KENNETH WILLIAMS, Plaintiff, v. REGINALD WILKINSON, et al., Defendants.



Case No. 97-CV-213



UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO, EASTERN DIVISION



132 F. Supp. 2d 601; 2001 U.S. Dist. LEXIS 1770



February 20, 2001, Decided







DISPOSITION: [**1] Plaintiff's Renewed Motion for Injunctive Relief and to Set Hearing to Set Terms of Injunction, filed on December 15, 2000 GRANTED in part and DENIED in part.









COUNSEL: For Kenneth Williams, Plaintiff(s): William A Nolan, Jill S Kirila, Squire Sanders & Dempsey, Columbus, OH.


For Curtis Wingard, Pat Sharpe, Defendant(s): J Eric Holloway, Ohio Attorney General, Corrections Litigation, Columbus, OH.



JUDGES: ALGENON L. MARBLEY, UNITED STATES DISTRICT COURT. Magistrate Judge King.



OPINIONBY: ALGENON L. MARBLEY



OPINION:

[*602] OPINION AND ORDER

I. INTRODUCTION

The Plaintiff, Kenneth Williams, an inmate at the Madison Correctional Institute, brought suit against Defendants Curtis Wingard and Pat Sharpe, alleging that his right to procedural due process under the Fourteenth Amendment was violated when he was not permitted to bring witnesses before the Rules Infraction Board. On December 7, 2000, the jury returned a verdict on the Plaintiff's legal claims, awarding the Plaintiff $ 2,107.22 in damages. This matter is now before the Court on the Plaintiff's Renewed Motion for Injunctive Relief and to Set Hearing to Set Terms of Injunction, filed on December 15, 2000. For the following reasons, the Plaintiff's [**2] Motion is GRANTED in part and DENIED in part.

II. PROCEDURAL HISTORY

The Plaintiff, Kenneth Williams, is an inmate at the Madison Correctional Institute ("MaCI"). On February 13, 1996, Mr. Williams was given a conduct report stating that he had tested positive for marijuana. The Plaintiff states that he did not provide the urine specimen; rather, another inmate, Allen Williams, provided it. The Plaintiff was not permitted to call Allen Williams or Ms. Sharpe, the Substance Abuse Coordinator at MaCI, to testify before the Rules Infraction Board ("RIB"). The RIB concluded, without allowing Allen Williams to testify, that he would not be a credible witness. The Plaintiff proceeded to his hearing without either Allen Williams's or Ms. Sharpe's testimony and was found guilty. On February 7, 1997, this suit was filed by Mr. Williams; on June 26, 2000, this Court granted the Plaintiff's Motion for Appointment of Counsel.

On November 6, 2000, the Plaintiff filed a Motion to Rule as a Matter of Law that Defendant Wingard's Policy Violated the Plaintiff's Fourteenth Amendment Rights. In that Motion, the Plaintiff requested that this Court issue an injunction against Defendant [**3] Wingard in his official capacity, forbidding him from continuing the unconstitutional policy of denying witnesses at RIB hearings based on a predetermination of the witnesses' credibility. The Court, on November 29, 2000, denied the Plaintiff's Motion and stated:


If, following trial, it is determined that injunctive relief is necessary, this Court will conduct an additional hearing to explore the requirements outlined by 18 U.S.C. § 3626(a)(1)(A), including: what would constitute "narrowly drawn" relief, what would be the "least intrusive means," and what would be the "adverse impact on public safety." If necessary, the Court will at that time have the Defendants "come forward with a plan for the implementation of a new prison policy regarding requests for witnesses." Whitlock v. Johnson, 153 F.3d 380, 389 (7th Cir. 1998).

On December 7, 2000, the jury returned a verdict for the Plaintiff, and against Defendants [*603] Wingard and Sharpe, in the amount of $ 2,107.22. On December 15, 2000, the Plaintiff filed his Renewed Motion for Injunctive Relief and to Set Hearing to Set Terms of Injunction. On January 8, 2001, the Defendants filed their [**4] Response. This Court conducted a hearing on this matter on January 17, 2001.

III. ANALYSIS

The Plaintiff requests that the Court enter an injunction against Defendant Wingard in his official capacity and order the following measures:


(1) Implement a written policy that any MaCI inmate defending himself in a Rules Infraction Board hearing, including but not limited to a hearing arising out of an alleged positive drug test of the inmate, shall be entitled to have the witnesses he requests be present at said RIB hearing absent an overriding security or institutional concern, which overriding concern shall not include (a) either a determination of MaCI personnel prior to said hearing that any such witness would not be credible or (b) a determination that testimony about a drug test is unnecessary because of the existence of documentation showing a positive drug test.

(ii) A copy of the completed Jury Interrogatories dated December 7, 2000, and Judgment dated December 11, 2000, in this case shall be placed and permanently maintained in any file maintained at MaCI or by MaCI personnel making any reference to Mr. Williams's conviction of a Rule II, Class 7 at the RIB Hearing [**5] conducted March 19, 1996.

(iii) There shall be no retaliation against Mr. Williams arising out of or relating to this lawsuit.

A. MaCI's Policies Under the Due Process Clause

The Defendants first argue that no blanket policy exists at MaCI that bars the calling of witnesses at disciplinary hearings, and that their policies comply with Wolff and the requirements of the Procedural Due Process Clause of the Fourteenth Amendment. In Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974), the Court found that prisoners are guaranteed certain procedural protections under the Due Process Clause of the Fourteenth Amendment. In the context of disciplinary proceedings, prisoners are granted the right to call witnesses unless doing so would cause a security concern. Id. at 566.

In this case, the Defendants may be correct--that the written policies of MaCI comply with the mandates of Wolff--however, the Court finds that the unwritten policies of MaCI do not. The written policies of MaCI's Inmate Disciplinary Manual provide: "It is improper to deny a witness merely because the RIB feels the testimony would not be [**6] beneficial or credible. Such determinations can be made only after the witness has testified." The Court finds that this written policy complies with Wolff and the due process clause.

In contrast, the testimony provided by Lieutenant Fisher, Chairperson of the RIB at MaCI, illuminated MaCI's unwritten policy with respect to witnesses requested by an inmate to appear before the RIB. In her deposition, Lieutenant Fisher was asked: "Has it ever happened that an inmate asked to call a particular witness and you determine that the witness was not permitted because the testimony that the inmate expected from the witness would not be credible?" Lieutenant Fisher responded: "If I don't think that it would be credible, I can deny based upon what he has stated, but I would do that on my own terms, I wouldn't do it by calling the person that he's requesting to testify."

And, at trial, Lieutenant Fisher stated: "I will deny a witness if I do not have anything to back up that the witness' statement would be credible to the charges." When Lieutenant Fisher was [*604] asked: "If you believe a witness' testimony is not credible, then it will not be admitted; is that true?" To which, she responded: [**7] "That is correct, I can do that." The Court finds that this unwritten policy is in sharp contrast to MaCI's written policy. The unwritten policy allows the denial of a witness because the RIB "feels" he or she would not be credible. Warden Wingard's deposition testimony concerning the "right to call" witnesses further demonstrates that MaCI's unwritten policy violates the procedural due process clause. Defendant Wingard testified that the inmate has a right to "call" a witness which he defined as the right to "request" a witness. That request, according to Defendant Wingard, does not have to be granted. During trial, Warden Wingard elaborated as to what he believed an inmate's "procedural due process right to call witnesses" included:


Q: Your interpretation that -- that this sentence, "An inmate has a procedural due process right to call witnesses," you interpreted that to mean he has the right to request witnesses; isn't that right?

A: Oh, absolutely.

Q: And that was the practice under you at Madison; right?

A: That an inmate had a right to call or request witnesses?

Q: Request witnesses?

A: Yes.

Q: Okay. And that the inmate has a right to call them but not to have them? [**8]

A: The inmate has a right to request them.

Q: And not to have them?

A: Correct.


(p. 128-29). The Court concludes that MaCI's unwritten policy does not comply with the mandates of Wolff. As Lieutenant Fisher testified, this unwritten policy does not permit witnesses to testify if the RIB predetermines that they lack credibility. As Defendant Wingard stated, MaCI's policy that permits inmates to call witnesses does not mean the witnesses will actually testify--especially when Lieutenant Fisher believes they will not be credible. The Court therefore finds the unwritten policy at MaCI to be in violation of Wolff, and to be in violation of the due process clause of the Fourteenth Amendment.

