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Cooper v. Bower

United States District Court, W.D. Kentucky, Paducah

October 17, 2017

MICHAEL COOPER, PLAINTIFF
v.
SOJNIA BOWER, et. al., DEFENDANT

          MEMORANDUM OPINION AND ORDER

          Thomas B. Russell, Senior Judge United States District Court.

         This matter is before the Court upon Defendants' Motion for Summary Judgment and Motion for Leave to exceed the page limitation on the same. [DN 137.] Plaintiff Michael Cooper (“Plaintiff”) has responded. [DN 151.] The time for Defendants to file a reply has passed. This matter is now ripe for adjudication. For the following reasons, Defendants' Motion for Leave to exceed the page limitation is GRANTED, and Defendants' Motion for Summary Judgment [DN 137] is GRANTED in part and DENIED in part.

         I. BACKGROUND

         This is a 42 U.S.C. § 1983 civil rights action arising out of a string of incidents that have allegedly occurred while Plaintiff has been in the custody of the Kentucky Department of Corrections (“KY-DOC”) while incarcerated at the Kentucky State Penitentiary (“KSP”) in Eddyville, Kentucky. The Court has granted Plaintiff leave to proceed in forma pauperis. Plaintiff has named different Defendants in different filings with the Court, but in Defendant's instant Motion for Summary Judgment, nineteen Defendants are named. They are James Beavers, Troy Belt, Sojnia Bower, Jesse Coombs, Larry Cranor, Tami Bauer (née Darnell), Bruce Von Dwingelo, Cody Edmonds, Lucas Fraliex, Lisa Gibbs, Skyla Grief, Timothy Hawkins, Danny Heggen, George Henson, Mitchell McLeod, Joy Myers, Marshall Peek, Jill Robertson, and Randy White. Hereinafter, they will be referred to by their last names or, collectively, “Defendants.”

         Plaintiff has brought a total of six different claims against the above nineteen Defendants: (1) retaliation, (2) excessive use of force in violation of the Eighth Amendment, (3) Fourth Amendment violations of the right to bodily privacy, (4) a state law conversion claim, (5) violations of his First Amendment Free Exercise Clause and Fourteenth Amendment Due Process and Equal Protection rights, and (6) interference with his legal mail.

         II. LEGAL STANDARD

         Summary judgment is proper where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). When examining whether a motion for summary judgment should be granted, the court is required to resolve all ambiguities and draw all reasonable inferences against the movant. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, “not every issue of fact or conflicting inference presents a genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989). Rather, the question is whether the party who bears the burden of proof in the case has presented a jury question as to each element in the case. Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996). This means that the plaintiff must present to the court more than a mere scintilla of evidence supporting her position. Id. Indeed, the plaintiff must present evidence on which the trier of fact could reasonably find for the plaintiff. Id.

         It is not enough for a plaintiff to present speculation as to elements of the case, because “the mere existence of a colorable factual dispute will not defeat a properly supported motion for summary judgment. A genuine dispute between the parties on an issue of material fact must exist to render summary judgment inappropriate.” Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1177 (6th Cir. 1996).

         Finally, it should be noted that “‘a verified complaint…satisfies the burden of the nonmovant to respond' to a motion for summary judgment, unlike ‘mere allegations or denials' in unverified pleadings.” King v. Harwood, 852 F.3d 568, 578 (6th Cir. 2017) (quoting Thaddeus-X v. Blatter, 175 F.3d 378, 385 (6th Cir. 1999) (en banc).

         III. DISCUSSION

         A. First Amendment Retaliation Claims

         Plaintiff has brought retaliation claims against fifteen of the nineteen Defendants named above. These claims arise largely out of what Plaintiff contends was retaliation for Plaintiff filing grievances because of various incidents that have occurred since Plaintiff began his term of imprisonment at KSP, and for Plaintiff filing the instant lawsuit. Retaliation stemming from an inmate's exercise of his constitutional rights violates the Constitution. Thaddeus-X, 175 F.3d at 394. In stating a claim for First Amendment retaliation, the plaintiff must establish that: (1) he was “engaged in protected conduct; (2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) there is a causal connection between elements one and two-that is, the adverse action was motivated at least in part by the plaintiff's protected conduct.” Id. Typically, “the question of whether an alleged retaliatory action poses a sufficient deterrent threat to be actionable will not be amenable to resolution as a matter of law.” Bell v. Johnson, 308 F.3d 594, 603 (6th Cir. 2002). “[U]nless the claimed retaliatory action is truly inconsequential, the plaintiff's claim should go to the jury.” Id.

