Hudson v. Wade

• Decision Date: 23 September 2011
• Docket Number: CASE NO. 5:09-CV-14109
• Parties: DAVID HUDSON (#179401), Plaintiff, v. WRIGHT WADE, SCOTT NOBLES, RAYMOND BOOKER, LOIS ATCHER, THOMAS RIDLEY, SHERRI CURETON,1MARK MACKINTOSH, THOMAS GOULD, and RICHARD GOLDBERG, Defendants,
• Court: U.S. District Court — Eastern District of Michigan

DAVID HUDSON (#179401), Plaintiff,

v. WRIGHT WADE, SCOTT NOBLES, RAYMOND BOOKER, LOIS ATCHER,THOMAS RIDLEY, SHERRI CURETON,¹MARK MACKINTOSH, THOMAS GOULD,and RICHARD GOLDBERG, Defendants,

CASE NO. 5:09-CV-14109

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: September 23, 2011

MARK MACKINTOSH, THOMAS GOULD,

JUDGE JOHN CORBETT O'MEARA

MAGISTRATE JUDGE PAUL J. KOMIVES

REPORT AND RECOMMENDATION REGARDING DEFENDANTS DECEMBER 17,

2010 MOTION FOR SUMMARY JUDGMENT (Doc. Ent. 35)

I. RECOMMENDATION . . . . . . . . . . 2

II. REPORT . . . . . . . . . .2

A. Plaintiff's Complaint Was Amended by Way of my January 13, 2011 Order . . . . . . . . . .2

B. There Are Four (4) Motions Pending before the Court . . . . . . . . . .4

C. Analysis . . . . . . . . . . 5

1. Plaintiff's October 3, 2008 transfer from RRF to ARF . . . . . . . . . .5

2. Plaintiff's December 17, 2008 major misconduct at ARF . . . . . . . . . .8

3. Defendants' December 17, 2010 dispositive motion (Doc. Ent. 35) . . . . . . . . . .10

a. RRF Defendants Wade, Nobles, Curenton, Booker, Ridley and Archer . . . . . . . . . .10

i. First Amendment . . . . . . . . . . 10

ii. Eighth Amendment . . . . . . . . . . 31

iii. Fourteenth Amendment . . . . . . . . . . 35

iv. RLUIPA . . . . . . . . . .44

v. Qualified Immunity . . . . . . . . . .47

b. ARF defendants Mackintosh, Gould and Goldberg . . . . . . . . . . 49

c. Eleventh Amendment immunity and Fed. R. Civ. P. 12(b)(2) . . . . . . . . . . 50

4. Summary . . . . . . . . . .52

III. NOTICE TO PARTIES REGARDING OBJECTIONS . . . . . . . . . .54

I. RECOMMENDATION: The Court should grant defendants' December 17, 2010 motion for summary judgment (Doc. Ent. 35) which addresses plaintiff's October 21, 2010 amended complaint (Doc. Ent. 33).

II. REPORT:

A. Plaintiff's Complaint Was Amended by Way of my January 13, 2011 Order.

1. Plaintiff David K. Hudson Bey is currently incarcerated at Lakeland Correctional Facility (LCF) in Coldwater, Michigan where he is serving two life sentences for first-degree murder, Mich. Comp. Laws § 750.316.² On October 19, 2009, while incarcerated at LCF, plaintiff filed a fee-paid prisoner civil rights complaint against nine (9) defendants: Wade, Nobles, Booker, Atcher, Ridley and Cureton, apparently employees at the Ryan Correctional Facility (RRF) in Detroit, Michigan, and defendants Mackintosh, Gould and Goldberg, apparently employees at the Gus Harrison Correctional Facility (ARF) in Adrian, Michigan. Doc. Ent. 1 at 1, 14-15.

