Opinion
No. 1:00-CV-389
May 23, 2002
Attorney for Plaintiff: Pro Se, David Hudson-Bey, Thumb Correctional Facility, from Lapeer, MI.
Attorney for Defendants: Jennifer M. Granholm, Attorney General, Corrections Division from Lansing, MI.
ORDER AND PARTIAL JUDGMENT WITHOUT PREJUDICE
In accordance with the Opinion issued this date,
IT IS HEREBY ORDERED that Plaintiffs Motion for Reconsideration (Dkt. No. 32) is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs Motion for Reconsideration (Dkt. No. 33) is GRANTED.
IT IS FURTHER ORDERED that Defendant's Motion for Rehearing and Reconsideration (Dkt. No. 41) is DENIED.
IT IS FURTHER ORDERED that Defendant's Motion to Dismiss For Failure To Exhaust Administrative Remedies (Dkt. No. 47) as to Defendant Williams is DENIED.
IT IS FURTHER ORDERED that Defendant's Motion to Dismiss For Failure To Exhaust Administrative Remedies (Dkt No. 44) as to Defendant Churchill is GRANTED.
IT IS FURTHER ORDERED that Plaintiff's claim that Defendant Churchill confiscated his legal materials in retaliation is DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that the Court's previous ruling that Defendants Unruh's, McKee's, Jones', Churchill's, and Williams' Rule 12(b) Motion for Dismissal and Rule 56(b) Motion for Summary Judgment (Dkt. No. 21) was granted as to Defendant Williams is VACATED.
IT IS FURTHER ORDERED that Defendants Unruh's, McKee's, Jones', Churchill's, and Williams' Rule 12(b) Motion for Dismissal and Rule 56(b) Motion for Summary Judgment (Dkt. No. 21) is DENIED insofar as it requested summary judgment for Defendant Williams.
IT IS SO ORDERED.
OPINION
This matter is before the Court on Plaintiffs two Motions for Reconsideration and Defendant's Motion for Rehearing and Reconsideration. This matter is also before the Court on Defendant's Motion To Dismiss For Failure To Exhaust Administrative Remedies as to Defendant Churchill. Plaintiff asks the Court to reconsider its previous Opinion and Order granting summary judgment to Defendant Williams. Defendant Churchill asks the Court to reconsider its previous Opinion and Order denying him summary judgment on the merits, and asks the Court to dismiss for failure to exhaust administrative remedies.
Both of Plaintiffs Motions for Reconsideration address the same issue, i.e., asserting why Plaintiff believes that he has exhausted his administrative remedies as to Defendant Williams. Therefore, the Court's analysis applies equally to both Motions.
The Court will grant Plaintiffs Motions for Reconsideration and will find that he exhausted his administrative remedies as to Defendant Williams. As a result, the Court considered Defendant Williams' Motion for Summary Judgment on the merits and will deny that Motion for the reasons below. The Court will deny Defendant Churchill's Motion for Rehearing and Reconsideration, but will grant his motion to dismiss for failure to exhaust and dismiss the remaining claim against him without prejudice.
I. Standards of Review
To succeed on a motion for reconsideration, the movant shall not only demonstrate a palpable defect by which the Court and the parties have been misled, but shall also show that a different disposition of the case must result from a correction of the defect. L.Civ.R. 7.4(a).
Review of a motion for summary judgment requires the Court to determine if there is no genuine issue as to any material fact such that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). It is the function of the Court to decide "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." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The question is "whether a fair-minded jury could return a verdict for the [non-moving party] on the evidence presented." Id. at 252. The facts are to be considered in a light most favorable to the nonmoving party, and ". . . all justifiable inferences are to be drawn m his favor." Schaffer v. A.O. Smith Harvestore Prod., Inc., 74 F.3d 722, 727 (6th Cir. 1996) (quoting Anderson, 477 U.S. at 255) (other citations omitted).
