Opinion
No. 2:17-cv-02847-TLP-tmp
2022-11-09
Kenneth W. PARNELL, Plaintiff, v. Johnny Yolanda FITZ, Matthew Cochran, and F/N/U Baucom, Correctional Employee at WTSP, Defendants.
Jacob Webster Brown, Apperson Crump, PIC, Memphis, TN, for Plaintiff. Dean Seif Atyia, Demetrius Alan Daniels-Hill, I, Frank LoGrippo, Tennessee Attorney General's Office Attorney General's Office, Nashville, TN, for Defendant Johnny Yolanda Fitz. Dean Seif Atyia, Demetrius Alan Daniels-Hill, I, Frank LoGrippo, Tennessee Attorney General's Office Attorney General's Office, Nashville, TN, William Michael Varnell, Tennessee Department of Health, Nashville, TN, for Defendants Matthew Cochran, F/N/U Baucom.
Jacob Webster Brown, Apperson Crump, PIC, Memphis, TN, for Plaintiff. Dean Seif Atyia, Demetrius Alan Daniels-Hill, I, Frank LoGrippo, Tennessee Attorney General's Office Attorney General's Office, Nashville, TN, for Defendant Johnny Yolanda Fitz. Dean Seif Atyia, Demetrius Alan Daniels-Hill, I, Frank LoGrippo, Tennessee Attorney General's Office Attorney General's Office, Nashville, TN, William Michael Varnell, Tennessee Department of Health, Nashville, TN, for Defendants Matthew Cochran, F/N/U Baucom.
ORDER ON DAMAGES
THOMAS L. PARKER, UNITED STATES DISTRICT JUDGE
In our country, even convicted prisoners have constitutional rights. When state officials tasked with securing these rights violate them, the law provides a remedy under 42 U.S.C. § 1983. Plaintiff Kenneth Parnell, a Tennessee Department of Corrections ("TDOC") inmate, sued West Tennessee State Penitentiary ("WTSP") employees: Defendants WTSP Warden Johnny Fitz ("Fitz"), WTSP Sergeant Matthew Cochran ("Cochran"), and WTSP Corporal John Baucom ("Baucom"). Plaintiff alleged that Defendants unlawfully retaliated against him for exercising his First Amendment right to petition a grievance when they confiscated Plaintiff's grievance and transferred Plaintiff to a different prison for writing a grievance. After a five-day trial, a jury found only Defendant Johnny Fitz liable to Plaintiff. The Parties agreed that the Court would determine damages. After hearing evidence and argument about damages in a day-long bench trial, the Court AWARDS $1776.00 in compensatory damages to Plaintiff.
FACTS AND PROCEDURAL POSTURE
In 2017, the State of Tennessee housed Plaintiff at WTSP where he served as a "grievance clerk" in the inmate grievance office. (ECF No. 135 at PageID 1984.) In that capacity, Plaintiff "reported to the chairperson of the grievance committee," who was Corporal Sueann Brewer ("Brewer"). (Id.) At some point, Brewer took an extended leave of absence due to medical issues, and Defendant Fitz—who was the associate warden at this time—appointed Sergeant Kristy Parker ("Parker") to serve as the alternate grievance chairperson. (Id.)
Sometime during Brewer's absence, Plaintiff and Parker had a disagreement in the grievance office and Parker entered an adverse contact note—a computerized entry pertaining to interactions between staffer and inmate—against Plaintiff. (Id.) Plaintiff learned of the contact note and contended that he wrote a grievance about Parker because Parker's contact note was baseless and false. (ECF No. 135-2 at PageID 2025.) But before Plaintiff could file his drafted grievance, he alleged that Baucom and Cochran—under orders from Fitz—went into Plaintiff's cell and seized his grievance. (ECF No. 135-4 at PageID 2039.) A few hours later, Fitz ordered that Plaintiff be administratively transferred to Trousdale Turner Correctional Facility ("Trousdale"), a different prison. (Id. at PageID 1991.) Plaintiff claimed that Fitz ordered his transfer to Trousdale as retaliation for his effort to file a grievance—his right under the First Amendment. (ECF No. 135-2).
