Kathawa v. Friedman

          OPINION & ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DKT. 20)

          MARK A. GOLDSMITH, UNITED STATES DISTRICT JUDGE.

         Plaintiff Munin Kathawa is a Michigan prisoner incarcerated at the G. Robert Cotton Correctional Facility (“JCF”). Kathawa worked as a tutor in non-party Laura Bendele's classroom until concerns about Kathawa and Bendele were brought to Defendant Principal Brian Friedman's attention. Friedman reassigned Kathawa to Defendant Spencer Kinney's classroom. Shortly thereafter, Kathawa complained to Friedman about the learning environment in Kinney's classroom and made allegations to others that Kinney was helping students cheat on the GED exams. Friedman convinced Defendant Stacey Purdy, the Classification Director, to terminate Kathawa from his tutoring position because of safety concerns related to Bendele. When Kathawa filed grievances with Defendant Mindy Hill, ^[1] the Special Acts Director, Hill recommended Kathawa be disciplined for his unfounded allegations of staff misconduct, and Kathawa was later transferred out of JCF.

         Kathawa filed this action alleging that Defendants retaliated against him in violation of his First Amendment rights. Defendants have moved for summary judgment. The matter is fully briefed. For the reasons discussed below, the motion is denied.

         I. BACKGROUND

         Kathawa is a prisoner at JCF, where he worked as a tutor in the GED program. Defendants' Statement of Material Facts (“DSMF”) ¶¶ 1, 4, 8 (Dkt. 20). From July 2016 to September 2017, he worked as a tutor in Bendele's classroom. Id. ¶ 8. Many of Bendele's students have learning disabilities and struggle to pass the GED exams. See Kathawa Letter, Ex. J to Defs. Mot. for Summ. J. (Dkt. 20-11). Kathawa was passionate about tutoring students, Kathawa Dep., Ex. 1 to Resp., at 30 (Dkt. 21-1); Friedman Dep., Ex. A to Defs. Mot., at 91 (Dkt. 20-2), and he would often spend his free time tutoring students in the housing units, see Kathawa Letter. By all accounts, Kathawa was an excellent tutor. DSMF ¶ 17.

         In September 2017, after receiving a report on concerns regarding Kathawa and Bendele, Friedman reassigned all of the tutors to different classrooms. Id. ¶ 9. Kathawa was reassigned to work in Defendant Kinney's classroom. Id. ¶ 4. After Kathawa's transfer to Kinney's classroom, Friedman began receiving notes from other prisoners, colloquially referred to as “kites, ” requesting that Kathawa be transferred back to Bendele's classroom. DSMF ¶ 11; see also Friedman Dep. at 40-41.

         Shortly after the transfer to Kinney's classroom, Kathawa was asked to tutor a prisoner who was scheduled to go home in late November. Kathawa Dep. at 132. Kathawa helped prepare the student for the GED exam, and Kathawa believed that the student could pass the exam with the minimum passing score of 145 or perhaps with a score as high as 149. Id. To Kathawa's surprise, the prisoner passed the exam with a score of 169. Id. Kathawa asked the prisoner about the exam, and based on the conversation, Kathawa soon realized that his student could not have fairly passed the exam with such a high score. Id. After further inquiry, the prisoner revealed that Kinney, among others, provided him with the exam answers. Id. at 96. Kathawa documented eight other instances of cheating and he suspected that the number was likely higher and growing. See Jan. 2018 Letters, Ex. 12 to Resp. (Dkt. 21-12).

         Kathawa made three verbal complaints to Friedman regarding the shortcomings of JCF's GED program in December 2017 and January 2018. Kathawa Dep. at 19-20. Kathawa complained that the GED program was geared more toward testing than teaching. Id. at 27. He told Friedman that the classes were regularly dismissed early, students were playing video games in Kinney's classroom, and that the environment was not conducive to learning. Id. at 27, 30. It is not clear from the record whether Kathawa raised the issue of cheating with Friedman. Id. at 96; see also January 2018 Letters. However, Kathawa did raise the cheating issue in letters that he sent to his nephew, Father Anthony Kathawa, and his Congressman, Klint Kesto. Id. at 96; January 2018 Letters.

         According to Defendants, during a school staff meeting held in February 2018, the topic of “overfamiliarity” between Kathawa and Bendele was discussed. DSMF ¶ 10. Based on this discussion at the school meeting, and the kites from other prisoners seeking Kathawa's return to Bendele's classroom, Friedman informed the school officers that Kathawa should have no contact with Bendele. Id. ¶ 12. Kathawa subsequently received a misconduct report for being outside of Bendele's door without a supervisor's permission. Misconduct Report, Ex. K to Defs. Mot. (Dkt. 20-12). Friedman does not recall whether Kathawa was ever informed that he was to refrain from interacting with Bendele, Friedman Dep. at 40, and it was not unusual for students to wander around the school building, Kinney Dep., Ex. 3 to Resp., at 28-29 (Dkt. 21-3). The misconduct report was later dismissed because the review of the misconduct report was not handled properly. Misconduct Mem., Ex. L to Defs. Mot. (Dkt. 20-13).

