RAY KENT, Magistrate Judge.
This is a pro se civil rights action brought by a prisoner in the custody of the Michigan Department of Corrections (MDOC). This matter is now before the Court on defendants Cline and Knaack's motion for summary judgment (ECF No. 10).
Plaintiff had a prison work assignment at the food service at the Lakeland Correctional Facility (LCF). He was charged with a Class II misconduct for theft of food, was not permitted to work after the charge, found guilty of a different Class III misconduct related to the food, and then refused to be re-classified for a new work assignment. Plaintiff filed a lawsuit alleging that defendants violated his due process rights because defendant LCF classification director Cline could not reclassify him under the circumstances and that defendants retaliated against him when he refused to exercise his right to request reclassification.
Plaintiff sued eight employees at LCF: Cline; prison counselor J. Knaack; resident unit manager J. Houtz; Inspector T. Chrisman; Food Service Director G. Tory; Assistant Food Service Director Van Wyck; Business Manager S. E. Mittelstadt; and Deputy Warden B. Morrison. Opinion (ECF No. 4, PageID.27).
On initial screening, the Court set out plaintiff's claims:
Opinion at PageID.27-28 (emphasis added).
On initial screening plaintiff's complaint, the Court found that "[t]here is good reason to doubt that Plaintiff is correct in his reading of the MDOC Classification policy." Id. at PageID.28. The Court noted that MDOC Policy Directive 05.01.100 (eff. Oct. 1, 2017) states at ¶K that, "A prisoner may be reclassified for any number of reasons." Id. at PageID.28-29. The policy directive states at ¶ K.1. that
Id. at PageID.28. The policy directive then lists nine more paragraphs of reasons why the MDOC can reclassify a prisoner. See MDOC Policy Directive 05.01.100, ¶¶ K.2.-10. Id. at PageID.28-29. In addition, the policy directive provides at ¶ Z that, "A prisoner may be reclassified as unemployable . . . for any of the following reasons . . . 5. The prisoner refused to participate in program classification as required by this policy." MDOC Policy Directive 05.01.100, ¶ Z.5.
Despite the explicit language in PD 05.01.100 that "[a] prisoner may be reclassified for any number of reasons," plaintiff contends that in his case, the MDOC can only reclassify him if he requested it. Based on his theory, plaintiff contends that defendants mounted a retaliatory campaign commencing on January 22, 2018, to get him to request a reclassification outside of his previous prison work assignment at the food service.
Opinion at PageID.29.
The Court summarized plaintiff's causes of action as follows:
The Court dismissed plaintiff's due process claim and his claims against defendants Houtz, Chrisman, Tory, Van Wyck, Mittelstadt, and Morrison. Id. at PageID.33, 38; Order (ECF No. 5). The Court allowed plaintiff to serve the complaint against defendants Cline and Knaack. Opinion at PageID.38. Plaintiff's claim against defendant Cline is that she retaliated against him. Id. at PageID.33-37. Plaintiff's claim against defendant Knaack is that he entered into a conspiracy with Cline to retaliate against him. Id. Discovery is complete and defendants Cline and Knaack have moved for summary judgment.
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Rule 56 further provides that a party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
Fed. R. Civ. P. 56(c)(1).
In Copeland v. Machulis, 57 F.3d 476 (6th Cir. 1995), the court set forth the parties' burden of proof in a motion for summary judgment:
Copeland, 57 F.3d at 478-79 (citations omitted). "In deciding a motion for summary judgment, the court views the factual evidence and draws all reasonable inferences in favor of the nonmoving party." McLean v. 988011 Ontario Ltd., 224 F.3d 797, 800 (6th Cir. 2000).
Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, which "provides a civil cause of action for individuals who are deprived of any rights, privileges, or immunities secured by the Constitution or federal laws by those acting under color of state law." Smith v. City of Salem, Ohio, 378 F.3d 566, 576 (6th Cir. 2004). To state a § 1983 claim, a plaintiff must allege two elements: (1) a deprivation of rights secured by the Constitution and laws of the United States, and (2) that the defendant deprived him of this federal right under color of law. Jones v. Duncan, 840 F.2d 359, 360-61 (6th Cir. 1988); 42 U.S.C. § 1983.
