Opinion
Civil Action No. 01-CV-71510-DT
March 5, 2002
This mailer is presently before the court on Magistrate Judge Komives' February 1, 2002, report and recommendation. Magistrate Judge Komives recommends that the court grant defendants' motion for summary judgment insofar as plaintiff is claiming a due process violation, but that the court should permit plaintiff to amend his complaint to properly allege a First Amendment claim. Both parties have filed objections to the report and recommendation. Having reviewed the mailer de novo as required by Fed.R.Civ.P. 72(b), the court shall grant defendants' motion.
The gist of the complaint in this mailer is that plaintiffs security classification was increased and he was transferred from one housing unit to another in retaliation for plaintiffs outspoken involvement in a "warden's forum" (where plaintiff served as his housing unit's representative), for filing various grievances, and for assisting another inmate in prosecuting a civil rights lawsuit. Plaintiff alleges that the increase in his security classification was based on "false information" and that all of the defendants conspired to violate his First and Fourteenth Amendment rights.
The first issue is whether plaintiff exhausted his administrative remedies prior to commencing suit, as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e. Plaintiff clearly failed to exhaust his administrative remedies as to the claim regarding his security classification. As to that issue, plaintiff filed a grievance on January 20, 2001. The grievance was denied at Step I on March 1, 2001. Plaintiff appealed, and he received an unfavorable decision at Step II on March 30, 2001. Plaintiffs Step III appeal is dated April 8, 2001, and the response thereto is dated May 6, 2001. However, plaintiff filed his complaint in this matter on April 2, 2001, well before his administrative remedies as to this claim were exhausted. Accordingly, the court is not permitted to entertain this claim. See Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999) (holding that a prison inmate "may not exhaust administrative remedies during the pendency of the federal suit"). The court shall therefore grant defendants' motion as to plaintiffs claim that his security classification was improperly adjusted.
The magistrate judge correctly concluded that plaintiff exhausted his administrative remedies, by pursuing a grievance through Step III, as to his claim that his transfer from Unit A to Unit C was improper. That grievance was denied at the third step on March 1, 2001, and, as noted above, this civil action was commenced thereafter on April 2, 2001. However, the scope of this grievance is much narrower than the issues plaintiff seeks to raise in this lawsuit. At Step I, plaintiffs grievance stated:
On the above date of incident [1-18-01], I was wrongfully moved from A-44 to C-41 which gives all the appearance of reprisal because I am/was A-Unit prisoner representative. I did nothing wrong to be taken off my Representative function but represent the prisoners. Because I was willing to stand up for prisoners rights I was arbitrarily and unjustly moved to justify removing me from my A-Unit Representative position. I was told that this decision came from ADW Scutt, and RUM Taylor.
This grievance was denied on the grounds that plaintiff has no right to a particular housing assignment, and that he could no longer represent Unit A because he had been moved to Unit
C.
In his Step II appeal, plaintiff stated:
On Thursday January 18th the January Agenda was submitted for the Warden's consideration at the upcoming Warden's forum of Wednesday January 23rd I had submitted several issues for discussion which was approved by the entire Warden's Forum Representatives. On January 18th, at the conclusion of this Warden's Forum meeting and upon my return to m[y] housing unit which at that time was A-44, I was immediately given a green pack up bag and informed by the unit officers I was moving from A Unit to C Unit. Myself including unit officers questioned my move because I was officially the Unit Representative for A-Unit and should not be moved to another unit. All of a sudden RUM Taylor was scheduled to work late on Thursday evening and all of a sudden he just disappeared and did not return and it shows all the earmarks he knew what was going on and Taylor knew he was not working the following day Friday 1-19-2001.
The Warden and those in authority "knew" I was the A-Unit Elect Rep, and the Warden along with others in the Administration "knew" that by moving me out of Unit A, to Unit C, would out [sic] an end to my being A Unit Representative and an end to the issues I placed on the January Agenda.
It is very clear my move from Unit A to Unit C, was a direct purposeful act of retaliation for my exercise of my First Amendment right to assist prisoners in relation to conditions of their confinement and Court claim against this facility, such as, Louis Ross v. Bill Martin et al., Case No. 00-CV-74658-DT. This case is pending before Hon. Arthur J. Tarnow, E.D. of Mich.
This move was arbitrarily and unjustly done to recind my Representative functions. To prove my claim, a month ago when a White Representative names Apsey #186783 B33 was moved to another unit, he was permitted to move back to Unit B, to maintain his position as Elect B Unit Representative.
The Warden Straub has failed to respond to my written correspondences dated January 21, 2001 and the Representatives Request and Chairman's Letter of January 22, 2001.
The Step II grievance was denied on the grounds that plaintiff has no entitlement to a particular housing assignment, and that his status as a unit representative does not entitle him to remain in that unit. The response concludes by stating: "Additional arguments or issues raised will not be addressed in this response."
Plaintiff's Step III appeal stated:
Step II response does not address my issue being grieved. Furthermore, the Grievance Coordinator's response at Step I, was biased as she acts as the Warden's Forum Coordinator and show I did not receive an impartial review of my issue. And although, I do not have a particular right to be housed in any particular cell, staff cannot just arbitrarily and unjustly move me while I am an elected prisoner Representative while such is looked at as a designed plan to remove me off the Warden's Forum as retaliation.
