United States District Court, E.D. Michigan, Southern Division
F. Cox, United States District Judge
REPORT AND RECOMMENDATION MOTION FOR SUMMARY JUDGMENT
Stephanie Dawkins Davis, United States Magistrate Judge
Sharee Miller, filed this lawsuit on November 25, 2015,
against Anthony Stewart, Robin Howard, and Renata Patton, all
employees of the Michigan Department of Corrections, claiming
retaliation under the First Amendment and a claim under
Michigan's Whistleblower's Protection Act (WPA).
(Dkt. 1). On February 18, 2016, District Judge Sean F. Cox
referred this matter to the undersigned for all pretrial
proceedings. (Dkt. 7). After a period of discovery,
defendants filed a motion for summary judgment. (Dkt. 75,
76). This matter is fully briefed. (Dkt. 86, 87, 88). The
parties filed their joint statement of resolved and
unresolved issues on September 20, 2018. (Dkt. 91). The Court
held a hearing and received oral arguments from both parties.
(Dkt. 92). This matter is now ready for report and
reasons set forth below, the undersigned RECOMMENDS
GRANTING defendants' motion for summary judgment
on plaintiff's WPA claim and GRANTING
defendants' motion for summary judgment on
plaintiff's First Amendment retaliation claim, as to her
claims for money damages only. Further, the undersigned
RECOMMENDS DENYING defendants' motion to
the extent they seek summary judgment on plaintiff's
First Amendment retaliation claim against defendants in their
sued three employees of the Huron Valley Correctional
Facility (WHV), which is in Ypsilanti, Michigan. First, she
sues Warden Anthony Stewart in his official capacity only.
According to defendants, Stewart did not begin working as
Warden at WHV until February 1, 2015, after the allegations
in the Complaint arose. Miller also sues Inspector Robin
Howard and Classification employee Renata Patton in their
individual capacities. (Dkt. 1, Pg ID 1, 3). Miller claims
that she was released from the Prisoner Observation Aid (POA)
Program at WHV in retaliation for complaining about the
mistreatment of the prisoners who she was observing as part
of that program. (Dkt. 1, Pg ID 3, 10). Miller says the
officials violated her rights under the First Amendment of
the Constitution (Dkt. 1, Pg ID 10 11) as well as her rights
under the WPA, codified in Mich. Comp. Laws §§
15.361-15.369. (Dkt. 1, Pg ID 11, 12). She seeks both
compensatory and injunctive relief against defendants Howard
and Patton, but only injunctive relief against Stewart. (Dkt.
1, Pg ID 12).
The Prisoner Observation Aide Program
lawsuit derives from Miller's role in MDOC's POA
program. Therefore, a summary of the program is perhaps
helpful to begin. It is MDOC's policy to place prisoners
who are suicidal or self-injurious in cells by themselves,
under one-on-one, direct and continuous observation. (Dkt.
86-2, Ex. A, POA Training PowerPoint). For observation of
these at-risk prisoners throughout each day, MDOC relies on a
combination of corrections staff and prisoners assigned as
POAs who are specially selected, trained, and carefully
screened. Id. p. 3. MDOC began using POAs in
approximately 2012, and WHV piloted the POA program for the
MDOC in Michigan. (Dkt. 86-3, Ex. B, R. Patton Dep.,
22:3-22:6; 23:13). Defendant Patton was the only Corrections
Program Coordinator (“CPC”) responsible for the
POA program at WHV. Id. at 16:21-23.
job duties require them to continuously observe the mentally
ill prisoner to whom they are assigned on a given day, to log
their observations at regular intervals, and to contact a
corrections officer or other staff if a mentally ill prisoner
is in distress, or if some other emergency arises. (Dkt.
86-4, Ex. C, Prisoner Observation Rules and Procedures, at
1). POA rules and procedures require each POA to maintain
appropriate confidentiality of her observations. Id.
at 3. The confidentiality clause provides, in pertinent part:
from the Job
1. Confidentiality is very important in prisoner observation.
Relevant information should only be shared with staff or the
next shift of Prisoner Observers. Inappropriate sharing of
information about the observed prisoner will be grounds for
immediate removal from the job. Prisoner Observers are only
to discuss what the assigned prisoner says or does or what is
said/done to the prisoner with housing staff on the unit or
relief observers (staff or prisoner).
Id. The confidentiality provision authorizes removal
of any POA who shares information
“inappropriate[ly].” The terms
“relevant” and “appropriate” are not
further defined in the policy, and Miller points out that
Patton does not specifically explain the meaning of the
confidentiality provision when training POAs. (Dkt. 86-3, Ex.
