Smith v. Mich. Dep't of Corr.

• Decision Date: 23 February 2011
• Docket Number: Case No. 10–12539.
• Citation: 765 F.Supp.2d 973
• Parties: Ralph E. SMITH, Jr., Plaintiff,v.MICHIGAN DEPARTMENT OF CORRECTIONS, Richard Jenkins, Mike Sulski, Douglas Kelley, Elvis Rogers, Jon Clark, Gary Rudolph, Will Riley, Sherry Burt, Joe Laier, Leo Gajewski, and Jimmy Waters, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

765 F.Supp.2d 973

Ralph E. SMITH, Jr., Plaintiff,

v.MICHIGAN DEPARTMENT OF CORRECTIONS, Richard Jenkins, Mike Sulski, Douglas Kelley, Elvis Rogers, Jon Clark, Gary Rudolph, Will Riley, Sherry Burt, Joe Laier, Leo Gajewski, and Jimmy Waters, Defendants.

Case No. 10–12539.

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

Feb. 23, 2011.

Joni M. Fixel, Fixel Law Offices, PLLC, Okemos, MI, for Plaintiff.Michael O. King, Jr., Michigan Department of Attorney General, Jeanmarie Miller, State of Michigan, Lansing, MI, for Defendants.

OPINION AND ORDER GRANTING IN PART DEFENDANTS' MOTION TO DISMISS

DAVID M. LAWSON, District Judge.

Plaintiff Ralph Smith, Jr. was fired from his job as a prison guard. He was reinstated later, but he lost his back pay, seniority, and benefits. He has filed the present action against the Michigan Department of Corrections (MDOC) and some of its employees alleging that they denied him certain pre-termination procedures in violation of the Fifth and Fourteenth Amendments, their actions constitute retaliation in violation of the First Amendment and Title VII of the Civil Rights Act of 1964, and their conduct violates state law. The defendants filed a motion to dismiss, arguing that the procedural due process claim fails as a matter of law and the other claims are barred by both sovereign and governmental immunity. The Court heard oral argument on February 18, 2011, at which time the plaintiff conceded that some of his claims must be dismissed. The Court now finds that the complaint states a claim for deprivation of rights under the Fourteenth Amendment, but the claims against the MDOC and some of the state law claims must be dismissed. Therefore, the Court will grant in part and deny in part the defendants' motion to dismiss.

I.

Although the incidents in this case are tinged with racial overtones, the plaintiff has not alleged race discrimination. Instead, he alleges in his complaint that the MDOC, Warden Sherry Burt, and corrections officials Will Riley, Gary Rudolph, and Jon Clark, deprived him of his procedural rights before terminating him in violation of the Due Process Clauses of the Fifth and Fourteenth Amendments; Burt and the MDOC discriminated against him on the basis of his gender in violation of the Elliott–Larsen Civil Rights Act (ELCRA), Mich. Comp. Laws § 37.2102; Clark, Burt, Riley, Rudolph, and corrections employees Richard Jenkins, Mike Sulski, Douglas Kelley, Elvis Rogers, Joe Laier, and Leo Gajewski tortiously interfered with his business expectancy; the MDOC, Jenkins, Sulski, Rogers, Clark, Laier, Kelley, and Gajewski conspired to file false reports of the incident that precipitated the termination; the MDOC, Riley, Rudolph, and Burt retaliated against him when he filed his administrative complaint; and Rudolph, Riley, and Burt were negligent in failing to train him on new systems when his employment was reinstated.

According to the complaint, here is what happened. Ralph Smith began his employment with the MDOC on March 5, 1989 at the Southern Michigan Correctional Facility at Jackson, Michigan. He asserts that his employment record demonstrates his satisfactory or above-expectations performance throughout the first twenty years of his employment.

In November 2007, the MDOC closed down JMF. Smith and several other officers were reassigned to the Parnall Correctional Facility, also in Jackson. Smith held the job of Resident Unit Manager. In early December, Smith suffered a ruptured Achilles tendon for which he was scheduled to receive surgery on December 30, 2008. In the interim, he was stationed in the key bunker, where keys for different units of the prison are stored on numbered hooks. When a corrections officer removes a key for use in the prison, the key is tracked with the officer's key tag, which is placed on the empty hook. On December 27, 2008, Corrections Officer Richard Jenkins approached Smith in the bunker to return a set of keys, identifying the key hook on which his tag had been placed. Smith mistakenly removed the key tag from the incorrect hook. Jenkins reacted to this innocent mistake by yelling “No! God damn it! I need the tag off of key # 28 not # 56. What are you? A fucking stupid idiot or something! You didn't check the fucking keys!” Compl. at ¶ 30. Jenkins threw the keys he was returning through the return slot in a way that hit Smith's hand. As he walked away, Smith overheard Jenkins call him a “stupid nigger.” Id. ¶ 32. Smith did not respond to these comments, but remarked to Corrections Officer Douglas Kelley, who witnessed the event and questioned Jenkins's conduct, that he would ask Jenkins about the interaction later.