I incorporate by reference the "JCF" Prisoner Representatives Request for Investigation and the Chairman of the Representatives Letter written on my behalf which support my claim of retaliation and had requested my Reinstatement as Prisoner Representative. (See Attached).
I am requesting the Directors s investigation at Step III.
Furthermore, Step II, Warden's response which it `notes' for the record that the Grievant did not submit the White copy of the CSJ-247-A with the Appeal as required by PD-03.02.130, is not true and this untruthful statement by the Warden is further evidence of how corrupt he truly is. Frankly speaking, if I failed to submit the Original White Grievance response with my appeal as required by PD-03.02.130, why didn't he reject my grievance at step II for failure to comply with PD-03.02.130? That proves I did submit the Original White response with my appeal.
At NO time have I claimed a particular right to any particular cell assignment nor a violation of PD-03.03.130. In addition, my claim is if I was elected by the prisoners of general population to assist them in changing the Condition of Confinement, and the proper way to write and file grievances, letters of Complaint to Higher Authority, and Court claims than why out of all the other prisoners in my unit was I selected? This issue of moving Representatives out of their unit just to get them off the forum because they were making change as a retaliatory means is unlawful.
The Warden's statement "since you have been moved to C-Unit, obviously, you cannot represent the prisoners in A-Unit." It was a designed plan by Straub, and ADW Scutt, because of my protected First Amendment activit [sic]. It makes no common sense to allow prisoners to elect a prisoner for their leadership and change, but once the Administration does not like to see results of the issues being presented, want to move the prisoner to another unit which prevents that Representative from continuing to make change.
I agree, no I do not have a right to a particular cell assignment. But when a person uses their position and arbitrarily and unjustly move me is an abuse of that authority and position by state law.
The grievance was finally denied on the same grounds as before, namely, that "[e]lection as a Block Representative does not guarantee permanent placement in any housing unit."
The only issue fairly raised in plaintiffs grievances is his claim that defendants Straub, Taylor and Scutt transferred him from A-Unit to C-Unit in order to end his participation on the warden's forum. Plaintiff did not mention his involvement in the Ross lawsuit as a possible motivating factor until Step II, and even there he mentions it only in passing.Ross is not mentioned by name in either Step I or Step III, and a vague reference to his participation in unspecified "court claims" is mentioned only in Step III. The issues plaintiff may raise, and the defendants he may name, in his lawsuit are limited to the specific issues raised, and the specific individuals mentioned, in his grievance. See Curry v. Scott, 249 F.3d 493, 505 (6th Cir. 2001). The exhaustion requirement would be defeated if an inmate were permitted to raise additional issues and name additional defendants in a § 1983 action than were ever mentioned in the grievance.
This is exactly the kind of "end run" plaintiff is attempting to do in this case. The claim in plaintiffs grievance is that Taylor, Scutt and Straub (the resident unit manager, the assistant deputy warden of housing, and the warden, respectively) changed his housing assignment in order to remove him from the warden's forum. In plaintiffs § 1983 complaint, this limited claim was expanded dramatically into an allegation that these three prison officials plus Hall, Zamiria, Bolden and Martin (the manager of the MDOC internal affairs section, the assistant deputy director of the MDOC, the deputy director of the MDOC, and the director of the MDOC, respectively) conspired to change his housing assignment in retaliation for his involvement on the warden's forum and for assisting other inmates in filing grievances and prosecuting lawsuits. Since these additional claims and defendants were never the subject of a grievance, plaintiff has not exhausted his administrative remedies as to them.
The only claim as to which plaintiff has exhausted his administrative remedies and which is properly raised in this case is that defendants Taylor, Scutt and Straub transferred plaintiff to another housing unit to remove him from the warden's forum. The magistrate judge has properly concluded that defendants are entitled to summary judgment on this claim. Plaintiff had no liberty or property interest in his position as an inmate representative on the warden's forum. Nor is plaintiff entitled to a particular housing assignment. While a prison inmate may not be transferred in retaliation for engaging in protected First Amendment activity, plaintiff had no First Amendment right to represent other inmates in presenting their grievances absent a showing that "the inmate[s] receiving the assistance would otherwise be unable to pursue legal redress." Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000). As the magistrate judge correctly points out, plaintiff has not demonstrated that the inmates he represented on the warden's forum could not have been represented by another inmate, or that they could not bring any concerns they may have to the attention of prison officials without plaintiffs assistance. Since plaintiff has not established that he was engaging in protected First Amendment activity as a warden's forum representative, his retaliation claim fails. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999).
For these reasons, the court concludes that (1) plaintiffs claim regarding his security classification was not exhausted; (2) plaintiffs claim regarding his transfer is limited as noted above; (3) defendants are entitled to summary judgment on plaintiffs claim that defendants transferred him in retaliation for his participation on the warden's forum; (4) plaintiff may not amend his complaint because the issues in this case are limited to those which were properly exhausted at the time the lawsuit was commenced; and (5) there is no need to consider defendants' entitlement to qualified immunity, as they are entitled to judgment on the merits. Accordingly,
IT IS ORDERED that the magistrate judge's report and recommendation is accepted insofar as it is consistent with the rulings indicated above.
IT IS FURTHER ORDERED that defendants' motion for summary judgment is granted.