Adams v. Lewis et al
Filing
132
MEMORANDUM AND ORDER: the summary judgment motions of both parties [Docs. 103 and 108 ] are DENIED. Thus, this case will proceed to trial on Plaintiff's retaliatory transfer claim against (1) Defendants Randall Lewis an d Luke Burns solely in their individual capacities and (2) Defendants Frank Strada and Shawn Phillips solely in their respective official capacities and only for any prospective injunctive relief that may ultimately be ordered [See Doc. 89 1 5-16]. Considering this Order, Plaintiff's motion to defer adjudication of Defendant's motion for summary judgment and reopen discovery [Doc. 117 ] is also DENIED.. Signed by Magistrate Judge Susan K Lee on 4/9/2024. (BJL)*Mailed to Christopher Adams 328180 TURNEY CENTER INDUSTRIAL COMPLEX ANNEX 245 CARROLL ROAD P O BOX 182 CLIFTON, TN 38425
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
CHRISTOPHER ADAMS,
Plaintiff,
v.
RANDALL LEWIS,
LUKE BURNS,
FRANK STRADA, and
SHAWN PHILLIPS,
Defendants.
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No.:
1:22-CV-125-SKL
MEMORANDUM AND ORDER
Plaintiff Christopher Adams, a prisoner in the custody of the Tennessee Department of
Correction (“TDOC”) was permitted to proceed in this pro se civil rights action under 42 U.S.C.
§1983 on a claim that Defendants Randall Lewis and Luke Burns had him transferred to a different
prison in retaliation for exercising his First Amendment rights 1 [See generally Docs. 88, 89].
Before the Court are the parties’ cross-motions for summary judgment [Docs. 103, 108] and
Plaintiff’s motion to defer adjudication of Defendants’ summary judgment motion and reopen
discovery [Doc. 117]. Upon consideration of the parties’ pleadings, the summary judgment
evidence, and the applicable law, the Court finds that genuine issues of material fact preclude the
grant of summary judgment. Thus, the summary judgment motions of both parties and Plaintiff’s
motion to defer adjudication and reopen discovery will be denied.
I.
BACKGROUND
1
Defendants Frank Strada and Shawn Phillips are “sued in [their] official capacit[ies] only
for prospective injunctive relief” [Doc. 89 ¶¶ 15, 16].
Plaintiff, an inmate in TDOC custody since 2004, was housed at the Bledsoe County
Correctional Complex (“BCCX”) continuously from February 4, 2010, to October 4, 2021 [Doc.
104-1 p. 56 ¶ 2; Doc. 109-4 p. 3 ¶ 12]. BCCX is a programming institution that offers various
training and programs to reduce inmate’s sentences and prepare them for release [Doc. 109-3 p. 2
¶ 5; Doc. 109-4 p. 2 ¶ 7]. Around the beginning of October 2021, Acting Warden of Treatment
(“AWT”) Brett Cobble contacted Defendant Unit Manger Randall Lewis and other officials to
request a list “of any non-Annex eligible inmates or inmates not currently enrolled in educational,
vocational training, or early release programs” [Doc. 109-3 p. 3 ¶ 10]. BCCX commonly transfers
inmates who have either finished their programming or have no need of any to make room for
inmates with programming needs [Doc. 109-3 p. 2 ¶ 9; Doc. 109-4 p. 2 ¶ 11]. Thereafter,
Defendant Lewis discussed the issue with multiple members of correctional staff, including
Defendant Sergeant Luke Burns, with whom Lewis shared an office [Doc. 109-8 p. 2 ¶¶ 6-7; Doc.
109-9 p. 2 ¶¶ 5-6; Doc. 125-1 p. 12 ¶ 25]. Defendant Burns asked Lewis to place Plaintiff’s name
on the transfer list [Doc. 122 p. 6 ¶ 15; Doc. 109-9 p. 2 ¶ 6]. AWT Cobble received the transfer
list, which included Plaintiff’s name, and Plaintiff’s transfer was ultimately approved by BCCX
Warden Shawn Phillips [Doc. 109-4 pp. 3-4 ¶¶ 20-23]. So on October 4, 2021, Plaintiff and
approximately thirty other prisoners were transferred from the BCCX to the Trousdale Turner
Correctional Center (“TTCC”) [Doc. 109-4 pp. 3-4 ¶¶ 20-23; Doc. 122 p. 6 ¶ 15; Doc. 124 p. 14 ¶
31].
