Opinion
Case No. 2:18-cv-00080 Case No. 2:18-cv-00186
08-18-2020
BRUCE PARKER #593090, Plaintiff, v. CONNIE HORTON, et al., Defendants. BRUCE PARKER #593090, Plaintiff, v. KENNETH McKEE, et al., Defendants.
Hon. Paul L. Maloney U.S. District Judge REPORT AND RECOMMENDATION
I. Introduction
This is a consolidated prisoner civil rights case filed by Bruce Parker pursuant to 42 U.S.C. § 1983. Parker alleges that he was the victim of sexual assault, conspiracy, retaliation, and racism while incarcerated at Chippewa Correctional Facility (URF) in 2018.
The remaining Defendants in the case are Corrections Officer (CO) Duncan Martin, Inspector John Miller, Inspector Mike Brown, CO Derek Stabile, Warden Connie Horton, CO Aaron Simpson, CO Jeffery Green, Hearing Officer Crystal Bigger, former URF Assistant Prison Rape Elimination Act (PREA) Coordinator Lisa Belanger, CO Robert Pawley, and CO Rob Batho.
Prior to consolidation, Plaintiff filed a motion for partial summary judgment in each case. (Case No. 2:18-cv-80 (hereinafter "Case One"), ECF No. 74, PageID.506 and Case No. 2:18-cv-186 (hereinafter "Case Two"), ECF No.53, PageID.402.) This report and recommendation addresses both of Plaintiff's motions for summary judgment. In Case One, Parker asserts that he is entitled to partial summary judgment concerning his First Amendment retaliation claims against CO Weems and CO Ford. In Case Two, he argues that he is entitled partial summary judgment concerning his First Amendment retaliation claims against Benson, Olmstead, and Belanger, and his Fourteenth Amendment due process claim against Burke.
It should be noted that Defendants have filed a motion for summary judgment and supporting brief that addresses the merits of Parker's remaining claims in the consolidated case. (See Case One, ECF No. 130, PageID.773; Case One, ECF No. 132, PageID.779.) This report and recommendation does not address Defendants' motion for summary judgment.
In response to these motions, Defendants argue that Parker failed to satisfy his burden on summary judgment. (Case One, ECF No. 88, PageID.547-51; Case Two, ECF No. 60, PageID.482-98.) In Case One, Defendants added that summary judgment is inappropriate because discovery had not yet closed. (Case One, ECF No. 88, PageID.551-52.)
The undersigned concludes that there are genuine issues of fact regarding each of the claims for which Plaintiff seeks summary judgment. The undersigned respectfully recommends that the Court deny Parker's motions.
II. Additional Relevant Procedural History
a. Case One's Relevant Procedural History Prior to Consolidation
On June 13, 2018, Parker initiated this action by filing Case One in federal court. (ECF No. 1, PageID.1.) Parker alleged twenty different violations of his constitutional rights by several different MDOC employees.
On October 29, 2018, Defendants filed a summary judgment motion and supporting brief based solely on the issue of exhaustion. (ECF No. 53, PageID.239; ECF No. 54, PageID.241.) On July 25, 2019, Court issued a report and recommendation that recommended dismissal of seven of Parker's twenty claims. (ECF No. 70, PageID.466.) The Court adopted the report and recommendation. (ECF No. 71, PageID.501.)
Parker filed a summary judgment motion on September 9, 2019. (ECF No. 74, PageID.506.) In support of the motion, Parker filed a memorandum and an affidavit. (ECF No. 75, PageID.508; ECF No. 76, PageID.511.) Defendants responded on October 21, 2019. (ECF No. 88, PageID.546.) Parker replied on November 4, 2019. (ECF No. 92, PageID.575.)
b. Case Two's Relevant Procedural History Prior to Consolidation
On October 29, 2018, Parker filed Case Two in federal court. (ECF No. 1, PageID.1.) Parker alleged another series of constitutional violations by five MDOC employees at URF.
