United States District Court, E.D. Michigan, Southern Division
REPORT AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFF'S MOTION TO AMEND , TO GRANT IN PART AND DENY IN PART DEFENDANTS MAULDIN, WARD AND GODFREY'S MOTION TO DISMISS , AND GRANT DEFENDANT STAPLETON'S MOTION TO DISMISS 
ELIZABETH A. STAFFORD, Magistrate Judge.
Plaintiff Annie Cole, a Michigan Department of Corrections ("MDOC") prisoner proceeding pro se, alleges that she was penalized with segregation when she objected to being transferred to a unit in which an inmate who had previously assaulted her was housed, and that she was denied due process during the administrative hearing process. Before the Court are two motions to dismiss [21 and 38], and Cole's motion to amend her complaint . For the following reasons, the Court finds that Cole has stated a plausible claim for First Amendment retaliation against defendant Benjamin Mauldin and that his claim for qualified immunity should be denied, but that all other defendants and claims should be dismissed. Consequently, the Court recommends granting in part and denying in part Cole's motion to amend , granting in part and denying in part Mauldin, Ann Ward and Melissa Godfrey's motion to dismiss , and granting Richard Stapleton's motion to dismiss .
Annie Cole, a MDOC inmate located in the Women's Huron Valley Correctional Facility, filed her original complaint against several MDOC employees in both their official and individual capacities. Cole alleged violations of her First, Eighth and Fourteenth Amendment rights and sued for both declaratory relief and monetary damages. . Before her complaint was served, and within the timeframe permitted by Federal Rule of Civil Procedure 15, Cole amended her complaint. .
According to those complaints, defendant Resident Unit Officer T. Marshall informed her that she was being moved to Unit 5. Cole objected, telling Marshall that another inmate in Unit 5 had stalked her, demanded sex and sliced her in the shower. Marshall relayed the objection to defendant Sergeant Godfrey, who refused to change the unit transfer and denied Cole's subsequent request for protective custody.
Cole had an officer who had personal knowledge of the history between Cole and the other inmate call defendant Lieutenant Wixon. The officer explained Cole's concerns, but Wixon denied the officer's requests to stop the transfer or to move Cole protective custody. Cole returned to her living unit and again appealed to Marshall. Marshall relayed Cole's continued objection to Godfrey, but she still refused to move Cole to a different unit or to protective custody.
Cole packed her property, but asked Marshall to call the control center before she completed her move. Sergeant Mauldin answered and came to the unit. Cole told Mauldin that she felt that she could not move to Unit 5 because she feared for her life due the stalking and assault. She told Mauldin she preferred to go to protective custody. Mauldin became angry and told Cole that protective custody and segregation were the same thing, and that she was now on her way to segregation. Mauldin then wrote Cole a major misconduct ticket for disobeying a direct order and revoked her bond, resulting in her immediate placement in segregation.
A hearing was scheduled and Cole requested that Ward, the hearing investigator, gather statements from witnesses. Two of the relevant witnesses were unavailable due to their pending retirements, and did not answer the questions posed to them. The hearing went forward as scheduled, resulting in Cole being found guilty and sentenced to thirty days in segregation. She also lost her prison job. Cole appealed the misconduct ruling, citing the lack of relevant witnesses. Stapleton, the hearings administrator, denied the appeal. Cole appealed that decision to the Ingham County Circuit Court, which granted her a rehearing based on the absence of the relevant witnesses. The misconduct charge was ultimately dismissed on remand due to the inability to contact those witnesses.
Cole's original complaint named Mauldin, Ward, Wixon, Godfrey, Marshall and Stapleton as defendants, while her first amended complaint names Mauldin, Ward, Stapleton and Zeller. On July 22, 2014, Mauldin, Ward and Godfrey moved to dismiss Cole's complaint, arguing that her complaint fails to state a claim upon which relief can be granted, that Eleventh Amendment immunity precludes Cole's suit against the defendants in their official capacity, and that hearing investigator Ward is entitled to absolute immunity. Additionally, they argue that qualified immunity applies because Cole has failed to establish that her constitutional rights were violated.
Before the July 22 motion was briefed further, Cole moved to amend her complaint again. . In her proposed second-amended complaint, she seeks to add back Godfrey, Wixon and Marshall as defendants, and to dismiss claims against all defendants in their official capacities except Stapleton and Zeller. She further seeks to better frame her claims for relief, citing the First, Eighth and Fourteenth Amendments in her complaint and adding additional facts related to those claims. Mauldin, Ward and Godfrey argue in response that her amendments are futile as they cannot save her otherwise failing claims. .
Defendant Stapleton then moved to dismiss Cole's claim against him, arguing that as a hearing administrator he is absolutely immune from suit for money damages. . In his reply, he further argues that Cole cannot avoid the application of sovereign immunity by requesting declaratory relief since her claims are based upon past conduct. .
For the reasons stated below, the Court recommends that Cole's Motion for Leave to File an Amended Complaint be granted only with respect to her First Amendment retaliation claims against Mauldin. Otherwise, the motion for leave to amend should be denied, and the other claims and defendants should be dismissed.
A. Legal Standard
1. Motion To Dismiss