Murphy v. Lockhart

• Decision Date: 14 October 2011
• Docket Number: Case No. 10–11676.
• Citation: 826 F.Supp.2d 1016
• Parties: Timothy MURPHY, Plaintiff, v. Sean LOCKHART, CFA Administrative Assistant, Thomas Birkett, SMF Warden Ray Bowerson, Resident Unit Manager, Michael Krajnik, Resident Unit Manager, Sarah Bearss, Assistant Resident Unit Supervisor, Kenneth Werner, Assistant Resident Unit Supervisor, Cheryl Berry, General Office Assistant/Mailroom Clerk, Catherine S. Bauman, LMF Warden, and Jeri–Ann Sherry, Regional Prison Administrator, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

826 F.Supp.2d 1016

Timothy MURPHY, Plaintiff,

v.Sean LOCKHART, CFA Administrative Assistant, Thomas Birkett, SMF Warden Ray Bowerson, Resident Unit Manager, Michael Krajnik, Resident Unit Manager, Sarah Bearss, Assistant Resident Unit Supervisor, Kenneth Werner, Assistant Resident Unit Supervisor, Cheryl Berry, General Office Assistant/Mailroom Clerk, Catherine S. Bauman, LMF Warden, and Jeri–Ann Sherry, Regional Prison Administrator, Defendants.

Case No. 10–11676.

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

Sept. 30, 2011.Order Amending in Part Oct. 14, 2011.

Timothy Murphy, Ionia, MI, pro se.

Allan J. Soros, Julia R. Bell, Michigan Department of Attorney General, Lansing, MI, for Defendants.

OPINION AND ORDER ADOPTING IN PART AND REJECTING IN PART MAGISTRATE JUDGE'S HLUCHANIUK'S REPORT AND RECOMMENDATION, ADOPTING MAGISTRATE JUDGE'S MICHELSON'S REPORT AND RECOMMENDATION, OVERRULING DEFENDANTS' OBJECTIONS TO REPORT AND RECOMMENDATION, OVERRULING IN PART PLAINTIFF'S OBJECTIONS, GRANTING IN PART AND DENYING IN PART DEFENDANTS' FIRST MOTION FOR SUMMARY JUDGMENT, DENYING DEFENDANT WERNER'S SECOND MOTION FOR SUMMARY JUDGMENT, AND CONTINUING ORDER OF REFERENCE

DAVID M. LAWSON, District Judge.

The matter is before the Court on the objections by some of the defendants to a report filed by Magistrate Judge Michael J. Hluchaniuk on January 31, 2011, 2011 WL 4576035, recommending that the defendants' first motion for summary judgment be granted in part and denied in part. In addition, Magistrate Judge Laurie J. Michelson filed a report on July 29, 2011 recommending that defendant Kenneth Werner's second motion for summary judgment be denied. Defendant Werner filed objections to that report. The Court entered a general order of reference to conduct all pretrial matters, after which the defendants filed their motions. After Judge Hluchaniuk filed his report, the case was reassigned to Magistrate Judge Michelson for docket efficiency. The defendants filed timely objections to Judge Hluchaniuk's report, followed four days later with corrected objections. The plaintiff also filed timely objections. Defendant Werner filed timely objections to Judge Michelson's report. The matter is before the Court for a de novo review.

I.

The plaintiff, a prisoner currently incarcerated at the Ionia Maximum Correctional Facility in Ionia, Michigan, filed the present action on April 26, 2010 seeking relief from violations of his rights secured by the First and Fourteenth Amendments to the United States Constitution and the Religious Land Use and Institutionalized Persons Act of 2000 under 42 U.S.C. § 1983 and the Michigan Constitution. The plaintiff alleges that the defendants retaliated against him in various ways for comments he made to a reporter and that appeared in an Esquire Magazine article discussing an elaborate escape the petitioner attempted from the Kinross Correctional Facility (“KCF”) in Kincheloe, Michigan. He also alleges that prison personnel at the Standish Correctional Facility refused to deliver certain mail to him, which he contends contains religious material. The plaintiff alleges that defendant Werner retaliated against him for a lawsuit the plaintiff filed several years ago against Werner's co-prison worker. Finally, the plaintiff alleges that his continued confinement in administrative segregation without meaningful review violates his right to due process.

The following facts, viewed in the light most favorable to the plaintiff as non-moving party, are revealed by the record. In March 2007, the plaintiff's plan to escape from KCF was foiled when prison officials discovered the tunnel he and his cellmates had managed to dig from their cell to the outer perimeter of KCF. On April 11, 2007, the plaintiff was found guilty of escape in a Michigan Department of Corrections (MDOC) formal major misconduct hearing and subsequently classified to administrative segregation status pursuant to MDOC Policy Directive (PD) 04.05.120(L)(3). The administrative segregation status did not include a provision that a classification change could be made only with the consent of the Regional Prison Administrator (RPA). In some cases, such permission is required, in which case the prisoner is considered to be under a “RPA hold” under PD 04.05.120(MMM). On May 2, 2007, Murphy was transferred to the Standish Maximum Correctional Facility (SMF) in Standish, Michigan, where five defendants were employed—defendants Thomas Birkett as warden; Kenneth Werner and Sarah Bearss as assistant resident unit supervisors; and Ray Bowerson and Michael Krajnik as resident unit managers.