On November 30, 2018, the Court issued a screening opinion and order that dismissed all of Parker's claims against one of the five Defendants (Director Kenneth McKee). (ECF No. 9, PageID.70; ECF No. 10, PageID.81.) The Court held that Parked "allege[d] no facts from which to reasonably infer that Defendant McKee's actions were motivated by any of his protected conduct." (ECF No. 9, PageID.76.)
On December 19, 2018, the case entered the Prisoner Early Mediation (PEM) program. (ECF No. 16, PageID.102.) The case failed to settle. (ECF No. 20, PageID.111.)
On April 25, 2019, Defendants filed a summary judgment motion and supporting brief solely arguing that Parker failed to properly exhaust his claims. (ECF No. 33, PageID.133; ECF No. 34, PageID.135.) Then the parties filed a stipulation and proposed order that only allowed five of Parker's claims to proceed. (ECF No. 36, PageID.371.) The Court issued the proposed order. (ECF No. 37, PageID.373.)
On November 12, 2019, Parker moved for summary judgment motion. (ECF No. 53, PageID.402.) Defendants responded to Parker's motion. (ECF No. 60, PageID.473.) Parker replied. (ECF No. 61, PageID.565.)
On November 14, 2019, Defendants requested the Court consolidate Case Two with Case One. (ECF No. 56, PageID.421.) In response, Parker consented to the consolidation so long as two conditions were met. (ECF No. 58, PageID.468.) The first condition was for discovery to be closed in both cases or have the Court set the close of discovery to occur on January 22, 2019. The second condition was for Parker to be refunded his filing fees from one of the lawsuits.
c. Relevant Procedural History Since Consolidation
On February 27, 2020, the Court ordered the cases be consolidated because (1) there are common questions of fact and law and (2) no confusion or prejudice would occur because of the consolidation. (Case One, ECF No. 113, PageID.699.)
On April 27, 2020, Defendants filed a summary judgment motion and supporting brief arguing the merits of Parker's claims. (Case One, ECF No. 130, PageID.773; Case One, ECF No. 132, PageID.779.) Parker responded in opposition. (Case One, ECF No. 135, PageID.936.) Defendants replied. (Case One, ECF No. 138, PageID.985.) Parker filed a sur-reply. (Case One, ECF No. 139, PageID.1040.)
On July 29, 2020, Parker requested that Defense Counsel be recused because of alleged "unprofessional and disparaging conduct" by Defense Counsel. (Case One, ECF No. 142, PageID.1046; Case One, ECF No. 143, PageID.1048.) Defendants have yet to respond.
III. Summary of Plaintiff's Allegations
The two tables below list and summarize Parker's remaining claims from Cases One and Two.
Parker's Remaining Claims from Case One
The claim numbers listed in the table are the same numbers that were assigned in the Court's earlier report and recommendation (Case One, ECF No. 70, PageID.474-477).