Plaintiff's § 1983 claim involves alleged retaliation in violation of his rights under the First Amendment. The Court recognized that "the whole premise of Plaintiff's reclassification retaliation theory rests on the premise that Defendants had no power to reclassify him unless he asked for it." Opinion at PageID.36. At that same time, the Court recognized that plaintiff's claim is undermined by the MDOC policy which "on its face, allows for reclassification when a prisoner lost an earlier job classification because of `behavior related to that assignment.'" Id.
To prove a First Amendment retaliation claim, plaintiff must establish three elements: "(1) the plaintiff 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." Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999).
A prisoner must be able to prove that the exercise of the protected right was the substantial and motivating factor in the defendant's alleged retaliatory conduct.
Nieves v. Bartlett, ___ U.S. ___, 139 S.Ct. 1715, 1722 (2019) (internal quotation marks and brackets omitted).
The Court found that the plaintiff's grievance filed on January 22, 2018 was not protected conduct:
Id. at PageID.33-34.
The question before the Court is whether plaintiff's refusal to sign a reclassification request or waiver was "protected conduct" which could form the basis for his retaliation claim. Opinion at PageID.35. On initial screening, the Court suggested two theories. On the one hand, plaintiff may have retained the First Amendment right to request reclassification, observing that "where MDOC policy provides the prisoner the opportunity to request reclassification, it would seem anomalous to say that a prisoner's decision on whether to request reclassification is `inconsistent with his status as a prisoner.'" Id.
On the other hand, plaintiff's claim that he retained the First Amendment right to request reclassification is based on his misreading of MDOC policy.
Id. at PageID.36. The Court did not dismiss plaintiff's claim on initial screening because it wanted the parties to develop a factual record. Id.
Defendants provided 10 pages of plaintiff's deposition testimony which summarized plaintiff's interpretation of the MDOC policy directives and plaintiff's opinion that defendant Knaack, as a prison counselor, does not have authority to reclassify inmates. See Defendants' Brief at PageID.55-56. In support of their motions, defendants provided and cited the wrong version MDOC Policy Directive 05.01.100 (i.e., the version effective March 1, 2019, not the version effective in 2018). However, the policies which support defendants' arguments are found in both versions of the policy directive.
Defendants also provided a copy of the Program Classification Report (ECF No. 10-4, PageID.84). This appears to be part of the "re-classification paperwork" which plaintiff refused to sign. Counselor Knaack signed the report on January 22, 2018, the same day that plaintiff refused to sign it. PageID.84. Where plaintiff's signature is supposed to appear on the report is written "Refused to sign," with classification director Cline signing the report four days later on January 26, 2018. Id. The following statement appears in the "COMMENTS/CLASSIFICATION REVIEW SUMMARY" section:
Id.
In his response to defendants' motion for summary judgment, plaintiff included another document he refused to sign, this being a copy of his "Assignment Waiver Form" dated January 26, 2018, which indicated that plaintiff was not given a work assignment because "Almond Refused To Participate In The Classification Process." See Waiver (ECF No. 12-1, PageID.125).
Plaintiff claims that defendant Cline retaliated against him because plaintiff had a First Amendment right to request reclassification and his refusal to be reclassified for a new work assignment was protected conduct. The Court rejects this claim. In Vanzant v. Oja, No. 2:10-cv-71, 2010 WL 4553655 (W.D. Mich. Nov. 3, 2010), this Court held that a prisoner's refusal to accept a prison work assignment is not constitutionally protected conduct which can form the basis for a First Amendment retaliation claim:
Vanzant, 2010 WL 4553655 at *3.
Here, plaintiff's refusal to participate in the reclassification process was tantamount to the refusal to accept a work assignment. For this reason, his refusal to participate in the reclassification process was not protected conduct. Id. While MDOC Policy Directive 05.01.100 allows a prisoner to request a reclassification (with the caveat that "repeated prisoner requests which are deemed inappropriate need not be acted upon"), it is clear from the balance of the Policy Directive that it is the MDOC, not the prisoner, who controls the reclassification process. See Ziegler v. Martin, 47 Fed. Appx. 336, 338 (6th Cir. 2002) (the MDOC has a "legitimate penological objective of not rewarding prisoners who refuse work assignments with more privileges than those who accept prison employment"). Accordingly, plaintiff's retaliation claim fails and defendant Cline's motion for summary judgment should be granted.
