Johnson v. Freeburn

• Decision Date: 30 September 1998
• Docket Number: No. 96-CV-74996-DT.,96-CV-74996-DT.
• Citation: 29 F.Supp.2d 764
• Parties: Arthur JOHNSON, Jr., Plaintiff, v. James FREEBURN, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

29 F.Supp.2d 764

Arthur JOHNSON, Jr., Plaintiff, v. James FREEBURN, Defendant.

No. 96-CV-74996-DT.

United States District Court, E.D. Michigan, Southern Division.

September 30, 1998.

Arthur Johnson Jr., Ionia, MI, pro se.

Terry L. Norton, Michigan Department of Attorney General, Lansing, MI, Lamont M. Walton, Michigan Department of Attorney General, Lansing, MI, for defendant.

MEMORANDUM OPINION AND ORDER

HOOD, District Judge.

This matter is before the Court on Magistrate Judge Steven D. Pepe's Report and Recommendation dated August 26, 1998. To date, no objections have been filed to the Report and Recommendation.

The only remaining defendant in this matter is Defendant James Freeburn. On September 29, 1997, the Court entered an Order accepting the Magistrate Judge's August 28, 1997 Report and Recommendation dismissing all of the defendants except Defendant James Freeburn. The Court agreed with the Magistrate Judge's conclusion that Plaintiff has stated a claim of retaliation in violation of his First Amendment rights against Defendant Freeburn. Discovery proceeded in this matter and Defendant Freeburn has now filed a Rule 12(b)(6) motion to dismiss and/or Rule 56 motion for summary judgment.

The Court has had an opportunity to review the matter and finds that the Magistrate Judge reached the correct conclusion for the proper reasons. The Court agrees with the Magistrate Judge that Plaintiff has stated a claim of retaliation in violation of his First Amendment rights against Defendant Freeburn and that the supplemental evidence submitted by Defendant Freeburn was not conclusive on the issue. There remains a genuine issue of material fact on the retaliation claim. The Court further agrees with the Magistrate Judge that because Plaintiff has served the sanction imposed on him by the hearing officer, he was not "in custody" when he filed the instant claim against Defendant Freeburn. The instant suit is not precluded by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) and Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997) pursuant to the reasoning set forth in Spencer v. Kemna, 523 U.S. 1, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998).

Accordingly,

IT IS ORDERED that Magistrate Judge Steven D. Pepe's Report and Recommendation dated August 26, 1998 is ACCEPTED and ADOPTED as this Court's findings of fact and conclusions of law;

IT IS FURTHER ORDERED that Defendant's Motion to Dismiss and/or for Summary Judgment (Docket Nos. 36-1 and 36-2, filed February 13, 1998) is DENIED;

IT IS FURTHER ORDERED that the retaliation claim under the First Amendment remains against Defendant Freeburn;

IT IS FURTHER ORDERED that an attorney be appointed to prepare for and represent Defendant Freeburn at trial; and

IT IS FURTHER ORDERED that a Status Conference be held on this matter on Monday, January 11, 1999, 2:30 p.m.

REPORT AND RECOMMENDATION

PEPE, United States Magistrate Judge.

Plaintiff is an inmate in the custody of the Michigan Department of Corrections. He filed this action under 42 U.S.C. § 1983, alleging violations of his constitutional rights. Defendants previously filed a motion to dismiss or for summary judgment in this case. Defendants' motion to dismiss was granted in part and denied in part. Defendants' motion for summary judgment was denied without prejudice as premature in order to allow plaintiff to take discovery on material issues of fact. The remaining defendant, James Freeburn, has now filed a second Rule 12(b) Motion for Dismissal and Rule 56(b) Motion for Summary Judgment. This motion has been referred to me for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

I. RECOMMENDATION

For reasons stated below, it is recommended that defendant Freeburn's motion to dismiss and/or for summary judgment be denied.