| ClaimNo. | Defendant | Claim | Date orDateRange ofIncident(s) | Factual Allegation |
|---|---|---|---|---|
| 1 | DuncanMartin | 1stAmendmentRetaliation | 1/19/18 | Parker was threatened withsegregation if he filed anothergrievance. (Case One, ECF No. 1,PageID.6.) |
| 2 | John MillerAnd MikeBrown | 8thAmendmentFailure toProtect | 1/22/18 | Inspectors Miller and Brown failed toprotect Parker from violent andovertly racist environments. (CaseOne, ECF No. 1, PageID.7.) |
| 3 | Derek Stabile | 1stAmendmentRetaliation | 1/24/18 | During a shakedown, an officerthreatened Parker with MisconductReports if he continued to writegrievances. Later that day, the sameofficer wrote Parker a falseMisconduct Report. (Case One, ECFNo. 1, PageID.7.) |
| 4 | ConnieHorton | 8thAmendmentFailure toProtect | 1/24/18 | The warden failed to correctdeficiencies in the physical structureof the prison that rendered inmatesvulnerable to sexual assault. |
| 5 | Derek Stabile | 1stAmendmentRetaliation | 1/25/18 | An officer conducted a search ofParker's cell and destroyed some ofParker's photographs and legaldocuments. (Case One, ECF No. 1,PageID.7-8.) |
| 7 | AaronSimpson | 1stAmendmentRetaliation | 1/30/2018 | During a shakedown, an officer threwParker's shoes at him and calledhim a dog. When Parker accused theofficer of assault, the officerthreatened to put a razor in Parker'scell. (Case One, ECF No. 1, PageID.9.) |
| 8 | ConnieHorton, JohnMiller, andMike Brown | 8thAmendmentFailure toProtect | 2/2/18 | Prison officials were put on notice ofParker's need for protection fromexisting harm and nevertheless failedto protect him. |
| 10 | Jeffrey Green | 1stAmendmentRetaliation | 2/25/2018 | During a shakedown, an officer beganto question Parker about his PREAcomplaint and threatened to haveanother officer set him up if he did nothave the PREA complaint dropped.The officer then smacked Parker'sbuttocks. (Case One, ECF No. 1,PageID.13.) |
| ClaimNo. | Defendant | Claim | Date orDateRange ofIncident(s) | Factual Allegation |
|---|---|---|---|---|
| 13 | CrystalBigger | 1stAmendmentRetaliation | 3/6/2018 | A Misconduct Hearing Officer foundParker guilty of the February 28,2018 Misconduct Report because hewas "the one filing all of thebullshit sexual complaints andgrievances." (Case One, ECF No. 1,PageID.14-15.) |
| 14 | Lisa Belanger | 1stAmendmentRetaliation | 3/9/2018 | Parker was written a false misconductbased on his sexual assaultcomplaints and his grievances againstSgt. Belanger. (Case One, ECF No. 1,PageID.14-15.) |
| 15 | Pawley,Belanger, andHorton | 1stAmendmentRetaliation;Conspiracy | 3/13/2018 | A Hearing Officer agreed that theMarch 9, 2018 Misconduct Reportwritten against Parker was false butfound Parker guilty anyway in orderto appease the Warden and the officerwho wrote the Misconduct Report.(Case One, ECF No. 1, PageID.17.) |
| 18 | Billy Weems | 1stAmendmentRetaliation | 5/16/2018 | Parker received a false MisconductReport. (Case One, ECF No. 1,PageID.20.) |
| 20 | Michael Ford | 1stAmendmentRetaliation | 5/29/2018 | During a shakedown, Parker wassexually assaulted and then orderedto undress by an officer. (Case One,ECF No. 1, PageID.20-23.) |
Parker's Remaining Claims from Case Two
The claim numbers assigned to Parker's remaining Case Two claims were assigned in the Court's order granting a stipulation that clarified the remaining claims in the action (Case Two, ECF No. 37, PageID.373-374).
| ClaimNo. | Defendant | Claim | Date orDate RangeofIncident(s) | Factual Allegation |
|---|---|---|---|---|
| 1 | Burke | 14thAmendmentDue Process | 10/16/18 | During two misconduct hearings,which Burke presided over, heallegedly denied Parker theopportunity to present evidence.(Case Two, ECF No. 1, PageID.6-8.) |
| 2 | RichardBenson | 1stAmendmentRetaliation | 10/9/2018 | Parker received a false misconductticket based on possession ofcontraband (30 packets of sugar).(Case Two, ECF No. 1, PageID.6-8.) |
| ClaimNo. | Defendant | Claim | Date orDate RangeofIncident(s) | Factual Allegation |
|---|---|---|---|---|
| 3 | VirginiaOlmstead | 1stAmendmentRetaliation | 10/9/2018 | Parker received a false misconductticket based on creating a disturbanceand/or insolence. (Case Two, ECF No.1, PageID.6-8.) |
| 4 | LisaBelanger | 1stAmendmentRetaliation | 7/27/2018 | Parker received a false misconductticket for interfering with theadministration of rules. (Case Two,ECF No. 1, PageID.5.) |
| 1stAmendmentRetaliation | 6/14/2018 | Parker was allegedly placed onsuicide watch because he filedgrievances against MDOC employees. |
Parker did not argue that he was entitled to summary judgment as to his fifth remaining claim. (See Case Two, ECF No. 54, PageID.405.) Also, it should be noted, that the parties' stipulation does not clarify who is alleged to have committed that First Amendment retaliation claim. (See Case Two, ECF No. 37, PageID.374.)
