Shehee v. Luttrell

• Decision Date: 04 August 1999
• Docket Number: No. 98-5614,98-5614
• Citation: 199 F.3d 295
• Parties: (6th Cir. 1999) Kevin L. Shehee, Plaintiff-Appellee, v. Mark H. Luttrell, Individually; Jonathan C. Miner, Individually; Greg Fleming, Individually; Kenny Morgan, Individually; Margaret C. Hambrick, Individually; Edward L. Crosley, Individually; Mark Henry, Individually; Michael Robertson, Individually, Defendants-Appellants. Submitted:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 295

199 F.3d 295 (6th Cir. 1999)

Kevin L. Shehee, Plaintiff-Appellee, v. Mark H. Luttrell, Individually; Jonathan C. Miner, Individually; Greg Fleming, Individually; Kenny Morgan, Individually; Margaret C. Hambrick, Individually; Edward L. Crosley, Individually; Mark Henry, Individually; Michael Robertson, Individually, Defendants-Appellants.

No. 98-5614

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Submitted: August 4, 1999

Decided and Filed: October 1, 1999 ^*

[Copyrighted Material Omitted]

Appeal from the United States District Court for the Eastern District of Kentucky at London, No. 96-00173--Jennifer B. Coffman, District Judge.

Barbara L. Herwig, Peter R. Maier, U.S. DEPARTMENT OF JUSTICE, CIVIL DIVISION, APPELLATE STAFF, Washington, D.C., for Appellants.

Kevin L. Shehee, Ashland, Kentucky, pro se.

Before: JONES, BATCHELDER, and COLE, Circuit Judges.

OPINION

R. GUY COLE, JR., Circuit Judge.

Defendants-Appellants are prison employees or officials of the Federal Correctional Institute at Manchester, Kentucky ("FCI-Manchester"), or officials employed by the Bureau of Prisons ("BOP"). Plaintiff-Appellee Kevin L. Shehee filed a Bivens suit against the defendants, alleging various violations of his constitutional rights. Defendants now appeal the district court's denial of their motion to dismiss and/or summary judgment based on qualified immunity. For the reasons that follow, we REVERSE the judgment of the district court and REMAND for further proceedings in accordance with this opinion.

I.

Shehee, an inmate at FCI-Manchester, was assigned to work in the prison commissary, a coveted assignment based on its higher pay and favorable working conditions. Defendant Greg Fleming was employed at FCI-Manchester as the Commissary Supervisor and Defendant Kenny Morgan was employed as the Warehouse Foreman. Both Fleming and Morgan were supervised by Defendant Michael Robertson.

According to Shehee, Fleming expected kickbacks in the form of soft drinks and stamps from the commissary in exchange for allowing inmates to continue to work there. Shehee claimed that he refused to cooperate in the kickback scheme and this refusal rendered him vulnerable to accusations of wrongdoing by Fleming which, in turn, jeopardized his job in the commissary.

In June 1995, Shehee and six other inmate commissary workers were questioned by Fleming and Morgan regarding the presence of over-ripe fruit found in a bag in a cooler. Fleming and Morgan accused the inmates of attempting to make alcohol from the fruit; however, the inmates claimed that it was standard practice to put damaged fruit in a bag for disposal at a later time. Thereafter, three of the seven inmates (including Shehee) were placed in isolation/administrative detention pending the investigation for attempted manufacture of alcohol. No disciplinary charges were ever filed against any of the inmates arising from these allegations.

Shehee was released from administrative detention on June 19, 1995 and returned to work in the commissary. Shehee then filed informal grievance complaints against Fleming and Morgan claiming that the alcohol allegation was simply an excuse to harass Shehee in order to have him placed in administrative detention. Shehee contended that Fleming and Morgan wanted to harass him because he would not cooperate in their kickback scheme. Fleming and Morgan's supervisor, Robertson, was required to respond to Shehee's grievances to the unit team counselor.

On June 24, 1995, after Shehee filed his grievances, Robertson fired him from his commissary job. Robertson allegedly told Shehee that he could not work for him because he had filed grievances against Robertson's supervisees. After Shehee was fired, the other six inmates involved in the alleged alcohol scheme were also fired from commissary duties.

Thereafter, Shehee filed a "request for administrative remedy," claiming that Robertson, Fleming and Morgan retaliated against him. Assistant Warden Jonathan C. Miner responded to Shehee's request by stating that an inmate may be removed from commissary duties at the discretion of the supervisor. Miner did not address Shehee's retaliation claims. Shehee then appealed Miner's decision to Margaret C. Hambrick, the regional director. Defendant Mark Henry responded on behalf of Hambrick, again reiterating that Shehee was fired for cause and ignoring Shehee's retaliation claims. Finally, Shehee appealed to BOP Administrator Edward L. Crosley. Crosley determined that Shehee's dismissal was appropriate under BOP policies but, again, failed to address Shehee's retaliation claims.