II. Procedural History
Plaintiff, a state prisoner, filed 42 U.S.C. § 1983 claims against various prison officials. Plaintiff claims that Defendant Williams as director of food service at the facility in which Plaintiff was incarcerated violated Plaintiffs Eighth Amendment rights by failing to feed him a sufficient diet, in terms of both quantity and quality of food. Plaintiff claims that Defendant Churchill confiscated Plaintiffs computer disks and destroyed files contained on those disks in retaliation for Plaintiff filing grievances against Defendant Churchill.
The Court previously dismissed the claim against Defendant Williams for failure to exhaust administrative remedies. The Court granted summary judgment on two other claims and denied summary judgment as to the final remaining claim against Defendant Churchill after reviewing the parties' Objections to the Report and Recommendation of the Magistrate Judge ("the Report").
Defendant Williams first made this argument in his Objections to the Report, and the Court accepted Defendant Williams' argument that the grievances did not show exhaustion as to him. The Court, however, invited Plaintiff to file a Motion for Reconsideration if appropriate.
Plaintiff now files Motions for Reconsideration, asserting to the Court that he did in fact exhaust his administrative remedies as to Defendant Williams. Defendant Churchill also files a Motion for Rehearing and Reconsideration, arguing why the denial of summary judgment as to the claim against him was a palpable error by this Court warranting reconsideration. Finally, Defendant Churchill files a Motion To Dismiss for Failure to Exhaust Administrative Remedies.
Plaintiff has filed a Response to Defendant Churchill's Motion for Rehearing and Reconsideration. Normally, a response to a motion for reconsideration is not permitted without leave of the Court. See L. Civ. R. 7.4(b). In this case, however, the Court has accepted and reviewed the response, believing that a quicker resolution of this dispute would be facilitated with that course of action.
III. Analysis
A. Plaintiff's Objections
1. Exhaustion of Administrative Remedies
The Magistrate Judge recommended that Defendant Williams be denied summary judgment, but this Court dismissed the claim because it found that Plaintiff's failure to exhaust administrative remedies precluded Plaintiffs claim. As a Muslim, Plaintiff observes Ramadan, a month-long fast during daylight hours, necessitating that he eat only when the sun is set. To accommodate this religious practice, prison officials give bag meals to Muslim prisoners to be eaten outside of prison meal times held in the cafeteria. Plaintiff asserts that the meals provided were nutritionally inadequate and caused him weight loss, dizziness, and constipation, jeopardizing his health.
Defendant Williams asserted that Plaintiff failed to exhaust his administrative remedies as to Defendant Williams specifically. Plaintiff points out in his Motions for Reconsideration where his Step II grievance specifically names Defendant Williams as authorizing the special religious bag meals for prisoners celebrating Ramadan. Specifically, Plaintiff highlighted for the Court this portion of his grievance: "The Religious Meals authorized by Pat Williams and Warden Jones deprives [sic] me of well balanced diet lacking sufficient nutritional value to preserve my health." The only individual named in Plaintiffs Step I grievance is "Jones, food service" as the individual with whom Plaintiff attempted to resolve his problem.
The Court granted leave to Defendant Williams to respond to Plaintiffs Motions for Reconsideration. See L. Civ. R. 7.4(b) (a motion for reconsideration will not ordinarily be granted in the absence of permitting an answer to the motion). In Defendant Williams' response, he argues that it is significant that Plaintiff asserts that he attempted to resolve the issue with Jones from food service and was told by Jones to grieve Defendant Williams. Plaintiffs Step I grievance does not mention Defendant Williams but only mentions Jones. Defendant Williams argues that Plaintiff was told that Defendant Williams was the appropriate party to grieve prior to Plaintiffs filing of the Step I grievance, yet he did not mention Defendant Williams until Step II.
Defendant Williams' filing, Dkt. No. 47, was titled "Defendant's Motion to Dismiss For Failure to Exhaust Administrative Remedies." However, the contents indicate that it was intended to be responsive to this Court's leave to respond to Plaintiffs Motion for Reconsideration.