         1. Sojnia Bower.

         The retaliation claim against Defendant Bower concerns an alleged incident in Plaintiff's unit wherein, in retaliation for Plaintiff filing a grievance against Bower, she began “pushing trash over the rail and hitting [his] door to wake him up.” Plaintiff further avers in his Verified Complaint that Bower told him, “I got you now.” Later, Plaintiff avers that on December 28, 2015, he received a write-up from Bower for inappropriate sexual behavior as retaliation for filing the present action against her.

         Prisoners have a right to file grievances under the First Amendment. Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001). Thus, Plaintiff's conduct in the instant case was protected. The second question is whether Bower's actions would deter a person of ordinary firmness from continuing to file grievances. “Prisoners may be required to tolerate more than public employees, who may be required to tolerate more than average citizens, before an action taken against them is considered adverse.” Thaddeus-X, 175 F.3d at 398. The standard is an objective one, which assists courts in tailoring the test “to the different circumstances in which retaliation claims arise, ” thus making it “capable of screening the most trivial of actions from constitutional cognizance.” Id. See also Bell v. Johnson, 308 F.3d 594, 603 (6th Cir. 2002) (explaining that “it would trivialize the First Amendment to allow plaintiffs to bring First Amendment retaliation claims for any adverse action no matter how minor.”). Plaintiff's claim, even when taken as true, fails to meet the “threshold…intended to weed out…inconsequential actions.” Thaddeus-X, 175 F.3d at 398. As such, summary judgment for Bower is appropriate on this issue. It hardly follows that, because an inmate was awoken one time by a correctional officer assigned to his cell unit, and because of the singular phrase “I got you now, ” a person of ordinary firmness would be deterred from continuing to file grievances, which is precisely what Plaintiff continued to do. See Emmons v. McLaughlin, 874 F.2d 351, 353 (6th Cir. 1989) (holding that police officer's statement that “I am going to get you” was “not actionable under section 1983.”).

         The second issue Plaintiff raises in his retaliation claim against Bower is the write-up he received for inappropriate sexual behavior. Here, Plaintiff's claim fails on the “causal connection” prong. As explained in Smith v. Campbell, 250 F.3d at 1038, “[u]nder the causation element of a prisoner's prima facie case for retaliation, the subjective motivation of the decisionmaker is at issue-that is, the plaintiff must show that the decision was motivated, at least in part, by the plaintiff's protected activity, ” here, filing a grievance against Bower. “Once the plaintiff has met this burden, if the defendant can show that the same action would have been taken in the absence of protected activity, the defendant is entitled to prevail on summary judgment.” Id. “[A] proven infraction of prison rules will generally satisfy the defendant's burden.” Thomas v. Eby, 481 F.3d 434, 442 (6th Cir. 2007). The inappropriate sexual behavior for which Plaintiff was written up was masturbating at his cell door, actions Bower personally observed. [See DN 137-19, at 1.] Additionally, the committee's report from the hearing at which Plaintiff was found guilty noted that Plaintiff's defense was only that Bower had not previously written him up for the same inappropriate sexual behavior. And the conduct of which Plaintiff was found guilty violates KSP rules, as shown from the committee hearing disciplining him. In his Response, Plaintiff does not refute Defendants' arguments on this point and, indeed, does not mention the incident or Bower at all. Because this claim fails as a matter of law, summary judgment is appropriate and the Court need not address the issue of whether Bower is entitled to qualified immunity on this issue.

         2. Skyla Grief.

         Plaintiff avers that Defendant Grief threatened to have him transferred to a more restrictive cell unit if Plaintiff did not cease filing grievances and that Belt instructed Plaintiff that Grief had ultimately put Plaintiff in the more restrictive unit to “teach him a lesson.” Plaintiff avers that Grief put a “keep away, ” or “conflict” on Plaintiff and another inmate, Garfield Evans, because Plaintiff was helping Evans with his legal issues. Lastly, Plaintiff avers that Grief instructed him that if he did not “stop writing letters to Frankfort, ” she would send “[Evans] to Eastern and strip me [Plaintiff] out and let me rot in 3 cell house.”

