and Adams left. (Id.) Adams testified that these
conversations with Baker constituted an informal grievance that complied with TDOC Policy
501.01 for Inmate Grievance Procedures. (Id. at 142; Stip. Ex. 1.)
Adams recounted that he then went to Randy Jones’s2 office to ask if Jones, an inmate
who worked as a clerk at the plant, had suggested the new policy to Baker. (Doc. 213, at 147;
Doc. 212, at 46.) Adams testified that Jones became “aggravated” at his questioning and asked
Adams to go with him to Baker’s office. (Doc. 213, at 148.) Adams did not want “to bother
with this” and began to return to his work station; however, he changed his mind and headed
back toward Baker’s office to “make sure” Jones did not tell Baker “something that didn’t
happen.” (Id.) Adams testified that, at that point, Baker was already coming down the stairs and
2
Jones did not testify at trial.
6
took Adams outside again, where Baker “got up in [Adams’s] face” and “pointed at [Adams’s]
face” and “said, ‘If you ever even talk to Randy Jones again, I’ll fire you.’” (Id.) According to
Adams, Baker then told him to “‘[c]lock out and go in,’ and he turned around and he went back
up to his office.” (Id.) Adams then returned to his work station to get his belongings and was
heading to the time clock when Corporal Brian Lovitt approached to escort him from the plant.
(Id. at 149.) Adams asked Lovitt to escort him to Baker’s office to ask if he was being fired and
because he wanted to ensure Baker would not claim he had done anything he had not done, and
Lovitt agreed. (Id.) Adams testified that when he asked Baker, in front of Lovitt, if he was fired,
Baker responded, “Yes, for creating a disturbance.” (Id. at 213.) Lovitt then escorted Adams
from the industry building, and Adams went back to his housing unit. (Id. at 149, 248.)
In contrast with Adams’s version of events, Baker testified that Adams “got progressively
angrier” during their conversations, as he realized Baker was not going to revise the new policy
of rotating the board counters. (Doc. 213, at 240–41.) According to Baker, Adams then
threatened to “stomp” Randy Jones, an inmate who worked as a clerk at the plant. (Doc. 212, at
46.) When asked what the “deal” was with Adams and Jones, Baker speculated that Adams
“somehow got it in [his] mind” that Jones “was involved” in the decision to rotate the board
counters. (Doc. 213, at 220.) Baker maintained that Adams said he would “call Jason
[Woodall],” not write him a letter, as Adams testified. (Id. at 146–47, 156–57.)3
3
TDOC Policy 507.02, under the heading “Inmate Rights and Responsibilities/Title
VI/Grievances,” provides that inmates at BCCX “have the right to unrestricted correspondence
with the commissioner of corrections and/or his or her staff.” (Pl. Ex. 8.1, at 1–2; Doc. 212, at
37–39, 94–95; Doc. 213, at 94, 118.) Inmates may also exchange mail with anyone, “provided
that it does not jeopardize the safety, security, or operation of the institution or the safety of
persons within or outside the institution.” (Pl. Ex. 8.1, at 1–2; Doc. 212, at 39.) TDOC policy
also encourages “informal resolutions of grievances” and provides that grievances should be
“resolved at the lowest possible level in the grievance procedure.” (Pl. Ex. 7, at 2, 4.) TRICOR
7
Baker later documented his version of the incident in a handwritten report:
On 8-31-15 at 7:15 a.m., Offender Christopher Adams did approach me unhappy
with a management decision. During the course of this discussion, Inmate Adams
#328180 did state to me that [Adams] was planning to “stomp” Randy Jones,
(another offender). Inmate Adams then became loud and shouted at me at the top
of his lungs, that he would “have my job” and that he was planning on calling Mr.
Jason Woodall about me. Inmate Adams then followed me into the office and
continued to argue with me. Inmate Adams was issued a disciplinary for creating
a disturbance and he was removed from the industry building.
Based on Inmate Adams [sic] direct threat to me on inmate Randy Jones, I
explained this to Lieutenant Lowell Wood,4 who placed inmate Adams on
pending investigation. I was concerned that Inmate Adams would follow through
on his threat to harm another offender.
(Stip. Ex. 8.) Baker also entered a Program Note that day for Adams, which stated:
OFFENDER WAS CITED FOR CREATING A DISTURBANCE WHEN HE
TOLD MYSELF THAT HE WAS GOING TO “STOMP” ANOTHER
OFFENDER. HE SHOUTED AT ME AT THE TOP OF HIS LUNGS AND
STATED THAT HE WOULD ‘HAVE MY JOB’ AND THAT HE WAS
CALLING MR. JASON WOODALL. OFFENDER WAS REMOVED FROM
THE BUILDING. JOB DROP IS REQUESTED.
(Stip. Ex. 9.)
Lovitt testified that he was assigned that day to the TRICOR industry building, where his
responsibilities included “[a]ccounting for all offenders that were there” and “making sure it was
a safe environment.” (Doc. 212, at 12.) If an inmate became violent, Lovitt’s duties would
include “immediately restrain[ing]” and “remov[ing]” him from the TRICOR building. (Id. at
15, 30.) Lovitt testified that he did not hear anyone shouting from where he was sitting about
100 to 150 feet away from the front porch, although he expected he would have heard such
shouting because the door likely would have been open at that time of the morning. (Id. at 16–
18.) Lovitt also testified that TRICOR employees have radios that they can use to call for TDOC
policy requires TRICOR staff to comply with TDOC’s inmate grievance procedures. (Pl. Ex. 7,
at 1; Doc. 213, at 208.)
4
Wood did not testify at trial.
8
security assistance. (Id. at 15.) Threatening or yelling at a staff member would warrant the use
of the radio to call for assistance, but Lovitt received no radio calls. (Id. at 16.) Baker testified
that he did not recall having his radio with him when Adams shouted and threatened Jones.