Plaintiff refers to "respondents" in Step III, clearly referring to Defendant Williams and Warden Jones who were named in Step II, since the Step II response refers to "Respondent's Name" for the person responding to the Step II grievance. Plaintiff however, does not use the specific name of either respondent in Step III.
The MDOC grievance form does not specifically ask grievants to name those prison officials whom the grievants believe are responsible for their problem. Instead, prisoners are instructed on the Step I form to detail the attempt that the prisoner made to resolve the issue prior to writing the grievance, and then the prisoner is required to state the problem clearly. Similarly, the joint form used for the Step II — Reason for Appeal; for Step II — Response; and for Step m — Reason for Appeal does not require the prisoner to name particular individuals.
The Sixth Circuit has held that 42 U.S.C. § 1997e(a) requires that prisoners file grievances against specific prison officials in order to be found to have exhausted administrative remedies as to a particular official and thus be able to sue that official. See Curry v. Scott, 249 F.3d 493, 504-05 (6th Cir. 2001) (using the word "requirement" to describe prisoner-plaintiffs obligation to specifically name particular officials in order to exhaust administrative remedies as to those officials). The Curry Court said,
The district judge dismissed that claim because none of the prisoners complained about Howard's behavior, nor even mentioned Howard in their prison grievances. The district court, therefore, held that the prisoners' claims were not exhausted as to Howard. . . . The requirement that a prisoner file a grievance against the person he ultimately seeks to sue does not impose a heightened pleading requirement upon would-be § 1983 plaintiffs. It only assures, as envisioned under the PLRA, that the prison administrative system has a chance to deal with claims against prison personnel before those complaints reach federal court. Thus, we affirm the district court's decision to dismiss the plaintiffs' claims against Howard.
Id. In Curry, the Sixth Circuit affirmed the district court's dismissal for failure to exhaust administrative remedies against one official who was allegedly present during an assault against inmates by another official and failed to intervene. Curry, 249 F.3d at 497-98. The prisoner-plaintiffs failed to name this official, Officer Howard, in their grievances, and the Sixth Circuit found that the plaintiffs' claims against Howard were separate claims premised on separate legal theories from the claims against the alleged assaulter. Id. at 505. The Sixth Circuit found that the prison had no reason to know of the plaintiffs' complaints against Howard, even though the plaintiffs argued that any investigation of the alleged assaulter would have revealed Howard's alleged involvement and put the prison officials on notice of their complaint against Howard. Id. The Sixth Circuit rejected this argument and found that the plaintiffs "did not reasonably alert [the prison] to problems with Howard." Id. The Sixth Circuit then approved of a requirement that a prisoner-plaintiff name individuals in a grievance that he or she ultimately seeks to sue in order to be found to have exhausted administrative remedies. See id. This requirement was found to "assure, as envisioned under the PLRA, the prison administrative system has a chance to deal with claims against prison personnel before those complaints reach federal court." See id.
Unlike Curry, Plaintiff did mention Defendant Williams by name in Steps II and III and put the MDOC on notice of his problem with Defendant Williams, giving the MDOC a chance to deal with Plaintiffs claim before it reached federal court. In addition, Plaintiffs complaint in Step I was such that it had to have been clear to the MDOC about which policy that Plaintiff was complaining, and MDOC officials would have forwarded this complaint to Defendant Williams as the person responsible for the policy decisions about which Plaintiff complained. This is not at all like the facts of Curry, where the face of the grievance did not make it immediately clear that the inmates had a complaint with Officer Howard, and where further investigation would have been required to even discover his involvement with the events in question. See Curry, 249 F.3d at 505. Curry, however, leaves it unclear whether, as a legal matter, Plaintiff sufficiently exhausted his administrative remedies in the instant case when Plaintiff did not mention Defendant Williams' name until Step II.
See footnote 4, supra.