Parker did not argue that he was entitled to summary judgment as to his fifth remaining claim. (See Case Two, ECF No. 54, PageID.405.) Also, it should be noted, that the parties' stipulation does not clarify who is alleged to have committed that First Amendment retaliation claim. (See Case Two, ECF No. 37, PageID.374.)
IV. Summary Judgment Standard
Summary judgment is appropriate when the record reveals that there are no genuine issues as to any material fact in dispute and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Kocak v. Comty. Health Partners of Ohio, Inc., 400 F.3d 466, 468 (6th Cir. 2005). The standard for determining whether summary judgment is appropriate is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." State Farm Fire & Cas. Co. v. McGowan, 421 F.3d 433, 436 (6th Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The court must consider all pleadings, depositions, affidavits, and admissions on file, and draw all justifiable inferences in favor of the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
"[W]here the moving party has the burden—the plaintiff on a claim for relief or the defendant on an affirmative defense—his showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party." Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986) (emphasis removed). Thus, the party with the burden of proof "must show that the record contains evidence satisfying the burden of persuasion and that the evidence is so powerful that no reasonable jury would be free to disbelieve it." Arnett v. Myers, 281 F.3d 552, 561 (6th Cir. 2002). "Accordingly, summary judgment in favor of the party with the burden of persuasion 'is inappropriate when the evidence is susceptible to different interpretations or inferences by the trier of fact.'" Green v. Tudor, 685 F.Supp.2d 678, 685 (W.D. Mich. 2010) (quoting Hunt v. Cromartie, 526 U.S. 541, 553 (1999)).
V. First Amendment Retaliation Claims
In order to set forth a First Amendment retaliation claim, a plaintiff must establish that: (1) he was engaged in protected conduct; (2) an adverse action was taken against him that would deter a person of ordinary firmness from engaging in that conduct; and (3) the adverse action was motivated, at least in part, by the protected conduct. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). Moreover, a plaintiff must be able to prove that the exercise of the protected right was a substantial or motivating factor in the defendant's alleged retaliatory conduct. Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001) (citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). For the following reasons, it is the opinion of the undersigned that Parker failed to show that he is entitled to summary judgment as to the following First Amendment retaliation claims.
A defendant in a retaliation case may obtain summary judgment if he or she "can show that he would have taken the same action in the absence of the protected activity, he is entitled to prevail on summary judgment." Thaddeus-X, 175 F.3d at 399.
a. Parker's Claim Against Weems (Case One, Claim No. Eighteen)
Defendants argue that Weems was unaware of who Parker was during their "limited" interaction and that Parker is "a serial filer of grievances against URF staff." (ECF No. 88, PageID.548-49.) Correspondingly, Defendants assert that Parker has not satisfied his burden regarding the claim's third element (the casual connection). The undersigned agrees.
This far in support of his motion, Parker directs the Court's attention to his own affidavit. (See ECF No. 76, PageID.511.) Parker attests that Weems "extensively" questioned him, on May 19, 2018 in URF's food service line, about Parker's past complaints. (Id.) According to Parker, Weems issued him a false misconduct ticket immediately after the questioning. (Id.)