Plaintiff's claims consist of (I) retaliation in violation of the First and Fourteenth Amendments; (II) defendants' personal participation in a 42 U.S.C. § 1983 conspiracy; (III) intentional and malicious denial of access to the court; (IV) First Amendment retaliation, including a claim that MDOC PD 03.03.105 ("Prisoner Discipline") is unconstitutional; (V) retaliation for exercising his First Amendment right to petition the government for a redress of grievances and continuing damages, and (VI) willful violation of a permanent injunction underthe Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA)³ and the First and Fourteenth Amendments. Doc. Ent. 1 at 3-13.⁴

Judge O'Meara referred this case to me to conduct all pretrial proceedings. Doc. Ent. 4. On May 17, 2010, plaintiff filed a second amended complaint. Doc. Entries 20 and 21.

Then, on June 10, 2010, eight (8) of the nine (9) defendants in this case filed a motion to strike and dismiss the plaintiff's second amended complaint based on the plaintiff's non-compliance with the applicable procedural rules; or alternatively for screening of the pro se prisoner civil rights complaint under the provisions of the PLRA's screening provisions before the defendants are required to file a responsive pleading. Doc. Ent. 25.

Pursuant to my September 30, 2010 order (Doc. Ent. 32), plaintiff's June 18, 2010 (Doc. Ent. 28) and July 23, 2010 (Doc. Ent. 31) amended complaints were stricken. The order provided, in part, that "[p]laintiff ha[d] thirty (30) days within which to file an amended complaint which w[ould] supercede the original complaint and which may not incorporate by reference a prior pleading." Doc. Ent. 32 at 12-13.

2. By way of my January 13, 2011 order (Doc. Ent. 41) granting plaintiff's October 21, 2010 motion (Doc. Ent. 33 at 1-3) to amend his May 17, 2010 complaint (Doc. Entries 20 and 21), the Court acknowledged the October 21, 2010 complaint and Exhibits A-E (Doc. Ent. 33 at 4-42) as plaintiff's amended complaint.⁵

Plaintiff's amended complaint lists seven (7) defendants - Gould, Wade, Nobles, Curenton, Booker, Ridley and Archer - each of whom is sued in their individual and official capacities. Doc. Ent. 33 at 5-6, 6 ¶ 3, 19 ¶ 88. There are also seven (7) claims for relief and causes of action, including counts based upon First Amendment retaliation; First Amendment access to courts; conspiracy and RLUIPA. Doc. Ent. 33 ¶¶ 81-87. Plaintiff seeks injunctive, compensatory, and declaratory relief. Doc. Ent. 33 at 21.

B. There Are Four (4) Motions Pending before the Court.

1. On December 17, 2010, defendants filed a motion for summary judgment (Doc. Ent. 35) with respect to plaintiff's October 21, 2010 amended complaint (Doc. Ent. 33).⁶ Defendants seek dismissal of this action with prejudice. Doc. Ent. 35 at 2. As framed by defendants, the concise issues are:

I. Whether the plaintiff has demonstrated a violation of clearly established federal rights;

II. Whether the Complaint states a claim against [ARF] Defendants Mackintosh, Gould, and Goldberg; and

III. Whether the plaintiff's official capacity claims are barred by the Eleventh Amendment.

Doc. Ent. 35 at 4.⁷ Attached to the motion are Exhibits A-F. See Doc. Entries 35-2, 35-3, 35-4, 35-5, 35-6 and 35-7; see also Doc. Ent. 39.

On January 20, 2011, plaintiff filed a response. Doc. Ent. 43 at 1-29; Doc. Ent. 43 at 30-31 (Index of Exhibits);⁸ Doc. Ent. 43 at 32-43 (Exhibits F-G, I-O); Doc. Ent. 43 at 44-46 (Plaintiff's Statement of Disputed Factual Issues); Doc. Ent. 43 at 47-50 (Plaintiff's Declaration [Exhibit H]); Doc. Ent. 43-1 at 1-8 (Plaintiff's Declaration [Exhibit H]); Doc. Ent. 43-1 at 9-10 (Exhibits H1- H20); Doc. Ent. 43-2 at 1-5 (Exhibits H21-H24).