(Doc. 213, at 248.) Baker testified that he asked Lovitt to escort Adams out of the building (id.
at 249) but did not remember whether he told him Adams had yelled or threatened another
inmate (id. at 221).
Baker testified that, after advising Adams that he was terminated and watching Lovitt
escort him from the plant, he
handwrote [a statement] fairly quickly after it happened, where it would be fresh
in my mind, because I’d been used to documenting. So at some point in a—real
quickly I wrote the note, I went to TDOC part of—the portion of the compound,
which was approximately 500 feet away, and there was a yard officer there, I
think his name was Kirby. He was there, and I think Lieutenant Wood might
have been there, and I explained to them what happened with Mr. Adams, why
he’d been sent back to his unit, and I said, ‘Here’s what happened, this, this, this.
Lovitt was there. I sent him back. I’m going back to the plant.’ And that was
my—the end of my involvement with anything to do with TDOC documentation.
(Id. at 292–93.) According to this testimony, Baker wrote his statement before he spoke with
Wood. (Id.) However, according to Baker’s handwritten statement, supra, he had already
spoken with Wood before he wrote the statement. (Stip. Ex. 8.) Ultimately, on crossexamination, Baker testified that he did not “remember the exact time line.” (Doc. 213, at 305.)
C.
Segregation for Charge of Creating a Disturbance
Adams testified that he was in his housing unit for about an hour and a half after he left
the industry building on August 31, 2015. (Id. at 149.) Two TDOC officers then brought him to
administrative segregation at 8:45 a.m. (Id. at 48, 149; Stip. Ex. 10.) A Contact Note entered for
Adams at that date and time states: “INMATE WAS PLACED IN UNIT 1 FOR
STATEMENTS HE MADE ABOUT INMATE RANDY JONES AND THREATS HE HAD
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SPOKEN TO DAVID BAKER TRICOR MANAGER AGAINST INMATE JONES.” (Stip. Ex.
10.)
When asked if it was “plausible” that an inmate created a disturbance but was nonetheless
allowed “to walk away and remain at liberty for one hour and a half before being segregated[,]”
Lovitt answered, “Normally, no.” (Doc. 212, at 35–36.) Robert Wayne Stith, TDOC
Institutional Investigator, also affirmed that “it is the habit and routine practice at the BCCX for
the sake of the security of the institution and the safety of those therein that when inmates
become loud, aggressive, threaten violence against others, become unruly and belligerent, that
they’re always immediately handcuffed and taken to segregation[.]” (Doc. 213, at 54, 90–91.)
He testified the “inmate would not be allowed to remain at liberty for an hour and a half.” (Id.)
In contrast, Baker initially testified that, during his employment with the TDOC, “inmates that
became loud, belligerent, and made threatening comments about intake staff” were “not
necessarily” immediately taken to segregation. (Id. at 216–17.) However, Adams effectively
impeached Baker with his prior admission that states, “During [Baker]’s employment with the
TDOC in situations which [Baker] was directly involved in, inmates that became loud,
belligerent, made threatening comments about intake staff . . . were immediately taken to
segregation.” (Id. at 216–17; Pl. Ex. 1.1.)
TDOC employee Matthew Kirby prepared and entered a disciplinary report in TOMIS at
9:26 a.m. (Stip. Ex. 12.) Sergeant Wade Slatton served it on Adams in segregation that
afternoon. (Doc. 213, at 150.) That report contains Baker’s first-person description of Adams’s
alleged threats and shouting. (Stip. Ex. 12.) Adams testified that this was the first time he knew
what Baker had reported about him: “When I got to reading the allegations that he made in that,
10
I couldn’t believe what it said, because I hadn’t done what it—what the allegations said that I
had.” (Doc. 213, at 150.)
Adams then testified about the conditions of segregation and the privileges he lost while
there:
So during this time I’m stuck in about a 68-foot square building—or room with—
just freezing to death. I can’t see outside the window. There’s nobody to talk to.
I’ve lost all the privileges that are associated with living in the general population.
I only got to have recreation three times a week, could use the phone once a day
for 30 minutes to call my family, and I was only allowed to take three showers [a
week].
...
And even in the middle of all that you’ve got people in there that are constantly
banging and yelling, so you can’t get any sleep. So it’s just a really stressed-out
environment. And up until this point I’ve never been convicted of a disciplinary
infraction as long as I’ve been locked up. And so now I’m sitting there in the hole
wondering, “Well, how am I going to get vindicated from this and not be found
guilty of a charge when I’ve got a state official that’s making up allegations that
I’ve not done?”
(Id. at 150–51.)
On September 6, 2015, Adams submitted to the segregation unit officer a formal
grievance against Baker for his allegedly false reports against Adams. (Id. at 175; Pl. Ex. 25, at
15). While Adams was still in administrative segregation, TDOC Internal Affairs Investigator
Sean Smith investigated the charge against Adams. (Doc. 213, at 6–7.) Smith testified that
TDOC, not TRICOR, decides whether to send inmates to segregation and that “initially” inmates
will be put in “segregation for incidents like this,” such as creating a disturbance. (Id. at 33; see
also id. at 96 (Stith testifying similarly).)
Smith testified that he was “sure” he reviewed video surveillance in the course of his
investigation of the incident, although he did not “actually remember viewing it.” (Id.) The
disciplinary board dismissed the charge against Adams because Smith’s investigation yielded
11
“no findings . . . that show[ed] [Adams] creating a disturbance.” (Id. at 7, 17–19.) Adams was
released from segregation on September 8, 2015, at about noon. (Id. at 157.)
D.
Charge of Attempt to Intimidate Employee
Later that day, TDOC charged Adams with attempt to intimidate an employee based on
the August 31, 2015 incident between Adams and Baker. (Id. at 158; Stip. Ex. 13.) Smith
testified that he filed the charge based solely on statements from Adams and Baker, including
those from Smith’s interview with Baker. (Doc. 213, at 19–21; Pl. Ex. 1, at 9, 11, 21.) Smith
further testified that an inmate would not be charged with attempt to intimidate an employee for
saying he would contact the deputy commissioner of operations, as long as he was not “causing a
scene” and spoke “regularly.” (Doc. 213, at 20–21.)