In Hayes v. Berghuis, the Sixth Circuit refused to dismiss the plaintiffs case for failure to exhaust administrative remedies as to two defendants because the plaintiffs grievances "sufficiently identified" those defendants. Hayes, 2002 WL 503403, at *1 (6th Cir. March 28, 2002). There is no indication of what "sufficiently identified" constituted. Cf. id. The Hayes Court also noted in dicta that the plaintiff failed to exhaust as to three other defendants who were "not named in [the plaintiffs] grievances[,] and [the plaintiffs] claims against them could not readily be ascertained from the grievances." Id.
Again, Hayes does not specify whether naming a particular defendant at one step sufficiently exhausts as to that defendant. However, Hayes seems to indicate that being able to identify with whom the problem lies is of paramount importance, and the use of the term "sufficiently identified" leads this Court to believe that the Hayes Court would not have required the naming of Defendant Williams at all three Steps, since Defendant Williams was identified clearly at Step II.
Additionally, in a situation where a prisoner challenges what amounts to a general policy, instead of complains about a particular incident like in Curry, it seems that filing grievances which clearly state the prisoner's complaint with the policy would satisfy the PLRA's exhaustion requirement and the reason behind the requirement, even if the prisoner did not name those individuals responsible for the policy. The MDOC, after all, knows whom among its staff is responsible for which policies. Moreover, requiring the naming of the specific individuals with the ability to change the policy in order to exhaust administrative remedies seems somewhat unfair when a policy is being challenged, since the prisoner may not be privy to accurate information regarding which individuals can change the policy.
Even though Plaintiff here was told by MDOC employee Jones in Food Service that Defendant Williams was responsible for the bag meals, this Court's decision as to exhaustion does not change since Defendant Williams was subsequently named in Step II, giving the MDOC early notice of the responsible individual; and given the grievance form's lack of direction to the inmate to specifically name individual officials.
Finally, Defendant Williams cites the following passage from a recent Supreme Court case holding that exhaustion is required as to all inmate suits about prison life, whether involving general circumstances or particular incidents:
Beyond doubt, Congress enacted § 1997e(a) to reduce the quantity and improve the quality of prisoner suits; to this purpose, Congress afforded corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case. In some instances, corrective action taken in response to an inmate's grievance might improve prison administration and satisfy the inmate, thereby obviating the need for litigation. In other instances, the internal review might "filter out some frivolous claims." And for cases ultimately brought to court, adjudication could be facilitated by an administrative record that clarifies the contours of the controversy.
Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 988 (Feb. 26, 2002) (citations omitted). While this decision and the decisions of the Sixth Circuit most on point still leave this Court with little guidance on this particular issue, this Court finds that these cases point in the direction of a finding that Plaintiff has exhausted as to Defendant Williams. Plaintiff named him, albeit not until Step II, but sufficiently early in the process such that the grievance identified a potentially responsible party to whom the issue could be directed for possible pre-litigation resolution. That appears to be the general point of these cases, and the Court finds that Plaintiff's grievance, taken through the 3-Step process, was sufficient to satisfy the exhaustion requirement to Defendant Williams specifically. Thus, the Court will reverse its earlier grant of summary judgment on this basis to Defendant Williams. It therefore becomes necessary to determine whether summary judgment is warranted on the merits of Plaintiff's claim against Defendant Williams.
It is not as though Plaintiff waited to name Defendant Williams until Step III, which would be arguably too late in the process to address the problem at the institution-specific level. While Step I does appear to be the level at which any fact-finding would initially occur, the Court does not find that Plaintiff's failure to name Defendant Williams until Step II harmful to the MDOC's resolution efforts to a degree such that the Court should find failure to exhaust administrative remedies.
But cf. Brown v. Sikes, 212 F.3d 1205, 1210 (11th Cir. 2000) (prisoner can satisfy administrative exhaustion requirement by naming any person involved in the controversy that the prisoner knows was involved at the time the grievance was filed, implying requirement to name known persons at earliest possible stage of grievance process).
