Annabel v. Frost

          R. Steven Whalen, U.S. Magistrate Judge.

         ORDER ADOPTING IN PART REPORT AND RECOMMENDATION [232]; SUSTAINING IN PART AND OVERRULING IN PART PLAINTIFF'S OBJECTIONS TO REPORT AND RECOMMENDATION [236]; DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [210]; DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [211]

          Arthur J. Tarnow, Senior United States District Judge.

         On January 17, 2014, Plaintiff Robert Annabel filed this 42 U.S.C. § 1983 prisoner civil rights action against Defendants Jack Frost, Steven Kindinger, Sherman Campbell, James Eaton and Keith McConnell. Defendants are all employees of the Michigan Department of Corrections (“MDOC”) at Gus Harrison Correctional Facility where Plaintiff is incarcerated. Plaintiff filed his Motion for Summary Judgment [Dkt. # 210] on January 3, 2019. Defendants filed their Motion for Summary Judgment [211] on January 4, 2019. On August 9, 2019, the Magistrate Judge issued a Report and Recommendation (“R&R”) [232] recommending that the Court deny Plaintiff's motion, grant Defendants' motion and dismiss the case. Plaintiff filed Objections [236] to the R&R on August 23, 2019.

         For the reasons stated below, the R&R [232] is ADOPTED in part; Plaintiff's Objections [236] are SUSTAINED in part and OVERRULED in part; Plaintiff's Motion for Summary Judgment [210] is DENIED and Defendants' Motion for Summary Judgment [211] is DENIED.

         Factual and Procedural Background

         The Court adopts the facts of this case as set forth in the R&R:

         A. Plaintiff's Allegations

         At the time of the alleged incidents giving rise to the complaint, Plaintiff was incarcerated at the Gus Harrison Correctional Facility. Amended Complaint, Docket #18, filed April 8, 2014. On July 1, 2013, he asked Assistant Resident Unit Manager (“ARUM”) Steven Kindinger (“Kindinger”) to post a sign-up sheet for inmates seeking to obtain a position as unit representative. Kindinger told him, “I don't want you as block rep.” Id, ¶ IV-1. Because Kindinger had still not posted a sign-up sheet by July 12, 2013, Plaintiff filed a grievance on July 17, 2013. Id. ¶ IV-3. Defendants James Eaton (“Eaton”), Grievance Coordinator and Sherman Campbell (“Campbell”), Deputy Warden rejected the grievance and, Plaintiff alleges, he notified Defendants Kindinger and Jack Frost (“Frost”), a Corrections Officer, that Plaintiff had written a grievance and should be disqualified from a unit representative position. Id. ¶ IV-4-5.

         On July 22, 2013, Plaintiff opened the tray slot in prisoner McQuitter's cell and delivered a folded t-shirt to McQuitter. Id. ¶ IV-8. Defendant Frost then walked toward Plaintiff and said, “You're in trouble, go lock up.” Id. ¶ IV-9. Frost wrote a Class II misconduct ticket against Plaintiff for disobeying a direct order. Id. ¶ 10. Plaintiff alleges that “Frost would not have written a Class II misconduct for disobeying a direct order if Plaintiff hadn't pressed the issue about a unit representative position with his superiors and then filed a grievance.” Id. ¶ IV-12.

         At the misconduct hearing on August 4, 2013, Plaintiff admitted to opening McQuitter's tray slot, but denied that Frost had ever given him a direct order to not pass items to another prisoner. Plaintiff states that Captain Keith McConnell (“McConnell”), who conducted the hearing, “falsely claimed in a hearings report that Plaintiff admitted disobeying a direct order.” Id. ¶¶ IV-17-20. He also alleges that in the August 6, 2013 hearings report, McConnell “acknowledged that Plaintiff said the incident could not have occurred at 1620 hrs., as stated on the misconduct report and changed the time to ‘approximately 1830 hours'....” Id. ¶ IV-20. Following the misconduct report, Plaintiff, who had won election as unit representative, was removed from that position. Id. ¶¶ IV-19, 21.

         Plaintiff brings the following claims:

(1) That all Defendants retaliated against him, in violation of his First Amendment right to file a grievance and “for his exercise of the right to freedom of speech on behalf of himself and other prisoners.”

(2) That Defendant Frost violated substantive due process by issuing a false misconduct charge.

(3) That Defendant McConnell violated procedural due process at the misconduct hearing.

(4) That Defendant Campbell violated due process by upholding McConnell's “false and unsupported findings.” Id. ¶¶ V -1-4.

         Plaintiff requests monetary damages, attorney fees, and costs against all five ...