The TOMIS disciplinary report associated with the September 8, 2015 charge contains no
reference to Jones or threats against another inmate. (See Stip. Ex. 13.) The description of
Adam’s alleged misconduct states that he “BECAME ANGRY AND WAS MAKING
THREATS TOWARDS TRICOR OPERATIONS MANAGER DAVE BAKER.” (Id.) It does
not state what threats Adams allegedly made to Baker. (See id.)
Adams was subject to further disciplinary sanctions for the second charge and waited
thirty-seven days for the second charge to be resolved. (Doc. 213, at 157.) It was ultimately
dismissed due to a “due process violation” associated with the “third page” of the TDOC
disciplinary report. (Stip. Ex. 14.)
E.
Adams’s Resignation
Smith testified that, after the charges were dismissed, Adams was “supposed to have been
able to return to [his] job.” (Doc. 213, at 23-25, 157.) Adams approached Lovitt about returning
12
to work. (Id. at 158.) Adams testified that he tried to go to the plant but “was told that Mr.
Baker didn’t want [him] over there.” (Id.)
Adams testified that he went to speak with Sergeant April Hubbard and asked her to call
Baker to discuss Adams’s return to work. (Id.) She did so. (Id.) Baker testified that he told
Hubbard that Adams was not coming back and would not be rehired to work at the plant after
Adams threatened him and another employee, regardless of the results involving TDOC
disciplinary actions. (Id. at 257.) Baker testified that Hubbard called him back a few minutes
later and advised him that “Adams was no longer wanting to work [at the plant].” (Id. at 260.)
Baker testified that he responded, “That works for me.” (Id.)
Adams testified that he decided to resign “because there was a threat of an incompatible.”
(Id. at 164, 168; Pl. Ex. 1, at 9.) Adams explained his reasons for fearing an incompatible:
[A]n incompatible would cause an inmate to be transferred to another prison. I
have a reasonable expectation to stay at the same prison for the entire—entirety of
my sentence, because TDOC doesn’t do routine transfers. So, had I been
transferred, I would have been transferred further away from my friends and
family, where I wouldn’t have been able to get visits as well.
(Doc. 213, at 168–69.) When Baker disputed using the “particular phrase” of “filing an
incompatible on [Adams] (id. at 257), Adams impeached him with his previous admission that
“Baker rescinded his intention to file an incompatible in exchange for Adams’s resignation” (id.
at 260; Pl. Ex. 1, at 5). A few days after the phone call between Hubbard and Baker, Adams
filled out the TDOC Request for Program Dismissal form, stating, “I no longer wish to work for
TRICOR.” (Doc. 213, at 166, 261; Stip. Ex. 7.)
The parties seemed to disagree about whether Baker had the authority to terminate
Adams from his position at TRICOR. Adams testified that Baker did not have actual authority to
terminate him but could only request his termination through the Inmate Job Coordinator and the
13
warden. (Doc. 213, at 163–66.) He referred to TRICOR policy 1011, Section V(A), Subsection
C, which states that “[t]he chief executive officer has designated the following staff to review
and approve requests for nondisciplinary job dismissals made by offenders’ work supervisors to
the institutional inmate jobs coordinator in accordance with TDOC Policy 505.07.” (Stip. Ex. 1;
Doc. 213, at 164.) Smith testified that getting Adams charged with a disciplinary would be “one
way [for Baker] to get [Adams] removed from working at TRICOR.” (Doc. 213, at 26.) After
referring to the dismissal of the second charge, Baker’s counsel asked Baker if TRICOR had an
“obligation . . . to hire back” an inmate employee. (Id. at 299.) Baker answered, “Not—not
that’s made a threat to this level. This—What Mr. Adams did was beyond a program note; it
was—it was gross misconduct. I couldn’t have him back over there, for the safety of myself and
other inmates.” (Id. at 300.)
F.
Damages
Adams explained his losses due to resigning his position at TRICOR:
Because of my resignation, I was forced to resign an $8.45-per-hour job, I lost my
seniority ranking, which was 25 at that time, now is 101. The importance of
seniority ranking at the plant is because it determines whether you get better jobs
and promotions . . . .
...
. . . I make $1.20 an hour less now than I did when I was forced to resign. . . .
Everything’s based off seniority. If you’ve got more seniority, you get a chance
to get the better jobs, bumped to more wages to make more money and all that.
As a result of having to resign, and then I was gone for almost a year before I
could get my job back, so I lost close to $11,500 in wages during that time.
(Id. at 169.) Adams regained a job at TRICOR almost a year later, partly because Baker took a
nine-month leave of absence. (Doc. 212, at 105; Stip. Ex. 1, at 6; Pl. Ex. 1.) However, because
Adams had lost his seniority rank, he was assigned the more strenuous and less desirable job of
board scraper:
14
Once I started back, they put my back in the entry-level position, and of course I
make $1.20 an hour less now, and I’ve lost almost $2,500 in wages during that
time. . . . And because of being put back in that entry-level position, I’ve been
stuck in one of the worst jobs in the plant for two and a half years now almost,
and that’s because I lost my seniority and had to start all over again.
(Doc. 213, at 170; Doc. 212, at 104.)
II.
FINDINGS OF FACT
The Court must decide whether to credit the testimony of Adams or of Baker as to what
occurred on the morning of August 31, 2015. In Adams’s version of events, Adams utilized
Baker’s open-door policy to complain about the new management decision to rotate the board
counters. Their last private conversation ended with Adams stating he would contact Woodall
rather than file a second grievance about the same issue. In Baker’s version, Adams became so
angry that he yelled, threatened to attack another inmate, and threatened Baker’s job.
