Lafountain v. Harry

• Decision Date: 22 May 2013
• Docket Number: No. 11–1496.,11–1496.
• Citation: 716 F.3d 944
• Parties: Wayne Earl LaFOUNTAIN, Plaintiff–Appellant, v. Shirlee HARRY, Warden, Muskegon Correctional Facility, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

716 F.3d 944

Wayne Earl LaFOUNTAIN, Plaintiff–Appellant,

v.Shirlee HARRY, Warden, Muskegon Correctional Facility, et al., Defendants–Appellees.

No. 11–1496.

United States Court of Appeals,Sixth Circuit.

Argued: March 6, 2013.

Decided and Filed: May 22, 2013.

ARGUED:Alistair E. Newbern, Seamus E. Kelly, Vanderbilt Appellate Litigation Clinic, Nashville, Tennessee, for Appellant. Clifton B. Schneider, Office of the Michigan Attorney General, Lansing, Michigan, for Appellees. ON BRIEF:Alistair E. Newbern, Vanderbilt Appellate Litigation Clinic, Nashville, Tennessee, for Appellant. A. Peter Govorchin, Michael R. Dean, Office of the Michigan Attorney General, Lansing, Michigan, for Appellees.

Before: MOORE, GIBBONS, and KETHLEDGE, Circuit Judges.

OPINION

KETHLEDGE, Circuit Judge.

Michigan prisoner Wayne Earl LaFountain sued the defendant prison officials, alleging that they retaliated against him for filing administrative grievances and lawsuits. The district court screened LaFountain's complaint pursuant to the Prison Litigation Reform Act and dismissed it with prejudice for failure to state a claim. 28 U.S.C. §§ 1915A(b)(1) & 1915(e)(2)(B); 42 U.S.C. § 1997e(c)(1). We reverse in part and vacate in part.

I.

The facts set forth below are based solely on the allegations in LaFountain's complaint. See Ashland, Inc. v. Oppenheimer & Co., 648 F.3d 461, 467 (6th Cir.2011). In 2006, the Michigan Department of Corrections agreed to house LaFountain at the Lakeland Correctional Facility in exchange for the dismissal of two lawsuits he had previously filed. LaFountain wanted the Department to house him at Lakeland so that he could receive family visits and avoid further retaliation from correctional officers at the Muskegon Correctional Facility, where he had been housed in the past. After he was transferred to Lakeland, LaFountain filed two grievances against three prison officials: Dan Hawkins, Bonita Hofner, and “third-shift Captain, Unknown Cooley.” LaFountain alleged that these officials selectively enforced housing-unit rules based on race. The day that LaFountain filed the second grievance, Hawkins and Hofner transferred him back to Muskegon.

In preparation for the transfer, Cooley directed LaFountain to pack up his personal property, including his typewriter. Officers working the prison's third shift then took possession of LaFountain's property. When LaFountain arrived at Muskegon, his typewriter was missing. So he filed another grievance, this time alleging that Hawkins, Hofner, and Cooley had retaliated against him by withholding the typewriter. LaFountain eventually got the typewriter back, but somebody had removed its screws and it was in pieces. LaFountain thereafter paid $280 to repair it.

When LaFountain arrived at Muskegon, Warden Shirlee Harry assigned him to a cell with Jimmy Riley, a mentally ill prisoner. Riley insulted and threatened LaFountain. Riley also kept LaFountain up at night by leaving the lights on and making excessive noise. LaFountain repeatedly asked the Muskegon Resident Unit Manager, Brett Barbier, and the Assistant Deputy Warden of Housing, Sharon Wells–Finos, to move him to a different cell, but to no avail. LaFountain filed a grievance against Harry, Barbier, and Wells–Finos, alleging that they housed him with Riley in retaliation for a grievance he had filed against Harry and a lawsuit he had filed against Anthony Martin, another Muskegon correctional officer.

Riley eventually threatened LaFountain's life, after which LaFountain refused to remain in his cell with Riley. Barbier ordered another officer to cite LaFountain for being “out of place” and disobeying a direct order. Barbier and Wells–Finos also placed LaFountain in a temporary segregation cell, where he remained for eight days. During that time, per orders from Harry, Barbier, and Wells–Finos, each new shift of officers issued LaFountain a direct order to continue celling with Riley. Every time that Riley refused, the officers cited LaFountain for major misconduct. LaFountain was ultimately charged with 12 major-misconduct violations and found guilty of eight of them. As a sanction, Harry and defendant Carmen Palmer, another Muskegon warden, ordered LaFountain to forfeit 770 days of his good-time credits.