B. Plaintiff Williams has Standing to Bring Suit

Having found that the Defendants' policy with regard to witnesses is unconstitutional, the Court will next consider whether Mr. Williams has standing to request injunctive relief. Relying upon Los Angeles v. Lyons, 461 U.S. 95, 75 L. Ed. 2d 675, 103 S. Ct. 1660 (1983), the Defendants argue that the Plaintiff does not have standing to sue for injunctive relief. In Lyons, the plaintiff, Mr. Lyons, after being [**9] stopped for a traffic violation, was placed in a chokehold by a City of Los Angeles police officer. The chokehold rendered the plaintiff unconscious and caused damage to his larynx. Id. at 97. The plaintiff brought suit against the City seeking injunctive and declaratory relief barring the use of chokeholds except in situations where the victim was threatening the immediate use of deadly force. Id. at 98. By the time the case had reached the Supreme Court, the City had placed a moratorium on the use of chokeholds. Id. at 101.

In Lyons, the Court found that the plaintiff lacked standing to bring a claim for injunctive relief, as the requested relief rested "on the speculative nature of his claim that he will again experience injury as the result of that practice even if continued." Id. at 109. The Court found that in order for Mr. Lyons to have standing to bring suit, he would have to allege a live case-or-controversy. The Court summarized the plaintiff's burden:


In order to establish an actual controversy in this case, Lyons would have not only to allege that [he] would have another [*605] encounter with the [**10] police but also to make the incredible assertion either (1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter, whether for the purpose of arrest, issuing a citation, or for questioning, or (2) that the City ordered or authorized police officers to act in such manner.


Id. at 106. The Court noted that the "reasonableness of Lyons' fear is dependent upon the likelihood of a recurrence of the allegedly unlawful conduct. It is the reality of the threat of repeated injury that is relevant to the standing inquiry, not the plaintiff's subjective apprehensions." Id. at 107 n.8. The threat to Lyons, therefore, was found by the Court to be too speculative since the Court could not conclude that the "odds" of Lyons "being stopped for a traffic violation" and being "subjected to a chokehold without any provocation whatsoever [was] sufficient to make out a federal case for equitable relief." Id. at 108.

In contrast, the Court concluded in Kolender v. Lawson, 461 U.S. 352, 356, 75 L. Ed. 2d 903, 103 S. Ct. 1855 (1983), that plaintiff-Lawson had standing [**11] to bring suit for injunctive relief. The Plaintiff in Lawson sought declaratory and injunctive relief enjoining the enforcement of California's penal code which required people who "loiter or wander on the streets to provide a 'credible and reliable' identification and to account for their presence when requested by a police officer . . . ." Id. at 353. The Court found that Mr. Lawson, who had been stopped and detained for violating the penal code on approximately fifteen occasions during a two-year period of time, had provided a "credible threat" that he might be detained again. Id. The Court ultimately concluded that the statute was unconstitutionally vague under the Procedural Due Process Clause of the Fourteenth Amendment. Id. at 361.

The facts presented to the Court in Lyons were found to be too "speculative" to warrant standing, while the facts presented in Kolender presented a "credible threat" which warranted a finding that standing existed sufficient to obtain injunctive relief. The Court must determine, in this case, where the facts rest on the continuum between being a purely speculative threat to being a "credible threat. [**12] " The Court finds that the present case is more in line with Kolender than with Lyons, and holds that Mr. Williams has standing to bring suit for injunctive relief.

As a threshold matter, Lyons is distinguishable from this case on the facts. In Lyons, there was an intricate chain of events which would have to conjoin in order for Mr. Lyons to suffer the identical injury in the future. Mr. Lyons's potential for future harm was based on the realization of several incremental steps, each laced with speculation, which included: (1) a police officer would have to stop Mr. Lyons for a minor traffic violation, (2) without provocation or resistance, (3) determine that physical force was needed, (4) choose to apply a chokehold and (5) violate city policy.

For the first step, Mr. Lyons would have to be stopped by the police in Los Angeles, a city of approximately 3.8 million people, covering an area of approximately 470 square miles. This vast population and breath of area contributes to the speculative nature of Mr. Lyons being stopped again by police. Mr. Lyons, as a free citizen, could run a red light, make an illegal left turn or jaywalk without the police being the wiser. [**13]

Second, the officer, without provocation or resistance, would have to resort to physical force during a routine traffic stop. This act could be viewed as a constitutional violation in and of itself. Next, the officer, out of the multitude of physical restraints conceivable, would have to choose to place Mr. Lyons in a chokehold. Finally, a police officer would place himself in violation of City policy when he used a chokehold.

[*606] In contrast, in this case, only one step would be necessary to reach the complained of conduct: an allegation by a corrections officer that the Plaintiff violated a prison rule. The Plaintiff is one of approximately 2,500 inmates confined at MaCI. The odds the Plaintiff coming into contact with a correction officer are much greater than Mr. Lyons coming into contact with a police officer in the city of Los Angeles. By virtue of his confinement, Mr. Williams is in continual contact with correction officers whose job it is to scrutinize closely his behavior for possible rule infractions.

Second, the correction officer would be following procedure when he or she filed a report against Mr. Williams for an alleged violation, while the police officer in Lyons [**14] arguably would be committing an unconstitutional act by using physical force against a compliant citizen. As for the next step, a correction officer would have one choice once he or she believed that Mr. Williams had committed a rule infraction: to file a charge against him. Conversely, a police officer who had stopped Mr. Lyons could initiate physical contact in many different ways, or opt not to engage in physical contact but merely ticket the traffic violator.

Finally, the correction officer would be following MaCI's policy when he or she filed a charge against him, in contrast to the police officer in Lyons who would be in violation of city policy when he or she chose to place a nonresisting citizen in a chokehold. See, e.g., Lake v. Speziale, 580 F. Supp. 1318 (D. Conn. 1984) (finding that "in this case it is the conformance with the policy that brings about the alleged injury and this Court considers the probability of such conformance to be very high.").

Although past conduct is not a perfect predictor of future conduct, it is probative. In O'Shea v. Littleton, 414 U.S. 488, 496, 38 L. Ed. 2d 674, 94 S. Ct. 669 (1974), the Supreme [**15] Court found that "of course, past wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury." See also Kolender v. Lawson, 461 U.S. at 355 n.3 (finding standing to sue for injunctive relief as the plaintiff had been stopped and detained on approximately fifteen occasions during a two-year period of time); Steffel v. Thompson, 415 U.S. 452, 459, 39 L. Ed. 2d 505, 94 S. Ct. 1209 (1974) (finding that the plaintiff's claim that he had "been twice warned to stop handbilling that he claims is constitutionally protected and has been told by the police that if he again handbills at the shopping center and disobeys a warning to stop he will likely be prosecuted" was sufficient to establish standing.); Lake, 580 F. Supp. at 1327 (finding that the plaintiff's being incarcerated in May of 1983 and April of 1979 was one factor that weighed heavily in determining that the plaintiff had standing). Since the infraction leading to this case, Mr. Williams has been charged with two additional rules violations. Mr. Williams has been written up for two Class III violations for being "out of place." n1 The existence [**16] of several rules violations being lodged against Mr. Williams is another factor the Court weighs in favor of concluding that Mr. Williams has standing.



n1 An "out of place" write-up would be for being literally in the wrong place, for example, standing in another inmate's cell.


Courts have been unwilling to assume, for the purpose of establishing standing, that the party will engage in unlawful behavior in the future. The O'Shea Court aptly stated: "We assume that respondents will conduct their activities within the law and so avoid prosecution and conviction as well as exposure to the challenged course of conduct said to be followed by petitioners." 414 U.S. at 497. Here, the Plaintiff does not have to break the "law" of the prison to come before the RIB; rather, a correction officer merely has to allege that Mr. Williams did so. As soon as the allegation [*607] is made--irrespective or guilt or innocence--the Plaintiff will find himself before the RIB. Once before the RIB, the unwritten policy of [**17] MaCI would be invoked, violating Mr. Williams's procedural due process rights.

In this respect, Mr. Williams's case is akin to the plaintiff's in Admiral Theatre v. City of Chicago, 832 F. Supp. 1195 (N.D. Ill. 1993). In Admiral, the plaintiff, a "sexually-orientated entertainment" establishment brought suit seeking, for one, injunctive relief to allow its dancers to perform without interference from the police. Id. at 1201. The plaintiff alleged that the city had a pattern of placing dancers in custodial arrest, even if the dancers had not performed that night. Id. The Admiral court found:


This case stands in sharp contrast with Lyons. There the Supreme Court found that plaintiff had no standing because of the many eventualities that would have to come to pass for him again to be exposed to the complained-of conduct. Here, all that has to occur for plaintiffs to suffer the alleged illegal prior restraint complained of . . . is a custodial arrest based on a police officer's belief that certain dancing is obscene. Once the police officer arrests an Admiral dancer and takes her into custody, the complained-of activity has occurred. [**18]


Id. The court therefore found that the plaintiff in Admiral had standing to bring their First Amendment claim. Id. at 1202.