In opposition, Defendants direct the Court's attention to Weems's affidavit (ECF No. 88-1, PageID.555) and URF's food services dining room rules (Id., PageID.561). When faced with Parker's description of his interaction with Parker, Weems swears that "No such events took place." (Id., PageID.556.) Weems attests to having "no knowledge of who Mr. Parker was prior to May 16, 2018," and not having "any knowledge that Mr. Parker had filed any grievances against any of my coworkers at that time." (Id.) In addition, Weems explains why he issued Parker a Class III misconduct, and how the ticket was issued in accordance with prison policy. (ECF No. 88-1, PageID.556-57.) According to Weems, the prison policy does not allow for prisoners to move freely around the dining hall; consequently, Parker would not be allowed to reenter the food service line. (Id.) Weems says that he observed Parker reenter the line and obtain butter, and that he stopped Parker and issued Parker the misconduct ticket. (Id.)
The MDOC policy, shown below (with highlighting added), supports the conclusion that Weems issued Parker a misconduct in good faith based on the factual situation that Weems swears to have seen.
preparation. All questions shall be referred to food service staff or an officer.(ECF No. 88-1, PageID.562.)
12. After exiting the serving line prisoners must immediately proceed to open seats in the dining room. Waiting for a specific seat to open is not allowed. Prisoners are not allowed to pass or receive food from other tables as they proceed to an open seat.
13. Once seated, prisoners may not switch seats. Prisoners seated at tables are not allowed to reserve other seats for other prisoners by placing utensils, cups or food at empty seats.
14. Prisoners are allowed to share food at the table they are seated at only. Passing or receiving food to or from another table is not allowed. Prisoners are not allowed to conceal food items in their clothing while seated in the dining room. All food must be eaten or disposed of properly.
15. Prisoners are not allowed to throw food or any other item in the dining room and are not allowed to intentionally discard food, utensils or napkins on the dining room floor.
16. When finished eating, prisoners are required to immediately exit the building. Prisoners are not allowed to leave trays, cups or food on the table.
17. No food items, utensils, cups or trays are to be removed from the Food Service building except for one whole fresh fruit of the meal, if available.
18. Prisoners are to remain within the confines of the serving line/dining room area of the building, all other areas are considered off limits. Restricted areas outlined by red paint on the floor are off limits, prisoner are not allowed to pass through them unless authorized by staff. Prisoners are not allowed to loiter in any area.
19. Excessive noise, horseplay and running are all prohibited in the building.
Because the record contains competing evidence as to whether Weems issued Parker a misconduct ticket in retaliation for Parker filing complaint against fellow URF staff, the undersigned concludes that there is a genuine issue as to the third element (the casual connection element) of Parker's claim.
b. Parker's Claim Against Ford (Case One, Claim No. Twenty)
The parties disagree almost entirely on the facts surrounding this claim. (See ECF No. 75, PageID.508; ECF No. 88, PageID.549-551.) As a result, the undersigned respectfully recommend that the Court find that there is a genuine issue of fact.
In Parker's version of the facts, he was an innocent person who was targeted by Ford because of complaints Parker filed against URF staff. Parker alleges that, on May 29, 2018, Ford pulled him aside after he exited the food service line. (ECF No. 75, PageID.508.) Ford then questioned Parker about complaints he filed against other URF staff members. (Id.) Parker contends that Ford then, with the threat of a taser, required Parker to be strip searched in plain view of all those in the mess hall. (Id.) Parker states these claims in an affidavit Parker offered to support his motion. (ECF No. 76, PageID.511.)
Defendants paint an entirely different picture. According to Defendants, Ford was monitoring the food service line, which required him to scan prisoner's identification cards. (ECF No. 88, PageID.550.) While Ford was scanning identification cards, he noticed that Parker cut the food service line. (Id.) Consequently, Ford ordered Parker back to the end of the line. (Id.) Defendants say that when the line progressed to the point where Ford asked to scan Parker's identification card, Parker expressed "outrage that Ford dare question him." (Id.) Due to Parker's conduct, Ford became suspicious of whether Parker was concealing contraband. Based on that suspicion, Ford initiated a clothed search of Parker. (Id.) Defendants explained that Parker was frustrated while being searched and began to undress during it. (ECF No. 88, PageID.550.) Defendants added that Ford did not know who Parker was prior to scanning Parker's identification card. (Id.) In an affidavit, Ford swears to all the facts asserted above by the Defendants. (ECF No. 88-2, PageID.566.)