Plaintiff contends that Defendants transferred him to a different prison, at least in part, “to
retaliate and punish him for exercising” his First Amendment rights [Doc. 89 2 ¶ 85]. Plaintiff
2
Plaintiff’s “Verified Amended Complaint[,]” the operative pleading in this case, is not
competent summary judgment evidence, as it is not sworn under penalty of perjury. See El Bey v.
Roop, 530 F.3d 407, 414 (6th Cir. 2008) (citing 28 U.S.C. § 1746) (holding complaint signed under
penalty of perjury carries the same weight as an affidavit for purposes of summary judgment).
2
points to five separate incidents that “culminat[ed]” to form the basis of his claim [See Doc. 105
pp. 9-10; Doc. 109-2 p. 28]. First, Plaintiff filed and won a lawsuit, Adams v. Baker, No. 1:16CV-335 (E.D. Tenn. Aug. 15, 3019) (“Baker lawsuit”), against David Baker, his former Tennessee
Rehabilitative Initiative in Correction (“TRICOR”) supervisor [Doc. 104-1 p. 60 ¶13; Doc. 109-2
pp. 20-21, 22]. Defendant Burns’ father had to respond to Plaintiff’s public records requests in that
lawsuit [Doc. 104-1 p. 60 ¶ 13; Doc. 109-2 pp. 21-22].
Second, Plaintiff and twelve other inmates filed an unsuccessful lawsuit, Adams v. Parker,
No. 1:19-cv-296 (E.D. Nov. 27, 2019) (“Parker lawsuit”) regarding TDOC’s requirement that
inmates wear plastic identification wristbands [Doc. 109-2 pp. 15-17].
Third, Plaintiff had a conversation with Defendant Burns in which he complained that
Burns had approved an ineligible inmate’s membership in the Lifer’s Club, a philanthropic prison
organization that Burns sponsored at the time [Doc. 109-2 pp. 8-9, 11, 29-31; Doc. 104-1 pp. 6061 ¶¶ 14-15]. Plaintiff, the president of the organization, kicked the ineligible inmate out of the
club [Doc. 109-2 p. 31]. Plaintiff maintains that Defendant Burns stopped sponsoring the club
thereafter due to the “drama” involved [Doc. 109-2 p. 31; Doc. 104-1 p. 61 ¶ 15].
Fourth, Plaintiff advised Inmate Trusty that he could file a grievance about a cell transfer
initiated by Defendant Burns [Doc. 109-2 pp. 25-27]. 3 Instead of filing a grievance, Inmate Trusty
told Defendant Burns about Plaintiff’s advice [Doc. 104-1 pp. 61-62 ¶ 16]. According to Plaintiff,
Defendant Burns spoke with Plaintiff and told Plaintiff that he “d[id]n’t need to be telling people
they could file grievances on [Burns]” [Doc. 109-2 p. 27].
3
Plaintiff concedes this instance is not protected conduct but argues that it should be
protected “under the umbrella” of Trusty’s right-to-access rights [Doc. 125 p. 11].
3
Fifth, in September 2021, Plaintiff made a verbal grievance to Defendant Lewis concerning
his missing commissary, which he believed was stolen by inmate volunteer worker, John Bennett,
a friend of Defendants Burns and Lewis who routinely spent time in Defendants’ office and ate
meals with Defendant Burns [Doc. 104-1 p. 62 ¶ 17; Doc. 109-2 pp. 6-7, 24-25].
Conversely, Defendants deny any retaliatory motive and maintain that Plaintiff’s transfer
was motivated by three separate, legitimate concerns [See Doc. 109-8 p. 3 ¶¶ 12-15; Doc. 109-9
p. 3 ¶¶ 8-10]. One, they state that it was part of a routine population management transfer to make
room for inmates arriving at BCCX needing and eligible for programming [Doc. 109-4 p. 2 ¶ 21].
Specifically, Defendants claim that Plaintiff had completed all his required programming at
BCCX, that he was not recommended for any other BCCX programs, and that he had not requested
to be placed in any education or programming classes [Doc. 109-4 p. 3 ¶¶ 13, 1-17]. Second, they
maintain that Plaintiff was a candidate for transfer because he was not eligible to be housed in the
annex area of BCCX, which houses “minimum direct or trustee inmates” whose sentences are set
to expire within ten 4 years [Doc. 109-3 p. 2 ¶¶ 6-8; Doc. 109-4 pp. 2, 3 ¶¶ 8-10, 19]. And third,
Defendants contend that Plaintiff was transferred because of his “lengthy pattern of disrespectful
behavior and conduct directed toward institutional staff,” “his treatment of other inmates[,]” his
“comfort[] disregarding the rules regarding dress attire,” the “overall deterioration in his respect
toward prison authority[,]” and the fact that his “overfamiliarity with staff” raised “security
concerns about [Plaintiff’s] proper adherence to proper TDOC policy and facility rules” [Doc. 1098 pp. 2-3 ¶¶ 8, 10; Doc. 109-9 p. 2 ¶ 6; Doc. 104 p. 51 ¶ 6].