2. Summary Judgment on the Merits
The Magistrate Judge, when considering Defendants' Motion for Summary Judgment on its merits, recommended denial of summary judgment in her Report. Defendant Williams also filed Objections to the Report, arguing that he was entitled to summary judgment on the merits of the claim. The Court will deny summary judgment on the present record.
Plaintiff claims that the bag meals provided to Muslim prisoners during every day of Ramadan neither provided enough food nor quality food. Defendant Williams originally objected to the Report because he argued that the Magistrate Judge incorrectly relied on an unsworn document apparently signed by a Registered Dietitian to recommend that Plaintiff presented sufficient evidence to survive summary judgment. The Court first notes that the Magistrate Judge expressly stated that her recommendation was made without consideration of the dietitians' report, since she recognized that it suffered from foundational deficiencies and could not be considered in a motion for summary judgment. (See Dkt. No. 24, at 17 n. 4.)
Furthermore, as the Magistrate Judge noted, neither Defendants' brief nor attached evidentiary exhibit made any effort to substantiate its bare conclusion that 2, 136 calories, the caloric content of the Ramadan meal as attested to by Defendant Williams, was nutritionally sufficient. Michigan Department of Corrections (MDOC) policy states that 2,900 calories is the daily "necessary caloric intake" for male inmates. Even Defendant Williams' assertion about the caloric content of the Ramadan meals shows that Plaintiff was missing more than one-quarter of the calories per day that the MDOC believed that he should be receiving.
This alone, without consideration of Plaintiffs offered dietitians' report, would be sufficient to find that Defendant Williams did not meet his burden to obtain summary judgment, given that the burden of proof on this issue will be on Defendant Williams. See Cunningham v. Jones, 567 F.2d 653, 660 (6th Cir. 1977) ("Cunningham I") (citations omitted) (remanding to district court to consider whether serving one meal per day to prisoner was sufficient to maintain his normal health). In Cunningham I, the Sixth Circuit said,
The prisoners, of course, could have no access to proofs as to calorie count in the meals actually furnished. Once the evidence established a substantial deprivation of jail food normally served (here a deprivation of two meals a day), the burden of proof as to the adequacy of the one meal actually furnished to maintain normal health must fall upon Defendants since such knowledge is peculiarly within their possession.
Id. Here, the evidence offered by Defendants in their summary judgment brief shows that prisoners observing Ramadan are receiving 764 fewer calories, or 26.3 percent of the daily intake, than the MDOC itself recommends for male prisoners. While that is less than depriving prisoners of two meals per day, the Court still finds that this is a substantial deprivation of prison food such that Defendants bear the burden to show that it is still nutritionally adequate for the prisoners observing Ramadan. This also seems only just, given Plaintiffs limited ability to investigate whether his health needs are being met and given that Defendants are charged with his well-being.
Defendant Williams also asserted in his Objections that as a matter of law, 2,136 calories is nutritionally sufficient for male prisoners and does not constitute an Eighth Amendment violation. For this proposition, Defendant Williams cites Cunningham after remand, 667 F.2d 565, 566 (6th Cir. 1982) ("Cunningham II"). As Defendant Williams correctly notes, Cunningham II found that serving a prisoner one meal per day for 15 days with an estimated caloric content of 2,000-2,500 calories was not an Eighth Amendment violation. Id.
However, the period of time at issue here is twice as long, an entire month. Moreover, this Court respectfully questions the evidentiary conclusion made in Cunningham II. There, no expert testified and there was no other evidentiary support besides the testimony of the jail cook as to what daily caloric content was appropriate to maintain sufficient health in this prisoner, but the Sixth Circuit still accepted the district court's conclusion that 2,000-2,500 calories per day was being received in one meal and was sufficient. Cunningham II, 667 F.2d at 566. The Court has doubts that a jail cook, however well meaning, is qualified to testify as to the caloric content of a prison meal when the decision did not note the cook's factual basis, like reading labels, dietitian training, etc., for the opinion. The Court further has doubts about the concluded caloric content since the prisoner in Cunningham I and II was deliberately given only one meal a day for 15 days as punishment for an attempted jail break. See Cunningham I, 567 F.2d at 653-54.
