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Moore v. Johnson

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

June 4, 2018

ANTHONY LAMONT MOORE #255379, Plaintiff,
v.
UNKNOWN JOHNSON, et al., Defendants.

          REPORT AND RECOMMENDATION

          TIMOTHY P. GREELEY UNITED STATES MAGISTRATE JUDGE.

         This is a civil rights action brought by state prisoner Anthony Lamont Moore pursuant to 42 U.S.C. § 1983. Plaintiff is currently confined at the Baraga Maximum Correctional Facility. The events about which Plaintiff complains occurred while he was confined at the Newberry Correctional Facility. Plaintiff alleges that Defendants Johnson, Flatt, Burke, McGinn, Hubble, and Gloud violated his rights. Defendants filed a motion for summary judgment (ECF No. 36). Plaintiff filed a response. (ECF No. 39).

         On January 13, 2015, Plaintiff's cell was searched by corrections officer Defendant Burke and a new corrections officer that Burke was training. Defendant Johnson accused Plaintiff of having his foot on the dirty cell wall. Plaintiff believed that Defendant Johnson was accusing him of destroying state property. Defendant Johnson issued Plaintiff a misconduct ticket for loitering. Plaintiff states that the ticket was racially motivated because prisoner Stump, who is white and also present in the cell, did not receive a ticket.

         Plaintiff asserts that on January 26, 2015, Defendant Johnson told him to report to his office at 3:00 pm because the sergeant wanted to speak to him about a grievance that Plaintiff had written complaining about Defendant Johnson. Defendant Johnson accused Plaintiff of lying. Plaintiff denied lying on the grievance. Defendant Johnson then stated that “since you lie shake down.” Plaintiff filed a grievance later that day.

         On April 2, 2015, Plaintiff got into the shower at 12:50 pm. At 1:03 pm, Defendant Johnson told Plaintiff to get his I.D. card and report to the office. When he arrived at the office, Defendants Burke and Johnson had the “Double OO, unemployment status rules out.” Plaintiff asserts that he was required to ask permission to go to showers and the bathroom although other prisoners on “Double OO status” did not need to ask to for permission. Plaintiff asserts that Defendants Burke and Johnson took this action because Plaintiff had filed grievances against them.

         On April 15, 2015, Defendant Johnson searched the cube and “tore-up” Plaintiff's area of control. Defendant Johnson told Plaintiff that he was teaching him a lesson for writing grievances on staff. Plaintiff filed a grievance on Defendant Johnson. On April 16, 2015, Defendant Johnson stated “Moore you see how I lied on you by writing the tickets, and you see how we are only applying the double OO status rule to you and nobody else, now keep on writing those grievances and watch what happens to you.” Plaintiff submitted a grievance on this issue.

         Plaintiff alleges that after he spoke with shift command, he was moved from 11 Unit to 10 Unit. When Plaintiff arrived at 10 Unit, Defendant Flatt told Plaintiff that he “was not going to be on that same bullsh** that Plaintiff had submitted on his co-worker, Defendant Johnson from January 13, 2015 all the way up to April 16, 2015, for Defendant Johnson's acts.” Plaintiff asserts that he later learned that he had been moved because Defendant Johnson wanted his friends in 10 Unit to harass Plaintiff. Defendant Johnson spoke to Plaintiff in the chow hall and requested Plaintiff's I.D. At that time, Defendant Johnson told Plaintiff that filing grievances got him two false misconduct tickets and moved out of Johnson's unit. Defendant Johnson stated “this little act between you and me is not over. And don't be surprise if a knife, a razor, or drugs, be found in your area of control.” Plaintiff submitted a grievance.

         On May 12, 2015, Defendant Johnson woke Plaintiff to inform him that he was working in Plaintiff's unit and intended to write Plaintiff misconduct tickets. In fact, Defendant Johnson issued two misconduct tickets, which were subsequently dismissed. Plaintiff sent a grievance to the Office of Legal Affairs, but was told to re-file a step I grievance at the prison. The grievance coordinator refused to process the grievance.

         Plaintiff alleges that on August 20, 2015, he was playing pinochle with prisoner Ellington. Plaintiff was winning and setting-up Ellington with the help of another prisoner to ensure the win. Ellington threatened to harm Plaintiff and twice pointed his finger in Plaintiff's face. Plaintiff left the game and went to the office where Defendant Flatt was working on a computer. After Plaintiff told Defendant Flatt that he was having problems with prisoner “Fat Cat, AKA Mr. Ellington, ” Defendant Flatt told Plaintiff to come back later. Plaintiff states that Defendant Flatt was not busy, but just “looking up stuff on the computer in Mr. French's office.” Plaintiff persisted to tell Defendant Flatt what had happened. Defendant Flatt responded by stating “didn't I say I was busy.” When Plaintiff returned to his cell, Ellington was still holding cards in his hand. Plaintiff stated that he would not play with Ellington anymore. Plaintiff yelled at Ellington after Ellington put his “hands in Plaintiff's face.” Plaintiff states that Ellington was hitting him while pointing a finger in his face. Plaintiff states that he was yelling loudly, but Defendant Flatt never responded. Ellington knocked some of the cards out of Plaintiff's hand causing the cards to hit Ellington. Plaintiff sat down on his chair. Ellington hit Plaintiff, causing Plaintiff to hit his head. Ellington then kicked and stomped on Plaintiff's head. Plaintiff was yelling, but Defendant Flatt failed to immediately respond. Plaintiff was transported to the hospital for severe head injuries. On May 3, 2016, Ellington received a three year prison term for the assault of Plaintiff.

