King v. Zamiara

• Decision Date: 16 August 2012
• Docket Number: No. 09–2469.,09–2469.
• Citation: 680 F.3d 686
• Parties: Kevin KING, Plaintiff–Appellant, v. Chuck ZAMIARA, Curtis Chaffee, Sharon Wells, Michael Singleton, and Mary Berghuis, Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

680 F.3d 686

Kevin KING, Plaintiff–Appellant,

v.Chuck ZAMIARA, Curtis Chaffee, Sharon Wells, Michael Singleton, and Mary Berghuis, Defendants–Appellees.

No. 09–2469.

United States Court of Appeals, Sixth Circuit.

May 22, 2012.

Rehearing and Rehearing En Banc Denied Aug. 16, 2012.

ON BRIEF:Kevin Himebaugh, Office of the Michigan Attorney General, Lansing, Michigan, for Appellees. Kevin King, Jackson, Michigan, pro se.

Before: MOORE and COLE, Circuit Judges; BECKWITH, District Judge. ^*

MOORE, J., delivered the opinion of the court in which COLE, J., joined. BECKWITH, D.J. (pp. 710–13), delivered a separate opinion concurring in part and dissenting in part.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Kevin King is an inmate with the Michigan Department of Corrections (“MDOC”). In 2002, King sued several MDOC employees under 42 U.S.C. § 1983 for violating his First Amendment rights when they transferred him from the Brooks Correctional Facility (“Brooks”), a Level II security facility, to the Chippewa Correctional Facility (“Chippewa”), a Level III facility, in May of 2000. King claims that the increased security level and corresponding transfer were acts of retaliation committed against him for his participation in Cain v. Michigan Department of Corrections, Michigan Court of Claims Nos. 88–61119–AZ, 93–14975–CM, 96–16341–CM, a state-court class action regarding inmate property, as well as for his assistance to other inmates in filing grievances. Following our decisions in two prior appeals, the district court has previously held that (1) King's participation in Cain and his assistance to other inmates in filing grievances are protected activities, and (2) the increase in his security level—though not the transfer itself—was an adverse action. The district court held a bench trial on the sole remaining issue, whether King's protected activities caused the adverse action, and found in favor of the defendants. King appeals this ruling pro se. For the following reasons, we AFFIRM the district court's judgment in favor of defendants Singleton and Berghuis, but we REVERSE the district court's judgment with respect to defendants Wells, Chaffee, and Zamiara and REMAND for further proceedings consistent with this opinion.

I. BACKGROUND

Kevin King has been an inmate at the MDOC since he was incarcerated for first-degree murder in 1983. On September 17, 1999, the MDOC first transferred King to Brooks from Saginaw. His transfer order indicated that the transfer was requested on “suspicion” that King was a “vocal participant” in organizing a protest over personal property issues ¹ and that the transferwas to separate suspected participants. King v. Zamiara, No. 4:02–CV–141, 2009 WL 3424221, at *1 (W.D.Mich. Oct. 20, 2009) (“ King IV ”) (quoting R. 130–4, Ex. 31 (Saginaw Transfer Order)).² Both the Brooks and Saginaw facilities were Level II facilities, which is the second lowest security level offered by the MDOC, and King does not challenge this transfer.

Seven days after his arrival at Brooks, Sandra Naves (now Sandra Galiton, herein “Naves”) issued King a Notice of Intent (“NOI”) to classify him to segregation, which is an alternative to a misconduct ticket but similarly requires a hearing. The purported basis was that “ ‘it is believed that prisoner King is attempting to incite a demonstration amongst the prisoners.’ ” King IV, 2009 WL 3424221, at *1 (quoting R.130–4, Ex. 27 (Naves NOI)). At trial, Naves testified that she was not responsible for supervising King's unit at the time of the alleged incident, she did not investigate the factual basis of the NOI, and she had no personal knowledge that King was attempting to incite a demonstration. R. 172 (Trial Tr. II at 197:8–198:20). She wrote the ticket because her supervisor, Sharon Wells, ³ asked her to and told her what to put in the NOI. Id. When Naves told Wells that she “had a problem” writing a ticket when she “didn't have any personal knowledge about” the underlying events, Naves testified that Wells told her to write it anyway. Id. at 198:21–199:5.⁴ Naves's credibility was not challenged.

King never had a hearing on the NOI because on September 27, 2009, he was transferred to another Level II facility for hernia surgery. King IV, 2009 WL 3424221, at *2. King's transfer order for surgery indicated that he had been transferred out of Saginaw “due to his attempts to organize a demonstration” there, and that “[s]ince his arrival at [Brooks] he has attempted to do the same,” R. 130–4, Ex. 32 (Surgery Transfer Order), but referenced only the recent NOI issued by Naves.