Adams’s version is more plausible than Baker’s. Adams was able to describe each
conversation he and Baker had that morning, whereas Baker’s testimony was much less detailed
other than the allegations in his statement and subsequent program and contact notes. Lovitt
testified that he would have heard Adams’s alleged yelling, but he heard nothing. Both Stith and
Smith testified that, when inmates become loud or make threats of violence, they are
immediately handcuffed and sent to segregation. Baker admitted that, when he worked at
TDOC, he immediately sent inmates to segregation who became loud or threatened staff.
Despite Baker’s insistence that Adams was loud and threatening, he did not call TDOC
officials to intervene. When Baker did speak with Lovitt, he asked him to escort Adams from
the plant but did not tell him what happened or request that he restrain Adams or bring him to
segregation. Smith found nothing on video surveillance to support the charge of creating a
disturbance. Considering the testimony of each of these witnesses, it is more likely than not that
15
Adams never shouted or raised his voice during his meetings with Baker. The charge of creating
a disturbance was dismissed because Smith’s investigation yielded no findings to support it.
Given that the Court has already found that the portions of Baker’s testimony concerning
Adams’s yelling were most likely inaccurate, there is likewise less reason to credit his testimony
that Adams made threats. Additionally, it is unlikely that Baker—after his seventeen years of
experience as a TDOC official—would have had Adams only escorted from the plant rather than
immediately placed in segregation, if he had really become loud and threatening. For these
reasons, the Court also finds it unlikely that Adams threatened Jones or Baker’s job.
After duly considering all of the evidence presented at trial, the Court makes the
following findings of fact by a preponderance of the evidence:
1) TDOC policy encourages inmates to resolve their grievances informally.
2) Baker had an open-door policy aimed at informally resolving inmates’ grievances.
3) Adams spoke with Baker about the time-clock issue multiple times during the months
of July and August 2015.
4) Adams’s conversations with Baker about the time-clock issue complied with TDOC
Policy 501.01 for Inmate Grievance Procedures.
5) The program note Baker placed in the files of Adams, Waddell, Shupe, and White
could result in their being terminated after receiving two additional notes for the same
infraction.
6) Adams incurred no actual harm from the program note Baker entered in his file about
allegedly advising him not to pre-mark boards.
16
7) Adams’s grievance about the policy of rotating board counters was not frivolous,
given that his previous grievance on a similar issue had previously been resolved in
his favor.
8) At no time during the morning of August 31, 2015, did Adams become loud or
belligerent, or create a disturbance.
9) At no time during the morning of August 31, 2015, did Adams yell, shout, threaten
anyone with violence, or otherwise engage in impermissible conduct. More
specifically, Adams did not tell Baker that Adams would “stomp” Jones, and Adams
did not say to Baker, “I’ll have your job.”
10) Under TDOC policy, writing to Woodall would have been a permissible avenue for
Adams to have his grievance addressed.
11) During his last private conversation with Baker on the morning of August 31, 2015, at
about 7:15 a.m., Adams stated he would write Woodall.
12) During his August 31, 2015 conversations with Baker, Adams’s conduct complied
with TDOC Policy 501.01 for Inmate Grievance Procedures.
13) Baker gave inaccurate written and oral reports about Adams to TDOC, specifically
that Adams yelled and threatened to stomp Jones and “have [Baker’s] job.”
14) Baker prepared his handwritten report after he had already spoken to Wood about the
specific charge Adams would receive.
15) Baker knew that, if he submitted the oral and written reports, Adams would be
charged with creating a disturbance.
16) Adams was charged with creating a disturbance based on Baker’s false reports.
17
17) Baker knew that, if Adams was charged with creating a disturbance, he would be
placed in segregation pending investigation.
18) Adams was placed in segregation pending investigation at about 8:45 a.m. on August
31, 2015, as a result of being charged with creating a disturbance.
19) Adams spent nine days in segregation and was released when the charge of creating a
disturbance was dismissed.
20) Baker could request Adams’s termination but did not have the outright authority to
terminate him.
21) Baker knew that, if Adams was convicted of either of the disciplinary charges, he
would be terminated from his TRICOR job.
22) Adams was charged with an attempt to intimidate an employee based on Baker’s
inaccurate reports.
23) Adams spent thirty-seven days concerned about the outcome of the second charge,
attempt to intimidate an employee.
24) After disciplinary charges are dismissed, TRICOR employees are entitled to return to
work.
25) Adams resigned from his TRICOR position only because Baker would have filed an
incompatible against him if he continued trying to return to work at TRICOR.
26) If Baker had filed an incompatible against Adams, Adams would have been more
likely to be transferred to another prison, which would have made it more difficult to
receive visits from his friends and family.
27) As a result of his resignation, Adams suffered lost wages of approximately $14,000,
from August 31, 2015 to the date of trial, reflecting both the time before he was
18
rehired at TRICOR and the time during which he has worked as a board scraper, an
assignment which is paid $1.20 less per hour.
28) As a result of his resignation, Adams lost his seniority and was unable to regain that
seniority even when he was rehired to work at the TRICOR plant.
29) Due to losing his seniority, Adams must again work his way up through less desirable
and more physically strenuous assignments.
III.
STANDARD OF LAW
To prevail on a claim under Title 42, Section 1983 of the United States Code, a plaintiff
must show by a preponderance of the evidence that, while acting under color of state law, the
defendant deprived him of a federal constitutional right. Thaddeus-X v. Blatter, 175 F.3d 378,
394 (6th Cir. 1999). To be liable, a state official must have been personally involved in the
alleged misconduct. Miller v. Calhoun Cty., 408 F.3d 803, 817 n.3 (6th Cir. 2005). With respect
to a § 1983 claim for retaliation against an individual for exercising his rights under the First
Amendment, it is well established that “[r]etaliation by public officials against the exercise of
First Amendment rights is itself a violation of the First Amendment.” Zilich v. Longo, 34 F.3d
359, 364 (6th Cir. 1994). A plaintiff must prove by a preponderance of the evidence that: (1) he
engaged in protected conduct; (2) the defendant took an adverse action against him which would
deter a person of ordinary firmness from continuing to engage in such conduct; and (3) the
plaintiff’s protected conduct motivated Defendant’s adverse action. Thaddeus-X, 175 F.3d at
394.