But according to Plaintiff, Defendants found an opportunity to subject Plaintiff to a
retaliatory transfer under the guise of an otherwise normal population management transfer when
4
Plaintiff contends that inmates convicted of a sex offense must be within seven years of
their release eligibility date to be assigned to the annex [Doc. 124 pp. 2-3 ¶ 5].
4
they were contacted for a list of eligible inmates [Doc. 109-2 pp. 28-29]. In support of this
assertion, Plaintiff notes that TDOC policy is to allow inmates to remain at their assigned
institutions unless there is a valid reason for transfer, and he states that some inmates have been
permanently housed at BCCX for up to forty years [Doc. 122 pp. 9-10 ¶¶ 19, 20, 31, 32].
Additionally, on September 17, 2021, two weeks before his transfer, Plaintiff received his annual
reclassification hearing, where it was determined that Plaintiff would remain a minimum-security
inmate at BCCX and continue participation in the TRICOR Prison Industry Enhancement
Certification Program (“PIE”) [Doc. 104 p. 24 ¶¶ 3, 4]. Sergeant Burns was a member of
classification panel and did not recommend Plaintiff to be transferred at that time [Doc. 104-1 p.
5 ¶¶ 4, 5]. Plaintiff also challenges the assertion that he had completed his programming and had
not requested any additional classes, stating that at the time of his transfer he was a participant in
the TRICOR PIE and the Take One programs, he was on the register to take the Cognitive
Behavioral Intervention Program (“CBIP”), and he begun the enrollment process for Chattanooga
State Community College’s sponsored associate degree program [Doc. 104 p. 26 ¶ 13; Doc. 1251 p. 2-3 ¶¶ 5-7].
As to the contention that Plaintiff’s transfer was prompted by the need to occupy the facility
with annex-eligible inmates, Plaintiff notes that the annex area of BCCX is a separate compound
from where he was housed, and thus, his transfer did not impact the space available for annexeligible inmates [Doc. 125-1 pp. 7-8 ¶ 17; see also Doc. 109-4 p. 4 ¶ 22]. Plaintiff also points out
that, as to his purported conduct, he has no disciplinary convictions and no contact notes indicating
he has engaged in any improper conduct, such as “defiance,” “dress code violation,” “solicitation
of staff,” or “violation of TDOC/institutional policies” [Doc. 104-1 p. 5 ¶ 7; Doc. 104-2 pp. 4446, 53-55, 63, 67-69, 99-102, 105-08]. He further buttresses his claim of retaliatory motivation
5
with the declarations of Inmates Bruce Tuck and James Roysdon, who aver that Sergeant Burns
admitted to them on separate occasions that he submitted Plaintiff’s name for transfer because of
the Baker lawsuit and the negative effect that lawsuit had on Burns’ father [Doc. 104-1 pp. 37, 41].
Plaintiff asserts that because of his transfer to TTCC, he lost his lucrative TRICOR job
assignment; approximately $10,000 worth of leather craft supplies; “reasonable” law library
access; a much safer prison environment; and liberal faith, recreational, and higher education
opportunities [Doc. 122 pp. 7-8 ¶¶ 21-26; Doc. 125-1 ¶ 16; Doc. 104-1 pp. 43-44, 46-48, 50-51,
53-54, 57-59 ¶¶ 4-9, 62-63 ¶ 18].
II.
SUMMARY JUDGMENT STANDARD
Summary judgment is proper only when the pleadings and evidence, viewed in a light most
favorable to the nonmoving party, illustrate that no genuine issue of material fact exists and the
movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a),(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). To establish an entitlement to summary judgment, the
moving party must demonstrate that the nonmoving party cannot establish an essential element of
his case for which he bears the ultimate burden of proof at trial. Celotex, 477 U.S. at 322. Once
the motion is properly supported with competent evidence, the nonmovant must show that
summary judgment is inappropriate by setting forth specific facts showing there is a genuine issue
for trial. Id. at 323. That is, to successfully oppose a motion for summary judgment, “the nonmoving party . . . must present sufficient evidence from which a jury could reasonably find for
him.” Jones v. Muskegon Cnty., 625 F.3d 935, 940 (6th Cir. 2010).
