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Jones v. Collins

United States District Court, W.D. Michigan, Southern Division

March 3, 2017

DAVIE L. JONES, Plaintiff,
v.
UNKNOWN COLLINS, et al., Defendants.

          REPORT AND RECOMMENDATION

          RAY KENT United States Magistrate Judge.

         This is 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).

         I. Background

         Plaintiff's 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 official capacities.

         Plaintiff's 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.

         Plaintiff 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 Williams. Id.

         On 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 PageID.7.

         At the 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.[1] 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.

         On 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.

         On that 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. Id.

         In his 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.

         II. Defendants' motion for summary judgment

         A. Legal standard

         “The 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.

         Fed. R. Civ. P. 56(c)(1).

         In Copeland v. Machulis, 57 F.3d 476 (6th Cir. 1995), the court set forth the parties' burden of proof ...


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