Concerning the first element, protected speech for incarcerated individuals is more
limited than speech for unincarcerated individuals. Thornburg v. Abbot, 490 U.S. 401, 414–16
(1989); Turner v. Safley, 482 U.S. 78, 92 (1987). “A prisoner retains First Amendment rights
19
that are not inconsistent with his status as a prisoner or with the legitimate penological objectives
of the corrections system.” Smith v. Campbell, 250 F.3d 1032, 1036–37 (6th Cir. 2001) (noting
that filing grievances in a way that violates legitimate prison regulations or attempts to intimidate
staff members is not protected conduct). Inmates have the right to file non-frivolous oral and
written grievances against prison officials. Maben v. Thelen, 887 F.3d 252, 265 (6th Cir. 2018);
Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000). When there is an informal grievance
policy, officials may not punish prisoners for complying with it, Maben, 887 F.3d at 266, or for
stating their intention to do so, Pasley v. Conerly, 345 Fed. App’x 981, 985 (6th Cir. 2009)
(inmate’s threat to file a grievance protected). On the other hand, “[a]busive or manipulative use
of a grievance system” is not protected conduct. King v. Zamiara, 680 F.3d 686, 699 (6th Cir.
2012); see also Reinholtz v. Campbell, 64 F. Supp. 2d 721, 733 (W.D. Tenn. 1999) (“[T]his case
has nothing to do with the legitimate exercise of the right to inform prison staff of problems, and
everything to do with the inmate’s desire to engage in a power struggle with [prison] staff.”).
With regard to the second element, courts have concluded that “the loss of a prison job
may be sufficiently adverse to deter a person of ordinary firmness from continuing to engage in
the protected conduct.” Walton v. Jones, No. 14-1299-JDT-egb, 2016 WL 483143, at *6 (W.D.
Tenn. Feb. 5, 2016); Walker v. Brewer, 2014 WL 1117835, at *2 (W.D. Mich. Mar. 20, 2014)
(false allegation of misconduct that caused inmate to be terminated from misconduct was
adverse); Cantanzaro v. Michigan Dept. of Corrections, 2010 WL 233862, at *6 (W.D. Mich.
Jan. 14, 2010) (termination from prison job and false charge of misconduct was adverse). While
“[a] prisoner has no constitutional right to prison employment or a particular prison job[,]”
Carter v. Tucker, 69 F. App’x 678, 680 (6th Cir. 2003), that is immaterial to § 1983 claims based
on alleged retaliation against an individual for exercising his First Amendment rights, Newsom v.
20
Norris, 888 F.2d 371, 375–79 (6th Cir. 1989). “The lack of entitlement to a particular privilege
does not free prison administrators to grant or withhold the privilege for impermissible reasons.”
Id. at 377.
Transfer to administrative segregation is considered sufficiently adverse to satisfy this
element. Herron, 203 F.3d at 416. Generally, “actions that result in . . . fewer privileges” for
prisoners may be considered sufficiently adverse to be capable of deterring protected activities.
Hill v. Lappin, 630 F.3d 468, 474–75 (6th Cir. 2010); see also Scott v. Churchill, 377 F.3d 565,
572 (6th Cir. 2004) (possibility of disciplinary sanctions sufficiently adverse); Thomas v. Eby,
481 F.3d 434, 441 (6th Cir. 2007) (major-misconduct charge that, upon conviction, would cause
loss of disciplinary credits was sufficiently adverse); Brown v. Crowley, 312 F.3d 782, 789 (6th
Cir. 2002) (considering potential consequences in determining whether action was sufficiently
adverse). “[S]ince there is no justification for harassing people for exercising their constitutional
rights, [the deterrent effect] need not be great in order to be actionable.” Thaddeus-X, 175 F.3d
at 397. A plaintiff need not establish actual deterrence to establish that the action was adverse
enough to deter. Bell v. Johnson, 308 F.3d 594, 603 (6th Cir. 2002); Harbin-Bey v. Rutter, 420
F.3d 571, 579 (6th Cir. 2005).
The third element of a First-Amendment retaliation claim “addresses whether the
defendants’ subjective motivation for taking the adverse action was at least in part to retaliate
against the [plaintiff] for engaging in protected conduct.” Hill, 630 F.3d at 475; Smith, 250 F.3d
at 1037. “[A]n act taken in retaliation for the exercise of a constitutionally protected right is
actionable under § 1983 even if the act, when taken for a different reason, would have been
proper.” Bloch v. Ribar, 156 F.3d 673, 681–82 (6th Cir. 1998). “Because the question is
whether the adverse action was taken (at least in part) because of the protected conduct, the
21
causation inquiry centers on the defendant’s motive.” Thomas, 481 F.3d at 441. Because
“[m]otive is often very difficult to prove with direct evidence in retaliation cases . . . [,]
circumstantial evidence may therefore acceptably be the only means of establishing the
connection between a defendant’s actions and the plaintiff’s protected conduct.” King, 680 F.3d
at 696. Allegations supporting the existence of a retaliatory motive can include “the disparate
treatment of similarly situated individuals or the temporal proximity between the [plaintiff’s]
conduct and the official’s adverse action.” Hill, 630 F.3d at 475. In some cases, “temporal
proximity alone may be significant enough to constitute indirect evidence of a causal connection
so as to create an inference of retaliatory motive.” Muhammed v. Close, 379 F.3d 413, 417–18
(6th Cir. 2004).
