Goodell v. Ervin
| Docket Number | Case No. 1:20-cv-11322 |
| Decision Date | 19 January 2022 |
| Citation | 591 F.Supp.3d 232 |
| Parties | D. Samuel GOODELL, Plaintiff, v. Vicki ERVIN and Michael Lewis, Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
D. Samuel Goodell, Bay City, MI, Pro Se.
Valerie Henning Mock, William S. Cook, Wilson Elser Moskowitz Edelman & Dicker LLP, Livonia, MI, Cara M. Swindlehurst, Gordon Rees Scully Mansukhani, Detroit, MI, for Defendant Vicki Ervin.
Gregory E. Crouch, Joshua D. Marcum, Michigan Department of Attorney General, Mdoc Division, Lansing, MI, for Defendant Michael Lewis.
This matter is before this Court upon the Report and Recommendation of Magistrate Judge Curtis Ivy, Jr., ECF No. 35, for the undersigned to deny Defendants’ Motion to Dismiss, ECF No. 24. For the reasons explained hereafter, Judge Ivy's Report and Recommendation will be adopted, and Defendant's Motion to Dismiss will be denied.
In May 2020, Plaintiff D. Samuel Goodell filed a civil-rights action pro se under 42 U.S.C. § 1983, alleging violations of the First and Fourteenth Amendments of the United States Constitution. ECF No. 1. In September 2020, among other things, this Court dismissed several defendants and two of Plaintiff's claims, leaving only his First Amendment retaliation claims against Defendants Vicki Ervin and Michael Lewis. ECF No. 9 at PageID.64.
In October 2020, this case was referred to Judge Ivy for all pretrial matters. ECF No. 11. In January 2021, Defendant Ervin answered the complaint with affirmative defenses. ECF No. 16. In May 2021, Defendant Lewis filed a motion to dismiss, ECF No. 24, which has since been fully briefed, see ECF Nos. 28; 29; 30; 33; 34. On December 6, 2021, Judge Ivy issued his Report and Recommendation. ECF No. 35.
Although the Report states that the parties could object to and seek review of the recommendations within 14 days of service, neither Plaintiff nor Defendants filed any objections. Therefore, they have waived their right to appeal Judge Morris's findings. Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ; Pfahler v. Nat'l Latex Prods. Co., 517 F.3d 816, 829 (6th Cir. 2007).
A.
In May 2017, Plaintiff was released from a Michigan prison to serve his 15-month term of parole. ECF No. 1 at PageID.3–4. As a condition of his parole, Plaintiff was prohibited from entering Bay County, Michigan without his parole officer's permission. Id. at PageID.4. Because Plaintiff's pre-parole residence is in Bay County, the Michigan Department of Corrections (the "MDOC") assigned him to live at the TRI-CAP facility in Saginaw, Michigan. Id. Plaintiff was also required to wear an electronic monitoring device for the first six months of his parole. Id. Plaintiff was not permitted to leave the TRI-CAP facility without permission from his parole officer, Defendant Lewis. Id. Plaintiff was transferred to the TRI-CAP facility following his release. Id.
Upon arrival to the TRI-CAP facility, TRI-CAP staff told Plaintiff that he must submit to a strip search, provide a urine sample, allow staff to inspect his property, and "be sprayed with chemicals." Id. When Lupe Castillo approached Plaintiff with a breathalyzer, Plaintiff stated that "the conditions of his parole only required him to submit to searches by his parole officer and law enforcement." Id. at PageID.4–5. Later, Plaintiff said the same to Defendant Ervin, a residential manager at TRI-CAP. Id. at PageID.5. Defendant Ervin responded that Plaintiff could follow the staff's instructions or leave. Id.
Plaintiff told Defendant Ervin that he believed the procedures violated his rights, and he planned to bring suit. Id. Defendant Ervin exclaimed in response, " ‘You're not going to do anything,’ " then asked Plaintiff if he would comply. Id. Aware that he was unable to leave without Defendant Lewis's permission, Plaintiff complied and repeated that he planned to bring suit. Id. at PageID.5–6.