This Court concludes that the Plaintiff's case is harmony with Admiral. In both cases, a law enforcement officer's belief, substantiated or not, could trigger unconstitutional conduct on the part of law enforcement. In Admiral, it was a police officer's belief that the plaintiff's dancers were performing obscenely. Here, it is any correction officer's belief that the Plaintiff committed an infraction that will subject the Plaintiff to the RIB and its unconstitutional policy.

The Plaintiff and Defendants both cite and rely on Knox v. McGinnis, 998 F.2d 1405 (7th Cir. 1993), as persuasive authority. In Knox, the inmate-plaintiff claimed that the black box he was required to wear when leaving segregation caused him physical injury in violation of the Eighth Amendment's Cruel and Unusual Punishment Clause. Id. at 1407. The court described the black box as "a hard plastic box placed over the lock apparatus that runs between a prisoner[s'] handcuffs. . . . to prevent them for picking [**19] the locks on their handcuffs." Id. at 1407. Prisoners in segregation were required to wear handcuffs, a waist chain, and a black box whenever they left segregation. Id. Mr. Knox had been sent to segregation for possessing dangerous contraband and was forced to wear the black box during that period of time. Id. at 1407.

Initially, in addressing Mr. Knox's claim for legal relief, the court determined that the defendants were entitled to qualified immunity. The court found that it was not clearly established that the use of a black box was in violation of the Eighth Amendment. Id. at 1410. The court next addressed the plaintiff's request for a "preliminary and permanent injunction against further use of the black box." Id. at 1413. The court first noted that it had to assume that Mr. Knox would follow the prison's rules. Based on the speculative nature of Mr. Knox again violating prison rules, being placed in segregation and being forced to wear the black box, the Court found that Mr. Knox did not have standing to bring suit for injunctive relief. Id. at 1413-14.

The present case is distinguishable [**20] for Knox for several reasons. First, in order for Mr. Knox to have to wear the black box again, he would have to violate a prison rule, be caught doing so, be found guilty and be placed in segregation. In the case sub judice, however, a correction officer would merely have to allege that the Plaintiff violated a rule in order for the constitutional violation to occur. Mr. Knox's potential for future harm is therefore [*608] much more speculative than the Plaintiff's. And, this Court can assume that even if the Plaintiff herein follows all prison rules, he still can be subject to a rules infraction allegation from a correction officer. In contrast, Mr. Knox would not only have to have an allegation leveled against him, but that allegation would have to be found to have merit and be severe enough to place him in segregation.

Second, the Knox court further found that use of the black box was not a clearly established unconstitutional practice. In contrast, this Court has found that denying prisoners the right to call witnesses based on a prejudgment of credibility is a clearly established unconstitutional practice. Even if Mr. Knox could have established standing, the Knox court [**21] most likely would not have remedied what it did not find to be an unconstitutional practice. In this case, however, this Court and the jury have found that there exists an unconstitutional practice at MaCI that, therefore, is subject to remedy. Based on the foregoing, the Court finds that the Plaintiff has standing to bring suit for injunctive relief.

C. Whether the PLRA Limits the Relief Available

In Oluwa v. Gomez, 133 F.3d 1237 (9th Cir. 1998), the court addressed the question of whether § 3626 of the PLRA applies to cases pending when the amended version PLRA was enacted in 1995. The Oluaw court found that Congress specifically answered the question. The court quoted legislative history, where Congress indicated: "'section 3626 of title 18, United States Code, as amended by this section, shall apply with respect to all prospective relief whether such relief was originally granted or approved before, on, or after the date of the enactment of this title." Id. at 1240 (quoting Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, Tit. VIII, § 802(b)(1), 1996 U.S.C.C.A.N. (110 Stat.) 1321-66, 1321-70 [**22] see 18 U.S.C. § 3626 Note.); see also Wright v. Morris, 111 F.3d 414, 418 (6th Cir. 1997) (finding that § 3626 applies to pending actions). n2



n2 In contrast, this Court has previously found that the "old" version of the PLRA applied in determining whether Mr. Williams required to exhaust his administrative remedies.


Based on the holding of Oluaw and Wright, the relevant section of the amended PLRA provides:


(a) Requirements for relief.


(1) Prospective relief.


(A) Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. [**23] The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.

(B) The court shall not order any prospective relief that requires or permits a government official to exceed his or her authority under State or local law or otherwise violates State or local law, unless--


(i) Federal law requires such relief to be ordered in violation of State or local law;

(ii) the relief is necessary to correct the violation of a Federal right; and

(iii) no other relief will correct the violation of the Federal right.


(C) Nothing in this section shall be construed to authorize the courts, in exercising their remedial powers, to order the construction of prisons or the raising of taxes, or to repeal or detract from otherwise applicable limitations on the remedial powers of the courts.


18 U.S.C. § 3626(a)(1).

The Defendant argues that, based on § 3626(a)(1)(A), the PLRA limits injunctive [*609] relief to what is needed to address a particular inmate's rights.

The operative language of the PLRA makes clear that this Court may provide prospective relief only to the extent necessary [**24] to correct the federal constitutional violation. 18 U.S.C. § 3626(a)(1)(A). The legislative history defining the provision is instructive: "this 'provision stops judges from imposing remedies intended to effect an overall modernization of local prison systems or provide an overall improvement in prison conditions' by 'limiting remedies to those necessary to remedy the proven violation of federal rights.'" Plyler v. Moore, 100 F.3d 365, 369 (4th Cir. 1996) (quoting H.R. Rep. No. 21, 104th Cong., 1st Sess. 7, at 24 n.2 (1995)).

The Court finds that the injunctive relief requested by Mr. Williams does not affect "overall modernization" or "overall improvement in prison conditions," but is narrowly tailored to remedy the deprivation of procedural due process that Mr. Williams has proven. This Court has found that there exists an ongoing violation of a federal right, to wit: a prisoner's procedural due process right to call witnesses before the RIB without a predetermination of credibility. The Court concludes, therefore, that injunctive relief is proper under § 3626 of the PLRA.

D. Successor Warden

The Plaintiff requests that this Court [**25] issue an injunction against Defendant Wingard in his official capacity, and against the Madison Correctional Institute, forbidding them from continuing this unconstitutional policy regarding witnesses in RIB hearings. The Defendant responds that the Plaintiff has not presented evidence that the successor warden has continued the same policy with regard to permitting witnesses to testify before the RIB. To establish his right to injunctive relief, the Plaintiff replies that he just needs to show that a policy or custom of MaCI played a part in his constitutional deprivation.

Federal Rule of Civil Procedure 25(d) provides: "When a public officer is a party to an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and the officer's successor is automatically substituted as a party." FED. R. CIV. P. 25(d). In Spomer v. Littleton, 414 U.S. 514, 522-23, 38 L. Ed. 2d 694, 94 S. Ct. 685 (1974), the Court found that although Rule 25 provides for automatic substitution of a party, a court must also determine whether the need for an injunction is moot. See also Kincaid v. Rusk, 670 F.2d 737, 741 (7th Cir. 1982) [**26] (concluding that "the burden is on the complainant to establish the need for declaratory or injunctive relief by demonstrating that the successor in office will continue the relevant policies of his predecessor."); Tara Enter., Inc. v. Humble, 622 F.2d 400, 401-02 (8th Cir. 1980) (same).

The Seventh Circuit has limited Spomer by noting that the issue there was what course to take when '"the wrongful conduct charged in the complaint is personal to [the former official], despite the fact that he was also sued in his then capacity as State's Attorney.'" Hoptowit v. Spellman, 753 F.2d 779, 782 (7th Cir. 1985) (quoting Spomer, 414 U.S. at 521). This court agrees with the analysis provided in Hoptowit; thus, mootness only becomes a question when the suit is brought against a person in his or her official capacity alleging conduct that was, in actuality, personal conduct on behalf of the defendant. Here, the conduct complained of is an unwritten policy of MaCI, and not the personal activities of Defendant Wingard. Spomer and its holding are, accordingly, inapposite to the present case.

Even assuming, arguendo, Spomer is [**27] controlling, the Court nonetheless finds that the Plaintiff adequately has shown that the unwritten policy of MaCI--prejudging witnesses' credibility--continues. Although the constitutional infraction complained of here occurred in 1996, Lieutenant [*610] Fisher and Warden Wingard's depositions were taken in 2000, and the trial on the merits was in December of 2000. It was during deposition testimony and in the trial that the unwritten policy of MaCI with regard to witnesses was revealed and shown still to be extant. The Court therefore, concludes that the unwritten policy continues even though Defendant Wingard is no longer the acting warden of MaCI. Accordingly, there is a necessity for injunctive relief. n3



n3 In Kentucky v. Graham, 473 U.S. 159, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985), the Court found that "an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in interest is the entity." Id. at 166.