Cunningham II noted that the jail cook "apparently testified with considerable enthusiasm for her cooking." 667 F.2d at 566.
This Court finds that Defendant Williams is obligated to show that 2,136 calories per day for a month is enough as a matter of fact not to put this particular plaintiff, Plaintiff Hudson-Bey, in jeopardized health. As such, Defendant Williams did not meet his burden on this point. Moreover, Plaintiff asserts that he was on a vegetarian diet and did not receive the meat products that were part of the menu attached to Defendant Williams' affidavit, thus receiving even fewer calories in his meals. Therefore, there is also some dispute about what Plaintiff was actually receiving to eat.
Finally, Defendant Williams objects to the Report because he asserts that Plaintiff has not shown that the Ramadan meals caused serious harm to his health and has not shown that the health issues Plaintiff alleged were not caused by some other aspect of Plaintiff's daily life. First, not feeding an inmate enough to maintain health is an Eighth Amendment violation by itself. See Cunningham I, 567 F.2d at 656-57.
A reasonable jury could find that Plaintiffs alleged weight loss, dizziness, and constipation were caused by an insufficient diet. The fact that Defendant Williams could suggest at trial that other factors were the cause — none of which he substantiates with actual facts in his summary judgment brief — would be for the jury to weigh. Plaintiff has met his burden in surviving summary judgment on this claim. Moreover, while there is no medical evidence as to the extent of Plaintiff's weight loss, for example, the Court must view his allegations indulgently at summary judgment and assume that his weight loss was sufficiently serious, given the period of time in question.
Therefore, the Court does not feel that summary judgment is appropriate on the record before it. Defendant Williams' motion for summary judgment will be denied, and the Magistrate Judge's Report will be adopted as to this issue.
3. Qualified Immunity
The United States Supreme Court has said that the first inquiry in determining whether public officials are entitled to qualified immunity is whether a constitutional right would have been violated on the facts alleged. Saucier v. Katz, 533 U.S. 194, 201 (2001). After determining whether a violation was established, the second inquiry is whether, considering the specific context of the case and the particular facts alleged, the right claimed was clearly established. Id. "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 202.
Plaintiff clearly has an Eighth Amendment right to be sufficiently fed while he is incarcerated. See, e.g., Cunningham I, 567 F.2d at 656-57. Defendant Williams certainly knew this.
The Cunningham II decision would have given a prison official reason to believe that a diet of 2,000-2,500 calories for a male prisoner was constitutionally sufficient. See Cunningham II, 667 F.2d at 566. However, Plaintiff was receiving the Ramadan meals for twice the period of time at issue in Cunningham II. It is also disputed exactly how much food and what food that Plaintiff was receiving, so the caloric content is not yet definitively before the Court. These facts, combined with the undisputed fact that Plaintiff was complaining that he was going hungry, does not make qualified immunity appropriate with the state of the evidence before the Court.
However, the Court has not been shown any evidence that demonstrates that Defendant Williams had reason to believe that one-fourth less food than the average day's provisions was sufficient when the bag meals were distributed. The assertion that the religious holiday of Ramadan is a period of fasting does not absolve Defendant Williams of the constitutional obligation to provide Plaintiff with a sufficient amount of food and sufficient quality diet.
B. Defendant Churchill's Motions
1. Motion for Reconsideration
Defendant Churchill filed a Motion for Reconsideration of the decision denying him summary judgment as to Plaintiffs claim against him, arguing that the Court erroneously evaluated a claim which was previously dismissed. In an earlier Opinion dated August 30, 2000, the Court found that Plaintiffs claim that Defendant Churchill fabricated a misconduct against him in retaliation for the filing of a lawsuit was not properly exhausted and thus dismissed the claim without prejudice. Plaintiffs only claim against Defendant Churchill which is still before the Court is that Defendant "Churchill confiscated [Plaintiffs] legal materials in a retaliatory fashion." (See Opinion (Dkt. No. 3), Aug. 30, 2000, at 11.)