Defendants deny these allegations. Both Baucom and Cochran claim that they never confiscated a grievance from Plaintiff's cell (ECF Nos. 128-7, 128-8) and Fitz maintains that he transferred Plaintiff to Trousdale because Plaintiff acted "hostile, antagonistic, and insubordinate" in the grievance office—behavior incompatible with WTSP's penological objectives. (ECF No. 128-9 at PageID 1851-52.)
The Parties agreed to a bifurcated trial with the jury determining liability and, if necessary, the Court determining damages. After hearing evidence, the jury answered this question for each Defendant.
Do you find that the Plaintiff proved, by a preponderance of the evidence that
any of the Defendants committed an act, under color of state law, that violated Plaintiff's First Amendment rights?
Johnny Yolanda Fitz YES ___ NO ___
John Baucom YES ___ NO ___
Matthew Cochran YES ___ NO ___
(ECF No. 228.)
The jury answered "YES," finding liability against Defendant Fitz, and "NO," finding no liability against Defendants Baucom and Cochran. (Id.)
LEGAL STANDARD
The Supreme Court has held that a plaintiff who alleges the violation of a constitutional right is not entitled to compensatory damages unless he can prove actual injury. Carey v. Piphus, 435 U.S. 247, 264, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). But the Court later clarified that when a plaintiff seeks compensation for an injury likely to have occurred but difficult to establish, "presumed damages may roughly approximate the harm that the plaintiff suffered and thereby compensate for harms that may be impossible to measure." Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 311, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986). In the prison context, circuit courts have applied the same principle in permitting plaintiffs to recover presumed damages for injuries arising from constitutional violations difficult to measure. See e.g., Smith v. Rowe, 761 F.2d 360, 368 (7th Cir. 1985) (affirming a jury's award of $119 per day of segregation to an inmate who "was confined [in punitive segregation] almost 24 hours a day" for six weeks), Trobaugh v. Hall, 176 F.3d 1087, 1089 (8th Cir. 1999) (suggesting damages "in the vicinity of $100 per day for each of the three days" as appropriate for an inmate was held in solitary confinement in retaliation for attempting to write a grievance).
In King v. Zamiara, the Sixth Circuit affirmed a district court's award of $1,475 in compensatory damages for a plaintiff-inmate. 788 F.3d 207 (6th Cir. 2015). King involved a Michigan Department of Corrections inmate who was transferred to a prison with "a higher security classification and more restrictive conditions." Id. at 210. The Sixth Circuit remanded a district court's bench trial for an entry of judgment for the inmate, finding that corrections officers' transfer of the inmate was retaliation for grievance-filing activities. Id. at 211. Holding a bench trial solely on the question of damages, the district court awarded the inmate "$5 per day spent at the more restrictive prison facility." Id. at 215. The Sixth Circuit affirmed this judgment. Id.
ANALYSIS
I. Plaintiff's Argument
For starters, Plaintiff makes clear that he is not asking for punitive damages. But he is asking for compensatory damages arising from a deprivation of various rights related to Plaintiff's transfer from WTSP to Trousdale: $9,750.00 for a denial of right to be heard, $11,887.50 for loss of religious services, $39,516.00 for loss or liberties and privileges, and $4,000 for loss of family visitation. In support of his proposition that deprivation of these rights is inherently compensable, Plaintiff cites a law review article. While Professor Love's article suggests that Supreme Court precedent in 1992 (Carey) does not "categorically prohibit[ ]" the recovery of presumed damages in some Constitutional torts, it ultimately yields to the Court's holding. Id. at 77 ("Carey and Stachura thus stand for the proposition that the Supreme Court will not allow the recovery of presumed damages for the inherent value of either a procedural or substantive constitutional right."). See also Carey, 435 U.S. at 264, 98 S.Ct. 1042; Stachura, 477 U.S. at 310, 106 S.Ct. 2537.
