United States District Court, W.D. Michigan, Northern Division
KENNETH COLVIN, JR. #192744, and GEORGE BETTS #145197, Plaintiff,
DUNCAN MacLAREN, CECIL DALEY, ALEX VERT, AND JERRY HARWOOD, Defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
J. QUIST, UNITED STATES DISTRICT JUDGE.
Kenneth Colvin, Jr., and George Betts, prisoners currently
incarcerated with the Michigan Department of Corrections
(MDOC), sued Defendants, Duncan MacLaren (Warden), Cecil
Daley (Deputy Warden), Alex Vert (Lieutenant), and Jerry
Harwood (Deputy Warden) from Kinross Correctional Facility
(KCF). Plaintiffs claim that Defendants violated their First
Amendment rights by retaliating against them for their
participation as block representatives in the Warden's
Forum and, in Plaintiff Colvin's case, for writing a
grievance related to his position as block representative.
Plaintiffs allege that they faced adverse action when they
were transferred abruptly without being able to pack their
belongings, which resulted in a transfer to a facility that
the Plaintiffs claim was a “disciplinary
facility” and damage to their belongings. Plaintiffs
bring their claims under 42 U.S.C. § 1983, and the Court
has jurisdiction pursuant to 28 U.S.C. § 1331. A bench
trial was held on June 19, 2019, wherein the Court heard
testimony from both Plaintiffs and all Defendants.
Defendant MacLaren hosted a monthly Warden's Forum
meeting, wherein prisoners who were elected as block
representatives could bring to the administration's
attention issues that the prison population was experiencing.
In late March 2016, the Warden's Forum met to discuss
issues that precipitated a peaceful demonstration earlier
that month. At that meeting, Defendant Daley also asked block
representatives for a daily report of prisoners' issues
so that he could address them in between the Warden's
Forum meetings. Plaintiff Colvin testified that issues
brought to the Warden's Forum and to Daley were listened
to and resolved.
prisoners from each block were able to elect two
representatives to attend the Warden's Forum on their
behalf. Once a member of the Warden's Forum, block
representatives were then assigned to various committees. In
March 2016, Deputy Warden Mastaw informed the Block
Representative Chairman, a prisoner by the last name Jones,
that Colvin could no longer serve on the Food Service
Committee because Colvin participated in a religious, Kosher
diet that would not allow him to test the proposed menu
items, which was one of the primary duties of members of the
Food Service Committee. As such, he would simply be assigned
to a different committee. Colvin wrote a grievance against
Mastaw, MacLaren, and others regarding that decision on March
31, 2016, and the grievance was received by the grievance
coordinator on April 1, 2016. Daley responded to the
grievance on April 11, 2016. (Pls.' Trial Ex. 14, ECF No.
112 at PageID.872.)
April 4, 2016, John Huhtala, an inspector at KCF, emailed
MacLaren regarding the possible transfer of prisoners who
were considered security risks. In order of importance,
Huhtala listed ten prisoners and included some limited
information about why he considered them security risks if
they remained at KCF. (Defs.' Ex. F, ECF No. 122 at
PageID.1013.) Plaintiff Betts was number three on the list
and the reason given for the recommendation to transfer him
was that he was a “Wardens [sic] Forum member
instrumental in recruiting and enforcing for the
Demonstration.” (Id.) Colvin was number four
on the list and the reason given for him was that he was a
“Wardens [sic] Forum member who was and is involved in
trying to recruit for another demonstration.”
(Id.) This information was primarily based on
anonymous kites received from other prisoners warning of an
upcoming prisoner demonstration that would likely be larger
than the previous demonstration and possibly violent, but
Huhtala gathered additional information about the upcoming
demonstration during his investigation of the kites.
on Huhtala's recommendation, MacLaren requested the
transfer of five prisoners out of KCF. He sent information to
the Correctional Facilities Administration (CFA) in Lansing,
the agency responsible for approving transfer requests. CFA
approved the requests and arranged transfer of the five
prisoners to five different facilities. Per the transfer
requests for Betts and Colvin, they were to be transferred to
an alternate Level II facility, the same security level they
had at KCF, but no Defendants chose or had input as to the
specific facilities to which Plaintiffs and others were sent.
Daley and Defendant Harwood, as deputy wardens, regularly
review transfer orders for completeness and sign if the
orders include all the necessary information. Daley signed
Colvin's transfer order, and Harwood signed Betts's
and Betts were transferred in the early morning of April 7,
2016. Because the purpose of their transfer was for security
concerns, Colvin and Betts were not given advanced notice of
their transfer or an opportunity to pack their belongings.
MacLaren truthfully explained that if prisoners are being
transferred for non-security reasons, they are told of the
transfer the night before to give them an opportunity to pack
their belongings. However, if prisoners are transferred for
security reasons, they are not told the night before because
that could pose a security risk for the night-shift staff.
Particularly in this instance, when Huhtala had informed
MacLaren that Colvin and Betts were potentially involved in
planning a violent demonstration, informing Colvin and Betts
of a transfer could have allowed them to set their plans into
motion or appoint other prisoners to carry out their plans
after their transfer. While MacLaren, Daley, and Harwood did
not believe that they had enough information about the
upcoming demonstration to warrant issuing a misconduct,
removing Betts and Colvin from the prison yard, or changing
their security classifications, the information from Huhtala
justified proactive steps, such as a transfer under
particular conditions, to avoid a future demonstration. Thus,
Colvin and Betts were handcuffed and escorted to the control
center at approximately 4:30 a.m. on April 7, 2016, and, only
after arriving at the control center, they were informed that
they were being transferred.
was escorted to the control center by Defendant Vert, and
Betts was escorted by an unknown officer who was not named as
a Defendant in this case. Pursuant to prison policy, Vert
ordered another officer to secure Colvin's property to
avoid theft. Normal practice is to place property in bags
after it is secured and move it to the day room. Then, the
property is transferred to the property room to be
inventoried and packed for transfer. Other than Vert giving
the order to secure Colvin's property, none of the
Defendants was involved in the transfer of either
Plaintiff's personal belongings.
was transferred directly to Oaks Correctional Facility (ECF).
He did not receive his property for seven days. He was
stripped of some of his property because the list of approved
personal items was more restrictive at ECF. Some of his
appliances were not working when he plugged them in.
Importantly, his typewriter was broken, but because of
MDOC's policy on depreciation and repair of items, he was
not able to get his typewriter repaired and would only have
received minimal compensation ($15-30) for the broken
typewriter to put toward buying a new one.
was first transferred to Saginaw Correctional Facility (SCF),
but because SCF could not accommodate his religious diet, he
was subsequently transferred to ECF. He received his property
five days after leaving KCF. The officer that received
Colvin's property noted that multiple items were in
disarray, the typewriter was broken, and the information on
the packaging was incomplete (e.g. did not include
Colvin's name and number, was signed illegibly, etc.).
Colvin complained of his typewriter being broken, but again,
per MDOC policy, he could only receive $15 in compensation
for the broken typewriter.
both Colvin and Betts were sent to ECF. Both testified that
they considered ECF a disciplinary facility because it had an
earlier time that prisoners had to go to bed and because
movement was more restricted than at KCF. However, they
acknowledged that they were sent to the Level II units at
ECF, which was the same security classification as their
former units at KCF. They wrote grievances claiming that they
were retaliated against in the way in which they were
transferred-without the opportunity to pack their
belongings-and for the damage to their typewriters. Their
grievances were denied.