While Lupe Castillo gazed at Plaintiff's genitals, he provided a sample as directed. Id. at PageID.6. Then another staff member told Plaintiff and Lupe Castillo that Plaintiff "isn't staying." Id. Lupe Castillo directed Plaintiff to pour out his urine sample and wait in the lobby. Id.
After Plaintiff's electronic monitor began to lose signal, TRI-CAP allowed him to go outside to regain signal. Id. While outside, Plaintiff's sister, Dottie Taylor, arrived and called Defendant Lewis after Plaintiff told her what happened. Id. at PageID.7.
Approximately 50 minutes later, Defendant Lewis and Jason Furst arrived at the TRI-CAP facility. Id. Defendant Lewis and Jason Furst arrested Plaintiff and booked him on a parole-violation retainer at the Midland County Jail (MCC). Id. Defendant Lewis charged Plaintiff with violating his parole by "engaging in threatening and intimidating behavior." Id. According to Plaintiff, Defendant Lewis alleged that Plaintiff's threat to sue was threatening and intimidating behavior. Id.
Plaintiff's preliminary parole violation hearing was held at the MCC. Id. at PageID.8. Defendant Ervin testified at the hearing. Defendant Ervin testified that TRI-CAP's intake procedures include those that Plaintiff experienced. Id. After Plaintiff informed Hearing Officer Larry Elliot that threatening to sue is constitutionally protected speech, Larry Elliot replied, Id. Ultimately, Larry Elliot recommended that the Parole Board find Plaintiff guilty of engaging in threatening and intimidating behavior for threatening to sue. Id. at PageID.8–9.
Plaintiff did not return to prison for a formal parole-violation hearing. Instead, the Parole Board found Plaintiff guilty and sentenced him to 45 days in county jail for threatening to bring a claim to protect his constitutional rights. Id. at PageID.9. Plaintiff alleges that he learned of the Board's decision from his sister. Id. Plaintiff claims that he requested a copy of the Board's decision so he could prepare an appeal while in custody, but the Board did not respond. Id. at PageID.9–10. After Plaintiff's release, he served the remainder of his parole under the Saginaw County Parole Office. Id. at PageID.10. Plaintiff was released from parole on August 6, 2018. Id.
Defendants filed a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6). See generally ECF No. 24. Specifically, Defendants make two arguments for dismissal: (1) Plaintiff's retaliation claims are barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) ; and (2) Plaintiff cannot prove the "but for" causation element of his retaliation claim. Id. Plaintiff responds (1) that his claims fall within an exception to Heck established in the Powers v. Hamilton County Public Defender Commission, 501 F.3d 592 (6th Cir. 2007) ; and (2) that he would not have served jail time "but for" Defendants’ retaliation for his intent to file suit. ECF No. 28. The parties reiterated these arguments in additional briefing. See ECF Nos. 29, 30, 33.
Under Rule 12(b)(6), a pleading fails to state a claim if it does not contain allegations that support recovery under any recognizable theory. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In considering a Rule 12(b)(6) motion, the court construes the pleading in the nonmovant's favor and accepts the motion's factual allegations as true. See Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir. 2008). The movant need not provide "detailed factual allegations" to survive dismissal, but the "obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do."
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In essence, the pleading "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face," and the court must not accept as true the complaint's legal conclusions. Iqbal, 556 U.S. at 679–79, 129 S.Ct. 1937 (quotations and citation omitted). Facial plausibility is established "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678, 129 S.Ct. 1937 ; see also 16630 Southfield Ltd. v. Flagstar Bank, F.S.B., 727 F.3d 502, 503 (6th Cir. 2013) ().
123 Courts must hold pro-se complaints to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam). Yet even when considering pro-se pleadings, " ‘courts should not have to guess at the nature of the claim asserted.’ " Frengler v. Gen. Motors, 482 F. App'x 975, 976–77 (6th Cir. 2012) (unpublished) (quoting Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989) ). Indeed, Rogers v. Detroit Police Dep't, 595 F. Supp. 2d 757, 766 (E.D. Mich. 2009) (quoting McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979) ) (other citations omitted); see also Evans v. Mercedes Benz Fin. Servs., LLC, 2011 WL 2936198, at *2 (E.D. Mich. July 21, 2011) ().
The first question is whether Heck v. Humphrey bars Plaintiff's retaliation claims.
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