$5 per day for 1,950 days (date of transfer to Trousdale to day one of jury trial)
$125 per missed service for 95.1 missed services
$178 per day for 222 days
$200 per visit for 20 visits
Jean C. Love, Presumed General Compensatory Damages in Constitutional Tort Litigation: A Corrective Justice Perspective, 49 WASH. & LEE L. REV. 67, 69 (1992).
And Plaintiff argues that King, which awarded $5 per day to an inmate who was transferred "at the more restrictive prison facility," is not on-point with Plaintiff's case. 788 F.3d at 215. Like the plaintiff in King, Plaintiff here cites Trobaugh in asking for an award near $100 per day. Plaintiff argues that his situation is closer to Trobaugh because Trousdale, compared to WTSP, is an understaffed prison. So, Plaintiff says, the transfer resulted in various deprivations of his constitutional rights—less access to religious services, less opportunities for recreation, and more prohibitive family visitation conditions—amounting to an "administrative segregation" as in Trobaugh. 176 F.3d at 1088-89. Now the Court turns to Defendant's position.
II. Defendant's Argument
Defendant disagrees for two reasons. First, Defendant argues that the jury found that Fitz transferred Plaintiff to Trousdale—nothing more. In other words, Defendant advances that the jury did not find that Fitz purposely sought out Trousdale as a receiving prison for Plaintiff's transfer because Trousdale had worse conditions than WTSP. Defendant contends that the jury's determination on Plaintiff's transfer, consistent with the jury instructions, is only that Fitz transferred Plaintiff to Trousdale to get Plaintiff out of WTSP. Second, as for Plaintiff's alleged deprivations of various rights, Defendant argues that the law requires an element of foreseeability which Plaintiff has failed to prove. Citing King, Defendant asserts that when courts have allowed plaintiffs to recover presumed damages, they have done so "for actual injuries caused by constitutional violations that are 'likely to have occurred' but difficult to measure." 788 F.3d at 215. The upshot is that Plaintiff can claim damages based on Defendant's retaliation resulting from Plaintiff's inability to petition a grievance—but not on the loss of religious services, prison liberties, and family visitation.
III. The Court's Ruling
The Court agrees with both of Defendant's points. First, the jury instructions—which both Parties agreed to before the trial—state the elements for retaliation.
"As for Defendant Johnny Fitz, Plaintiff must prove each of the following by a preponderance of the evidence:
1. That Plaintiff drafted a grievance;
2. That Defendant Fitz ordered Plaintiff's transfer to Trousdale Turner Correctional Center;
3. That Plaintiff's writing of that grievance was a motivating reason
for Defendant Fitz ordering Plaintiff's transfer to Trousdale Turner Correctional Center;
4. That Defendant Fitz ordering Plaintiff's transfer to Trousdale Turner Correctional Center would deter a similarly-stuated reasonable person in Plaintiff's position from exercising First Amendment rights."
Focusing on element two's transfer question, all the jury had to find—to make a liability determination as it must in this bifurcated trial—was that Defendant Fitz "ordered Plaintiff's transfer" to Trousdale. (Id.) The consequences of that transfer and their significance for damages is within the exclusive scope of the Court's bench trial on damages.
(ECF No. 226 at PageID 3262-63.)
The Court finds that Plaintiff's right to petition a grievance under the First Amendment is the only relevant right at issue for damages. Plaintiff's claims for loss of religious services, liberties, and family visitation are not compensable injuries in this case. For starters, the Parties stipulated that "Prisoners do not have a constitutional right to be incarcerated in any particular institution." (Id. at PageID 3249); see also Williams v. Bass, 63 F.3d 483, 485 (6th Cir. 1995) (citations omitted). Plaintiff had no entitlement to the quality of religious services, extent of recreation privileges, and ease of family visitations at WTSP. Every day, Plaintiff was subject to the vagaries of the prison system's needs. Tennessee prison officials, including Defendant Fitz, could have transferred Plaintiff to another facility at any time for any legitimate reason.