Defendant Churchill now asks the Court to reconsider its decision denying him summary judgment because he argues that the Magistrate Judge and this Court improperly evaluated the unexhausted and dismissed claim of the threat to fabricate misconducts against Plaintiff, instead of evaluating the claim of disk confiscation and file destruction still before the Court. While Defendant Churchill did not make this distinction for the Court in his objection to the Report, the Court will nonetheless re-evaluate the claim for the purposes of fairness and clarity.
Because this error has now been detected, there is no need for the Court to consider Defendant Churchill's argument in the Motion for Reconsideration that major misconduct ticket writers not be subjected to retaliation claims (for threats to fabricate misconduct tickets) as a matter of law. Moreover, this would have been an argument properly made in the original Motion for Summary Judgment, not in a Motion for Reconsideration.
The Court will consider whether Defendant Churchill is entitled to summary judgment on the issue of whether he confiscated Plaintiff's legal materials for the purpose of retaliation. Plaintiff asserts that Defendant Churchill ordered his diskettes seized and destroyed legal material contained on those disks to retaliate against Plaintiff for him having recently filed two grievances against Defendant Churchill for incidents occurring in late 1999. The three elements of a First Amendment retaliation claim are: (I) Plaintiff was engaged in constitutionally protected conduct; (2) Plaintiff suffered adverse action which would deter a person of "ordinary firmness" from continuing to engage in such protected conduct; and (3) the adverse action was motivated at least in part by Plaintiff's protected conduct. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999).
Clearly, the filing of grievances is constitutionally protected conduct, as has been discussed in previous Opinions in this case. The Court must then evaluate the available evidence that Defendant Churchill destroyed materials on Plaintiff's disks to examine whether Plaintiff suffered any adverse action.
The Magistrate Judge found in the Report that Defendant Churchill failed to indicate why he seized Plaintiffs disks and failed to give any actual reason for the seizure, even if hypothetically, it is possible that he could have a legitimate reason for the seizure of the disks, such as having reason to believe that an item on the disks posed a security threat or that Plaintiff was randomly picked for search. Defendant Churchill's statement as to this point was that "[t]he contents of Plaintiff's diskettes were reviewed by me to ensure that they did not contain information that would be a threat to security."
On the other hand, Plaintiff asserts that he was informed by prison officials that Defendant Churchill ordered the confiscation of Plaintiff's legal material to "see what [Plaintiff] was up to." Clearly, prison officials are entitled to "see what [prisoners are] up to" since prisoners do not enjoy the same rights of privacy as the non-incarcerated. However, the implication is that Defendant Churchill was reviewing the disks solely because Plaintiff filed grievances against him, not because Defendant Churchill had an independent, legitimate reason to do so. Plaintiffs then-bunkmate, Robert Cannon, also submitted an affidavit alleging that Defendant Churchill made statements to him indicating that he wanted to discover what legal complaints and/or grievances that Plaintiff was preparing and what "legal complaints [Plaintiff] had on [Churchill]," impliedly for the purpose of doing something improper with those materials.
Defendant Churchill also raised the issue of the contents of the files that were allegedly erased. While the record is apparently unclear as to what files of Plaintiff were destroyed and what those files contained, Defendant Churchill contended in the objections that prisoners are not entitled to possess case law or form arguments because those are not "protected" legal materials. Defendant Churchill contended that only legal pleadings for an existing lawsuit are "protected" materials for prisoners to possess. Defendant Churchill cited no case law for this proposition, and the Court doubts the accuracy of that assertion as a matter of law. Unless the materials constitute a security threat or officials have another legitimate reason for prohibiting prisoners from possessing them that outweighs the First Amendment rights that are possessed by the incarcerated, this Court can see no reason why case law or form arguments would not be constitutionally-protected materials since they can be extremely useful tools in preparing legal arguments. This is especially true given the near-necessity or absolute necessity of possessing those materials to access the courts, which is the protected right at issue.