B, at 117:13-25 and 118:1-3).
began working as a POA at WHV in March 2014. (Dkt. 86-5, Ex.
D, S. Miller Dep., 23:1-6). She received job training as a
POA before assuming her responsibilities. Id. at
11:11-13. And she received wages in exchange for her services
as a POA. Id. at 9:4-6.
a POA shift in spring 2014, Miller witnessed corrections
officers abuse and mistreat a mentally ill inmate, Rochelle
Bielby. (Dkt. 86-5, Ex. D, p. 23:14-18). After Bielby became
upset and lost her temper, corrections officers stripped
Bielby of her clothes and restrained her. (Id. at
26:16-18; Dkt. 86-6, Ex. E, Critical Incident Report).
According to Miller, WHV officials cuffed Bielby's wrists
and ankles and used a chain to hog-tie her wrists and ankles
together behind her back with her knees bent while leaving
her lying prone. (Dkt. 86-6, Ex. D, at 31:8-14). Miller says
Bielby was naked, tied, and alone in her cell. Id.
at 34: 1-18. Bielby repeatedly cried out that she was in
pain, which caused Miller to be concerned for Bielby's
well-being. Miller's main reason for concern was that if
Bielby had fallen from her bed, she would have no way to
catch herself while restrained in the hogtied position.
Id. at 36:1-5. According to Miller's
recollection of the event, officers stated that Bielby had to
stay in that position because Bielby had struggled and fought
her restraints. Id. at 34:19-36:1-5. Miller
maintains that Bielby was left naked, hog-tied, and screaming
out in pain for four hours and fifty-two minutes.
Id. at 39:3-25; Dkt. 86-6, Ex. E, at 001491. Miller
says she observed Bielby sliding off her bed with her
extremities bound. (Dkt. 86-5, Ex. D, at 39:3-25). Although
she notified a sergeant about this danger, Miller was told
dismissively that Bielby would be fine. Id. at
was disturbed by this treatment of a mentally ill inmate and
claims she made several attempts to address the incident with
authorities at WHV as a result. Id. at 41:3-23,
42:16-44:13, 68:14-69:10. None of her attempts proved
fruitful. For example, at a POA meeting the next day, Miller
complained to Patton, who supervised the POA program.
Id. at 42:16-44:13. Patton indicated that the
officer's conduct was appropriate and that Miller was
mistaken. Id. at 43:22-44:2. Based on this response,
Miller sent a kite (or written request) to Howard, but she
received no response. Id. at 44:3-15.
WHV was not taking her claims seriously, Miller felt she
exhausted her avenues to report the abuse within WHV, and
says she was forced to contact advocates outside WHV for aid.
Acting on Miller's behalf, persons and organizations
outside WHV (e.g. “Humanity for Prisoners”)
reported the abuse to public officials and agencies who
initiated investigations. Although Howard knew Miller had
reported Bielby's alleged mistreatment to others outside
of WHV, she met with Miller but did not reprimand her.
Id. 48:2-15. Instead, Howard simply encouraged
Miller to tell the truth. Id.
says that after she learned of Miller's correspondence to
Humanity for Prisoners about Bielby's treatment, she
investigated Miller's report of mistreatment by reviewing
video and critical incident reports to determine the veracity
of Miller's allegations. (Dkt. 75-4, Ex. 3, Howard dep,
p. 48). Howard's investigation led her to determine that
Miller's allegations had no credibility. Id. at
49. Howard met with Miller on June 4, 2014. Although Howard
concluded that Miller breached her POA confidentiality
agreement, she did not recommend removing Miller from her POA
position. Howard says she did remind Miller, however, that
because she signed the confidentiality agreement, she was not
to report information that she learned during her POA
assignment to those outside of the prison. Id. at
mid-June 2014, Miller says she again witnessed disturbing
abuse and mistreatment of a mentally ill and/or disabled
inmate. (Dkt. 1, Compl., p. 6). This time, Miller was acting
as a POA for inmate Darlene Martin. Id. Martin was
not eating and could not operate the sink in her cell to
drink water because of her weakened condition. (Dkt. 86-5,
Ex. D, at 50:16-52:9). To drink water, Martin tried to splash
water out of the toilet in her cell. Id. But,
claiming that her actions made a mess, corrections officers
turned off all water to Martin's cell. Id. at
51:10-12. Miller informed officers that Martin was begging
for water. Id. at 52:2-9. Every few hours a tiny
paper cup with a few ounces of water was placed in
Martin's cell, but Miller says Martin remained
dehydrated. Id. at 53:13-18. Over the course of
several days as a POA for Martin, Miller sent multiple kites
to Patton and Howard about Martin's condition.
