Tanney v. Boles

• Citation: 400 F.Supp.2d 1027
• Decision Date: 01 December 2005
• Docket Number: No. 04-71260.,04-71260.
• Parties: Gene TANNEY, # 201795, Plaintiffs, v. Kandis BOLES, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

400 F.Supp.2d 1027

Gene TANNEY, # 201795, Plaintiffs, v. Kandis BOLES, Defendant.

No. 04-71260.

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

December 1, 2005.

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Alicia J. Blumenfeld, Bodman, Detroit, MI, Matthew T. Jane, Bodman, Longley, Aim Arbor, MI, for Plaintiff.

A. Peter Govorchin, Michigan Department of Attorney General Corrections Division, Lansing, MI, for Defendants.

ORDER

ROBERTS, District Judge.

I. INTRODUCTION

This matter is before the Court on Plaintiff's Motion for Summary Judgment (Doc. # 44)and Defendant Boles' Motion to Dismiss and for Summary Judgment (Doc. # 45). Plaintiffs motion is DENIED. Defendant's Motion for Summary Judgment is DENIED and Defendant's Motion to Dismiss is GRANTED IN PART and DENIED IN PART. The Plaintiff is allowed to amend his complaint to clarify the capacities under which Defendant is sued and the forms of relief requested.

II. BACKGROUND

Plaintiff Gene Tanney is currently an inmate at the Federal Correctional Institution Milan in Milan, Michigan. His complaint stems from alleged acts and omissions by Defendant Kandis Boles, who was his Case Manager at the facility where he was previously housed, the Charles Egeler Reception and Guidance Center ("Egeler"), in Jackson, Michigan.¹ Egeler is part of the Michigan Department of Corrections ("MDOC").

Plaintiff is deaf. He is unable to hear or speak. He uses American Sign Language to communicate, and he can only use the telephone through a Telecommunication Device for the Deaf (commonly referred to as "TDD" or "TTY"; hereinafter "TDD/TTY"). Plaintiff was housed in 2 Block North at Egeler in March and April of 2003. During that time, Plaintiff alleges that he was not given access to TDD/TTY with the same regularity that was afforded non-hearing impaired prisoners who were able to use the regular prison telephone system.

The prison telephone system, which is used by hearing prisoners, has a number of automated restrictions. Those restrictions include, inter alia, that all calls are recorded (except those to attorneys) and can be monitored in real time. The TDD/ TTY device at Egeler was not connected to the same telephone system used for hearing prisoners. Instead, the TDD/TTY was used with a staff telephone line that was not subject to the same automated monitoring and recording restrictions as the hearing prisoners' telephone system. And, Plaintiff had to type his answers to an operator who relayed his statements orally to the listener and typed the listener's response to Plaintiff. Consequently, each time Plaintiff wished to use the TDD/TTY, a staff person had to sit with him for the duration of the call, and the TDD/TTY system would print out the conversation that was typed into and received by the TDD/TTY machine.

Before using the phones, all prisoners (including hearing impaired prisoners) are required to complete a MDOC Telephone Agreement and Number List ("Number List"), which they use to identify the name and telephone number of up to 20 persons whom they want authorization to call. The Number List is then given to a Case Manager to approve. Approval simply consists of the Case Manager confirming the identity of the persons designated as attorneys. Once an inmate's Number List is approved, it is given to the prison's telephone carrier which assigns a prisoner identification number. The inmate, thereafter, must use the identification number when making calls and is only allowed to call numbers on the Number List.

Hearing prisoners were given access to telephones daily; 15 minutes to speak with family and friends and 20 minutes to speak with an attorney. There was a bank of four phones in Plaintiffs housing unit, referred to as the "housing unit phones," that were available via a sign-up system for approximately three to four hours each day. At dinner, inmates who wished to use the housing unit phones the following day were required to sign up for morning and evening twenty-minute time slots. Hearing prisoners could also use a bank of twelve phones located in the prison yard during "yard time," which lasted for one and one-half hours each day. Per Defendant, the housing unit and yard phones were shared by approximately 160 prisoners. Nevertheless, because some prisoners used the phones infrequently, Officer William Moore testified that prisoners who wanted to could use the phones almost daily²

There was only one TDD/TTY telephone in 2 Block and it was kept locked in Defendant Boles' office. Other than the general policies regarding prison telephone use, there were no written policies or procedures directing staff on how or when inmates were to be given access to the TDD/ TTY, except that Plaintiff was given 30 minutes since he had to communicate by typing.