         Kathawa sent a letter to Friedman requesting a transfer from Kinney's classroom back to Bendele's classroom. Feb. 2018 Letter, Ex. J. to Defs. Mot. (Dkt. 20-11). In the letter, Kathawa noted that other prisoners had sent reports to Friedman expressing how much they benefitted from Kathawa's tutoring. Id. Friedman wrote on the letter that there had been seven to ten requests by other students, and that he spoke with a deputy officer about the requests. Id. Friedman denied Kathawa's request to transfer. Id.

         Friedman testified that he had grown concerned by Kathawa's letter, and the possibility that he was manipulating other prisoners to write letters on his behalf. DSMF ¶ 15; Friedman Dep. at 89. On March 1, 2018, Friedman brought his concerns to Deputy Warden Douglas Smith, who concluded that the situation was not “normal . . . prisoner behavior.” DSMF ¶ 15. Friedman testified that he had lost sleep over the matter. Friedman Dep. at 90-91. After his conversation with Smith, Friedman immediately sent an email to Defendant Purdy requesting that Kathawa be removed from his position as a tutor because of the safety and security concerns related to Bendele. DSMF ¶ 16. On March 13, 2018, two Prisoner Program and Work Assignment Evaluation (also known as “Classification Reports” or “363's”) were drafted by Purdy, and perhaps Kinney. The nearly identical Classification Reports state the following:

KATHAWA . . . was a tutor in the 300 bldg. for rm. 223 Mr. Kinney. KATHAWA was written an OOP ticket because he left rm. 223 and went to rm. 214 Ms. Bendele's class which he did every time he got a chance. The ticket was thrown out for a clerical error. Ms. Bendele has expressed a feeling for her safety when he comes to her room. As Classification Director of JCF I will NOT let KATHAWA return to the tutor position he held. KATHAWA is being terminated for the safety and/or security of the facility. . . .

If the prisoner is not found guilty at the initial hearing, he shall be paid for any time he was removed from the assignment pending the hearing. The prisoner may be returned to the same assignment or considered for reclassification in accordance with [prison policy], as determined by the Classification Director. THE PRISONER SHALL NOT BE RETURNED TO THE SAME ASSIGNMENT IF THE CD DETERMINES IT TO BE A THREAT TO THE SAFETY OR SECURITY OF THE FACILITY.

         Classification Reports, Ex. 9 to Resp. (Dkt. 21-17). Friedman, Kinney, and Purdy all signed the Classification Reports. Id. Kathawa was removed from his tutor position that same day. DSMF ¶ 19.

         Kathawa immediately filed a grievance complaining that he had been removed from his tutoring position arbitrarily. 3/14/2018 Grievance, Ex. H to Defs. Mot. (Dkt. 20-9). He argued that because he had been exonerated of any wrongdoing related to the misconduct report, under prison policy, he should have been returned to his tutoring assignment and received backpay. Id. Kathawa also expressed his belief that he was being subjected to retaliation, and he requested that JCF staff monitor for other potential retaliatory actions, such as transfer out of JCF. Id.

         On March 21, Hill met with both Kathawa and Bendele. 3/28/2018 Grievance, Ex. I to Defs. Mot. (Dkt. 20-10); Hill Dep. at 44. Hill says that Kathawa took issue with the Classification Reports and asked for written proof that Bendele had expressed concerns for her safety. See 3/14/2018 Grievance. According to Hill, Bendele told Hill that she felt threatened around Kathawa. Hill Dep. at 44. On that same day, Hill resolved Kathawa's grievance partially in his favor, and directed him to be paid for the time he was laid off pending the misconduct hearing, but Hill denied Kathawa's request to return to his tutor position because Bendele had expressed “bad feelings” around Kathawa. 3/14/2018 Grievance.

         Kathawa filed a second grievance on March 28. 3/28/2018 Grievance, Ex. I to Defs. Mot. (Dkt. 20-10). Kathawa accused Purdy, Smith, Kinney, and Friedman of falsifying the Classification Reports and conspiring to retaliate against him. Id. Kathawa was transferred out of JCF that same day. Transfer Order, Ex. O to Defs. Mot. (Dkt. 20-16). He was later returned to JCF because he was in a college program ...