The following day, Smith approached Jenkins after roll call at approximately 1:18 p.m. Smith asked about the previous day's incident and apparently expressed his displeasure with Jenkins' behavior. Jenkins responded that “the best thing for you to do is return back to the bubble, sit down and pass out some more fucking keys!” Id. ¶ 3 5. Jenkins knocked into Smith, who fell off-balance and impacted his injured foot into the ground, which caused a fracture of one of the bones in his foot and further damage to some cartilage. Jenkins followed Smith into the building where he was stationed, shouting “go back to your fucking assignment” and “I know how to fix you!” Id. ¶ 37. The plaintiff asserts that he intended to report the incident as soon as possible, but was unable to do so before Jenkins filed a countervailing report against him.

At 3:35 p.m. that same day, Lieutenant Jon Clark approached Smith in the key bunker, instructed him to collect his belongings, and brought him to Deputy Warden Will Riley's office. Riley informed Smith that the MDOC was beginning an investigation into the incident between him and Jenkins, he was being placed on a Stop Order, and he would not be permitted to return to work until the investigation was complete. Smith says that Riley did not give him additional information about the charges against him, but did state his belief that Smith was the aggressor and had shoved Jenkins. The plaintiff explained that his injury prevented him from being the aggressor, but Riley did not want to hear his explanation. He asked to make a statement or file a complaint against Jenkins, but Riley denied his request. Before surrendering his state identification card and being escorted from the premises, Smith was given the opportunity to speak briefly with his union representative.

On December 30, 2008, Smith filed a complaint against Clark with the MDOC's internal equal employment opportunity (EEO) department, alleging that Clark denied him the opportunity to make a statement, file a complaint, or present his account of the incident before Clark took disciplinary action against him. The plaintiff believes that the complaint fulfilled the requirement that he seek recourse through the administrative process prior to filing a case with this court. The plaintiff also underwent surgery on his Achilles tendon on the same day.

On January 9, 2009, Smith received a letter from the MDOC confirming his suspension as of December 28, 2008 and explaining that the suspension would be converted to Administrative Leave after 7 days. The MDOC never converted his employment status or refused to honor his Administrative Leave; instead, Smith was forced to exhaust his allowable leave time and lose his accumulated seniority.

On January 12, 2009, Smith filed another complaint with the MDOC's EEO department, this time against Jenkins. The MDOC's written policies set forth a detailed procedure for processing such complaints. For instance, department procedure requires the EEO administrator to review the complaint and conduct further investigation within 45 days. The complainant and accused employee have a right to make a statement. The assigned investigator is required to compile an investigation packet that includes the information and statements gathered during his investigation. Then the EEO administrator and a management representative decide whether to file charges. At that point, the complainant must be notified in writing of the status of his complaint. Smith alleges that the MDOC failed to follow these policy guidelines by failing to commence timely investigations of his complaints and failing to provide him with written notice of MDOC actions on his complaint or on the allegations against him.

Captain Gary Rudolph was assigned to serve as the investigator of the case against Smith. On January 26, 2009, Smith met with Rudolph to complete his statement for the packet. Rudolph asked Smith questions and recorded his responses. Rudolph provided Smith with a typed copy of the responses following the interview, although he did not allow him to review the notes prior to typing. He told Smith to call him after 9:00 that night to make any changes. Smith called Rudolph at 9:30 p.m. with edits but was unable to reach him, and Rudolph never called Smith back. Instead, Rudolph forwarded the unedited responses with the investigation packet to Warden Sherry Burt without Smith's approval or required signature on the document. Smith received a copy of the packet on February 21, 2009 and learned that a disciplinary conference was scheduled for February 25, 2009. Smith contacted his union representative on February 23 to discuss the unapproved documents and the conference.

When Smith appeared for the conference on February 25, Warden Burt informed him that the conference had been cancelled. She said that a representative from the union had instructed MDOC personnel not to hold the conference due to potential violations of Smith's rights. Smith contends that this cancellation violated MDOC policy, which required the agreement of both parties before cancellation. Rudolph was present at the cancelled conference and asked Smith to sign the unedited report detailing his responses. Smith refused and Burt set a deadline of ...