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Tucker v. Wener

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

February 28, 2019

L. T. TUCKER #132271, Plaintiff,
v.
ARRON WENER, et al., Defendants.

          HON. ROBERT J. JONKER JUDGE.

          REPORT AND RECOMMENDATION

          TIMOTHY P. GREELEY UNITED STATES MAGISTRATE JUDGE

         This is a civil rights action brought by state prisoner L. T. Tucker pursuant to 42 U.S.C. § 1983. Plaintiff alleges that, while he was confined in the Alger Correctional Facility, Defendants Arron Wener, Christine Newhouse, Aramark Correctional Services, LLC, J. Nayback, and guard Knaus retaliated against him by issuing him a class II misconduct ticket for disobeying a direct order and finding him guilty after a hearing in violation of his First Amendment and Fourteenth Amendment rights.

         Plaintiff states that he is a jailhouse lawyer and has been a civil rights advocate for 40 years. During June of 2015, Plaintiff tried to verbally resolve issues regarding unsafe work conditions in the prison kitchen. Plaintiff complained to Defendants Wener and Newhouse. Defendant Newhouse told Plaintiff that if he kept talking about filing grievances about unsafe work conditions, his “black ass” would be fired for complaining so much. On June 22, 2015, when Plaintiff told Defendant Newhouse that he would file a grievance, Defendant Newhouse looked toward Defendant Wener and said “make sure you get him out of here.” Plaintiff asserts that later in the day he was trying to perform his daily work duties, when Defendant Wener instructed him to fill Styrofoam cups with cereal. Plaintiff argues that this was not one of his assigned duties and that a white prisoner with less seniority was available to perform this job. Plaintiff told Defendant Wener “I ain't going to be your slave, you are on some bullshit.” Plaintiff states that Defendant Wener overreacted and ordered him back to his unit. Plaintiff requested to speak with Defendant Wener's supervisor. Plaintiff told Defendant Newhouse that Defendant Wener was wrong to assign him to a job that should be assigned to the individual with the least seniority. Defendant Newhouse told Plaintiff to return to work.

         Plaintiff then observed Defendants Wener and Newhouse speaking in a back office. Defendant Newhouse then told an officer to take Plaintiff to his unit. Plaintiff states that this officer told Plaintiff to name him as a witness because Defendant Wener's actions were questionable. Defendant Wener issued Plaintiff a misconduct ticket for disobeying a direct order. After the misconduct ticket was issued, Defendant Nayback reviewed the misconduct report with Plaintiff on June 23, 2015. Plaintiff had a hearing on the misconduct ticket before Defendant Knaus. Plaintiff admitted to making the comment “I aint going to be your slave, you are on some bullshit” to Defendant Wener. As a result, Defendant Knaus found Plaintiff guilty of disobeying a direct order. Plaintiff received ten days loss of privileges. That decision was affirmed on appeal.

         Plaintiff filed motions for summary judgment (ECF No. 32 and No. 59). Plaintiff argues that due to genuine issues of fact, trial should be scheduled. Defendants Wener and Newhouse filed responses and requested summary judgment (ECF No. 45 and No. 72). Defendants Knaus and Nayback filed responses (ECF No. 46 and No. 71). Defendants Knaus and Nayback filed a motion for summary judgment (ECF No. 59). Plaintiff filed a response (ECF No. 78). This matter is fully briefed and no further briefing is necessary.

         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).[1]

         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)).

         Defendants argue that Plaintiff was not engaged in protected conduct when he voiced concerns about working conditions. Plaintiff asserts that he was forced to handle hot cooking pots without gloves and walk on floors covered with water and food items each working day. Plaintiff states that he was told by Defendant Newhouse that if he did not stop talking about filing grievances, he would be fired for complaining too much. After Plaintiff told Defendants Wener and Newhouse that he intended to file grievances against them, Defendant Newhouse told Defendant Wener “make sure you get him out of here.” Defendants argue that mere workplace gripes are not matters of public concern and are not considered protected conduct for purposes of a retaliation claim.