At summary judgment, “[t]he evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). But “[w]hen opposing parties tell two different stories, one of which is blatantly
6
contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that
version of the facts for the purposes of ruling on a motion for summary judgment.” Scott v. Harris,
550 U.S. 372, 380 (2007). “The blatantly contradictory standard is a difficult one to meet and
requires opposing evidence that is largely irrefutable[.]” Amerson v. Waterford Twp., 562 F. App’x
484, 489 (6th Cir. 2014); see also Jones v. Garcia, 345 F. App’x 987, 990 (6th Cir. 2009)
(observing that if the non-moving party’s version of events “does not require such a suspension of
reality that no reasonable juror could accept it . . . that is enough to allow a jury to hear the claim”).
Objective evidence, such as video footage, can satisfy this standard. See Scott, 550 U.S. at 38081 (finding that unambiguous video footage blatantly contradicted the plaintiff’s account).
However, evidence that is not objective, such as “deposition testimony, affidavits, and prison
records” generally does not. Oliver v. Greene, 613 F. App’x 455, 458 (6th Cir. 2015).
Once the court has “determined the relevant set of facts and drawn all inferences in favor
of the nonmoving party to the extent supportable by the record, . . . [the ultimate decision becomes]
. . . a pure question of law.” Scott, 550 U.S. at 381 n.8 (emphasis in original). But if the “evidence
is such that a reasonable jury could return a verdict for the nonmoving party,” then there is a
genuine dispute as to a material fact. Anderson, 477 U.S. at 248. If no proof is presented, however,
the Court does not presume that the nonmovant “could or would prove the necessary facts.” Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citing Lujan v. Nat’l Wildlife Fed’n., 497
U.S. 871, 889 (1990)).
III.
ANAYLSIS
Retaliation against a prisoner for exercising his constitutional rights violates the
Constitution. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999). To establish a First
Amendment retaliation claim, a plaintiff must prove that (1) he engaged in protected conduct; (2)
7
the defendant took an adverse action against him “that would deter a person of ordinary firmness
from continuing to engage in that conduct”; and (3) the adverse action was at least partially
motivated because of the protected conduct. Id. Plaintiff “has burden of proof on all 3 elements.”
Murray v. Unknown Evert, 84 F. App’x 553, 556 (6th Cir. 2003). If a plaintiff can make this
showing, then the burden shifts to the defendant to “show that he would have taken the same action
in the absence of the protected activity[.]” Thaddeus-X, 175 F.3d at 399.
Plaintiff argues that he is entitled to summary judgment because he satisfies all three
elements of a prima facie case of retaliation [Doc. 103]. Defendants contend that they are entitled
to summary judgment because Plaintiff’s conduct is mostly unprotected, a prison transfer is not a
sufficiently adverse action, and there is no evidence to suggest that Plaintiff’s conduct motivated
any action taken by Defendants [Doc. 109].
A.
Protected Conduct
Plaintiff maintains he engaged in protected conduct when he filed the Baker lawsuit; filed
the Parker lawsuit; gave advice to an inmate regarding his grievance opportunities; complained to
Defendant Lewis regarding his stolen commissary; and confronted Defendant Burns regarding
another inmate’s membership in the Lifer’s Club. The parties agree that Plaintiff engaged in
protected conduct when he filed the Baker and Parker lawsuits [See, e.g., Doc. 129 p. 8]. See
Bounds v. Smith, 430 U.S. 817, 821 (1977) (holding it “established beyond doubt that prisoners
have a constitutional right of access to the courts”), overruled in part on other grounds by Lewis
v. Casey, 518 U.S. 343 (1996).
However, the parties disagree whether Plaintiff’s verbal complaints and conversations
constitute protected conduct [Compare Doc. 105 with Doc. 109]. It is well settled that a prisoner
has a right to file non-frivolous grievances “on his own behalf.” Herron v. Harrison, 203 F.3d
8
410, 415 (6th Cir. 2000). But a prisoner must exercise this right in accordance with “the legitimate
penological objectives of the corrections system” for the conduct to be protected. Smith v.