Shehee also complained to Congressman Tony B. Hall. Congressman Hall inquired about Shehee's complaints to then-warden Mark H. Luttrell. Luttrell responded to Congressman Hall in a letter stating that Shehee was fired for making intoxicants and to allow other inmates the opportunity to work in the commissary.

On May 14, 1996, Shehee filed this action under 42 U.S.C. §1983 in the United States District Court for the Eastern District of Kentucky. Because the named defendants were federal officials and therefore not acting under color of state law, the district court treated Shehee's action as one arising under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).¹ In his complaint, Shehee alleged that Fleming, Morgan and Robertson retaliated against him by wrongfully subjecting him to an investigation and firing him from his commissary job, and that Miner, Hambrick, Henry, Crosley and Luttrell failed to take remedial action.² Shehee further claimed that the defendants violated his rights under the Equal Protection Clause by treating him differently from other inmates assigned to commissary jobs. Finally, Shehee contended that defendants violated his Eighth Amendment right to be free from cruel and unusual punishment. Shehee sought injunctive relief and damages from the defendants in their individual capacities.

Adopting a magistrate judge's report and recommendation, the district court dismissed Shehee's Eighth Amendment claims, as well as his claims for injunctive relief. The defendants then moved for dismissal and/or summary judgment on Shehee's remaining claims, asserting, inter alia, that they were entitled to qualified immunity. Again adopting a magistrate judge's report and recommendation with one exception, the district court denied summary judgment in favor of the defendants, with the exception of dismissing any claims against Miner, Hambrick, Crosley and Luttrell related to the ceramics materials.³ The district court denied summary judgment in favor of the defendants based on qualified immunity, finding that the law regarding Shehee's First Amendment and Fifth Amendment claims was clearly established. Defendants filed a notice of interlocutory appeal of the district court's denial of their defense of qualified immunity.⁴

II.

We review a district court's denial of qualified immunity de novo. See Blake v. Wright, 179 F.3d 1003, 1007 (6th Cir. 1999). At the outset, however, we must consider whether we have jurisdiction to hear this interlocutory appeal. "A defendant who is denied qualified immunity may file an interlocutory appeal with this Court only if that appeal involves the abstract or pure legal issue of whether the facts alleged by the plaintiff constitute a violation of clearly established law." Berryman v. Reiger, 150 F.3d 561, 563 (6th Cir. 1998) (citations omitted). Thus, in order for an interlocutory appeal to be appropriate, a defendant seeking qualified immunity must be willing to concede to the facts as alleged by the plaintiff and discuss only the legal issues raised by the case. See id. at 564. "Only if the undisputed facts or the evidence viewed in the light most favorable to the plaintiff fail to establish a prima facie violation of clear constitutional law may we decide that the defendant is entitled to qualified immunity on an interlocutory appeal." Id. at 563 (citation omitted).

Here, Shehee argues that factual disputes preclude our jurisdiction over this appeal. According to Shehee, defendants have not conceded to the facts as he alleges them, and this court must therefore resolve factual disputes in order to determine whether defendants are entitled to qualified immunity. We disagree. Defendants are not disputing the facts in their qualified immunity arguments; rather, defendants argue that even if Shehee's claims are true, they cannot be liable because Shehee's only allegations against them concern the denial of Shehee's administrative complaints and their failure to take remedial action. In addition, defendants argue that they cannot be liable under an equal protection theory. These are legal arguments. Accordingly, we accept Shehee's factual allegations as true and now must determine defendants' entitlement to qualified immunity under those facts.

III.

Qualified immunity is an affirmative defense that extends to government officials performing discretionary functions. See Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982). Under this judicially created exception, government officials are immune from civil liability when acting in an official capacity if their actions do not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 818. This court applies a two-part test to determine whether a government official is entitled to the defense of qualified immunity: (1) whether the plaintiff has shown a violation of a constitutionally protected right; and, if so, (2) whether that right was clearly established such that a reasonable official would have understood that his behavior violated that right. See Summar v. Bennett, 157 F.3d 1054, 1058 (6th Cir. 1998).

A. Crosley, Hambrick, Henry, Miner and Luttrell

Defendants Crosley, Hambrick, Henry, Miner and Luttrell argue that they were not involved in Shehee's termination from his commissary job and that their only roles in...