Here, the Court concludes that the holding in Kentucky v. Graham is persuasive, but finds that injunctive relief against MaCI is unnecessary. The injunctive relief requested by the Plaintiff can be enforced against the successor warden.


[**28]

E. Relief Requested

The Plaintiff requests the following injunctive relief:


(i) Implement a written policy that any MaCI inmate defending himself in a Rules Infraction Board hearing, including but not limited to a hearing arising out of an alleged positive drug test of the inmate, shall be entitled to have the witnesses he requests be present at said RIB hearing absent an overriding security or institutional concern, which overriding concern shall not include (a) either a determination of MaCI personnel prior to said hearing that any such witness would not be credible or (b) a determination that testimony about a drug test is unnecessary because of the existence of documentation showing a positive drug test.

(ii) A copy of the completed Jury Interrogatories dated December 7, 2000, and Judgment dated December 11, 2000, in this case shall be placed and permanently maintained in any file maintained at MaCI or by MaCI personnel making any reference to Mr. Williams's conviction of a Rule II, Class 7 at the RIB Hearing conducted March 19, 1996.

(iii) There shall be no retaliation against Mr. Williams arising out of or relating to this lawsuit.

The Defendants make the [**29] following responses: (1) that the Plaintiff must demonstrate that there is an on-going unconstitutional practice at MaCI; (2) that the relief must comply with the new version of the PLRA; (3) that the Plaintiff does not have standing to sue for injunctive relief; (4) that the Plaintiff has not demonstrated that the successor warden continues to engage in the alleged unconstitutional policy; and (5) that no policy exists at MaCI that bars the calling of witnesses. These arguments have been addressed by the Court. n4 This Court has found that an unwritten unconstitutional policy exists at MaCI which condones a pre-hearing credibility evaluation of witnesses requested by inmates to appear before the RIB. Having reached this conclusion, the Court finds that injunctive relief is appropriate. The Court must next determine whether the specific terms of the remedy requested are appropriate in this case.



n4 See supra subparts III.A-D.


As to the specifics of the relief requested, the Defendants respond to the Plaintiff's [**30] first request for a relief--a written policy permitting inmates to call witnesses at RIB hearings even with the existence of documentation showing a positive drug test--by arguing that such policy would require MaCI to afford more protection than required by the Due Process Clause of the Fourteenth Amendment. See Superintendent v. Hill, 472 U.S. 445, 105 S. Ct. 2768, 86 L. Ed. 2d 356 (1985). In Hill, the Supreme Court determined that a court, in reviewing the decision of a prison disciplinary panel, should conclude that [*611] due process has been satisfied if "some evidence supports the decision." Id. at 455. The Court stated that this standard "does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence." Id.

The Defendants' argument is misplaced. Initially, this Court notes that the "some evidence" standard was adopted so that reviewing courts could determine if an inmate has been afforded due process by a prison disciplinary board. Id. at 456. And, although Hill only requires "some evidence" to support a disciplinary board's decision, that does not mean that the disciplinary board could [**31] accept all incriminating evidence while ignoring all exculpatory evidence. A positive drug test would not clear the "some evidence" hurdle in the face of other evidence, for example, that the samples were swapped, that the lab's procedures were tainted, or that another prisoner paid off a guard to substitute urine samples. A positive drug test, just like any other scientific procedure, has limitations, is not foolproof and is subject to human error. Reading Hill as the Defendants suggest would turn prison disciplinary boards into no more than kangaroo courts: where evidence is placed on unbalanced scale, with incriminating evidence being given full weight and exculpatory evidence being given no weight.

Furthermore, the Plaintiff's request for a prohibition against determinations "that testimony about a drug test is unnecessary because of the existence of documentation showing a positive drug test" does not mandate that the RIB reach a particular decision in any particular case. After the RIB examines the documentation showing a positive drug test along with the exculpatory evidence provided by the inmate, the RIB may still conclude that there exists sufficient evidence to find [**32] that the prisoner did indeed use drugs. The Court therefore finds that the Defendants' argument on this point is without merit.

As for the Plaintiff's next request, that a copy of the jury verdict be placed in the Plaintiff's records, the Defendants argue that there is no on-going misconduct that this would cure. The Plaintiff responds that the jury verdict could be used to substantiate Mr. Williams's statements he will make before the parole board. n5



n5 The Plaintiff also emphasizes that he is not attempting to reverse the RIB's findings.


The Court agrees with the Plaintiff's reasoning in support of having the jury verdict placed in his file at MaCI. Placing the verdict in his file will not overturn the RIB's decision; the Class III rule violation will also be before the parole board. The board will be able to consider all of the relevant information that led to the Plaintiff's rule violation.

The Plaintiff's third and final request is that "there shall be no retaliation against Mr. Williams arising out of [**33] or relating to this lawsuit." The Defendant replies that if retaliation would occur, Mr. Williams would be permitted to seek an adequate remedy at law by either filing a grievance, a claim in state court or a claim for retaliation under § 1983.

The Court finds the Defendants' argument on this point persuasive, and denies part (iii) of the Plaintiff's request. This Court cannot assume that retaliation would occur absent an injunction, nor will it enjoin what already is prohibited by law.

IV. CONCLUSION

The Court hereby GRANTS in part the Plaintiff's request for injunctive relief and ORDERS the following:


(i) Implement a written policy that any MaCI inmate defending himself in a Rules Infraction Board hearing, including but not limited to a hearing arising out of an alleged positive drug test of the inmate, shall be entitled to have the witnesses he requests be present at said RIB hearing absent an overriding security or [*612] institutional concern, which overriding concern shall not include (a) either a determination of MaCI personnel prior to said hearing that any such witness would not be credible, or (b) a determination that testimony about a drug test is [**34] unnecessary because of the existence of documentation showing a positive drug test.


(ii) A copy of the completed Jury Interrogatories dated December 7, 2000, and Judgment dated December 11, 2000, in this case shall be placed and permanently maintained in any file maintained at MaCI or by MaCI personnel making any reference to Mr. Williams's conviction of a Rule II, Class 7 at the RIB Hearing conducted March 19, 1996.

IT IS SO ORDERED.

ALGENON L. MARBLEY

UNITED STATES DISTRICT COURT


Dated: February 20, 2001

KENNETH WILLIAMS, Plaintiff, v. REGINALD WILKINSON, et al., Defendants.



Case No. 97-CV-213



UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO, EASTERN DIVISION



122 F. Supp. 2d 894; 2000 U.S. Dist. LEXIS 17347



November 29, 2000, Decided







DISPOSITION: [**1] Defendants' Motion to Dismiss and their Renewed Motion for Reconsideration DENIED. Plaintiff's Motion to Rule as a Matter of Law, and for Injunctive relief, pending the development of the record before the court DENIED.









COUNSEL: For Kenneth Williams, Plaintiff(s): Jill S Kirila, Squire Sanders & Dempsey, Columbus, OH.


For Reginald Wilkinson, Curtis Wingard, Morris Bays, Pat Sharpe, Defendant(s): J Eric Holloway, Ohio Attorney General, Columbus, OH.



JUDGES: ALGENON L. MARBLEY, UNITED STATES DISTRICT COURT. Magistrate Judge King.



OPINIONBY: ALGENON L. MARBLEY



OPINION: [*895]

OPINION AND ORDER

I. INTRODUCTION

This matter is before the Court on the Defendants' Motion to Dismiss filed on November 6, 2000, and on Plaintiff's Motion [*896] to Rule as a Matter of Law that Defendant Wingard's Policy Violated the Plaintiff's Fourteenth Amendment Rights, filed on November 6, 2000. This matter is also before the Court on the Defendants' Renewed Motion for Reconsideration filed on November 20, 2000.

The Plaintiff, Kenneth Williams, a prisoner, has brought suit against Defendants Curtis Wingard, Morris Bays and Pat Sharpe, alleging that his right to procedural due process under the Fourteenth Amendment was violated [**2] when he was not permitted to bring witnesses before the Rules Infraction Board. For the following reasons, the Defendants' Motions are DENIED and the Plaintiff's Motion is DENIED.

