Siggers-El v. Barlow

• Decision Date: 24 June 2005
• Docket Number: No. 03-2291.,03-2291.
• Parties: Darrell SIGGERS-EL, Plaintiff-Appellee, v. David BARLOW, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

412 F.3d 693

Darrell SIGGERS-EL, Plaintiff-Appellee, v. David BARLOW, Defendant-Appellant.

No. 03-2291.

United States Court of Appeals, Sixth Circuit.

Argued: October 28, 2004.

Decided and Filed: June 24, 2005.

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ARGUED: Kevin R. Himebaugh, Office of the Attorney General, Lansing, Michigan, for Appellant. Paul D. Reingold, Michigan Clinical Law Program, Ann Arbor, Michigan, for Appellee. ON BRIEF: Kevin R. Himebaugh, Office of the Attorney General, Lansing, Michigan, for Appellant. Paul D. Reingold, Michigan Clinical Law Program, Ann Arbor, Michigan, for Appellee.

Before: KENNEDY and GILMAN, Circuit Judges; HOOD, Chief District Judge.^*

OPINION

KENNEDY, Circuit Judge.

Plaintiff Darrell Siggers-El, a prisoner in Michigan's correctional system, brought this claim against his resident unit manager (RUM), Defendant David Barlow, in which he alleged that the Defendant transferred him to another prison in retaliation for exercising his First Amendment rights when he complained to the Defendant's supervisors that the Defendant had failed to authorize disbursements of money from the Plaintiff's prison account to pay his lawyer to review his appellate brief and file and to meet with him concerning his criminal conviction. The Defendant moved for summary judgment on the basis of qualified immunity, arguing that it was not clearly established that 1) a prisoner engages in protected conduct when he complains about a prison officer's failure to perform his duties to the officer's supervisor, and 2) a transfer in retaliation for engaging in such conduct constitutes an adverse action. The district court denied the Defendant's motion. For the following reasons, we AFFIRM.

I.

The only issue presented in this appeal is whether the district court erred in denying Defendant Barlow qualified immunity. For purposes of determining whether a defendant is entitled to qualified immunity, we must first determine whether, based upon the applicable law, the facts (viewed in the light most favorable to the plaintiff) show that a constitutional violation has occurred. Bell v. Johnson, 308 F.3d 594, 601 (6th Cir.2002) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). If the violation is made out, the next sequential step is to ask whether the violation involved a clearly established right of which a reasonable person would have known. Id.

In the fall of 2000, Siggers-El was incarcerated at the Mound Correctional Facility in Detroit, Michigan. While there, he contacted a lawyer who agreed to review his appellate brief and file concerning his criminal conviction for $300. To withdraw funds from his prison account to pay the lawyer, Siggers-El needed to obtain an authorization from Barlow. When Siggers-El went to Barlow with the disbursement form, Siggers-El testified, Barlow observed the surname "El" as part of Siggers-El's attorney's name and asked a series of questions concerning the attorney. Barlow asked whether Siggers-El's attorney was black, and if she was a part of his religious organization. After Siggers-El responded yes to both questions, Barlow stated, "I don't mean for this to sound racist, but you would probably have a better chance with a white lawyer." When Siggers-El asked Barlow why he believed this, Barlow replied, "since most crimes are committed by blacks, judges tend to associate black lawyers with crime. I know these things. My brother-in-law is a lawyer." Siggers-El disregarded Barlow's comments and insisted that he wanted the lawyer in question. Barlow, however, refused to authorize the disbursement.

A few hours later, Siggers-El saw Assistant Deputy Warden Thomas Roger, who was Barlow's immediate supervisor. Siggers-El showed Roger the letter from his attorney and informed him of Barlow's refusal to authorize his disbursement. Roger then immediately called Barlow on the phone from the dining room, and, in Siggers-El's presence, asked Barlow about the disbursement and instructed him to process it. When Siggers-El returned to his housing unit Barlow had him summoned to his office and angrily stated, "If you ever go over my head again, your ass is out of here."