A reasonable jury could conclude on this record that Defendant Churchill seized Plaintiff's disks without legitimate reason and erased legal material that Plaintiff was otherwise entitled to have. This is an "adverse action" creating actual injury for Plaintiff, so the next questions for the Court are whether this kind of "adverse action" would deter a person of ordinary firmness from continuing to engage in the protected conduct of filing grievances and whether a reasonable jury could find that the "adverse action" alleged to have occurred was as a result of Plaintiff's filing of grievances.
Harassment in the form of erasing protected legal materials and eliminating previous work done would deter a person of ordinary firmness from filing grievances in the future. Moreover, a reasonable jury could find that the search and the destruction of the materials was directed at Plaintiff as a result of the grievances filed by Plaintiff. A retaliation claim must include a chronology of events from which retaliation could plausibly be inferred. See Desmone v. Adams, 1998 WL 702342, at *3 (6th Cir. Sept. 23, 1998). Defendant Churchill can be entitled to summary judgment, however, if he demonstrates that "he would have taken the same action in the absence of the protected activity." See Thaddeus-X, 175 F.3d at 399. The chronology of these events as alleged, and the statements alleged to have been made, support an inference that the alleged disk confiscation and file destruction was done because of the grievance-filing.
In his objection, Defendant Churchill asserted that he did not order the confiscation of the disks, but acted only as the "reviewer" of the information on the disks. Therefore, Defendant Churchill argues, he has met his burden to show that he still would have reviewed the disks even in the absence of Plaintiff's grievances against him. However, even assuming that Defendant Churchill had no influence on the confiscation, that does not explain why Defendant Churchill had occasion to act as the reviewer or why he erased whatever files he erased. Defendant Churchill also cited no MDOC policy directives on the review of legal materials to demonstrate compliance with standard regulations in this area. Moreover, Plaintiff alleged that Defendant Churchill in fact ordered the confiscation, and since this is Defendant's motion for summary judgment, the Court must view the allegations in the light most favorable to Plaintiff. Therefore, the evidence is not such that the only possible inference that a reasonable jury could draw is that Defendant Churchill would have still searched Plaintiffs disks and destroyed files on them. Summary judgment is still not appropriate.
2. Motion for Dismissal of Defendant Churchill Due To Failure To Exhaust
Defendant Churchill recently filed a Motion to Dismiss for Failure to Exhaust Administrative Remedies, after the filing of his Motion for Reconsideration. Plaintiff filed a timely Response, which the Court considered.
The Sixth Circuit has set down the strict rule that before a district court adjudicates any claim set forth in the prisoner's complaint, the district court must determine that the prisoner has complied with this exhaustion requirement, even if the issue is not raised by the defendant. See Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir. 1998). In addition, as discussed earlier in this Opinion, remedies must be exhausted by naming the particular individual who the prisoner is suing. See Curry, 249 F.3d at 504-05.
Plaintiff's Step I, II, and III grievances do not name any particular individual, but instead refer only to "staff" generally. Thus, this Court made an earlier error in concluding that this claim against Defendant Churchill was properly exhausted, and the Court must dismiss without prejudice.
IV. Conclusion
Therefore, the Court will grant Plaintiffs Motions for Reconsideration and reverse its earlier dismissal of the claim against Defendant Williams for failure to exhaust administrative remedies. The Court will also deny Defendant Williams summary judgment on the record presented thus far.
Also, the Court will deny Defendant Churchill's Motion for Reconsideration. While the Court will still deny summary judgment to Defendant Churchill as to the merits, the Court corrected its previous error and reviewed the claim properly before the Court, coming to the same conclusion that summary judgment was not proper. The Court, however, will grant Defendant Churchill's Motion to Dismiss for Failure to Exhaust Administrative Remedies and dismiss without prejudice on that basis.