Campbell, 250 F.3d 1032, 1036 (6th Cir. 2001); see also Thaddeus-X, 175 F.3d at 395 (holding
prisoner violating “legitimate prison regulation” is not engaged in protected conduct). Defendants
have presented evidence that TDOC implemented a formal inmate grievance procedure that
defines a “grievance” as a “written complaint” about a “condition or incident” that “personally
affects the inmate complainant” [Doc. 109-4 p. 2 ¶ 5; Doc. 109-5 p. 2; Doc. 109-6 p. 2; Doc. 1098 p. 2 ¶ 4; Doc. 109-9 p. 2 ¶ 4; Doc. 124 p. 3 ¶¶ 6-7]. They maintain that Plaintiff did not engage
in any protected conduct by merely holding conversations with officers [Doc. 121 p. 4-5]. And
while Defendants concede that oral grievances may constitute protected conduct under some
circumstances, they argue that this right is limited to the threat to file a non-frivolous grievance,
see Pasley v. Conerly, 345 F. App’x 981, 985 (6th Cir. 2009), and the filing of oral grievances at
an institution with an informal grievance policy, Maben v. Thalen, 887 F.3d 252, 265-66 (6th Cir.
2018), neither of which are applicable in Plaintiff’s case [Doc. 109 p. 10]. Plaintiff, meanwhile,
argues that essentially any expression of complaint satisfies a dictionary definition of “grievance”
and constitutes protected conduct [Doc. 124 p. 3 ¶¶ 6, 7].
The Court declines to adopt either Defendants’ narrow view or Plaintiff’s expansive one.
Instead, verbal grievances that would be protected if memorialized in writing constitute protected
conduct. Holzemer v. City of Memphis, 621 F.3d 512, 521 (6th Cir. 2010) (“Nothing in the First
Amendment itself suggests that the right to petition for redress of grievances only attaches when
the petitioning takes a specific form.” (quoting Pearson v. Welborn, 471 F.3d 732, 741 (7th Cir.
2006) (“We decline to hold that legitimate complaints lose their protected status simply because
they are spoken.”))); Maben, 887 F.3d at 265 (holding “prison officials [are not] allowed to
9
retaliate against [an inmate] for making an oral grievance”). Thus, the Court asks whether
Plaintiff’s verbal complaints or interactions were made as “part of his attempt to access” redress
for his grievance. Siggers-El v. Barlow, 412 F.3d 693, 699 (6th Cir. 2005); Maben, 887 F.3d at
264-65. If so, that conduct is protected under the First Amendment.
First, Plaintiff alleges that he engaged in protected conduct when he advised Inmate Trusty
that Trusty could file a grievance concerning a cell transfer conducted by Defendant Burns [Doc.
109-2 p. 25-27]. 5 But any right Plaintiff had to assist Inmate Trusty is limited to assistance
necessary to vindicate Trusty’s right of access to legal redress. See, e.g., Thaddeus-X, 175 F.3d at
395. And there is no evidence that Inmate Trusty would have been unable to file a grievance or
pursue legal redress absent Plaintiff’s assistance. See Cromer v. Dominguez, 103 F. App’x 570,
573 (6th Cir. 2004) (finding the inmate plaintiff did not engage in protected conduct by
representing inmates in presenting grievances where the plaintiff did not show that the inmates
receiving the assistance would otherwise be unable to pursue legal redress (citing Herron, 203
F.3d at 415)). Therefore, Plaintiff did not engage in protected conduct within the meaning of the
First Amendment when he advised Inmate Trusty regarding his grievance rights.
Second, Plaintiff maintains that he engaged in protected conduct when he complained to
Defendant Burns, sponsor of the Lifer’s Club, that he permitted an ineligible inmate to place
membership in the organization [Doc. 105 p. 10]. Plaintiff argues that he “had an interest as
president of the Lifer’s Club to ensure that it operated within the parameters of department policy
and their bylaws” [Id.] But his verbal complaint to Defendant Burns was not lodged to remedy
anything that affected Plaintiff’s own rights. See Herron, 203 F.3d at 415. And, in fact, Plaintiff’s
5
Plaintiff never submitted a verbal or written grievance over the matter [Doc. 109-2 p. 32].
10
conversation with Defendant Burns was not an attempt to petition for redress, as Plaintiff had the
authority to unilaterally remove the ineligible inmate from the roster and did so [Doc. 109-2 p. 31].
Therefore, Plaintiff’s verbal complaint regarding the Lifer’s Club does not constitute protected
conduct.