In addition to the facts asserted by the Defendants, Ford clarifies four facts in his affidavit. First, Ford initiated a clothed search of Parker because of "Parker's aggressive behavior, and his animosity to my lawful inquiry." (Id., PageID.565.) Second, prior to this interaction, Ford "did not know Mr. Parker, nor did [he] know any of the grievances that he filed against several MDOC employees at URF." (Id., PageID.566.) Third, Ford says he never threatened Parker with a Taser, or any other weapon during the clothed search. (Id.) And fourth, when Parker began removing his clothes during the search, Ford ordered Parker to stop removing clothes. (Id.)
Based on these conflicting accounts, the undersigned concludes that there is a genuine issue of material fact.
c. Parker's Claim Against Benson (Case Two, Claim No. Two)
The undersigned concludes that Parker has failed to show that he is entitled to summary judgment against Benson.
Parker asserts that Benson planted thirty packets of sugar in Parker's cell, and then issued Parker a false Class II misconduct ticket for possessing stolen property, the sugar. (ECF No. 54, PageID.407.) In support of his claim, Parker directs the Court's attention to (1) Defendants' responses to requests for admissions (ECF No. 54-1, PageID.411-413), (2) the Step I grievance response to grievance URF-18-10-2886 (Id., PageID.416), (3) fellow inmate Daniel Perry-El's affidavit (Id., PageID.417), and (4) Parker's own affidavit (Id., PageID.418-419).
In response, Defendants dispute all of Parker's factual assertions and argue that Parker is not entitled to summary judgment. (See ECF No. 60, PageID.473.) Defendants direct the Court's attention to (1) Parker's relevant misconduct ticket and contraband removal form (ECF No. 60-3, PageID.510-512), (2) the relevant misconduct hearing report (ECF No. 60-4, PageID.516), (3) the relevant misconduct appeal (ECF No. 60-5, PageID.520), and (4) Benson's affidavit (ECF No. 60-8, PageID.529).
A careful review of the evidence provided shows that there are genuine issues of fact as to this claim. Parker says that the evidence shows that only Benson and Olmstead had access to the sugar packets. (ECF No.54-1, PageID.412.) He also seeks to show that when a fellow prisoner - Daniel Perry - went to speak with Benson, Perry observed Benson take the sugar packets and was told by Benson that Benson was going to "pack" Parker's property. (Id., PageID.417.) On the other hand, Benson swears that Parker's description of how Parker received his misconduct ticket "is false." (ECF No. 60, PageID.532.) Benson adds that he "did not plant evidence" and that he "did not write a misconduct to retaliate against prisoner Parker for writing grievances against myself or any other officers." (Id.) Benson explains that he was packing up Parker's property because Parker was being transferred to segregation when he found the sugar packets.
It is the opinion of the undersigned that the evidence establishes a genuine issue of material fact as to whether Benson's conduct was motived by Parker's complaints against URF staff.
d. Parker's Claim Against Olmstead (Case Two, Claim No. Three)
Parker argues that he is entitled to summary judgment because Olmstead issued him a false misconduct ticket for insolence and creating a disturbance. In support of his position, Parker provides the Court with Defendants' responses to requests for admissions (ECF No. 54-1, PageID.411-413) and Parker's own affidavit (Id., PageID.418-419).
Defendants dispute Parker's assertions of fact and argue that there is a genuine issue of material fact. In relevant part, Defendants direct the Court's attention to (1) Parker's relevant misconduct ticket (ECF No. 60-3, PageID.513), (2) the relevant misconduct hearing report (ECF No. 60-4, PageID.517), and (3) the relevant misconduct appeal (ECF No. 60-5, PageID.521), and (4) the Olmstead's affidavit (ECF No. 60-7, PageID.525).