         Plaintiff has established that he was engaged in protected conduct: filing grievances. See Smith, 250 F.3d at 1037. Additionally, Plaintiff's averment that he was threatened with a transfer to a more restrictive cell unit, and was ultimately transferred there, would certainly constitute an adverse action. See Thaddeus-X, 175 F.3d at 396 (“In the prison context, an action comparable to transfer to administrative segregation would certainly be adverse.”). Defendants argue that inmates do not possess the right to be housed in the unit or classification of their choice. See Olim v. Wakinekona, 461 U.S. 238, 245-46 (1983). And while Defendants are correct on this front, they do not adequately address the issue of the reason for Plaintiff's transfer to a more restrictive unit. Certainly, KSP administrators and the individuals responsible for inmate transfers have the right to transfer prisoners, when warranted in their judgment, to more restrictive units. The issue, however, is the sufficiency of the reason, and whether Plaintiff was transferred because of behavior and infractions or because of his protected conduct. This dispute as to Grief's motives for threatening to have Plaintiff transferred indicates to the Court that a genuine dispute as to a material fact remains, rendering summary judgment inappropriate at this time. See Hill v. Lappin, 630 F.3d 468, 474-75 (6th Cir. 2010) (explaining that the threat of transfer to a more restrictive environment can constitute adverse action).

         3. Timothy Hawkins.

         Plaintiff avers he suffered retaliation from Defendant Hawkins when Hawkins fired Plaintiff from his “Walkman Job” and took pens and grievance forms from Plaintiff's cell. Further, Plaintiff avers that Hawkins instructed him that he would “rot” in the restrictive unit of KSP if he did not drop the lawsuit against Bower and the grievances he had already filed. An inmate's involvement in a lawsuit is protected conduct. See Zamiara, 150 F. App'x at 491. Additionally, drawing all reasonable inferences against the movant, the Court finds that Hawkins took adverse action against Plaintiff. It is true that “removing Plaintiff from his prison job is not an ‘adverse action' under the retaliation standard.” Diamond v. Jackson, 2016 WL 411112, No. 5:15-cv-P164-GNS, at *4 (W.D. Ky. Feb. 2, 2016) (citing Bailey v. Ingram, 2014 WL 5431300, No. 5:14-279-DCR, at *13 (E.D. Ky. Oct. 24, 2014)). Moreover, while Hawkins avers that he is not normally involved in cell searches and does not recall searching Plaintiff's cell, removing pens and forms from Plaintiff's cell does not rise to the level of action necessary for Plaintiff to sustain a retaliation claim against him. However, the Sixth Circuit has noted that a threat of transfer “to a living environment with more restrictions and fewer privileges than in the prison's general population” can rise to the level of adverse action. See Hill, 630 F.3d at 474-75. Thus, while some of Hawkins' actions do not rise to the level of implicating the “adverse action” standard, the threat about which Plaintiff avers regarding him being left to “rot” in a restrictive unit of KSP is sufficient to constitute an adverse action. Summary judgment in favor of Hawkins would be inappropriate at this time.

         4. Joy Myers & Jill Robertson.

         Plaintiff avers that Defendants Myers and Robertson worked in concert with Defendant Grief in order to keep Plaintiff and Evans away from each other due to the fact that Plaintiff was assisting Evans with his legal issues. Plaintiff avers that this was done in retaliation for him filing grievances and a lawsuit. The Court is persuaded by Defendants' argument regarding the “adverse action” and “causal connection” prongs of Plaintiff's retaliation claim. Specifically, as laid out in detail above, the adverse action taken by officials must be such that it “would deter a person of ordinary firmness from engaging in that conduct.” Thaddeus-X, 175 F.3d at 394. Here, the only adverse action about which Plaintiff complains is being separated from another inmate, Garfield Evans. It stretches credulity to believe that moving an inmate from one unit of a prison to another would deter a person of ordinary firmness from engaging in protected activity like filing a grievance. Moreover, as the Supreme Court noted in Overton v. Bazzetta, 539 U.S. 126, 131-32 (2003), prisoners' First Amendment right of freedom of association is curtailed during incarceration. Plaintiff may have wanted Evans to remain closer to him, but he has no right to this, nor does the separation of these two inmates give rise to a cognizable retaliation claim.