In early January 2001, Siggers-El required an additional $300 to pay his lawyer to come to the prison to interview him. Siggers-El prepared another disbursement form and submitted it to Barlow. When Siggers-El heard nothing about the disbursement for a week, he went to Barlow and asked him to check on its status. Barlow said that he would and that Siggers-El should get back to him later in the day. When Siggers-El returned a few hours later, Barlow advised him that his disbursement had been processed and that the money had been sent. The next day, Siggers-El's disbursement was returned to him marked "rejected" because it had not been signed by the warden. Upon receiving the rejected disbursement, Siggers-El showed it to Barlow and asked, "Why did you tell me you had checked on my disbursement and that the money had been sent?" Barlow told Siggers-El to get out of his office. Thereafter, Siggers-El explained the situation to the warden's administrative assistant and asked if he could expedite the process. The next day, Barlow summoned Siggers-El to his office and said "Didn't I tell you what would happen if you ever [went] over my head again?" After Siggers-El replied, "What are you talking about, man?," Barlow stated, "You'll see. Get out of my office." Two days later, Barlow filled out a Security Classification Screen designating Siggers-El "for transfer."

Security classification screens (or transfer screens) are significant because a prisoner cannot be transferred until one is performed. These screens are filled out for two primary reasons. First, an "annual" screen is filled out to confirm that inmates are being housed at the appropriate security level. The annual screen is done on the anniversary date of the previous screen. It is triggered by the date alone, thus ensuring that all inmates are screened at least once a year. The second reason for filling out a security classification screen is in conjunction with a transfer. A transfer order—the document that actually authorizes the prisoner's movement— must be accompanied by a transfer screen to show that the prisoner is being moved to an appropriate level facility. As a result, the transfer screen is normally filled out when the prisoner is selected for transfer.

Assistant Deputy Warden Roger testified that, apart from transfers for disciplinary or medical reasons, "99.9 percent of the time" transfers are done on a trade basis. Transfers conducted on a trade basis are usually initiated when one facility informs another that it needs additional prisoners. At that point, the transfer coordinator at the receiving facility would let the resident unit managers know that a specific number of inmates are needed for an exchange. If there are prisoners who have requested a transfer, they may already be in the "transfer pool." Otherwise, it is the RUMs who select which inmates to transfer. Although the transfer coordinator has ultimate authority to approve the transfer, if the selected inmates meet the transfer requirements, the transfer coordinator will not request different prisoners to trade.

ADW Roger also testified that a RUM would normally prepare a transfer screen only after the transfer coordinator informed him that another facility requested a transfer. A RUM would typically have no more than one week's notice of a transfer request before the transfer would need to occur. Moreover, Roger testified, the transfer order would be prepared at or about the same time as the transfer screen and by the same person (that is, by the RUM).

Barlow filled out a transfer screen on Siggers-El on February 2, 2001. The transfer order, however, was not prepared until February 28, 2001. As of February 2, 2001, Barlow could not show that any request for a trade had been relayed to him from the transfer coordinator. Thus the evidence suggests, Siggers-El contends, that the reason why Barlow did not fill out a transfer order at the same time as the transfer screen was because no request for a transfer had yet been received by him. That is, when Barlow filled out the transfer screen on Siggers-El on February 2, 2001, and marked it "for transfer," it was because Barlow—not someone else—was selecting Siggers-El for transfer.

Siggers-El asserts that a look at the transfers from Mound Correctional Facility between January 1 and March 15, 2001, confirms this assertion. Of the 32 inmates transferred during that period, 31 out of the 32 had their transfer screens and their transfer orders filled out either on the same day or within one day of each other. Only Siggers-El had his transfer screen prepared at the very beginning of the month, with his transfer order not written until almost four weeks later, when the need to find prisoners for transfer existed. In addition, 15 of the 32 inmates were transferred within two days of the date of their screen and most of the rest were transferred within a week (the longest outlier was two weeks). Again, only Siggers-El, who was transferred on March 2, 2002, was not transferred until almost 30 days after the date of his transfer screen. Siggers El was transferred to Adrian Regional Facility, which is located near Adrian, Michigan, over seventy miles from Detroit. As a result of the transfer, Siggers-El lost his high paying job at Mound Correctional Facility that he needed to pay his lawyer. Moreover, the transfer made it more difficult for Siggers-El's attorney to visit and represent him by moving him to a remote prison.

II.

We review a district court's denial of summary judgment de novo. Seaway Food Town, Inc. v. Med. Mut. of Ohio, 347 F.3d 610, 616 (6th Cir.2003). All justifiable inferences must be drawn in the light most favorable to the non-moving party, namely Siggers-El. Qualified...