Construing the complaint broadly, the Court concluded that plaintiff alleged a conspiracy claim against defendant Counselor Knaack. Plaintiff's claim that defendants violated his civil rights by conspiring to retaliate against him fails because his underlying constitutional claim of retaliation against defendant Cline failed. As one court explained:
Ash v. Boone County, Kentucky, No. CIV.A. 09-190-DLB, 2011 WL 4431820 at *6, n. 6 (E.D. Ky. Sept. 22, 2011). Accordingly, defendants should be granted summary judgment on the conspiracy claim.
Defendants also claim qualified immunity. Under the affirmative defense of qualified immunity, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Mullenix v. Luna, ___ U.S. ___, 136 S.Ct. 305, 308 (2015). Thus, the doctrine of qualified immunity "gives government officials breathing room to make reasonable but mistaken judgments, and protects all but the plainly incompetent or those who knowingly violate the law." Carroll v. Carman, 574 U.S. 13, 17 (2014).
When a defendant raises the issue of qualified immunity on summary judgment, "[t]he ultimate burden of proof is on the plaintiff to show that the defendant is not entitled to qualified immunity." Gardenhire v. Schubert, 205 F.3d 303, 311 (6th Cir. 2000). "The defendant bears the initial burden of coming forward with facts to suggest that he acted within the scope of his discretionary authority during the incident in question." Id. Once this is accomplished, "the burden shifts to the plaintiff to establish that the defendant's conduct violated a right so clearly established that any official in his position would have clearly understood that he was under an affirmative duty to refrain from such conduct." Id. To meet his burden on summary judgment, a plaintiff must show (1) that a constitutional right was violated, and (2) that the right was clearly established at the time of the violation. Chappell v. City of Cleveland, 585 F.3d 901, 907 (6th Cir. 2009). The court may exercise its discretion to decide which prong of the test to address first in light of the circumstances of the case. Bishop v. Hackel, 636 F.3d 757, 765 (6th Cir 2011), citing Pearson v. Callahan, 555 U.S. 223, 232-33 (2009).
Here, defendants contend that they are entitled to qualified immunity for two reasons. First, "[d]efendants had the right to reclassify the plaintiff because MDOC policy allows for reclassification when a prisoner lost his job due to behavior related to the assignment." Defendants' Brief at PageID.60. Second, defendants had the right to reclassify plaintiff "because MDOC policy allows for reclassification to unemployable status if a prisoner refuses to participate in the classification process." Id.
Defendants contend that they are entitled to qualified immunity from plaintiff's retaliation claim because it was not clearly established that plaintiff's refusal to participate in the reclassification process was "protected conduct" under the First Amendment.
Id. at PageID.61.
"[A] public official's retaliation against an individual exercising his or her First Amendment rights is a violation of § 1983." Barrett v. Harrington, 130 F.3d 246, 264 (6th Cir. 1997). Here, plaintiff claims that he retained a First Amendment right to refuse to participate in a reclassification process which he did not request. As discussed, plaintiff's "right to refuse" to participate in the reclassification process was not protected conduct. Defendants did not violate plaintiff's First Amendment rights because plaintiff did not engage in protected conduct. See Thaddeus-X, 175 F.3d at 394. Accordingly, defendants are also entitled to summary judgment on basis of qualified immunity.
For these reasons, I respectfully recommend that defendants Cline and Knaack's motion for summary judgment (ECF No. 10) be
"In your kite dated 1-9-18 you ask about the job you had in food service. You were laid in pending the outcome of a misconduct on 12-12-17. At hearing on docket dated 1-2-18 your charge was reduced from a Class II to a Class III and you were found guilty of contraband for having an onion and some unknown substance in your area of control. Policy 05.01.100 states:
You were found guilty of the misconduct, even though it was reduced to a Class III. I have considered you for reclassification and have placed you into the institutional needs pool. You will be hired, by pool date, into the first available opening."