         Moreover, there does not appear to be a causal connection between Plaintiff filing grievances against individuals like Bower and the inmate transfer which was effectuated. Defendants have proffered substantial evidence that the transfer was made not because Plaintiff had filed a grievance or grievances, but rather, because Plaintiff had been caught on KSP's security cameras engaging in a sexual act with Evans. This conduct was what apparently initiated the 2014 adjustment committee issue wherein Plaintiff contends that Defendant Bauer “trumped up” a lie about the sexual act in question. Exhibit F to Defendants' instant Motion directly refutes any claims that Bauer lied, and tends to show exactly why Plaintiff was distanced from Evans in the first place. Additionally, this Court is reluctant to interfere with prison officials' inherent flexibility with respect to “fine-tuning…the ordinary incidents of prison life.” See Sandin v. Conner, 515 U.S. 472, 482-83 (1995) (explaining that “federal courts ought to afford appropriate deference and flexibility to state officials trying to manage a volatile environment.”). This being the only claim for retaliation that Plaintiff has made against Myers and Robertson, the Court finds that summary judgment in favor of Myers and Robertson is appropriate on this issue. Because this claim fails as a matter of law, the Court need not address the issue of whether Myers and Robertson are entitled to qualified immunity.

         5. Troy Belt.

         Regarding Defendant Belt, Plaintiff avers that on December 13, 2013, Belt stood by and watched while another inmate, “Kasey Kazee, ” assaulted Plaintiff. Later, Plaintiff avers that Belt told him, “see what happens when you file grievances on staff.” Plaintiff further avers that, after the assault, Kazee was given a job and money was placed in his inmate account. Plaintiff also avers that Belt retaliated against him by putting a “keep away, ” or “conflict” on Plaintiff and another inmate, Garfield Evans, in response to Plaintiff providing legal assistance to Evans. Plaintiff avers that Belt also instructed another inmate to file a “confidential report” against Plaintiff and Evans. Lastly, Plaintiff avers that Belt assigned him to a stricter cell unit in retaliation for filing grievances.

         Plaintiff has established that he was engaged in protected conduct: filing grievances. See Smith, 250 F.3d at 1037. The next question is whether Belt took adverse action against Plaintiff. As explained above, Defendants have presented sufficient evidence regarding the separation of Plaintiff and Evans as necessary under PREA and KSP policies to satisfy this Court. However, transfer to a more restrictive unit is adverse action under the retaliation inquiry. Where Plaintiff's transfer fails to establish a cognizable claim for retaliation is at the causal connection prong. This is because, while Plaintiff avers in his Verified Complaint that he was transferred due to the grievances he had been filing, Defendants have successfully carried their burden of showing that Plaintiff would have been transferred anyway. See Eby, 481 F.3d at 441-42. The transfer that Plaintiff avers was retaliatory came on the heels of the well-documented incident during which Plaintiff had to be restrained by a use of force team and shot with pepper balls in August 2014. [DN 137-6.] It was after this incident that Plaintiff was transferred to the more restrictive unit. Thus, Defendants have carried their burden of showing that, absent any retaliatory intentions, Plaintiff would have been transferred anyway.

         The remaining adverse action Plaintiff complains of with respect to Belt is when Belt allegedly permitted another inmate to assault Plaintiff and convinced another inmate to file a confidential report against Plaintiff. Belt avers that he took no adverse action with respect to the assault Plaintiff suffered. Specifically, Defendants have proffered evidence that Belt was in no way involved with this assault. Kazee was found guilty of striking Plaintiff multiple times on December 22, 2013 at 8:26 AM. [DN 137-5, at 1.] According to Belt's timesheet, he did not clock into work until 2:38 PM that afternoon, [DN 137-34], and thus, he argues that he could not have stood by while this incident occurred. However, Plaintiff avers in his Verified Complaint that Belt was present and looked on while the assault occurred, and then made retaliatory remarks to him. Drawing all reasonable inferences against the movant, Plaintiff's averments, if true, present to the Court adverse action taken against Plaintiff by Belt, and a causal connection between that action and Plaintiff's protected activity. This is sufficient to create a genuine dispute as to a material fact, precluding summary judgment at this time.

         6. Tami Bauer ...


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