United States District Court, E.D. Michigan, Southern Division
L. TUCKER, Plaintiff,
T. PENTRICH, et al., Defendants.
REPORT AND RECOMMENDATION PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (Dkt. 66) AND DEFENDANTS' FOR SUMMARY JUDGMENT (Dkt. 70)
MICHAEL HLUCHANIUK, Magistrate Judge.
I. PROCEDURAL HISTORY
Plaintiff filed his prisoner civil rights complaint on August 18, 2009. (Dkt. 1). Plaintiff's complaint was initially dismissed under the "three strikes" rule. (Dkt. 6). After a trip to the Sixth Circuit Court of Appeals, the dismissal was reversed and this matter was reopened in June, 2012. (Dkt. 11, 12). On August 31, 2012, this matter was referred to the undersigned for all pretrial proceedings. (Dkt. 20).
Defendants previously filed a motion for summary judgment on December 21, 2012. (Dkt. 30). The undersigned concluded that a genuine issue of material fact existed regarding the excessive force claim and declined to analyze the collateral estoppel theory set forth in Peterson v. Johnson, 714 F.3d 905 (6th Cir. 2013), which was issued after the motion for summary judgment was filed and which was not analyzed in the parties' briefs. (Dkt. 55). Because there was a question of fact on the excessive force claim, the undersigned also determined that no determination could be made on defendants' argument, as to plaintiff's retaliation claim, that they would have taken the actions regardless of plaintiff's complaint. Id. The undersigned also determined that plaintiff's claims that he was issued misconduct tickets in retaliation were "checkmated" by his findings of guilt and thus, should be dismissed. Defendant Holland's motion for summary judgment based solely on exhaustion was held in abeyance pending plaintiff's ability to review discovery responses and provide a complete substantive response on the issue of exhaustion. Id. This report and recommendation was adopted by the District Court. (Dkt. 57).
Plaintiff filed his own motion for summary judgment on March 28, 2014. (Dkt. 66). Defendants filed a response on April 21, 2014. (Dkt. 68). Plaintiff filed a reply on May 6, 2014. (Dkt. 69). Defendants filed a second motion for summary judgment on May 12, 2014. (Dkt. 70). Plaintiff filed a response July 24, 2014. (Dkt. 73). Defendants filed their reply on August 11, 2014. (Dkt. 74).
These matters are now ready for report and recommendation. For the reasons set forth below, the undersigned RECOMMENDS that plaintiff's motion for summary judgment be DENIED and that defendants' motion for summary judgment be DENIED in part and GRANTED in part.
II. FACTUAL BACKGROUND
A. Plaintiff's Complaint
Plaintiff's complaint is brought pursuant to 42 U.S.C. § 1983 and he claims infringement of his civil rights, alleging violations of the First and Eighth Amendments of the United States Constitution. During the time period relevant in the complaint, plaintiff was incarcerated at the St. Louis Correctional Facility (SLF), Ionia, Michigan. Plaintiff alleges that on June 17, 2009, Corrections Officers (C/Os) Todd Pentrich and Kirk Kerkau made disparaging comments while escorting him from a dental appointment. Once inside the housing unit, plaintiff alleges that these officers kicked his feet out from underneath him and took him to the floor. Plaintiff claims that while on the floor, Officer Pentrich intentionally placed his thumb in plaintiff's left eye and then started to choke him by applying pressure to his neck and jaw and pressing his finger on plaintiff's Adam's apple. (Dkt. 1, ¶ 18). Plaintiff next alleges that after he was returned to his cell, Sergeant Shaw and Officers Pentrich and Kerkau pulled on his belly chains "with great force in an attempt to cause plaintiff Tucker injury and pain." (Dkt. 1, ¶ 28). Plaintiff also alleges that the misconduct violations issued by Sergeant Shaw and Officer Pentrich were false and retaliatory in nature. Finally, Tucker alleges that Hearings Investigator Brenda Holland failed to conduct an adequate investigation so that he could defend the misconduct charges levied against him.
In Count I of the Complaint, plaintiff alleges excessive force and assault and battery by defendants Pentrich and Kerkau. (Dkt. 1, Pg ID 3). In Count II of the Complaint, plaintiff alleges First amendment retaliation. Specifically, plaintiff claims that because of his role as a prisoner rights activist and jailhouse lawyer, defendants Pentrich and Kerkau retaliated against him based on the use of excessive force described in Count I. Plaintiff also alleges that they retaliated by issuing the false misconduct report, issuing the false critical incident reports, and by causing him permanent injury. He claims that the issuing of the reports was pretextual, in order to cover up their retaliatory motive. In Count III, plaintiff alleges that defendant Shaw kicked him and stood on his leg while he was on the floor, during the same incident with defendants Pentrich and Kerkau. In Count IV, plaintiff alleges retaliation by defendant Shaw after plaintiff told him he would file a grievance regarding the excessive force/assault and battery claims. Specifically, plaintiff claims that Shaw issued a false misconduct report, and participated in the second assault and battery when he was returned to his cell. In Count V, plaintiff alleges retaliation by defendant Holland. According to plaintiff, Holland told him that she would not find witnesses for his misconduct hearing and as far as she was concerned, he was guilty. He also says that she failed to produce the video at the misconduct hearing based on plaintiff's having previously filed a grievance against her.
1. Plaintiff's Motion for Summary Judgment
Plaintiff moves for summary judgment on the issue of exhaustion of his claim against defendant Holland. According to plaintiff, defendant Holland adopted a retaliatory unwritten policy of engaging in retaliation because plaintiff had a pending grievance against him. Holland was the hearing investigator for plaintiff's misconduct tickets and, according to plaintiff, refused to locate or interview witnesses because of the grievance filed against her. Plaintiff contends that he filed a request for re-hearing of his misconduct tickets and that decisions made by hearing officers are non-grievable. (Dkt. 66, Exs. 6, 8). While a prisoner may appeal the result of the request for re-hearing, plaintiff says that this is not a required administrative remedy. Thus, he exhausted his state administrative remedies.
In response, Holland asserts that exhaustion is an administrative remedy and to the extent plaintiff exhausted his claims, it is not dispositive of his claim. Rather, exhaustion is an affirmative defense that, if satisfied, allows a plaintiff to proceed to the merits of his claims. Holland also asserts that plaintiff fails to establish the lack of material fact regarding the merits of his retaliation claims.
2. Defendants' Motion for Summary Judgment
According to defendants, plaintiff's excessive force allegations depend on two assertions. The first is that, unprovoked, officers kicked his feet out from underneath him and Officer Pentrich poked his left eye and started to choke him. The second is that, after he was returned to his cell, Shaw, Pentrich and Kerkau pulled on plaintiff's belly chains with great force in an attempt to cause pain and injury. Contrary to plaintiff's allegations, defendants assert that the hearing officer found, in hearings on the two misconducts, that it was plaintiff who initiated the encounters which led to the use of force. In the misconduct hearing on Pentrich's misconduct report during the cell escort, the hearing officer found:
I find that prisoner Tucker turned and pulled away from officers Kerkau and Pentrich as he was being escorted back to his cell. I find that he physically resisted staff by pulling away during the escort. I find that he stated, "Take me out of these restraints and I will whip your ass!" I find that he opined as to how he should spit in the face of Officer Pentrich. I find that he was ordered not to turn around while being escorted. I find the order was repeated several times. I find that he attempted to turn around in an apparent effort to position himself so ...