         An inmate has a right to file “non-frivolous” grievances against prison officials on his own behalf, whether written or oral. Maben v. Thelen, 887 F.3d 252, 266 (6th Cir. 2018); Mack v. Warden Loretto FCI, 839 F.3d 286, 299 (3d Cir. 2016) (“[The prisoner's] oral grievance to [the prison officer] regarding the anti-Muslim harassment he endured at work constitutes protected activity under the First Amendment.”); Pearson v. Welborn, 471 F.3d 732, 741 (7th Cir. 2006) (“[W]e decline to hold that legitimate complaints lose their protected status simply because they are spoken.”); see also Pasley v. Conerly, 345 Fed.Appx. 981, 985 (6th Cir. 2009) (finding that a prisoner engaged in protected conduct by threatening to file a grievance). “Nothing in the First Amendment itself suggests that the right to petition for redress of grievances only attaches when the petitioning takes a specific form.” Holzemer v. City of Memphis, 621 F.3d 512, 521 (6th Cir. 2010) (finding that a conversation constituted protected petitioning activity) (quoting Pearson, 471 F.3d at 741).

         Nevertheless, a prisoner's act of calling the hearing officer a “foul and corrupt bitch” was not protected conduct because such behavior fell within the definition of “insolence” under the MDOC Policy Directive governing prisoner misconduct. See Lockett v. Suardini, 526 F.3d 866, 874 (6th Cir. 2008). See also Caffey v. Maue, 679 Fed.Appx. 487 (7th Cir. Feb. 15, 2017) (holding that an inmate's name-calling of guards (calling them unprofessional) was a challenge to the guards' authority that was not protected by the First Amendment); Felton v. Huibregtse, 525 Fed.Appx. 484, 487 (7th Cir. 2013) (holding that the use of disrespectful language was not protected conduct) (citing cases); Freeman v. Tex. Dep't of Crim. Justice, 369 F.3d 854, 858, 864 (5th Cir. 2004) (concluding that an inmate who accused a chaplain of theological errors during a religious service had engaged in an unprotected challenge to institutional authority). Plaintiff has alleged that he engaged in protected conduct by threatening to file grievances against Defendant Newhouse and Wener for subjecting him to unsafe working conditions and for refusing to address his verbal complaints. In the opinion of the undersigned, Plaintiff engaged in protected conduct by threatening to file a grievance.

         Defendants next argue that the issuance of a class II misconduct and subsequent guilty finding is not adverse action. Defendants state that the most severe restriction imposed for a class II violation is confinement to quarters, loss or privileges, extra duty, and restitution. After the hearing, Plaintiff received ten days loss of privileges. Defendants argue that loss of privileges is not considered adverse conduct citing Ingram v. Jewell, 94 Fed.Appx. 271, 273 (6th Cir. 2004). However, the Sixth Circuit has held that even seven days' loss of privileges -- which includes loss of the rights to use the exercise facilities, to attend group meetings, to use the telephone, to have visitors, to access the general library, and to access the activity room - amounts to adverse action. Maben, 887 F.3d 252 (quoting Hill v. Lapin, 630 F.3d 468, 474 (6th Cir. 2010) (holding that “actions that result in more restrictions and fewer privileges for prisoners are considered adverse”)). The Maben court noted the contrary holding in Ingram, 94 Fed.Appx. at 273 (citing Thaddeus-X, 175 F.3d at 396-97) (14 days loss of privileges does not constitute an adverse action), and, because Maben was a published opinion, it effectively overruled Ingram.

         Defendants Wener and Newhouse argue that the misconduct ticket was issued due to Plaintiff's admitted conduct and as a simple ordinary disciplinary action that arose from Plaintiff's response to a routine order from his work supervisor. Defendants Nayback and Knaus argue that their actions were not retaliatory but based upon the written misconduct ticket.

Under the third element, “[u]sually, the question of causation is a factual issue to be resolved by a jury, and may be satisfied by circumstantial evidence.” Harris v. Bornhorst, 513 F.3d 503, 519- 20 (6th Cir. 2008) (citing Hartsel v. Keys, 87 F.3d 795, 803 (6th Cir. 1996)). “Nonetheless, a court may grant summary judgment even in a causation inquiry, where it is warranted.” Hartsel, 87 F.3d at 803 (citing Langford v. Lane, 921 F.2d 677, 683-84 (6th Cir. 1991)). “Once the plaintiff has met his burden of establishing that his protected conduct was a motivating factor behind any harm, the burden of production shifts to the defendant.” Thaddeus-X, 175 F.3d at 399 (citing Mount Healthy, 429 U.S. 274, 97 S.Ct. 568, ...

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