The evidence provided by the parties depicts distinctly different situations. Parker says that he did not make a disturbance by yelling "Hands up don't shoot." (ECF No. 54-1, PageID.419.) Instead, Parker says that the hallway where he interacted with Olmstead was narrow and congested due to the presence of another prisoner, so Parker raised his hands to avoid touching Olmstead. (See Id., PageID.412, 419.) In contrast, in Olmstead's affidavit, she explains that she did not issue a misconduct ticket in retaliation for grievances filed against her; she noted that "[g]rievances are common in [her] job." (ECF No. 60-7, PageID.527.) Olmstead adds that she issued Parker the misconduct ticket because she observed him twice raise his hands and yell, "hands up, don't shoot." (Id., PageID.526-527.) In both instances, Parker's conduct caused a disturbance amongst the other prisoners. (Id.) After the second incident, Olmstead issued him the misconduct ticket. (Id.)
In Parker's request for admissions, he sought confirmation that any surveillance videos recorded at URF do not contain an audio recording. (See ECF No. 54-1, PageID.412.)
2. Admit or Deny. Defendant Belanger Chippewa Facility camera doesn't have Audio does it?
RESPONSE: Admit.
3. Admit or Deny. Defendant Olmstead on October 9, 2018 when we walked through the Hallway in H-unit wasn't there another Prisoner passing through as well?
RESPONSE: Defendant Olmstead can neither admit nor deny that there was another prisoner passing through on October 9, 2018, as Defendant cannot recall that date.
In the opinion of the undersigned the evidence again establishes a genuine issue of material fact as to whether Olmstead's conduct was motivated by Parker's filing of complaints against URF staff.
e. Parker's Claim Against Belanger (Case Two, Claim No. Four)
As noted in Section III of this report and recommendation, Parker maintains three First Amendment retaliation claims against Belanger. In Parker's motion for summary judgment, he only requested summary judgment as to the First Amendment retaliation claim based on Belanger allegedly issuing Parker a false misconduct ticket for interference with the administration of rules.
Parker argues that he is entitled to summary judgment because Belanger issued him a false misconduct ticket on July 27, 2018 for interference with the administration of rules. (See ECF No. 54, PageID.405.) In support of his argument, Parker provides the Court with (1) Defendants' responses to his requests for admission (ECF No. 54-1, PageID.411), and (2) Parker's affidavit (Id., PageID.418-419).
Defendants disagree with the facts that Parker presents and argue that he is not entitled to summary judgment on this claim against Belanger. (See ECF No. 60, PageID.473.) In support of their argument, Defendants direct the Court to: (1) Belanger's affidavit (ECF No. 60-2, PageID.502-507), (2) the relevant misconduct ticket (ECF No. 60-3, PageID.509), the relevant misconduct hearing report (ECF No. 60-4, PageID.515), and the relevant misconduct appeal (ECF No. 60-5, PageID.519).
A review of the evidence provided by the parties demonstrates that the parties disagree about material facts regarding whether Belanger issued Parker a misconduct ticket in retaliation for Parker allegedly filing a sexual harassment claim against another URF staff member. In Parker's affidavit, he avers that Belanger issued him a false misconduct in retaliation for filing his sexual harassment complaint. (ECF No. 54-1, PageID.418.) In Belanger's affidavit, she states that Parker's allegation regarding her issuing him a false misconduct ticket "is false." (ECF No. 60-2, PageID.505.) She added that she "issued [Parker] a misconduct after [her] investigation led to the conclusion that prisoner Parker's PREA allegations against Officer Ford were unsubstantiated. (Id., PageID.506.)
Because the evidence conflicts as to whether Belanger's conduct was motivated by Parker's filing of a PREA complaint, the undersigned concludes that there is a genuine issue of material fact regarding this claim.
VI. Fourteenth Amendment Substantive Due Process Claim (Case Two, Claim No. One)
Parker also argues that he is entitled to summary judgment as to his Fourteenth Amendment substantive due process claim against Burke. Burke was the hearing officer who presided over Parker's misconduct hearings regarding the tickets that Parker received from Benson and Olmstead. (ECF No. 60-4, PageID.516-517.) Burke found Parker guilty of both misconducts. (Id.) Parker alleges that Burke deprived him of due process during the misconduct hearings when he was not permitted to present unspecified evidence in his defense. (ECF No. 1, PageID.8.) Defendants argue that Parker's motion should fail as to Burke because Parker has failed to establish a liberty interest. (ECF No. 60, PageID.495-497.) The undersigned agrees.