Third, Plaintiff contends he engaged in protected conduct when he complained to
Defendant Lewis in September 2021 that his commissary was stolen, ostensibly by volunteer
worker John Bennett [Doc. 104 p. 7; Doc. 109-2 pp. 23-25; Doc. 124 pp. 22-23 ¶¶ 53-54]. This
verbal complaint was made on Plaintiff’s own behalf, Herron, 203 F.3d at 415, and it was a
conversation Plaintiff initiated to seek relief about a prison issue, Maben, 887 F.3d at 265 [See
Doc. 109-2 p. 24]. Therefore, the Court finds Plaintiff engaged in protected conduct when he made
a verbal complaint to Defendant Lewis concerning his commissary.
B.
Adverse Action
The second element of a retaliation claim is whether “an adverse action was taken against
the plaintiff that would deter a person of ordinary firmness from continuing to engage in that
[protected] conduct[.]” Thaddeus-X, 175 F.3d at 394. Defendants argue that prison transfers that
do not involve a change in security level (like Plaintiff’s) are “ordinary incidents of prison life”
that do not give rise to a retaliation claim absent Defendants’ knowledge of “foreseeable, negative
consequences” that “inextricably followed” as a result of the transfer [Doc. 109 pp. 13-14, citing
Jones v. Caruso, 421 F. App’x 550, 553 (6th Cir. 2011) (citations and internal quotation marks
omitted)].
“Since prisoners are expected to endure more than the average citizen, and since transfers
are common among prisons, ordinarily a transfer would not deter a person of ordinary firmness
from continuing to engage in protected conduct.” Siggers-El, 412 F.3d at 701. Defendants contend
that the consequences suffered by Plaintiff as a result of his transfer, such as the loss of his job,
11
educational opportunities, etc., are not adverse under the First Amendment, as Plaintiff has no
vested constitutional interest in such things [Doc. 109 pp. 14-17]. But “[t]he lack of entitlement
to a particular privilege does not free prison administrators to grant or withhold the privilege for
impermissible reasons.” Newsom v. Norris, 888 F.2d 371, 377 (6th Cir. 1989); see also Brown v.
Johnson, No. 2:10-CV-965, 2012 WL 3237198, at *3 (S.D. Ohio Aug. 7, 2012) (“The law with
respect to retaliation simply does not require that every act taken by a prison official in retaliation
for an inmate’s exercise of his constitutional rights be an independent constitutional violation. If
that were the case, the retaliation claim would always be superfluous, because the inmate could
simply proceed on the underlying constitutional violation.”). Moreover, because “there is no
justification for harassing people for exercising their constitutional rights,” the deterrent effect
“need not be great to be actionable.” Thaddeus-X, 175 F.3d at 398 (citation omitted); see also
Zilich v. Longo, 34 F.3d 359, 364 (6th Cir. 1994) (“[R]etaliation by public officials against the
exercise of First Amendment rights is itself a violation of the First Amendment.”) (citation
omitted).
Here, Plaintiff has presented evidence that that his transfer led to a number of foreseeable
consequences, such as the loss of property; loss of a high-wage job; loss of participation in
rehabilitative, vocational, and educational programs; loss of more lenient access to recreation and
the law library; and transfer to an institution housing more violent, higher-classification inmates
[Doc. 104-1 pp. 39, 43-44, 46-48, 50-51, 53-54, 57-59 ¶¶ 4-9, 62-63 ¶ 18; Doc. 122 pp. 7-8 ¶¶ 2126; Doc. 125-1 ¶ 16]. Such consequences could constitute an adverse action. See, e.g., Hill, 630
F.3d at 474 (finding transfer to facility with more restrictions and fewer privileges constituted
adverse action); Siggers-El, 412 F.3d at 701-02 (finding transfer adverse where it caused prisoner
loss of high-paying job); Bell v. Johnson, 308 F.3d 594, 604 (6th Cir. 2002) (finding confiscation
of property and legal papers sufficient to support the adverse action element of retaliation claim);
12
Clark v. Johnston, 413 F. App’x 804, 815 (6th Cir. 2011) (finding “deprivation of personal . . .
property can be considered an adverse action”); Reynolds v. Green, 25 F. App’x 256, 261 (6th Cir.
2001) (finding adverse action where prisoner was transferred from facility where he could “come
and go with permission” to one where he could not). And because a reasonable jury could find (or
decline to find) the consequences suffered by Plaintiff would be sufficient to deter a person of
ordinary firmness from continuing to pursue lawsuits or lodge complaints regarding his prison
conditions, summary judgment is not warranted as to the second element of Plaintiff’s retaliation
claim. See Bell, 308 F.3d at 603 (finding that “unless the claimed retaliatory action is truly
inconsequential, the plaintiff’s claim should go to the jury”) (citation and internal quotation marks
omitted).