Plaintiffs who prevail on First Amendment retaliation claims are entitled to compensatory
damages. See, e.g., Castle v. Clymer, 15 F. Supp. 2d 640, 668 (E.D. Pa. 1998) (inmate plaintiff
recovered difference between higher paying job he lost and lower paying job he had as a result).
First Amendment retaliation also “warrants consideration of an award of punitive damages.”
King, 788 F.3d at 216–17. The factfinder must make a “discretionary moral judgment” whether
to award punitive damages. Id. Punitive damages are not awarded as of right. Smith v. Wade,
461 U.S. 30, 52 (1983). A factfinder may assess punitive damages in a § 1983 action “when the
defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves
reckless or callous indifference to the federally protected rights of others.” Id. at 56. The
purpose of punitive damages is “to punish the defendant for his willful or malicious conduct and
to deter others from similar behavior.” Memphis Commty. Sch. Dist. v. Stachura, 477 U.S. 299,
306 n.9 (1986).
22
IV.
CONCLUSIONS OF LAW
After applying the elements of a First-Amendment retaliation claim to the factual
findings, the Court draws the following conclusions of law.
A.
Baker acted under color of state law.
During all of his interactions with Adams and the aftermath of those interactions, Baker
acted within his capacity as TRICOR Operations Manager. Because TRICOR is a state agency,
Baker acted under color of state law during all events relevant to this lawsuit. See Smiley v.
Tennessee, 1:16-CV-469-HSM-SKL, 2017 WL 3975001, at *5, *7 (E.D. Tenn. Sept. 8, 2017)
(finding that Defendant Baker was a state actor when he allegedly failed to reinstate the plaintiff
to his TRICOR job).
B.
Adams engaged in protected conduct.
First, Adams engaged in protected conduct when he complained to Baker about the timeclock issue several times in July and August 2015. The Court has found that TDOC policy
encourages inmates to resolve their grievances informally and that Baker had an open-door
policy aimed at informally resolving inmates’ grievances. Further, the Court has found that
Adams was within the confines of TDOC’s policies when he spoke with Baker about the timeclock issue. There is no credible evidence that Adams’s conduct was inconsistent with his
“status as a prisoner” or interfered “with the legitimate penological objectives of the corrections
system.” Smith, 250 F.3d at 1036. Therefore, his conduct was protected. See Maben, 887 F.3d
at 266.
Similarly, Adams engaged in protected conduct during his conversations with Baker on
August 31, 2015, including when he stated his intention to write to Woodall. The Court has
found that Adams told Baker his concerns about the new board-counter rotation policy in a calm
23
voice and manner consistent with TDOC’s policies. Baker argues that Adams’s conduct on
August 31, 2015, was not protected, because Adams was aggressive and threatening toward
Baker. (Doc. 212, at 93; Doc. 221, at 9–11.) But the Court, in crediting Adams’s version of
events, has found that Adams’s behavior did not create a disturbance and that the only “threat”
Adams made to Baker was his statement that he would contact Woodall rather than file a second
grievance.
The Court has also found that writing to Woodall was a proper action for prisoners
seeking to have their concerns addressed and that Adams’s grievance about rotating all of the
board counters was not frivolous. See Herron, 203 F.3d at 415 (holding that pursuing nonfrivolous grievances against prison officials is protected conduct). It does not matter whether
Adams was correct in his belief that filing a second grievance about rotating board counters
would violate TDOC policy. Whether or not Adams could instead have filed a second grievance,
contacting Woodall was protected activity under TDOC policy. Since stating an intention to
engage in protected conduct is itself protected conduct, see Pasley, 345 Fed. App’x at 985, the
Court concludes that Adams’s statements to Baker constitute protected conduct.
C.
Baker’s August 12, 2015 note, his oral and written statements on August 31,
2015, the resulting investigations, and his threat to file an incompatible were
actions sufficiently adverse to deter a person of ordinary firmness.
i.
August 12, 2015 note
The Court has found that, although Adams incurred no harm from the program note
Baker entered in his file about allegedly advising him not to pre-mark boards, that program note
could result in Adams’s termination after additional notes about the same infraction. Without the
program note, Adams would receive an additional warning before he could potentially be fired
for pre-marking boards. Therefore, the program note was a consequence in itself. Additionally,
24
the Sixth Circuit has made clear that actions may be sufficiently adverse to deter individuals
from continuing to engage in protected conduct even when the action results in only potential
consequences. See, e.g., Churchill, 377 F.3d at 572; Thomas, 481 F.3d at 441; Brown, 312 F.3d
at 789. Acknowledging the Thaddeus-X court’s reminder that, “since there is no justification for
harassing people for exercising their constitutional rights, [the deterrent effect of the adverse
action] need not be great in order to be actionable,” 175 F.3d at 397, the Court concludes that the
August 12, 2015 program note Baker entered in Adam’s file was sufficiently adverse to deter a
person of ordinary firmness from continuing to informally voice time-clock grievances to Baker.
ii.
August 31, 2015 oral and written statements and the resulting
investigations
The Court has found that Adams was charged with creating a disturbance and, later, an
attempt to intimidate an employee, based on Baker’s inaccurate reports. One of Baker’s main
contentions at trial was that any adverse action taken against Adams is not attributable to Baker
because, as a TRICOR employee, Baker lacked control over the discipline TDOC would impose.
(Doc. 212, at 96.) Controlling precedent undermines this argument.