II. FACTS AND PROCEDURAL HISTORY

On February 7, 1997, this suit was filed by Kenneth Williams, an inmate at the Madison Correctional Institute, proceeding pro se. On February 20, 1997, this Court dismissed the claims against Reginald Wilkinson, and the Plaintiff's claim brought under 42 U.S.C. § 1985. n1 On March 27, 2000, the Defendants filed their Answer. On June 26, 2000, this Court granted the Plaintiff's Motion for Appointment of Counsel.



n1 Following the Court's Order, Defendants Wingard, Bays and Sharpe remained.


On February 13, 1996, Mr. Williams was given a conduct report stating that he had tested positive for marijuana. The Plaintiff states that he did not provide the urine specimen; rather, another inmate, Allen Williams, provided the sample. The Plaintiff was not permitted to call [**3] Allen Williams or Ms. Sharpe, the Substance Abuse Coordinator at the Madison Correctional Institute, to testify on the Plaintiff's behalf before the Rules Infraction Board ("RIB"). The RIB concluded, before allowing Allen Williams to testify, that he would not be a credible witness. The Plaintiff had to proceed to his hearing without either Allen Williams's or Ms. Sharpe's testimony and was found guilty.

On May 19, 1997, the Plaintiff moved for Summary Judgment. On August 26, 1997, this Court adopted Magistrate Judge King's Report and Recommendation denying the Plaintiff's Motion for Summary Judgment. Defendants were given until August 31, 1997 to file their dispositive motion. Following an extension, on September 15, 1997, the Defendants filed their Motion for Summary Judgment arguing that the Plaintiff's due process rights were not violated. On September 30, 1998, this Court denied the Defendants' Motion for Summary Judgment. On October 6, 1998, the Defendants filed a Motion for Reconsideration, which this Court denied on September 30, 1999.

The Defendants filed their Second Motion for Summary Judgment on June 8, 2000, arguing that they were entitled to qualified immunity as the [**4] Plaintiff's right to call witnesses was not clearly established. On July 17, 2000, the Defendants' filed a Motion to Stay Discovery and to Vacate the Trial Date. In response, the Plaintiff filed a Motion to Strike Defendants' Second Motion for Summary Judgment and Memorandum Contra Defendants' Motion to Stay Discovery and to Vacate the Trial Date. On September 11, 2000, this Court denied the Defendants' Motion for Leave to File a Second Dispositive Motion; denied the Defendants' Second Motion for Summary Judgement and denied the Defendants' Motion to Stay Discovery and to Vacate the Trial Date. The Court set this matter for trial on December 4, 2000.

This matter is now before the Court on the Defendants' Motion to Dismiss filed on November 6, 2000, and on the Plaintiff's Motion Seeking Judgment as a Matter of Law filed on November 6, 2000. It is also before the Court on the Defendants' Renewed Motion for Reconsideration filed on November 20, 2000. [*897]

III. ANALYSIS

The Defendants argue in their Motion to Dismiss that the Plaintiff did not exhaust his administrative remedies before filing suit, and that the Plaintiff's case contains a factual impossibility. The Plaintiff moves [**5] for Judgment as a Matter of Law against Defendant Wingard in his personal capacity.

A. Standard of Review

Although neither the Defendants nor the Plaintiff specified the basis for their Motions, this Court concludes that both should have been brought under Rule 12(c), as they were filed after the pleadings had closed. n2 Rule 12(c) provides:


After the pleadings are closed but within such time as not to delay the trial, a party may move for judgment on the pleadings. If, on a motion for judgement on the pleadings, matters outside of the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56 . . . .


FED. R. CIV. P. 12(c); Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 n.1 (6th Cir. 1988). n3



n2 Pleadings are considered "closed" once the once a complaint and answer have been filed. FED. R. CIV. P. 7(a).

The Plaintiff filed his Motion seeking Judgment as a Matter of Law, possibly, although not explicitly, under Federal Rule of Civil Procedure 50(a). This type of Motion is proper only "during a trial by jury." FED. R. CIV. P. 50(a). [**6]




n3 The Court determines that the Defendants' Motion will serve to delay the trial as it was filed four weeks prior to trial and more than three years after this case was originally brought by the Plaintiff. FED. R. CIV. P. 12(c). The Court, however, will not dismiss the Defendants' Motion solely on that basis.


As both Motions rely on matters outside the pleadings, including deposition testimony, they will be treated as motions for summary judgment under Rule 56. FED. R. CIV. P. 12(c). This Court, within its discretion, accepts the deposition testimony in reaching its decision on the parties' Motions. Carney v. Experian Info. Solutions, Inc., 57 F. Supp. 2d 496 (W.D. Tenn. 1999) (citing Sage Int'l Ltd. v. Cadillac Gage Co., 556 F. Supp. 381, 384 (E.D. Mich. 1982)).

In reviewing cross-motions for summary judgment, courts should "evaluate each motion on its own merits and view all facts and inferences in the light more favorable to the non moving party." Wiley v. United States, 20 F.3d 222, 224 (6th Cir. 1994). Significantly, "the filing of cross-motions [**7] for summary judgment does not necessarily mean that the parties consent to resolution of the case on the existing record or that the district court is free to treat the case as if it was submitted for final resolution on a stipulated record." Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991) (citing John v. State of La. (Bd. of Tr. for State Colleges & Univ.), 757 F.2d 698, 705 (5th Cir. 1985)).

The standard of review for cross-motions for summary judgment does not differ from the standard applied when a motion is filed by one party to the litigation. Taft Broad., 929 F.2d at 248. Summary judgment is therefore appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). The movant has the burden of establishing that there are no genuine issues of material fact, which may be accomplished by demonstrating that the nonmoving party lacks evidence to support an essential element of its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); [**8] Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1388-89 (6th Cir. 1993). In response, the nonmoving party must present "significant probative evidence" to show that "there is [more than] some metaphysical doubt as to [*898] the material facts." Moore v. Philip Morris Cos., 8 F.3d 335, 339-40 (6th Cir. 1993). "Summary judgment will not lie if the dispute is about a material fact that is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986) (concluding that summary judgment is appropriate when the evidence could not lead the trier of fact to find for the non-moving party).

In evaluating a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). The existence of a mere scintilla of evidence [**9] in support of the non-moving party's position will be insufficient; there must be evidence on which the jury could reasonably find for the non-moving party. Anderson, 477 U.S. at 251; Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995).

B. Prison Litigation Reform Act

The Defendants first argue in their Motion that this case should be dismissed as the Plaintiff did not exhaust his administrative remedies under the Prisoner Litigation Reform Act of 1995 ("PLRA"). The PLRA, as amended, provides:


No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.


42 U.S.C. § 1997e(a). n4 The amended version of the PLRA, enacted on April 26, 1996, and is to be treated prospectively. Wright v. Morris, 111 F.3d 414, 423 (6th Cir. 1997). In Wyatt v. Leonard, 193 F.3d 876 (6th Cir. 1999), the Sixth Circuit addressed the standard by which to evaluate a prisoner's claim that arose prior [**10] to the amended version of the PLRA, but was filed after the date of its enactment. The Wyatt court found: "Even where a complaint is filed in federal court after the effective date of the 1996 Act, the exhaustion requirement does not apply when the inmate's ability to exhaust for the event that gave rise to the action expired before enactment of the 1996 Act." Id. at 879.



n4 In contrast, the pre-amendment version of the PLRA vests the Court with discretion in determining whether to require the litigants to exhaust their administrative remedies. That version provided:


In any action brought pursuant to section 1983 of this title by an adult convicted of a crime confined in any jail, prison, or other correctional facility, the court shall, if the court believes that such a requirement would be appropriate an in the interests of justice, continue such case for a period of not to exceed 180 days in order to require exhaustion of such plain, speedy, and effective administrative remedies as are available.


42 U.S.C. § 1997e(a)(l).


[**11]

In this case, the Plaintiff's claim arose on March 19, 1996, his appeal was denied on March 28, 1998; and he had fifteen days to file his final appeal, the deadline for which was April 12, 1996. n5 The amended version of the PLRA was not passed until two weeks after the deadline for Mr. Williams's final appeal of the RIB decision. Pursuant to Wyatt, the exhaustion requirement does not apply here because the Plaintiff's ability to exhaust expired before the enactment of the amended version of the PLRA. The Wyatt court relied on the [*899] pre-amendment version of the PLRA, addressing the claims before it, and found the pre-amendment version controlling for cases in which the inmate's ability to exhaust expired before the enactment of the amended PLRA.



n5 The Plaintiff filed a separate grievance pursuant to Ohio Administrative Code section 5120-9-31(E), on June 12, 1996. This appeal, however, is distinct from his section 5120-9-09 appeal of a Class II violation, as section 5120-9-31(C) provides: "The grievance procedure is not designed to act as an additional or substitute appeal process in connection with rules infraction board or institutional hearing officer proceedings. A complaint relating to a specific disciplinary decision will not be considered." OHIO ADMIN. CODE § 5120-9-31(C).