LaFountain filed this lawsuit against Hawkins, Hofner, Cooley, Harry, Barbier, Wells–Finos, and Palmer, alleging that they each retaliated against him in violation of the First and Fourteenth Amendments. Before serving the complaint on the defendants, however, the district court dismissed it with prejudice for failure to state a claim. The court held that Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), barred the retaliation claim that was based on the misconduct charges. The court otherwise held that LaFountain's allegations did not support his claims. This appeal followed.

II.

We review the district court's dismissal of LaFountain's claims de novo. Davis v. Prison Health Servs., 679 F.3d 433, 437 (6th Cir.2012).

A.

To state a claim for retaliation, a plaintiff must allege that “(1) [he] engaged in protected conduct; (2) an adverse action was taken against [him] ...; and (3) there is a causal connection between elements one and two—that is, the adverse action was motivated at least in part by [his] protected conduct.” Thaddeus–X v. Blatter, 175 F.3d 378, 394 (6th Cir.1999) (en banc). Here, LaFountain's prior grievances and lawsuits against prison officials were undisputedly protected conduct. The issue, then, is whether any of the defendants took an adverse action against LaFountain, and if so whether the defendant who took the action was motivated, at least in part, by LaFountain's protected conduct.

“[A]n adverse action is one that would ‘deter a person of ordinary firmness' from the exercise of the right at stake”—here, the filing of grievances or lawsuits against prison officials. Id. at 396 (quoting Bart v. Telford, 677 F.2d 622, 625 (7th Cir.1982)). Whether an act is sufficiently adverse varies based on context. The context here is a prison; and prisoners “may be required to tolerate more than average citizens[ ] before an action taken against them is considered adverse.” Id. at 398. Even so, however, an act need not be egregious to be adverse. Id.

LaFountain argues that he pled three different adverse actions in his complaint. The first was the decision by Hawkins and Hofner to transfer LaFountain from Lakeland to Muskegon. As a general matter, a prison official's decision to transfer a prisoner from the general population of one prison to the general population of another is not considered adverse. Smith v. Yarrow, 78 Fed.Appx. 529, 543 (6th Cir.2003) (collecting cases). Absent unusual circumstances, prison officials, rather than judges, should decide where a particular prisoner should be housed. But this case is extraordinary, at least on the pleadings, because of the alleged settlement agreement. The complaint alleges that the transfer deprived LaFountain of the agreement's benefits because the transfer moved him farther away from his family and back into an environment in which he had already suffered retaliatory actions by prison officials. Whether LaFountain's transfer amounted to an adverse action for purposes of his retaliation claim, therefore, cannot be resolved at this stage. See generally Bell v. Johnson, 308 F.3d 594, 603 (6th Cir.2002).

The second adverse action is the damage to LaFountain's typewriter. The defendants do not dispute that the damage to the typewriter was an adverse action, but they argue that LaFountain did not allege that any of them caused it. LaFountain did allege, however, that Cooley ordered him to pack up his property, including his typewriter. He also alleged that “third-shift officers” took possession of the typewriter. And the State concedes that Cooley supervised the third shift. Thus, LaFountain sufficiently alleged that Cooley damaged his typewriter.

The same cannot be said for Hofner and Hawkins—the other defendants that LaFountain accused of damaging his typewriter. LaFountain's only allegation against these defendants with regard to the typewriter is that they damaged it to retaliate against him. But LaFountain did not allege that Hofner or Hawkins had anything to do with the packing of his property or the taking of his typewriter. And LaFountain's conclusory allegation, standing alone, is insufficient to state a claim for retaliation against Hofner and Hawkins. See Bishop v. Lucent Techs., Inc., 520 F.3d 516, 519 (6th Cir.2008).

Finally, LaFountain contends that Harry acted adversely toward him by assigning him to a cell with Riley, a mentally ill prisoner. LaFountain relatedly says that Barbier and Wells–Finos retaliated against him by refusing his requests for a different cell. Cell assignments are a normal part of prison life, and thus typically do not amount to an adverse action. But LaFountain alleged extraordinary circumstances with respect to his cell assignment here. Among other things, LaFountain alleged that “Riley stated to [LaFountain] that he wouldn't fight but would go and get either of two knives he had hidden in the prison yard in order to use on [LaFountain].” Compl. at ¶ 17. This threat constitutes circumstances that “would deter[ ] a person of ordinary firmness,” even a prisoner, “from exercising his or her right to access the courts.” Thaddeus–X, 175 F.3d at 398.

Although defendants are not responsible for adverse actions that they do not cause, they are responsible for “those consequences that inextricably follow from [their] alleged retaliatory conduct[.]” Siggers–El v. Barlow, 412 F.3d 693, 702 (6th Cir.2005). Here, LaFountain alleged that he was forced to cell with Riley “as the means for causing a prisoner to prisoner alter-cation [sic] between mentally ill prisoner Riley and [LaFountain] knowing in advance that [LaFountain] would either need to fight with or be assaulted by ... Riley [.]” Compl. at ¶ 29...