United States District Court, W.D. Michigan, Southern Division
DAVIE L. JONES, Plaintiff,
UNKNOWN COLLINS, et al., Defendants.
REPORT AND RECOMMENDATION
KENT United States Magistrate Judge.
a pro se civil rights action brought by a state
prisoner in the custody of the Michigan Department of
Corrections (MDOC) pursuant to 42 U.S.C. § 1983. This
matter is now before the Court on defendants' motion for
summary judgment for lack of exhaustion and Eleventh
Amendment immunity (docket no. 10).
complaint is essentially one for retaliation against four
MDOC employees at the Carson City Correctional Facility
(DRF): Property Room Sgt. Gary Collins; Assistant Resident
Unit Manager (ARUM) Chad Williams; Corrections Officer (CO)
Michael Schafer; and Resident Unit Manager (RUM) William
Andersen. Plaintiff has sued all defendants in their personal
capacities, and defendants Collins and Andersen in their
claims arise from the following incidents which occurred at
DRF. On November 2, 2014, plaintiff was moved from Level I to
Level IV pending a misconduct hearing for fighting. Compl.
(docket no. 1, PageID.4). Plaintiff was found guilty on
November 5th, “waived to Level IV, ” and received
a sanction of 12 days' loss of privileges (LOP).
Id. On November 6th, plaintiff reported to the DRF
property room where a non-party CO issued some of
plaintiff's state issued property and told plaintiff that
his personal property was in a bag labeled “Excess
property/Contraband” and would be handled by Sgt.
Collins. Id. On November 7th, plaintiff told ARUM
Williams that he was not provided with all of his state
issued property or any of his personal property. Id.
Williams said he would look into it. Id. Sgt.
Collins never responded to plaintiff's kites on November
10th and 17th regarding the property. Id. Plaintiff
asked ARUM Williams about his property on November 18th
without success. Id. at PageID.4-5. Williams stated
that he would handle the property issue on December 5th.
Id. at PageID.5. However, Williams did not address
plaintiff's property issue and on December 8th told
plaintiff to stop bothering him about it. Id.
filed a grievance on December 9th. During the grievance
interview with Sgt. Collins on December 11th, Collins gave
plaintiff the rest of his state issued property but refused
to give plaintiff his personal property and stated that he
would confiscate it because it was labeled as contraband.
Id. Plaintiff told Collins that he would be filing a
grievance, which he did that evening, grievance DRF
2014-02662-19z (“2662”). Id. Plaintiff
received a response to the grievance on January 12, 2015.
Id. at PageID.6. On that same date, plaintiff mailed
“Administrative Notices” to a number of MDOC
employees, including Sgt. Collins and ARUM Williams, stating
that Collins and Williams “conspired to retaliate
against him for exercising his right to file grievances
against them.” Id. On January 13th, plaintiff
sent through institutional mail copies of “Internal
Affairs Investigation Requests and Civil Service Commission
Staff Misconduct Complaints” against Collins and
January 16th, plaintiff went to ARUM William's office to
mail the notices and complaints by “expedited legal
mail, ” at which time Williams made sarcastic comments
to plaintiff about playing “the grievance and complaint
filing game.” Id. at PageID.7. Later that day,
CO Schafer came to plaintiff's cell announcing a
shakedown, again referring to “the grievance and
complaint filing game.” Id. After the
shakedown, plaintiff found his typewriter damaged.
Id. Shortly thereafter, he was escorted out of the
cell where he was given a Class I charge of “Possession
of Dangerous Contraband / Possession of Weapon.”
Id. The misconduct report identified the weapon as
“a Razor Blade attached to a White Plastic Tube about 5
inches long” found inside plaintiff's mattress.
Misconduct Report (docket no. 5-2, PageID.100). Plaintiff
pled not guilty and stated that CO Schafer planted the weapon
on behalf of Sgt. Collins and ARUM Williams in retaliation
for plaintiff filing his grievances and complaints. Compl. at
January 27th misconduct hearing, plaintiff was found guilty
of possession of a weapon. Id. at PageID.8. The
dangerous contraband charge was dismissed and a sanction of
10 days detention in punitive segregation was imposed with an
additional 30 days LOP. Id. On February 1st, plaintiff
filed the Step II appeal on grievance 2662. Id. On
February 3rd, after meeting with the Security Classification
Committee (which included defendant RUM Andersen), plaintiff
was re-classified to the Level IV general population, even
though he “expressed his reasonable fear that further
retaliation would occur if sent back to general population
anywhere at (DRF).” Id.
February 4th, RUM Andersen spoke with plaintiff. Id.
at PageID.9. When plaintiff asked if Collins, Williams and
Schafer had been fired, Andersen said that plaintiff should
not have filed the grievance and complaints. Id. On
February 6th, plaintiff was ordered to pack to return to the
Level IV general population. Id. When plaintiff said
he was “fearful and too scared to return to any level
here at (DRF), ” the CO stated that he would issue
plaintiff a misconduct for disobeying a direct order (DDO)
and that if plaintiff “continued to refuse and file
more grievances, (RUM) Anderson [sic]would initiate a
transfer to the Upper Peninsula.” Id. At the
misconduct hearing for the DDO held on February 12th,
plaintiff pled not guilty “due to his reasonable fear
of further retaliation.” Id. However, the
hearing officer found plaintiff guilty. Id.
same day, plaintiff filed another grievance, DRF
2015-02-00416-17B (“416”). Id. Plaintiff
did not allege the substance of the grievance. Although this
lawsuit is based upon the grievance, neither plaintiff nor
defendants have provided the Court with a copy of the
grievance or the Step I response to the grievance. On
February 16th, plaintiff kited the grievance coordinator
because he had not received a grievance receipt or
identification number. Id. at PageID.10. That same
day, RUM Andersen expressed his displeasure about being named
in Grievance 416 and threatened to transfer plaintiff
“up North.” Id. On February 19th,
plaintiff was transferred to Level IV at the Chippewa
Correctional Facility (URF) located in the Upper Peninsula.
complaint, plaintiff set forth five causes of action. Count
One alleged retaliation against Collins, Williams and Schafer
“for conspiring to plant a dangerous weapon and issue
false misconduct” in violation of his First Amendment
rights. Count Two alleged retaliation against Collins,
Williams and Schafer for the same conspiracy. Count Three
alleged that RUM Andersen retaliated against plaintiff. Count
Four alleged that the transfer to URF was retaliatory.
Finally, Count Five alleged that the actions of defendants
“in causing and conspiring to cause Plaintiff the
aforementioned mental and emotional distresses violated 42
U.S.C. section 1983 and Michigan Tort Law.”
Id. at PageID.12-14. Plaintiff seeks compensatory
and punitive damages. Id.
Defendants' motion for summary judgment
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). Rule 56 further provides that a party
asserting that a fact cannot be or is genuinely disputed must
support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.
Civ. P. 56(c)(1).
Copeland v. Machulis, 57 F.3d 476 (6th Cir. 1995),
the court set forth the parties' burden of proof ...