[**12]

Under the pre-amendment version of PLRA, exhaustion was not mandated. In Wright v. Morris, the Sixth Circuit concluded:


Before this year, prisoners challenging the conditions of their confinement under 42 U.S.C. § 1983 were not, as a rule, required to exhaust administrative remedies before filing suit. Although 42 U.S.C. § 1997e allowed district courts to continue such cases for a period of not to exceed 180 days in order to require exhaustion of such plain, speedy, and effective administrative remedies as are available, exhaustion was only to be required if the court believed that such a requirement would be appropriate and in the interests of justice. 42 U.S.C. § 1997e(a)(l) (1995).


111 F.3d at 417.

This Court, accordingly, finds that exhaustion was not required before filing the case sub judice.

Although citing Wright v. Morris, the Defendants do not address the salient issue in their Motion: the prospective as compared to the retrospective application of the PLRA. In fact, the Defendants made their Motion without even referencing a single date, an oversight which [**13] is of utmost importance in this case since the amendment to the PLRA occurred at the approximate time that the Plaintiff allegedly was denied his due process rights. The Defendants instead argue, citing Brown v. Toombs, 139 F.3d 1102 (6th Cir. 1998), and Ohio Administrative Code section 5120-9-09 n6 that "each claim at each stage must parallel each and every claim in the federal complaint." Contrary to the Defendants' assertion, Brown v. Toombs does not address this issue. Also, section 5120-9-09 does not require such a rigid, formalistic presentation of a prisoner's claim. OHIO ADMIN. CODE § 5120-9-09. For example, an appeal of the RIB's decision to the managing officer does not require the presentation of parallel claims. OHIO ADMIN. CODE. § 5120-9-09(K). And, for appeals to the Director of the Department of Rehabilitation, the appeal may be denied if the "inmate has not complied with the procedural requirements" including that "the issues were not raised in the appeal to the managing officer." OHIO ADMIN. CODE § 5120-9-09(M)(3). There is no requirement that the prisoner's claim "parallel each and every claim" in his administrative appeal as the Defendants [**14] argue. Most important, there is no requirement that "each claim at each stage must parallel each and every claim in the federal complaint." Neither the Administrative Code, nor the PLRA addresses the requirements for claims filed in federal court.



n6 Ohio Administrative Code section 5120-9-09 was repealed on July 18, 1997 and combined with section 5120-9-07.


Here, in his appeal to the managing officer, filed on March 19, 1996, and decided on March 28, 1996, Mr. Williams stated:


On 3/19/96 I was found guilty of a dirty uron [sic] by the R.I.B. I never took a drug test in which to be found guilty of. There is more than one Williams in this institution. Afer [sic] one takes a drug test there must be a signiture [sic] involved. I did not sign personaly [sic] for anything because I was not pressent. [sic] I do not do drugs and have not taken any drug test since being incarcerated. I do not wish to have any violation on my record. It would not be fair for me to except [sic] the consiquence [sic] [**15] of this violation if I had no involvement. Please investigate this situation. Thank you.


Mr. Williams raised the same issue in his original RIB hearing that was raised on [*900] appeal: whether he was the "Williams" who took the drug test. Mr. Williams was not permitted to call either Allen Williams or Ms. Sharpe as a witness to support his case in the RIB proceeding. Even assuming, arguendo, that Defendants' interpretation of the Administrative Code is correct, Mr. Williams's claim, at the very least, arose from the same alleged infraction and the subsequent proceedings before the RIB.

The Defendants' Motion to Dismiss on the basis of failure to exhaust administrative remedies, which has been treated as one for summary judgment by this Court, is without merit.

C. Allen Williams's Deposition Testimony

The second basis for the Defendants' Motion to Dismiss is that the Plaintiff's case is based on a factual impossibility. Allen Williams, the individual whose urine the Plaintiff claims was mistaken for the Plaintiff's, stated in his deposition that he did not smoke marijuana during the winter. Based on Allen Williams's testimony, the Defendants argue that Allen Williams [**16] could not have tested positive for marijuana because he did not smoke any during the winter and, therefore, the Plaintiff's claim fails as it contains a factual impossibility.

A "factual impossibility" is typically a criminal defense and is defined as "the situation in which the defendant is unable to accomplish what he intends because of some facts unknown to him." United States v. Peete, 919 F.2d 1168, 1176 (6th Cir. 1990) (quoting United States v. Goodpaster, 769 F.2d 374, 380 n.5 (6th Cir. 1972)). As a threshold matter, Allen Williams's own affidavit belies the Defendants' argument. In his affidavit, Allen Williams states:


I, Allen Williams, was called for a urine test and the results of that urine test came back positive for marijuana abuse. Instead of the individual in charge of administrating the drug test; Ms. Sharp, writing a ticket on me, Allen Williams for a dirty urine, she wrote the ticket on another inmate with the same last name as I have. This inmate [sic] name is Kenneth Williams and his number is # 307-789 and he also lives in the same pod as I do.


The affidavit, by its own terms, establishes that the "dirty" urine [**17] was Allen Williams's, not the Plaintiff's. Accordingly, it is not factually impossible for the urine in question to be that of Allen Williams.

Although Allen Williams, in his deposition testimony, denies smoking marijuana in the winter, in his affidavit, he states that the urine test was improperly recorded as the Plaintiff's instead of his. At the least, this inconsistency creates a genuine issue of material fact underlying the Defendants' Motion to Dismiss, which has been treated by this Court as one for summary judgment. This alone makes summary judgment inappropriate.

Moreover, even accepting Allen Williams's deposition testimony as true, the result that Mr. Williams intended to achieve was to call Allen Williams as a witness to preserve his due process rights. Whether Allen Williams smoked marijuana in the winter of 1995 is irrelevant to the determination of whether he was properly excluded as a witness in the Plaintiff's RIB hearing. Of relevance is the fact that Plaintiff proffered an exculpatory witness who was not allowed to testify because the RIB predetermined that Allen Williams would not be a credible witness.

Since Allen Williams's own affidavit establishes that Allen [**18] Williams provided the urine sample in question, there is no factual impossibility that the urine at issue was someone's other that of the Plaintiff's. The second basis for the Defendants' Motion is also without merit. Defendants' Motion to Dismiss is, therefore, DENIED.

D. Renewed Motion for Reconsideration

On November 20, 2000, the date of the final pretrial conference--two weeks [*901] before trial--the Defendants filed a Renewed Motion for Reconsideration, citing an October 11, 2000 Sixth Circuit decision, Huey v. Stine, 230 F.3d 226, 2000 WL 1505101 (6th Cir. 2000). The Defendants argue that Mr. Williams, in fact, is claiming to be innocent of the charge that he smoked marijuana while incarcerated at the Madison Correctional Institute, and that he is challenging his RIB "conviction." Based on the holding in Huey, the Defendants conclude that the Plaintiff's claim therefore cannot be brought before this Court and should be dismissed without prejudice.

The Court finds that Huey is not relevant to the present case. The inmate-plaintiff in Huey received a misconduct ticket after allegedly assaulting a corrections officer [**19] in a failed attempt to obtain the officer's handcuff key. 230 F.3d 226, 2000 WL 1505101, at * . After exhausting his administrative remedies, Huey filed a § 1983 action in federal court alleging that because he had not committed an assault on a corrections officer, his punishment for the offense was in violation of the Eighth Amendment's cruel and unusual punishment clause. In his demand for relief, Huey asked the court to expunge the disciplinary infraction from his record.

Relying on Heck v. Humphrey, 512 U.S. 477, 129 L. Ed. 2d 383, 114 S. Ct. 2364 (1994), and Edwards v. Balisok, 520 U.S. 641, 137 L. Ed. 2d 906, 117 S. Ct. 1584 (1997), the Sixth Circuit found that "the Heck/Edwards doctrine . . . prevent[s] a prisoner found guilty in a prison disciplinary hearing from using § 1983 to collaterally attack the hearing's validity." Id. 230 F.3d at 228, Id. at * . Because Huey was asking the court to expunge his prison record, the court would have to, in essence, "unwind the judgment of the state agency," or "annul the judgment of the Michigan Department of Corrections." Id. 230 F.3d at 231, Id. at * . The Sixth Circuit concluded that this result was [**20] not permitted by Heck and affirmed dismissal without prejudice. Id. 230 F.3d at 231, Id. at * .