Boles was Plaintiffs Case Manager from the time he arrived in March until April 21, 2003, when he was transferred to another block. On approximately March 20, 2003, Plaintiff completed a Number List and turned it in to Boles for review and approval. Boles approved Plaintiffs list and it was returned to him sometime between March 26 and April 1, 2003. Between April 1st and the 13th, Plaintiff says that he was only allowed to use the phone five times, although he made numerous requests.³ Because the TDD/TTY was in Boles' office, he says that he asked her on a number of occasions but that she sometimes refused to speak with him. When unable to communicate with Boles, he asked other officers. However, Plaintiff says that his requests were often denied because the officers said that they either did not have a key to Boles' office or they did not have permission to let Plaintiff use the TDD/TTY. He also contends that no one wanted to supervise his calls.

Officer Moore testified that Plaintiff would often request to use the phone at times other than was allowed for the general population. Rather than signing up for use at the times specified for hearing prisoners, Moore says Plaintiff would make his request by giving a note to an officer. However, Moore further acknowledged that Plaintiff's requests were subject to the availability of staff even when he made them during designated times:

Q: And you mentioned that prisoners are allowed to use the phone during yard time. Was Gene Tanney able to use the phone during yard time?

A: It would depend on if he could catch the — like a counselor or a sergeant or something to give him access to the phone.

Moore Dep. at p. 28.

A problem arose when, on one of the occasions Plaintiff was allowed to use the phone, he called a cell phone. There was no written policy explicitly precluding calls by hearing or hearing-impaired prisoners to cell phones, and Plaintiff says that he was never told that such calls were prohibited. Apparently, prison officials relied on the fact that the phones available to hearing prisoners automatically blocked calls to cell phones. But, the phone line to which the TDD/TTY phone was attached was not equipped to do so and the number Plaintiff called was on his approved list. However, Defendant says Case Managers who approve Number Lists do not have the means to distinguish cell phone numbers from those assigned to land lines. And, despite the lack of an explicit policy banning calls to cell phones, Defendant asserts that there was a written policy against the use of so-called "burnout phones," which the MDOC defines as "[p]hone service which has been installed and for which there is no intent to pay for the installation or other charges." Def. Exh. K, p. 2. Warden Ludwick states that his interpretation of this policy is that cell phones are regarded as burnout phones. However, Ludwick admits that his interpretation was not written, and there is no evidence that Plaintiff was ever made aware of it.

Plaintiff made the cell phone call on Saturday, April 5th. Boles was not working on that day because she did not typically work weekends. She found out about the call on April 7th after reading a transcript. She then sent a memo to Inspector DeWayne Burton asking whether Plaintiff's call was grounds for a telephone restriction.⁴ On April 11th, Boles sent Inspector Burton another e-mail asking for a response to her question, because Plaintiff was asking to use the telephone again. Inspector Burton did not respond until April 14th, saying that he would probably restrict Plaintiffs phone use. However, he noted that the call would have been blocked if Plaintiff were an "ordinary inmate."

On April 16th, Boles sent an e-mail to her immediate supervisor, Resident Unit Manager William Denman, indicating that Plaintiff made an unauthorized call the prior Sunday (which presumably was April 13th). The e-mail does not clearly indicate why the call was unauthorized. However, based on the Sunday call, Boles requested permission to deny Plaintiff any further calls until she got an official response from Inspector Burton. Denman granted Boles' request. The next day, Boles issued a Notice of Intent to Conduct an Administrative Hearing Report ("NOI") against Plaintiff for his cell phone call on April 5th. His phone privileges were immediately restricted pending a hearing on the NOL⁵ MDOC Policy Directive 05.03.130(GG) required that the hearing be held within 14 business days of the restriction. Plaintiff never had a hearing, however, because he was transferred out of the 2 Block on April 21st, and out of Egeler a short time later. The NOI at Egeler was not used to restrict Plaintiffs phone use after his transfer.

On April 18, 2003, Plaintiff filed a grievance against Boles complaining about his inadequate telephone access. Plaintiff pursued the grievance through one complete round of the grievance process, i.e., through Steps I through III. It was denied at each step. In his denial at Step I, Denman stated that Plaintiff was allowed to use the TDD/TTY "when staff was available to...