C.
Causal Connection
The third element of a retaliation claim–causation– is typically a factual issue. Maben, 887
F.3d at 267. It considers whether the defendants’ subjective motivation for the adverse action was,
at least partially, to retaliate against the plaintiff for engaging in protected conduct. Hill, 630 F.3d
at 475. The causation inquiry requires a plaintiff to show both: (1) “that the adverse action was
proximately caused by an individual defendant’s acts” and (2) “the individual taking those acts
was motivated in substantial part by a desire to punish an individual for exercise of a constitutional
right[.]” King v. Zamiara, 680 F.3d 686, 695 (6th Cir. 2012) (citations and internal quotation
marks omitted). This standard “includes liability for acts giving rise to the ultimate harm, even if
the harm is executed by someone else.” Id. (citation omitted). Because of the difficulty in proving
an individual’s motive, circumstantial evidence, such as “the disparate treatment of similarly
situated individuals or the temporal proximity between the [plaintiff’s] protected conduct and the
official’s adverse action” may be sufficient to “create an inference of retaliatory motive.” Hill,
13
630 F.3d at 475-76 (citations omitted). If a plaintiff can make this showing, the defendants then
has the burden of showing that they would have taken the same action even absent the protected
conduct. Thaddeus-X, 175 F.3d at 399.
Defendants argue that there is no evidence to suggest that Plaintiff’s conduct motivated
Defendants’ actions, and the temporal proximity between the lawsuits and Defendants’ conduct is
too tenuous to impose liability [See Doc. 109 pp. 17-18, 22; Doc. 129 pp. 5-7]. They note, for
example, that the evidence establishes that Plaintiff never filed a grievance about his missing
commissary or discussed it with Defendant Burns [Doc. 109-2 p. 24]; the Parker lawsuit was
dismissed almost two years before Plaintiff’s transfer, and Defendants were not parties in that suit
[Doc. 109-2 pp. 16-17; Doc. 109-8 p. 4 ¶17; Doc. 109-9 p. 3 ¶12; Doc. 124 p. 17 ¶ 40]; and the
Baker lawsuit took place in 2015, judgment issued in 2019, and Defendants were not parties or
personally involved in that suit [Doc. 109-2 pp. 20-21; Doc. 109-8 p. 3 ¶ 16; Doc. 109-9 p. 3 ¶ 11;
Doc. 124 p. 15 ¶ 37]. Defendants otherwise argue that they have demonstrated that Plaintiff would
have been transferred even in the absence of any protected activity by Plaintiff, as the evidence
makes it clear that Plaintiff was transferred as part of a standard procedure based on the legitimate
needs of the prison [Doc. 109 p. 23; see also Doc. 109-4 p. 3 ¶¶ 12-19].
But Plaintiff has presented declarations from Bruce Tuck and James Roysdon, both of
whom maintain that Defendant Burns stated on separate occasions that Plaintiff was transferred
because of the effect the Baker lawsuit had on Burns’ father [Doc. 104-1 p. 37, 41]. Specifically,
Bruce Tuck maintains that Defendant Burns “state[d] that he had [Plaintiff] moved in a bragging
manner[,]” and that although he “advised Lewis that he wanted [Plaintiff] placed on the list because
he had become ‘too comfortable with staff, calling staff members by their first names and
demanding that things be done on behalf of the Lifer’s Club, but the real reason was due to the
14
lawsuit that [Plaintiff] filed against TRICOR,’ because Burn[]s’ father was working for TRICOR
at the time that the lawsuit was filed” [Doc. 104-1 p. 37 ¶ 2]. James Roysdon avers that he was
present in Defendants’ office when Defendant Burns told Defendant Lewis to place Plaintiff’s
name on the transfer list, and that Defendant Burns stated that the “reason for it” was “to get a little
pay-back” “because of a lawsuit that [Plaintiff] had filed on TRICOR” that caused Burns’ “father
[to] pace the floors worrying” [Doc. 104-1 p. 41 ¶¶ 3-4]. Defendant Burns denies this allegation
but admits that Inmate Roysdon was present in Defendants’ office when the decision was made to
add Plaintiff to the transfer list [Doc. 104 pp. 91-92 ¶¶ 5, 7; Doc. 109-9 p. 3 ¶ 11].