What the jury did find is that Fitz ordered Plaintiff's transfer for an illegitimate reason—retaliation for Plaintiff's exercise of his right to petition a grievance. And a violation of that Constitutional right is a compensable injury. On that point, the Court agrees with Defendant that King is persuasive authority here. Like the plaintiff in King who was transferred to a different prison for participating in grievance-filing activities, the jury here found that Fitz transferred Plaintiff in retaliation for drafting a grievance. But unlike the plaintiff in King who was transferred to a particular prison with a higher classification and more restrictive conditions, the jury found only that Fitz transferred Plaintiff to Trousdale.
WTSP and Trousdale are comparable facilities—even though Plaintiff claims Trousdale was much more dangerous with inadequate staff. And both Parties stipulated that "Defendants did not change Plaintiff's classification when he was transferred" from WTSP to Trousdale. (ECF No. 225 at PageID 3250.) What is more, Plaintiff testified that he did not suffer any physical injuries at Trousdale and he turned down the chance to work as a grievance clerk there. Plaintiff may not have liked the conditions at Trousdale—this much is clear. But he had no entitlement to his conditions at WTSP over those at Trousdale, and his inmate security classification did not change with the transfer.
What Plaintiff did have is the right not to be retaliated against for exercising his First Amendment right to write a grievance. The jury found that Fitz transferred Plaintiff to Trousdale for doing so, and that merits compensatory damages.
IV. Calculation of Compensatory Damages
The Sixth Circuit has noted that "[n]o formula exists to determine with precision compensatory damages. The amount is left to the sound discretion of the fact finder." Smith v. Heath, 691 F.2d 220, 227 (6th Cir. 1982). Plaintiff valued the right to file a grievance at $5 a day, consistent with the $5 award in King. But Plaintiff's proposed multiple of 1,950 days (from date of Plaintiff's transfer to the date of this jury trial) is overinclusive. Plaintiff spent 222 days in Trousdale before being transferred to a different prison for legitimate reasons unrelated to this case. (Ex. 22.) Plaintiff has not argued that he continued to be unable to file a grievance after his transfer from Trousdale. To the contrary, Plaintiff filed follow-up grievances and managed to advance this case.
The Court finds that 222 days—the time Plaintiff spent in Trousdale—is the appropriate period for calculating compensatory damages. The Court also finds that $8 per day represents a fair valuation of the right to petition a grievance in this case. In doing so, the Court notes the similarity of this case to the Sixth Circuit's 2015 decision in King. That said, in King, of course, the defendant transferred the plaintiff to a prison with a higher security classification and more restrictive conditions. And in other cases, in retaliation against an inmate's exercise of a constitutionally protected activity, the defendant sent the plaintiff inmate to solitary confinement. See Rowe, 761 F.2d at 368 (awarding $119 per day); Trobaugh, 176 F.3d at 1089 (suggesting an award "in the vicinity of $100 per day"). Here Plaintiff's treatment was not so extreme. The Court therefore awards Plaintiff $8 per day. Multiplied by the 222 days Plaintiff spent in Trousdale, the Court's award is $1776.00.
CONCLUSION
This case has never been about money. This case has always been about the Constitution and the duty of government officials to safeguard the constitutional rights of We the People. Deprived of liberty, an incarcerated person's right to petition a grievance is his only shield. Without it, the incarcerated person lives at the mercy of his custodians. That is not how we do things in this country.
Prison wardens are public servants tasked with the demanding and delicate duty of keeping our correctional facilities safe and functional. So the law rightfully gives them fair leeway to exercise discretion in their duties. But the pursuit of penological interest is not a license to do as one likes. Procedural protections, like a grievance system, are necessary to keep the institutions of our justice system—which includes prisons—just. When we tolerate apathy from those tasked with vigilance in safeguarding the People's rights, we erode not only our own institutions but liberty itself.
It is the duty of government officials to respect the rights of We the People. The People include those incarcerated in our prisons and government officials must keep respecting their rights as they serve their time. The Court ORDERS Defendant Johnny Fitz to pay Plaintiff $1776.00 in damages.
SO ORDERED, this 9th day of November, 2022.