King returned to Brooks on November 10, 1999. Two days later, he wrote a letter to Mary Berghuis, the Warden of Brooks at the time, complaining about his treatment and the monitoring of his phone calls in violation of Cain. King IV, 2009 WL 3424221, at *2. He added, “Frankly, I don't like your facility at all. Your staff rival [sic] in abusing their authority and feel they don't have to answer to anyone. I've watched them provide [sic] situations and retaliate against those who remotely stand up for themselves.” Id. (quoting R. 130–2, Ex. 3 (King/Berghuis Letter)). Sometime in early 2000, King became the Chairman of the Warden's Forum, a position elected by the other prisoners to serve as their representative in meetings with Warden Berghuis. R. 172 (Trial Tr. II at 224:25–225:25); see also R. 11–2, Ex. 8 (Prisoner Representative Policy).

On February 19, 2000, King was issued a ticket ⁵ for being out of place—a major misconduct violation—in violation of a toplock order imposed by Wells a few days before. See King IV, 2009 WL 3424221, at *2 (citing R. 1–5, Ex. D (Misconduct Hr'g Report)); see also King v. Zamiara, 150 Fed.Appx. 485, 487–88 (6th Cir.2005) (“ King I ”) (unpublished opinion). ⁶ This ticket was subject to administrative review. On review, King was found not guilty of the charge, because Wells had previously told King that toplock would start at midnight, and he was cited for being out of place in the afternoon. R. 1–5, Ex. D (Misconduct Hr'g Report); King I, 150 Fed.Appx. at 487–88.

On March 31, 2000, Bonnie Lewis, another Corrections Officer, wrote King a major misconduct ticket for “Creating a Disturbance.” King IV, 2009 WL 3424221, at *2. Officer Lewis indicated that while she was instructing several prisoners at the officers' station regarding new clothing rules, the prisoners started to argue and King became disruptive. R. 130–4, Ex. 29 (Misconduct Hr'g Report). However, Assistant Deputy Warden Michael Singleton reported to the hearing officer that he spoke to Lewis and she had retracted her statement. Lewis testified at trial that she did not remember the incident in question or whether Wells had asked her to write the ticket. R. 172 (Trial Tr. II at 205:13–14). Lewis was impeached with her deposition, however, where she testified, “I must have been asked to write the statement, I guess. I must have went to the RUM [Sharon Wells], I guess, and talked to the RUM and was asked to write a statement.” Id. at 206:1–3 (quoting her deposition). Lewis did not cite any of the other seven prisoners for misconduct relating to that incident, only King. Id. at 206:25–207:5. The hearing officer, whose credibility was not challenged, found King not guilty on April 17, 2000. The officer found Lewis's testimony to be inconsistent and that it was “in some respects personal,” ⁷ and he “therefore [did] not find the reporter credible as to this prisoner's involvement.” R. 130, Ex. 29 (Misconduct Hr'g Report).

Three days after the ticket was reversed, on April 20, Wells requested King be removed from her unit in a letter to Deputy Warden Shirlee Harry:

I am requesting that this prisoner be removed from Conklin Unit. He is becoming increasingly more powerful in the eyes of the prisoners in Conklin Unit. He has made the statement to a unit officer that “these guys in the unit will do what ever I ask” “If I wanted to cause a disturbance I could anytime.” Prisoners have also approached me on several occasions with different types of request and when refused they will either state that “they will get someone who will take [care] of it” and when the grievance is written it is more often than not written by prisoner King or they will state that they will make sure “King knows about this.” The most recent situation, in where King was found not guilty of Creating a Disturbance, has boosted King's status in the unit with the prisoners. I believe it should be considered a security risk to the unit officers when prisoner King's authority over other prisoners is higher then the officers working in the unit. I have attached other examples of his behavior to this report. I am asking for permission to move him on the next move day, 4–26–00.

R. 11–2, Ex. F (Wells Memo) (mistakes in original); see also King IV, 2009 WL 3424221, at *2. At trial, Wells could not recall what officer made those statements to her, see R. 172 (Trial Tr. II at 189:24–190:12), and none of the referenced attachments were ever identified by any witness. She also testified that she meant for King to be moved to another unit within Brooks, not another facility. Id. at 193:16–18.

The next documented MDOC action is an email from Curtis Chaffee, the transfer coordinator at Brooks, to Chuck Zamiara, a classification specialist at the MDOC Central Office in Lansing (“Central Office”), indicating that “Deputy Harry has asked for this prisoner to be transferred to an alternate Level II.” R. 130–3, Ex. 18 (Chaffee/Zamiara Email). Chaffee added:

The reason for this request is that he has been at [Brooks] for 6 months during this time, he has developed a cadre of followers over whom he has substantial influence. It seems he can instigate them to create problems (grievances, complaints to Warden's Forum, etc.) while he remains uninvolved directly. Currently, he is printing out grievances about various issues and having other prisoners sign them...