“[A] court may consider the reasonably foreseeable consequences that would follow
from a retaliatory act in considering whether the plaintiff suffered an adverse action.” Siggers-El
v. Barlow, 412 F.3d 693, 702 (6th Cir. 2005). A defendant is liable for an adverse action if his
own action was the actual and proximate cause of the adverse action, even if the adverse action
was approved and ordered by other people. King, 680 F.3d at 697. In Siggers-El v. Barlow, the
Sixth Circuit rejected the defendant’s argument that the defendant did not take an adverse action
against the plaintiff because he did not transfer the plaintiff. 412 F.3d at 701. In that case, the
defendant had only completed a security screen, which made the plaintiff eligible for a routine
transfer. Id. The Court concluded that:
25
the fact that the Defendant’s completion of a security screen of the Plaintiff was
not a sufficient condition to transfer the Plaintiff, in that the transfer coordinator
must ultimately approve the transfer, does not lead to the conclusion that the
transfer cannot be imputed to the Defendant. Rather, the Defendant's
performance of the security screen of the Plaintiff set in motion Plaintiff's
transfer. That is, without the security screen, he had the same chance as every
other prisoner to be transferred. Thus, the Defendant filled out the screen
knowing the effect it would have—that it would lead inexorably to the plaintiff's
transfer, which is exactly what occurred.
Id. Just as the defendant in Siggers-El “set in motion” the plaintiff’s transfer, id., Baker’s
inaccurate reports about Adams’s conduct “set in motion” the first charge against him, the
investigation, and his segregation pending that investigation. The reports also set in motion
the second charge, even if Baker was not at all involved in the decision to charge Adams with a
second offense, because the second offense was also based on Baker’s statements. Baker’s
actions also set Adams up to lose his job, since Adams would have been terminated if he were
convicted of either the first or second charge. Thus, Baker’s oral and written statements about
the events of August 31, 2015, and the resulting investigations, were actions attributable to
Baker.
Finally, Baker’s reports and the resulting investigations, resulting as they did in nine days
of segregation, thirty-seven additional days of concern about the outcome of the second charge,
and the potential loss of Adams’s high-paying job, were “sufficiently adverse to deter a person of
ordinary firmness from continuing to engage in the protected conduct.” Walton, 2016 WL
483143, at *6; see also Walker, 2014 WL 1117835, at *2; Cantanzaro v. Michigan Dept. of
Corrections, 2010 WL 233862, at *6.
iii.
Threat to file an incompatible
The Court has found that, after disciplinary charges are dismissed, inmate employees of
TRICOR employees are entitled to return to work but that Baker threatened to file an
26
incompatible against Adams if he continued trying to return to work at TRICOR. The Court has
also found that Adams resigned from his TRICOR position only because of Baker’s threat to file
an incompatible against him. Because an incompatible could have resulted in Adams’s transfer
to another prison, making it more difficult for him to receive visits from his friends and family,
the Court deems Baker’s threat to file an incompatible sufficiently adverse to deter a person of
ordinary firmness from continuing to seek reinstatement. Cf. Siggers-El, 412 F.3d at 701–02
(transfer sufficiently adverse when it would result in the foreseeable consequences that plaintiff
would lose his high-paying job and face more difficulty visiting with his attorney).
D.
Adams’s protected activity motivated some of Baker’s adverse actions.
i.
Adams’s time-clock grievances and Baker’s August 12, 2015 note
Adams did not establish by a preponderance that his time-clock grievances, at least in
part, motivated Baker’s August 12, 2015 program note. The connection between Adam’s timeclock grievances and the August 12, 2015 program note about pre-marking boards is extremely
tenuous. First, Adams did not establish a close temporal proximity between his time-clock
grievances and the program note. Although testimony established that inmates discussed the
time-clock issue with Baker in July and August 2015, Baker and some of the inmates believed
that Baker fixed the time clock sometime in August. If Baker seemed to have addressed the
time-clock issue without conflict, it is less likely that he would have retaliated against inmates
for time-clock-related grievances. Second, at least three other board counters besides Adams
received the note as well, and Adams was the only inmate that Baker remembered as having
complained about the issue. Adams was unable to corroborate his contention that the board
counters who received notes on August 12 were more vocal about the time-clock issue than the
other six board counters. Finally, Baker did not tell Adams about the note. If his motivation in
27
issuing the notes was in part to deter employees from complaining about the time-clock issue, it
would have made sense for him to tell them about the notes. In sum, the evidence at trial did not
establish by a preponderance that Baker entered the note in Adam’s TOMIS file in part to
retaliate against him for his time-clock grievances.
ii.
Adams’s statement that he would write Woodall and Baker’s reports
and threat to file an incompatible
The Court has found that Baker gave inaccurate written and oral reports about Adams to
TDOC—specifically that Adams yelled and threatened to stomp Jones and “have [Baker’s]
job”—and that these reports resulted in TDOC charging Adams with creating a disturbance and
placing Adams in administrative segregation pending investigation. Adams stated to Baker his
intention to write Woodall at about 7:15 a.m., and, soon after, Baker asked Lovitt to escort
Adams from the plant. No more than an hour and a half later, at about 8:45 a.m., Adams was
charged with creating a disturbance and taken to segregation. Based on the close temporal
proximity and the lack of any other likely explanation for Baker’s inaccurate statements about
Adams’s conduct, see Muhammed, 379 F.3d at 417–18, the Court concludes that Adam’s
statement of his intention to write Woodall motivated Baker’s inaccurate statements about his
conduct.
The Court has further found that, given Baker’s seventeen-year tenure with TDOC before
he became TRICOR Operations Manager, he was undoubtedly aware that Adams would be
punished as a result of Baker’s allegations. Baker knew that, if he gave inaccurate oral and
written reports that Adams yelled and threatened to stomp Jones and “have [Baker’s] job,”
Adams would be charged with creating a disturbance and that he would be placed in segregation
as a result of the charge. TDOC officials’ action of placing Adams in segregation was a natural
28
and foreseeable result of Baker’s false written and oral report. And Adams ultimately spent nine
days in segregation as a result of being charged with creating a disturbance.
The Sixth Circuit held, in King v. Zamiara, that a defendant need not intend the adverse
action itself in order to be held liable for retaliation. 680 F.3d at 696–97. Instead, Baker is liable
if he took an action intending to punish Adams for engaging in protected conduct and that action
was the actual and proximate cause of the adverse action, even if the adverse action was
approved and ordered by other people. Id. at 697. Even if Baker’s involvement ceased after he
reported Adams’s alleged conduct on August 31, 2015, he knew that his reports would result in
negative consequences for Adams. Baker is therefore liable for those negative consequences.