Here, in contrast to Huey, Mr. Williams is not attacking the "judgment of the state agency," but the process that was used in reaching that judgment. Mr. Williams claims that he was not permitted to call two witnesses at his hearing, Allen Williams and Ms. Sharpe, but does not claim that he is innocent of the charge. And, in his demand for relief, Mr. Williams asks for monetary damages and injunctive relief, but does not ask this Court invalidate the RIB's decision as the plaintiff in Huey did. The Court, therefore, finds that Huey is not applicable to the present case and DENIES the Defendants' Renewed Motion for Reconsideration.

E. Sanctions under Rule 11(c)

The procedural history of this case is extensive. This suit was originally filed in February of 1997 by the Plaintiff, proceeding pro se. The Plaintiff moved for Summary Judgment on May 19, 1997; that Motion was denied on August 26, 1997. Defendants were given until August 31, 1997 to file their dispositive motion. Following an extension, on September 15, 1997, the Defendants filed their Motion for Summary [**21] Judgment, arguing that the Plaintiff's due process rights were not violated. On September 30, 1998, this Court denied the Motion for Summary Judgment. On October 6, 1998 Defendants moved for reconsideration of this decision, which which this Court denied on September 30, 1999. On May 15, 2000, the Defendants filed for Leave to File a Second Dispositive Motion; they filed their Second Motion for Summary Judgment on June 8, 2000. In their Second Motion for Summary Judgment, the Defendants argued that they were entitled to qualified immunity as the Plaintiff's right to call witnesses was not clearly established. On September 11, 2000, this Court denied the Defendants' Motion for Leave to File a Second Dispositive Motion, denied the Defendants' Second Motion for Summary Judgement and denied the Defendants' Motion to Stay Discovery.

Now, almost four years after the original Complaint was filed, and three years since the dispositive motion deadline of [*902] September 15, 1997, the Defendants, on November 6, 2000, filed the present Motion to Dismiss. n7 The Defendants' Motion comes before this Court four weeks before trial, and more than three years after the dispositive motion deadline. As already [**22] determined, the Defendants have absolutely no basis for their Motion.



n7 Since the Defendants' Motion considers matters outside of the pleadings, the Court has considered it a motion for summary judgment. Realistically, the Defendants have now filed three motions for summary judgment in this matter, two well past the dispositive motion deadline.


Federal Rule of Civil Procedure 11 requires that when a motion is submitted, the party represents to the court that:


(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; . . .

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity [**23] for further investigation or discovery; . . .


FED. R. CIV. P. 11(b)(1)-(3).

The Court may initiate a show cause hearing under Federal Rule of Civil Procedure 11(c)(1)(B) for a party's failure to comply with Rule 11(b)(1)-(3). Rule 11(c)(1)(B) provides: "On its own initiative, the court may enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b) with respect thereto." FED. R. CIV. P. 11(c)(1)(B).

Under Rule 11(c)(1)(B), the Court finds that the conduct that appears to be in violation of Rule 11(b)(1)-(3) is the Defendants' filing of their Motion to Dismiss. The Court bases its conclusion on the following reasons: first, the Motion was filed almost four years after this suit was filed, and more than three years after the close of the dispositive motion deadline; second, this was the third such dispositive motion filed by the Defendants-the second was also well past the dispositive motion deadline; third, the Motion is completely without merit.

This Court is mindful of the fact that a dispositive motion filed untimely is permitted under limited [**24] circumstances. n8 Under Federal Rule of Civil Procedure 16(b), a district court is permitted to modify the dispositive motion schedule only upon a showing of "good cause." FED. R. CIV. P. 16(b). The Defendants have not made such a showing. To the contrary, the information contained in the Defendants' Motion to Dismiss was in their possession before this suit was even filed. The Defendants, as officials of the prison in which the Plaintiff is housed, had access to the records showing whether Mr. Williams exhausted his administrative remedies, and could have presented this Motion before filing their Answer. At the very least, the Defendants could have presented this argument in their first Motion for Summary Judgment, filed in 1997. The Defendants, [*903] therefore, have shown anything but "good cause."



n8 For example, the Plaintiff's Motion for Judgment as a Matter of Law was filed on the same date as the Defendants' Motion to Dismiss. In contrast to the Defendants, the Plaintiff, for the first time, filed a dispositive motion with the assistance of counsel. Counsel was appointed on June 26, 2000.

Also, the Defendants filed a Motion to Stay Discovery on July 27, 2000. It was only through a telephone status conference and a subsequent Order filed by the Court on August 21, 2000, that the Plaintiff was permitted to conduct discovery. On October 4, 2000, because of the Defendants' Motion for Stay, the Plaintiff requested a Brief Extension of Case Schedule so that he could conduct discovery in the following two weeks. The Plaintiff's Motion for Judgment as a Matter of Law followed soon thereafter.


[**25]

Defendants' Motion is totally without merit. The first basis for the Defendants' Motion, that Mr. Williams failed to exhaust his administrative remedies before filing suit, ignores the change in the language of the PLRA. The Defendants, in their Motion, did not provide a single date of the underlying events that would indicate that this Court should follow the amended version of the PLRA because it was already in force at the time of the events giving rise to this suit. The Defendants did not even present a good faith argument on this point. The Defendants also failed to cite or distinguish Wyatt v. Leonard, 193 F.3d 876 (6th Cir. 1999), a controlling decision in this Circuit that discusses which version of the PLRA should be followed in this case, and holds contrary to the Defendants' position.

As for the second basis for the Defendants' Motion, factual impossibility, Defendants offer a complete misunderstanding and misstatement of the law and ignores the affidavit of Allen Williams that had been filed in this case. Pursuant to Rule 11(b)(2) and (3), the Defendants had an obligation to research the facts and the law before presenting the "factual impossibility" [**26] argument. It is apparent that Defendants ignored Allen Williams's affidavit as well as the law governing "factual impossibility."

Based on these reasons, the Court finds at this time that there appears to be a violation of Rule 11(b)(1)-(3), and ORDERS the Defendants' counsel to appear for a show cause hearing on December 1, 2000, at 10:30 a.m. to explain how their actions were not in violation of Rule 11(b)(1)-(3).

F. Plaintiff's Motion to Rule as a Matter of Law

The Plaintiff argues that this Court should rule that he has established as a matter of law that Defendant Wingard is liable in his personal capacity, and that he violated the Plaintiff's due process rights. The Defendants respond that for an alleged civil rights violation such as the present one, the Plaintiff must demonstrate the Defendants' subjective intent, which is ultimately a question of fact for the jury.

To bring a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate that a person acting under color of state law deprived him of his rights guaranteed under the United States Constitution. 42 U.S.C. § 1983; Russo v. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir. 1992). [**27] Although respondeat superior cannot be the basis of liability, a superior may be held liable if, "at a minimum, a § 1983 plaintiff . . . show[s] that a supervisory official at least implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending subordinate." Taylor v. Michigan Dep't of Corr., 69 F.3d 76, 81 (6th Cir. 1995) (quoting Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984)). The official, to be held personally liable, must have "caused the deprivation of a federal right." Kentucky v. Graham, 473 U.S. 159, 166, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985).

The Defendants rely on Daniels v. Williams, 474 U.S. 327, 328, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986), for their argument that a § 1983 claim requires proof of subjective intent. The plaintiff in Daniels sought to recover for the injuries he sustained when he slipped on a pillow that was negligently left on the stairs by a jail deputy. Id. at 328. In Daniels, the Court held: "The Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss [**28] of or injury to life, liberty, or property." Id. n9 The Court commented in a [*904] footnote that: "This case affords us no occasion to consider whether something less than intentional conduct, such as recklessness or 'gross negligence,' is enough to trigger the protections of the Due Process Clause." Id. at 335 n.3. n10



n9 Stated another way, the Court concluded that a § 1983 claim "contains no state-of-mind requirement independent of that necessary to state a violation of the underlying constitutional right. . . . and depending on the right, merely negligent conduct may not be enough to state a claim" Id.

n10 Interestingly, the Court in Daniels commented on Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935, the case upon which Mr. Williams's claim is based, and found that: "We think the relevant action of the prison officials in that situation is their deliberate decision to deprive the inmate of good-time credit, not their hypothetically negligent failure to accord him the procedural protections of the Due Process Clause." Id. + 474 U.S. at 333.