On May 14, 2007, defendant Werner, while completing the segregation behavior review form required by SMF Operating Procedure 04.05.120B, altered Murphy's security classification to include an RPA hold. Under the hold, only the RPA could reclassify Murphy to the general prison population, whereas before, the Security Classification Committee (SCC) could reclassify Murphy as long as the warden concurred. When Murphy confronted defendant Werner about the change on February 22, 2008, defendant Werner stated, “[Another prison guard] told me all about you. I've made my decision; you need RPA approval. If you don't like it, sue me.” Compl. ¶ 50.

On October 18, 2007, reporter Brian Mockenhaupt contacted Murphy concerning his desire to write an article about Murphy's failed escape from KCF for Esquire Magazine. Mockenhaupt had obtained permission from prison officials to interview Murphy. Murphy and Mockenhaupt communicated through letters and visits from October 2007 through May 2008. Esquire Magazine published Mockenhaupt's article in its August 2008 issue. The article, which quotes Murphy at length, discussed the security flaws at KCF, detailing the escape plan and revealing which prison staff Murphy manipulated and how he obtained and built the necessary tools to dig the tunnel. Needless to say, it did not portray the defendants in the most flattering light.

In May 2008, Murphy was assigned to work as a porter, for which he was paid approximately $65 per week. Murphy's copy of the August 2008 issue of Esquire Magazine arrived at SMF in the middle of July. On July 24, 2008, the prison issued a notice of package/mail rejection that stated the magazine violated PD 05.03.118(HH). The magazine was sent to Bearss's office, where Murphy witnessed defendants Birkett, Bearss, and Krajnik read the article. On July 29, 2008, Murphy was called into Bearss's office, where he was confronted by Birkett, Bearss, and Krajnik about his participation in the article. The three defendants apparently were upset: defendant Birkett informed Murphy that he “[would] remain in Ad–Seg for a long, long time because of it,” and Bearss suggested to Birkett that Murphy be fired from his work assignment. Compl. ¶¶ 59, 62. Murphy was terminated from his work assignment the following day. When confronted about the termination, Bearss told Murphy, “You should have thought about it before you did that article.” Compl. ¶ 64.

On August 22, 2008, defendant Bowerson held an administrative hearing on the prison's decision to reject Murphy's copy of Esquire. Murphy alleges that he was not offered an opportunity to be present at the hearing, to review the publication, or to provide a statement to be considered at the hearing. Bowerson affirmed the rejection of the August 2008 issue of Esquire. On August 22, 2008, defendant Berry issued a notice of package/mail rejection to prevent a copy of the book Codex Magica: Secret Signs, Mysterious Symbols, and Hidden Codes of the Illuminati because it violated PD 05.03.118(HH). The plaintiff claims this is a religious book that he ordered from the Power of Prophecy Ministries. Defendant Bowerson upheld the rejection of Codex Magica in an administrative hearing held on September 25, 2008. On November 5, 2008, defendant Birkett asked defendant Lockhart to place Codex Magica on the Restricted Publications List. Lockhart upheld censorship of the book in a November 24, 2008 administrative hearing.

On November 26, 2008, defendant Catherine Bauman, warden of the Alger Correctional Facility, emailed Jeri–Ann Sherry, MDOC RPA, and requested approval to place an RPA hold on Murphy and the other three attempted escapees mentioned in the Esquire article. During an interview with Sherry on January 21, 2009, the plaintiff asked her how long he would have to remain in administrative segregation, and she responded, “I don't make deals. All I can tell you is that it's too soon. You didn't do yourself any favor with that magazine story.” Compl. ¶ 55.

Murphy was transferred to Baraga Maximum Correctional Facility (AMF) on June 30, 2009, where he remained in administrative segregation. Subsequently, he was transferred to the Ionia Maximum Correctional Facility.

Murphy filed grievances concerning the RPA hold, rejection of mail, and loss of his prison job. Some were rejected on procedural grounds for being late, as noted by Judge Hluchaniuk.

The plaintiff filed his complaint in this case on April 26, 2010. The plaintiff brings a number of claims against the defendants. First, the plaintiff alleges a violation of his due process rights. To that effect, he alleges that MDOC policy 04.05.120 relating to administrative segregation is unconstitutional as applied because he has been subjected to the harsh conditions of segregation—which, the plaintiff asserts, have caused him to suffer severe depression, suicidal thoughts, extreme back pain, arthritis, stress, and cognitive impairment—for the last three years without any substantive review. Second, he brings a claim for First Amendment retaliation, alleging that defendants Bauman and Sherry changed his security classification to include an RPA hold in response to his communication with the media. He brings an identical claim against defendant Werner, alleging that defendant Werner changed the plaintiff's security...