Defendants urge the Court to find these inmate declarations regarding Defendant Burns’
alleged statements impermissible hearsay [Doc. 129 pp. 6-7].
A court cannot consider
inadmissible hearsay when ruling on a motion for summary judgment. Wiley v. United States, 20
F.3d 222, 226 (6th Cir. 1994). But these statements are not hearsay, because they are “offered
against a party and [are] ‘the party’s own statement in either an individual or representative
capacity.’” Jewell v. CSX Transp. Inc., 135 F.3d 361, 365 (6th Cir. 1988) (quoting Fed. R. Evid.
801(d)(2)(A)). Instead, the Court finds these statements are “key piece[s] of evidence relating to
causation[.]” Muhammad v. Close, 379 F.3d 413, 417-18 (6th Cir. 2004) (finding court should
have considered inmate affidavit recounting alleged overheard conversation between corrections
officers).
And Plaintiff’s claim that his transfer was retaliatory is supported with other circumstantial
evidence to counter Defendants’ evidence. First, Plaintiff avers that the BCCX compound where
he was housed is separate from the BCCX annex, such that his transfer would not make beds
available at BCCX’s annex [Doc. 125-1 pp. 7-8 ¶ 17]. Next, as to the claim that Plaintiff was
transferred because of a lengthy pattern of disrespectful behavior and conduct, his comfort
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disregarding rules regarding attire, an overall deterioration in his respect toward prison authority,
and for failure to follow TDOC policies [see Doc. 104 p. 51 ¶ 6], there is no evidence of such
conduct in the record. Rather, on September 17, 2021, approximately two weeks prior to Plaintiff’s
transfer, at Plaintiff’s annual reclassification hearing, a classification panel that included
Defendant Burns determined that Plaintiff would remain minimum custody at BCCX and continue
working in the TRICOR program [See Doc. 104 p. 24 ¶ 3; Doc. 104-2 pp. 53-56; Doc. 104-1 p. 5
¶ 4]. Defendant Burns did not express any concerns regarding Plaintiff’s conduct, dress, or attitude
at that time [Doc. 104-1 p. 5 ¶ 5].
Further, Defendant Lewis’ contention that Plaintiff was transferred for a “lengthy pattern
disrespectful behavior and conduct directed toward institutional staff” in 2021 [Doc. 109-8 p. 3 ¶
10] is a stark contrast to the clemency recommendation he wrote for Plaintiff in 2020 asserting that
Plaintiff “has always been helpful and respectful to [Defendant Lewis] and other staff” [Doc. 1042 p. 95]. And Plaintiff has presented evidence that he has no disciplinary history or negative
contact notes at all, much less for the allegedly disruptive behaviors cited by Defendants [Doc.
104-1 p. 5 ¶ 7; Doc. 104-2 pp. 63-108]. To contrast Defendants’ assertions regarding Plaintiff’s
behavior/conduct, Plaintiff has produced evidence of his significant rehabilitative efforts while
incarcerated, which include that he has earned two college degrees and two vocational
certifications, completed numerous programs and classes, and served approximately eleven years
on the board of the Lifer’s Club [Doc. 122 p. 19 ¶ 61; Doc. 125-2].
Accordingly, under the evidence presented, a rational jury could ultimately conclude that
Plaintiff’s protected conduct motivated Defendants’ decision to transfer him. And the same jury
could conclude that Plaintiff’s protected conduct did not motivate Defendants, or that they would
have transferred him anyway. The Court concludes it is a jury’s call to make.
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IV.
CONCLUSION
As set forth above, there are genuine disputes of material fact as to Plaintiff’s retaliatory
transfer claim that preclude resolving this case on summary judgment. Therefore, the summary
judgment motions of both parties [Docs. 103 and 108] are DENIED. Thus, this case will proceed
to trial on Plaintiff’s retaliatory transfer claim against (1) Defendants Randall Lewis and Luke
Burns solely in their individual capacities and (2) Defendants Frank Strada and Shawn Phillips
solely in their respective official capacities and only for any prospective injunctive relief that may
ultimately be ordered [See Doc. 89 ¶¶ 15-16].
Considering this Order, Plaintiff’s motion to defer adjudication of Defendant’s motion for
summary judgment and reopen discovery [Doc. 117] is also DENIED. See Fed. R. Civ. P.
56(d)(1)-(3).
SO ORDERED.
ENTER:
s/
Susan K. Lee
SUSAN K. LEE
UNITED STATES MAGISTRATE JUDGE
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