[**29]

The Sixth Circuit addressed the issue left open by the Daniels decision: what is the state-of-mind required for a due process claim brought under § 1983? The court found that to state a claim based on the deprivation of procedural due process, the "conduct must be grossly negligent, deliberately indifferent, or intentional." Howard v. Grinage, 82 F.3d 1343, 1350 (6th Cir. 1996). n11 If the action taken by the prison official was by mistake or inadvertence, it is not "intentional" conduct. Id. at 1351. The proper inquiry, however, is not whether there was "personal animosity, ulterior motives, unspoken reasons, or face-to-face contact" as the prison official's motivation is irrelevant. Id. at 1352. The Howard court concluded: "If the conduct resulting in the deprivation is intentional or deliberately indifferent, a constitutional violation results even if the decision to deprive was made with the best of motives." Id. It is apparent from Howard that intent in the context of a procedural due process claim is subject to an objective, rather than a subjective, determination. See id. at 1351-53.



n11 The court in Howard defined each term. "Intentional" acts focus on the conduct of the actor and involve deliberate and knowing conduct. Id. at 1351. "Deliberate indifference" can be found where the prison official act with reckless disregard. The conduct lies between negligence and purposefulness. Id. at 1351-52. The court concluded that, in a post-deprivation context, deliberate indifference is an objective standard which addresses "a prison official's failure to act when he has actual or constructive knowledge of an obvious prison rule violation." Id. at 1352.


[**30]

The Defendants' argument is without merit. Subjective intent is not an element of a claim of deprivation of procedural due process under the Fourteenth Amendment. Accordingly, the Court will focus its analysis on the required elements of a § 1983 claim: state action, violation of a constitutionally protected right and objective intent. Russo, 953 F.2d at 1042.

First, the prison officials' actions in denying Mr. Williams's right to call witnesses were clearly actions taken by prison officials, who are state actors. Moreover, the third element, objective intent, is satisfied because, viewing the facts in a light most favorable to the non-movant, Defendant Wingard intentionally disallowed Allen Williams's testimony. The only remaining issue, therefore, is whether there was a violation of a constitutionally protected right.

In Wolff, the Court found that an inmate facing disciplinary proceedings does not have an unqualified right to call witnesses. 418 U.S. at 566. This right may be limited, for example, if allowing the inmate to call witnesses would be "unduly hazardous to institutional safety and correctional goals." Id. at 566. [**31] The Wolff Court, although not prescribing the procedure, stated: "it would be useful for the Committee to state its reason for refusing to call a witness, whether it be for irrelevance, lack of necessity, or the hazards presented in individual cases." Id.

Expounding on Wolff, in Ponte v. Real, 471 U.S. 491, 496, 85 L. Ed. 2d 553, 105 S. Ct. 2192 (1985), the Supreme Court found that the disciplinary board need not "state in writing at the time of the hearing its reason for refusing to call a witness." [*905] The Court held that prison officials may provide the reason for denying a witness either in the "administrative record" or through "testimony in court." Id. at 497. The explanation provided, however, will be guaranteed to survive a due process challenge only if "the reasons are logically related to preventing undue hazards to 'institutional safety or correctional goals . . . .'" Id.

The Court also has before it a portion of the Prison's Inmate Disciplinary Manual ("Manual"), which states that witness requests may be denied if they are irrelevant, if the witnesses are unavailable, if the witness would be repetitive, or if there are security [**32] considerations. Defendant Wingard highlighted this standard when he testified that prisoners are not permitted to call witnesses if "any testimony that individual would give would be irrelevant to the particular case." Defendant Wingard interpreted this right as a right to call a witness, but not a right to have this request granted. RIB official Lieutenant Fisher testified that he would deny a witness if he had "reviewed the ticket" and saw that "the inmate is wanting a witness to testify, what I already know is before me, then I may deny that witness."

The administrative record in this case does not explicitly provide the reason(s) Mr. Williams was not permitted to call Allen Williams or Ms. Sharpe as witnesses. The Defendants' filings suggest multiple explanations for the denial of Mr. Williams's request for witnesses. In their Reply to Plaintiff's Response to Defendants' Motion for Summary Judgment, filed on September 29, 1997, the Defendants argued: "there is no indication that the result of the hearing would have been different had Allen Williams testified." And, in their Response to Plaintiff's Objections to Report and Recommendation, filed on December 3, 1997, the Defendants [**33] stated: "it is not likely that the RIB would have found [Allen Williams] a credible witness." The record also shows that Allen Williams could have been precluded as a witness for reasons that offend Wolff and Ponte, as neither Defendant Wingard nor Lieutenant Fisher explicitly provided reasons for his exclusion that comport with the standards of Wolff or Ponte. The record clearly fails to show that Allen Williams was refused because of undue hazards to "institutional safety" or "correctional goals."

The Court, therefore, finds, viewing the facts in the light most favorable to non-movant Defendant Wingard, that there exists a genuine issue of material fact on the basis for disallowing Allen Williams as a witness. The Defendants' actions in denying Mr. Williams his witnesses may or may not be seen as arbitrary. Based on the present record, it appears that it was Defendant Wingard's policy that the RIB was following when it denied Mr. Williams's request for witnesses. It also is reflected in the present record that Allen Williams was disallowed because prison officials believed that he would not be credible, or because his testimony would not change the outcome of the [**34] hearing. If these appearances are borne out at trial, Defendant Wingard could be held liable in his personal capacity. Viewing the facts in the light most favorable to the Defendants, at this time the record is not entirely clear as to why, in fact, Allen Williams was disallowed as a witness before the RIB. The Supreme Court decision of Ponte permits Defendant Wingard to explain at trial his reason(s) for denying Mr. Williams's requested witnesses. 471 U.S. at 497.

The Court will hold its judgment in abeyance pending the development of the record during trial on this matter. The Court therefore DENIES the Plaintiff's Motion to Rule as a Matter of Law, which the Court has viewed a Motion for Summary Judgment.

G. Injunctive Relief

The Plaintiff next requests that this Court issue an injunction against Defendant [*906] Wingard in his official capacity, and against the Madison Correctional Institute, forbidding them from continuing this unconstitutional policy regarding witnesses in RIB hearings. The Plaintiff contends that an injunction against Defendant Wingard would be futile as he is no longer the Warden at the Madison Correctional Institute. To establish [**35] his right to injunctive relief, the Plaintiff argues that he just needs to show that a policy or custom of the Institute played a part in his constitutional deprivation. Kentucky v. Graham, 473 U.S. at 166.

The Defendants respond that the PLRA limits such relief as the Act requires the "immediate termination of any prospective relief" unless such relief is necessary to correct "current and ongoing violation" of an established federal right. 18 U.S.C. § 3626(b)(2)-(3). The Defendants argue that the Plaintiff has not established that a violation of his procedural due process rights continues.

The PLRA section cited by the Defendants is not on-point, as it provides for the procedures for the "termination of relief." Since no relief has been ordered, there is none to terminate at this time. 18 U.S.C. § 3626(b). The relevant section of the PLRA provides:


(a) Requirements for relief.

(1) Prospective relief.

(A) Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court [**36] shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.

(B) The court shall not order any prospective relief that requires or permits a government official to exceed his or her authority under State or local law or otherwise violates State or local law, unless--

(i) Federal law requires such relief to be ordered in violation of State or local law;

(ii) the relief is necessary to correct the violation of a Federal right; and

(iii) no other relief will correct the violation of the Federal right.

(C) Nothing in this section shall be construed to authorize the courts, in exercising their remedial powers, to order the construction of prisons or the raising of taxes, or to repeal or detract from otherwise applicable limitations on the remedial powers of the courts.


18 U.S.C. § 3626 [**37] (a)(1).

As with the Plaintiff's Motion for Judgment as a Matter of Law, the Plaintiff's Motion for Injunctive Relief is DENIED at this time, pending development of the record before the Court. If, following trial, it is determined that injunctive relief is necessary, this Court will conduct an additional hearing to explore the requirements outlined by 18 U.S.C. § 3626(a)(1)(A), including: what would constitute "narrowly drawn" relief, what would be the "least intrusive means," and what would be the "adverse impact on public safety." If necessary, the Court will at that time have the Defendants "come forward with a plan for the implementation of a new prison policy regarding requests for witnesses." Whitlock v. Johnson, 153 F.3d 380, 389 (7th Cir. 1998).

IV. CONCLUSION

Based on the foregoing, this Court DENIES the Defendants' Motion to Dismiss and their Renewed Motion for Reconsideration, and ORDERS that the Defendants' counsel appear on December 1, 2000, at 10:30 a.m. to show cause for why they should not be held in violation of Rule 11 [*907] for filing the Motion to Dismiss on November 6, 2000. The Court DENIES the [**38] Plaintiff's Motion to Rule as a Matter of Law, and for Injunctive relief, pending the development of the record before the Court.

IT IS SO ORDERED.

/s/

ALGENON L. MARBLEY

UNITED STATES DISTRICT COURT


Dated: November 29, 2000