Finally, Adams’s protected conduct motivated Baker’s threat to file an incompatible
against him when he returned to work. Although TRICOR employees are entitled to return to
work after disciplinary charges are dismissed, Baker threatened to file an incompatible against
Adams when he attempted to return to his job at the plant. Adams knew that, if Baker filed an
incompatible, he was at risk of being transferred to another prison further away from his friends
and family, and he resigned from his TRICOR position only as a capitulation to Baker’s threat.
After drawing the necessary conclusions of law, the Court concludes that Adams has
established all three elements of his First Amendment retaliation claim by a preponderance of the
evidence.
V.
QUALIFIED IMMUNITY
Baker asserts that he is entitled to qualified immunity. (Doc. 221, at 14.) Qualified
immunity is intended to protect government officials from suit unless they are “plainly
incompetent or . . . knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). For
that reason, qualified immunity shields officials performing discretionary functions from liability
29
for civil damages “insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982).
In considering whether an official is entitled to qualified immunity in the context of a
First-Amendment retaliation claim, courts determine, first, whether the plaintiff’s specific
activity was constitutionally protected, and second, whether that right was clearly established at
the time the events took place, such that a reasonable official would have known his conduct
violated that right. Holzemer v. City of Memphis, 621 F.3d 512, 527 (6th Cir. 2010). The Court
has already determined that Adams’s activity was constitutionally protected. Since at least 1995,
the right of a prisoner “‘to be free from retaliation, in the form of an issuance of a false major
misconduct ticket, against the exercise of his First Amendment rights’ is clearly established for
purposes of qualified immunity.” Scott v. Stone, 254 F. App’x 469, 475 (6th Cir. 2007) (quoting
Churchill, 377 F.3d at 571–72. Baker’s testimony made clear that the disturbance and threats
which he accused Adams of making were considered “gross misconduct.” (Doc. 213, at 300.) A
reasonable official would have known that giving inaccurate oral and written reports alleging
that an inmate had made threats of violence violated that inmate’s rights. Cf. Webb v. United
States, 789 F.3d 647, 667 (6th Cir. 2015) (holding that a reasonable police officer would have
known that fabricating evidence would violate a suspect’s rights). Accordingly, the Court finds
that Baker is not entitled to qualified immunity.
VI.
DAMAGES
The Court has found that, as a result of his coerced resignation, Adams suffered lost
wages of approximately $14,000 from August 31, 2015 to the date of trial, reflecting both the
time before he was rehired at TRICOR and the time during which he has worked as a board
30
scraper, an assignment which is paid $1.20 less per hour. The Court has also found that Adams’s
resignation caused him to lose his seniority rank, and, because he had resigned, he was unable to
regain that rank even when he was rehired to work at the TRICOR plant. Due to losing his
seniority, Adams must again work his way up through less desirable and more physically
strenuous assignments.
Accordingly, Adams is entitled to compensatory damages for the wages he has already
lost due to Baker’s retaliation, see, e.g., Castle, 15 F. Supp. 2d at 668, the nine days he spent in
segregation, the thirty-seven days he spent worrying about the outcome of the second charge, and
the loss of his seniority rank. Adams testified about the extent of his lost wages at trial, and
Baker did not offer any countervailing evidence. The Court found Adams’s evidence credible
that he lost approximately $14,000 in wages as a result of not being able to work at TRICOR
and, later, working in a lower-paid position.
In contrast, the damages to which Adams is entitled for the loss of his seniority rank are
less amenable to calculation. Adams offered little evidence as to the difference in value between
his previous and current seniority rank. The amount of damages the Court will award for
Adams’s loss of seniority rank reflects that lack of specific evidence.
Lastly, the damages the Court will award for the time Adams spent in segregation and in
worrying about the second charge reflect that, while prisoners generally have no liberty interest
in avoiding administrative segregation, see Grinter v. Knight, 532 F.3d 567, 573–74 (6th Cir.
2008) (collecting cases), they nevertheless have an expectation of avoiding proceedings resulting
from retaliation for exercise of their First-Amendment rights.
First Amendment retaliation also “warrants consideration of an award of punitive
damages.” King, 788 F.3d at 216–17. The factfinder must make a “discretionary moral
31
judgment” whether to award punitive damages. Id. They are not awarded as of right. Smith v.
Wade, 461 U.S. 30, 52 (1983). A factfinder may assess punitive damages in a § 1983 action
“when the defendant’s conduct is shown to be motivated by evil motive or intent, or when it
involves reckless or callous indifference to the federally protected rights of others.” Id. at 56.
The purpose of punitive damages is “to punish the defendant for his willful or malicious conduct
and to deter others from similar behavior.” Memphis Commty. Sch. Dist. v. Stachura, 477 U.S.
299, 306 n.9 (1986). The Court has duly considered the guiding principles but declines to award
punitive damages in this case.
The Court will AWARD the following compensatory damages:
1) $14,000 for lost wages;
2) $450 for the nine days spent in segregation;
3) $10 for the thirty-seven days spent worrying about the second charge; and
4) $250 for the loss of seniority rank and resulting less desirable position at the plant.
These damages amount to a total of $14,710, plus any interest as provided by law and any costs
and fees allowed by the Court pursuant to Federal Rule of Civil Procedure 58(e).
VII.
CONCLUSION
For the foregoing reasons, the Court concludes that Baker retaliated against Adams in
violation of his rights under the First Amendment and is not immune from suit. Therefore,
Adams is entitled to recover damages as detailed above.
AN APPROPRIATE JUDGMENT WILL ENTER.
/s/ Travis R. McDonough
TRAVIS R. MCDONOUGH
UNITED STATES DISTRICT JUDGE
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