2. Previously, on December 30, 2010, plaintiff filed a motion (Doc. Ent. 38) for an enlargement of time within which to file a response to defendants' December 17, 2010 motion (Doc. Ent. 35) and limited discovery. This motion will be addressed under separate cover.

3. On January 7, 2011, defendants filed a motion to stay discovery (Doc. Ent. 40), to which they attached plaintiff's December 28, 2010 first request for production of documents (Doc. Ent. 40-2). This motion will be addressed under separate cover.

4. On January 13, 2011, I entered a report (Doc. Ent. 48) recommending that the Court deny as moot but without prejudice defendant Curenton's May 16, 2011 motion for summary judgment (Doc. Ent. 46). Defendant Curenton filed another motion for summary judgment on September 19, 2011 (Doc. Ent. 49), which will be addressed under separate cover.

C. Analysis

1. Plaintiff's October 3, 2008 transfer from RRF to ARF

By way of background, plaintiff is the President of the National Lifers of America, Inc., Chapter #1009 (NLA), which was apparently incorporated during the 1980s. See Doc. Ent. 43-1 at 9-13. In Fall 2007, plaintiff participated in the Inside-Out Prison Exchange Program at RRFtaught by University of Michigan-Dearborn Professor Lora Lempert.⁹ Doc. Ent. 43-1 at 14.¹⁰ During April and May 2008, Professor Lempert and five (5) students wrote letters in support of plaintiff's petition for commutation. Doc. Ent. 43-1 at 24-38.¹¹

On September 20, 2008, plaintiff "organized and sponsored a Legislative Townhall Meeting with State Representative Alma Wheeler Smith,¹² Chairperson of [MDOC] Legislative Committee; State Representative Paul Condino; State Senator Hansen Clarke; MDOC Legislative Liaison Bryan Crenshaw; and Second Chance for Youth Director Felicia Tyson-Waters at [RRF] in the gym with the general population of prisoners." Doc. Ent. 33 ¶ 5.

Plaintiff alleges that, prior to the start of the event, Curenton stated she could "get [Hudson] transferred." Doc. Ent. 33 ¶ 8. During the meeting, plaintiff made complaints "concerning Parole Board Policies and conflicts of interest between Warden Booker and the Michgian Parole Board." According to plaintiff, "Warden Booker's wife is/was a member of the Parole Board[.]" Doc. Ent. 33 ¶ 9.¹³ During the program, plaintiff was "summoned to SpecialActivities Director Steve Horton's location," who said among other things, "[w]e don't need this type of forum." Doc. Ent. 33 ¶ 12.

On September 22, 2008, RRF Warden Booker electronically mailed RRF Deputy Warden Nobles for advice on "whether there have been any rumors circulating at RRF regarding a protest about the reduction in tobacco products." The same day, Nobles replied. Doc. Ent. 35-2 at 4.

On September 23, 2008, plaintiff noticed a private conversation between ADW Willis Chapman and Officer Curenton. According to plaintiff, "Officer Currenton stared 'animus' at Plaintiff as he walked away." Doc. Ent. 33 ¶ 15.

Then, plaintiff contends, on September 24, 2008, Deputy Warden Nobles told Warden's Forum Member Corbin-Bey (#136518)¹⁴ that he (Nobles) and the Warden (Booker) had been "answering emails concerning the complaints made at your little townhall meeting all morning." Doc. Ent. 33 ¶¶ 6, 16. On September 26, 2008, ADW Chapman informed plaintiff that "Officer Currenton may talk to Wade or Nobles about you and the complaints made to the outside guest you had come in last Saturday." Doc. Ent. 33 ¶ 17.

On September 30, 2008, the SCC requested that plaintiff be transferred due to security concerns at RRF. The transfer appears to have been ordered on October 1, 2008, and plaintiff was transferred to ARF on October 3, 2008. Doc. Ent. 35-2 at 5. See also Doc. Ent. 35-6 at 5-6 (Log Book Excerpts); ...