         Plaintiff returned to the prison on August 26, 2015. Plaintiff was placed in temporary segregation while awaiting a transfer to the Ojibway Correctional Facility. Plaintiff stated that he could not go to the Ojibway Correctional Facility because Ellington had friends there. Plaintiff was told to discuss his concerns with Ojibway staff. Plaintiff states that Defendant Hubble refused to help and was just glad that Plaintiff was being transferred out of Newberry so that he would no longer be a problem. Plaintiff asserts that Defendants Gloud and McGinn would not help him. Plaintiff was told by the transfer coordinator, Defendant Perry, and Defendant John Doe to address his concerns with Ojibway staff. Plaintiff asserts that he was being transferred in retaliation for his grievance submissions. Plaintiff filed a grievance on the issue. Plaintiff disagrees with the claim that he was in danger if he stayed at Newberry. Plaintiff asserts that Defendants have tried to cover-up the truth. Plaintiff alleges that after his transfer to Ojibway, a prisoner assaulted him on November 2, 2015.

         In the Opinion and Order dated December 28, 2016, the Court stated that Plaintiff's remaining claims were for retaliation against Defendants Johnson, Burke, Flatt, McGinn, Hubble, and Gloud and for failure to protect against Defendant Flatt. (ECF Nos. 4 and 5). In an order dated January 26, 2017, the court clarified that Plaintiff's equal protection claims against Defendants Johnson and Burke remain in the case. (ECF No. 8). Defendants move for summary judgment.

         Summary judgment is appropriate only if the moving party establishes that there is no genuine issue of material fact for trial and that he is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). If the movant carries the burden of showing there is an absence of evidence to support a claim or defense, then the party opposing the motion must demonstrate by affidavits, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue of material fact for trial. Id. at 324-25. The nonmoving party cannot rest on its pleadings but must present “specific facts showing that there is a genuine issue for trial.” Id. at 324 (quoting Fed.R.Civ.P. 56(e)). The evidence must be viewed in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Thus, any direct evidence offered by the plaintiff in response to a summary judgment motion must be accepted as true. Muhammad v. Close, 379 F.3d 413, 416 (6th Cir. 2004) (citing Adams v. Metiva, 31 F.3d 375, 382 (6th Cir. 1994)). However, a mere scintilla of evidence in support of the nonmovant's position will be insufficient. Anderson, 477 U.S. at 251-52. Ultimately, the court must determine whether there is sufficient “evidence on which the jury could reasonably find for the plaintiff.” Id. at 252. See also Leahy v. Trans Jones, Inc., 996 F.2d 136, 139 (6th Cir. 1993) (single affidavit, in presence of other evidence to the contrary, failed to present genuine issue of fact); cf. Moore, Owen, Thomas & Co. v. Coffey, 992 F.2d 1439, 1448 (6th Cir. 1993) (single affidavit concerning state of mind created factual issue).

         Defendant Johnson argues that Plaintiff's retaliation claim based on the loitering misconduct ticket must be dismissed because Plaintiff cannot establish the elements of adverse action or causation. Retaliation based upon a prisoner's exercise of his or her constitutional rights violates the Constitution. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). In order to set forth a First Amendment retaliation claim, a plaintiff must establish that: (1) he was engaged in protected conduct; (2) an adverse action was taken against him that would deter a person of ordinary firmness from engaging in that conduct; and (3) the adverse action was motivated, at least in part, by the protected conduct. Id. Moreover, a plaintiff must be able to prove that the exercise of the protected right was a substantial or motivating factor in the defendant's alleged retaliatory conduct. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001) (citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). Plaintiff asserts that he is not bringing a retaliation claim against Defendant Johnson based upon the issuance of the loitering misconduct ticket. (See ECF No. 19, PageID.192). Plaintiff states that the loitering misconduct supports his equal protection claim, because a white prisoner did not receive a loitering misconduct ticket at the time Plaintiff did. Plaintiff explains that his retaliation claims are based upon his receipt of two misconduct tickets; one for being out of place and the second for violating a posted rule. Both of those tickets were dismissed.

         In addition, Defendant Johnson argues that the checkmate doctrine bars Plaintiff's retaliation claim, because he was found guilty of loitering at the hearing on the misconduct charge. However, the Sixth Circuit expressly rejected the “checkmate doctrine” in Maben v. Thelen, 887 F.3d 252 (6th Cir. 2018) concluding that “[a] finding of guilt at a prison misconduct ...


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