Id. at 56:6-9. Miller reported that Martin was not
eating, was denied water, and appeared to be in distress.
Miller's kites went unanswered. Id. at 56:16-18.
to Miller, Martin's condition grew worse. Miller saw
Martin foaming at the mouth, vomiting, naked, and
unresponsive to verbal cues. Id. at 57:15-19.
Equally concerning, Miller perceived the nurse on duty to be
indifferent to Martin's overall health condition, only
stopping in Martin's cell occasionally to administer a
shot. Id. at 56:19-57:1. The nurse did not take
Martin's vital signs, did not attempt to engage Martin in
any conversation, and did not appear concerned about
Martin's deteriorating condition. (Dkt. 1, Compl., p 7;
Dkt. 86-7, Ex. F, K. McDonnell Deposition, 30:14-15 (Q. Did
you take vitals at that time? A. No.”). Troubled by
what she thought to be inadequate medical attention for
Martin, Miller reported her observations to the nurse. (Dkt.
1, Compl., p 8). The nurse simply stated that she knew what
she was doing and dismissed Miller's concerns.
Id. Approximately one hour after Miller reported her
concerns for Martin to the nurse, Martin went into cardiac
arrest and was rushed to the hospital. Id.; Dkt.
87-1, Ex. G, Martin's Medical Records from St. Joseph
Mercy Hospital, at 001266 (noting Martin “was
apparently seen by a prison inmate having some breathing
difficulties and by the time the patient was found in her
cell, she was unresponsive in her bed”). Martin was
placed on life support and not expected to live. (Dkt. 87-2,
Ex. H, Martin's Discharge Summary Medical Records from
St. Joseph Mercy Hospital, at 001327). Martin ultimately
survived, but she is in a vegetative state because of the
incident. Id. (“Her mental status did improve
but not to her baseline. She improved enough to eat though
she has to be fed. She speaks but she does not follow
commands.”). Miller feared other mentally ill women at
WHV were at risk of similar abuse and mistreatment. She says
she was, therefore, compelled to contact professional
advocates outside of WHV to ask for help. (Dkt. 86-5, Ex. D,
Miller's Termination as a POA
Howard's reminder to Miller not to disclose confidential
information that she learned as a POA, Miller made a
telephone call to Carol Jacobsen, a prisoner-rights advocate
indicating - falsely according to MDOC - that another
prisoner, whose condition Miller became aware of in her role
as a POA, had died because she was allegedly deprived of food
and water. (Dkt. 75-4, Ex. 3, p. 72). On June 23, 2014 and
June 24, 2014, Miller also sent email messages to an
individual named “Doug” at Humanity for Prisoners
in which she revealed additional information about the
prisoner on POA status, including: the prisoner's
identity, why the prisoner was placed in one-on-one
observation, the food the prisoner was offered, the
prisoner's physical and mental state, that the prisoner
was issued medication, and information that other POAs had
reported about the prisoner. (Dkt. 75-5, Ex. 4, Miller's
6/23/14 JPay correspondence; Dkt. 75-6, Ex. 5, Miller's
6/24/14 JPay correspondence).
16, 2014, Patton informed Miller that she was being
terminated from her position as a POA at the directive of
Howard. (Dkt. 1, Compl., p. 9; Dkt. 87-3, Ex. I, Email from
Howard, 000428; Dkt. 87-4, Ex. J, Email from Patton, 000430).
Written documentation regarding her termination, signed by
Defendant Patton, states:
Prisoner Miller 326122 began working as a prisoner
observation aid on 3/5/2014. On 7/11/2014, classification was
notified by Inspector Howard that prisoner Miller has engaged
in sharing confidential information regarding prisoners she
had observed with persons other than staff or a relieving
POA. According to Prisoner Observation Rules and Procedures
signed by prisoner Miller on 4/8/2014 Section “Away
from the Job” Paragraph 1 it states that
“Confidentiality is very important in prisoner
observation. Relevant information should only be shared with
staff of the next shift of prisoner Observers. Inappropriate
sharing of information about the observed prisoner will be
grounds for immediate removal from the job. Prisoner
Observers are only to discuss what the assigned prisoner
says/does or what is said/done to the prisoner with housing
staff on the unit or relief observes (staff or
prisoner).” Based ...