II. BACKGROUND

A brief summary of the alleged retaliation claims against defendant Freeburn is all that is necessary here. Plaintiff has alleged that on August 28, 1995, defendant Freeburn threatened plaintiff's life. Later the same day, plaintiff was standing in front of RUM Beckwith's office, informing her of this threat by Freeburn and asking her to transfer him to another unit. Plaintiff alleges that the complaint to RUM Beckwith was made in defendant Freeburn's presence. In response, defendant Freeburn allegedly retaliated against plaintiff by (1) calling the gun tower officer, telling him that plaintiff refused to go back to his cell and instructing the officer to shoot plaintiff if he moved, and (2) having plaintiff wrongfully placed in administrative segregation for four days for refusing to lock in. In my earlier Report and Recommendation, I concluded that plaintiff had stated a claim of retaliation against defendant Freeburn under the Cale v. Johnson, 861 F.2d 943 (6th Cir.1988), standard because (1) plaintiff alleged that he engaged in conduct — seeking redress of grievances — that is protected by the First Amendment; and (2) defendant Freeburn engaged in retaliatory conduct sufficiently grievous to constitute an egregious abuse of authority or shock the judicial conscience. Report and Recommendation, dated August 28, 1997, pp. 17-18. Moreover, I concluded that defendant Freeburn was not entitled to qualified immunity. Id. at p. 28. In a September 29, 1997, Memorandum Opinion and Order, Judge Hood accepted my Report and Recommendation and ordered that plaintiffs retaliation claim remain against defendant Freeburn and that defendant Freeburn's motion for summary judgment be denied without prejudice pending discovery on this issue.

Defendant Freeburn has now filed a second motion to dismiss or for summary judgment. With the initial dispositive motion, defendant Freeburn submitted an affidavit, in which he attests that he called the gun tower officer because plaintiff was refusing to "lock down" and that at no time did he tell the gun tower officer to shoot plaintiff. Defendant Freeburn has now submitted additional evidence to support his argument that he did not tell the gun tower officer to shoot plaintiff.

III. STANDARD OF REVIEW

A. Dismissal pursuant to Fed.R.Civ.P. 12(b)(6)

In deciding a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), a court must accept all well-pleaded allegations as true and construe them in the light most favorable to plaintiff. Zinermon v. Burch, 494 U.S. 113, 117, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990); 5A CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357, at 304 (2d ed.1990). See also Jenkins v. McKeithen, 395 U.S. 411, 421-22, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969); Westlake v. Lucas, 537 F.2d 857 (6th Cir.1976). A complaint will not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Moreover, pro se complaints are to be construed liberally, Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). It is also well established, however, that conclusory, unsupported allegations of constitutional deprivation do not state a claim.¹

Finally, a court may decide a motion to dismiss only on the basis of the pleadings. Song v. City of Elyria, Ohio, 985 F.2d 840, 842 (6th Cir.1993). Dismissal is appropriate if the complaint fails to set forth an allegation of a required element of a claim. See Craighead v. E.F. Hutton & Co., 899 F.2d 485, 489-90 (6th Cir.1990). The court may treat the motion to dismiss as one for summary judgment, however, if "matters outside the pleading are presented to and not excluded by the court." Fed.R.Civ.P. 12(b).

B. Summary judgment

Under Fed.R.Civ.P. 56, summary judgment is to be entered if the moving party demonstrates there is no genuine issue as to any material fact. The Supreme Court has interpreted this to mean that summary judgment should be entered if the evidence is such that a reasonable jury could find only for the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party has "the burden of showing the absence of a genuine issue as to any material fact." Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). See also Lenz v. Erdmann Corp., 773 F.2d 62 (6th Cir.1985). But as the Supreme Court wrote in Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986):

[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

IV. ANALYSIS

A. The claim that defendant Freeburn instructed the gun tower officer to shoot plaintiff if he moved

Defendant Freeburn argues that the evidence presented in this case does not create a material issue of fact for trial. In the first motion to dismiss or for summary judgment, defendant Freeburn denied that he told the gun tower officer to shoot plaintiff if he moved. In his affidavit, submitted with the original dispositive motion, defendant Freeburn stated "I may have gotten on the phone to inform the gun turet as to what was going on. At no time did I tell him to shoot Plaintiff if he moved...." Freeburn Aff., ¶ 5. Second, defendant Freeburn argues that former defendant Beckwith's original...