With respect to Burke, the parties also briefed the issue of whether Parker is entitled to summary judgment as to a First Amendment retaliation claim. (See ECF No. 54, PageID.405; ECF No. 60, PageID.492-495.) The undersigned does not address this retaliation claim because it is no longer a part of the action. (See ECF No. 37, PageID.373.) The Court granted a joint stipulation where the parties agreed that the retaliation claim against Burke would be dismissed. (Id.)
As a matter of clarity, the undersigned notes that the parties characterize the claim as being a substantive due process claim. (See Case Two, ECF No. 1, PageID.9; Case Two, ECF No. 60, PageID.495-497.) --------
The Fourteenth Amendment prohibits States from "depriv[ing] any person of life, liberty, or property, without due process of law[.]" U.S. Const. amend. XIV. "The doctrine that governmental deprivations of life, liberty or property are subject to limitations regardless of the adequacy of the procedures employed has come to be known as substantive due process." Bowers v. City of Flint, 325 F.3d 758, 763 (6th Cir. 2003) (citation omitted)). "Substantive due process serves the goal of preventing governmental power from being used for purposes of oppression, regardless of the fairness of the procedures used." Pittman v. Cuyahoga Cty. Dep't of Children & Family Servs., 640 F.3d 716, 728 (6th Cir. 2011) (quoting Howard v. Grinage, 82 F.3d 1343, 1349 (6th Cir. 1996)). "Conduct shocks the conscience if it violates the decencies of civilized conduct." Range v. Douglas, 763 F.3d 573, 589 (6th Cir. 2014) (internal quotations and citations omitted).
To establish "a violation of substantive due process, the plaintiff must demonstrate that she [or he] 'has a constitutionally protected property or liberty interest' which was infringed upon. Johnson v. City of Saginaw, 365 F. Supp. 3d 818, 832 (E.D. Mich. 2019) (quoting Andreano v. City of Westlake, 136 F. App'x 865, 871 (6th Cir. 2005)). "[I]dentifying a new fundamental right subject to the protections of substantive due process is often an 'uphill battle,' . . . as the list of fundamental rights 'is short.'" Does v. Munoz, 507 F.3d 961, 964 (6th Cir. 2007) (quoting Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381, 393 (6th Cir. 2005) and Seal v. Morgan, 229 F.3d 567, 575 (6th Cir.2000)).
Parker has not identified a fundamental right that was infringed by Burke's actions. (See ECF No. 1, PageID.1; see also ECF No. 54, PageID.406-408.) Moreover, the record is bereft of evidence supporting Parker's claim. In addition, in his affidavit, Burke states that he "do[es] not ignore evidence when [he] hold[s] major court." (ECF No. 60-9, PageID.537.) Burke explains that he "found prisoner Parker guilty on the facts" and that he "acted professionally while holding court on prisoner Parker." (Id.) Due to the lack of evidence in support of Parker's claim, the undersigned concludes that there is a genuine issue of fact as to whether a fundamental right was infringed.
VII. Recommendation
The undersigned respectfully recommends that this Court deny Parker's motions for summary judgment. Dated: August 18, 2020
/s/_________
MAARTEN VERMAAT
U. S. MAGISTRATE JUDGE
NOTICE TO PARTIES
Any objections to this Report and Recommendation must be filed and served within fourteen days of service of this notice on you. 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b). All objections and responses to objections are governed by W.D. Mich. LCivR 72.3(b). Failure to file timely objections may constitute a waiver of any further right of appeal. United States v. Walters, 638 F.2d 947 (6th Cir. 1981); see Thomas v. Arn, 474 U.S. 140 (1985).