by Douglas Ankney

Owing in part to the diligent efforts of Michigan prisoner Mark White and a suit he filed in March 2023, it appears that employees of the state Department of Corrections (DOC) consider themselves under no obligation to abide by terms of a settlement agreement limiting prisoners’ exposure to rain in freezing temperatures.

Defendant DOC officials agreed in the 2020 settlement to notify all state prison wardens that they “must make accommodations to ensure inmates are not ordered or otherwise required to wait outside in precipitation when the temperature is 32 degrees Fahrenheit or below for any longer than necessary to facilitate prisoner movement.” See: Burley v. Miller, USDC (E.D. Mich.), Case No. 15-cv-12637.

But according to a pro se lawsuit White filed three years later, on March 6, 2023, Michigan prisoners are still waiting in freezing rain for their medication. White, who suffers from diabetes and Chronic Obstructive Pulmonary Disease (COPD), alleged he was forced to stand outside in “restricted medication line” for more than an hour at a time in December 2022, aggravating the symptoms of his COPD, including a “deep congestive cough.”

Then on January 16, 2023, he was again forced to wait in the freezing rain to receive his medication at 6:30 a.m. White’s “pants, shirt, and coat were thoroughly soaked,” he said, so he put on dry clothing upon returning to his cell. But at 11:30 a.m., White again “had to endure thirty minutes in freezing rain.” Because of the limited amount of clothing DOC allows prisoners, White could not change into dry clothing this second time, so he “sat in wet clothing for over three hours” until his third set of clothing was returned to him from the laundry.

Among other relief, White is seeking a raincoat as an accommodation for his disability under the Americans with Disabilities Act (ADA), 42 U.S.C. ch.126 § 12101, et seq. See: White v. Mich. Dep’t of Corr., USDC (E.D. Mich.), Case No. 2:23-cv-10592.

In an earlier suit also filed pro se in August 2022, White alleged DOC violated the ADA by failing to provide sufficient socks, causing him to suffer diabetic lesions on his feet that could lead to infection, amputation and even death. White also alleged that DOC guard Marvin Mosely wrote two false disciplinary reports against him in retaliation for White’s complaints about insufficient socks.

White received a $500 settlement in that lawsuit. See: White v. Mich. Dep’t. of Corr., 2023 U.S. Dist. LEXIS 157475 (E.D. Mich.). But Mosely apparently remained undeterred. White claims in his March 2023 suit that Mosely continued “his reign of terror” by permitting two gang members armed with knives to take all of White’s property, telling the prisoner that he could “buy all new stuff” with the money obtained in the settlement.

What Happened to Burley

In Burley, the U.S. District Court for the Eastern District of Michigan declined to follow a magistrate judge’s recommendation to dismiss prisoner Edward Burley’s complaint, which alleged that DOC employees Stacey Bosworth, Patrick Miller and Daniel Heilman violated his Eighth Amendment guarantee of freedom from cruel and unusual punishment when he arrived for a prison class ten minutes early and they refused either to let him enter the building or to return to his cell. Though Burley informed Defendants he suffered from asthma and other respiratory complications, they forced him “to stand out in the freezing rain for a period of time, without proper winter attire.” Once class began, they would not permit him to return to his unit to change into dry clothing, forcing him to sit in the classroom in cold, rain-soaked clothing for over two hours.

The magistrate recommended dismissing claims against Bosworth, saying Burley failed to allege the guard was personally involved. The magistrate also recommended dismissing claims against the other two guards based on qualified immunity (QI), saying it was not “clearly established that ordering a prisoner with a respiratory condition to stand in freezing rain for a short period of time amounts to a [constitutional] violation.”

Burley objected to the magistrate’s report and recommendation, and the Court conducted a de novo review. In the prisoner’s sworn affidavit, the Court observed, Burley stated that he informed Bosworth of his medical condition and that Bosworth, along with the other Defendants, “all stated that didn’t concern them, and for [Burley] to depart the building.” Burley further averred, “I personally informed Bosworth of my breathing complications. He stated he did not care and standing in the rain wasn’t gonna hurt me.” Since in summary judgment proceedings, all disputed facts must be construed in the light most favorable to the nonmoving party – in this case, Burley – the Court concluded he alleged sufficient facts to demonstrate Bosworth’s personal involvement.

The Court then turned to QI, which shields government officials performing discretionary functions “from liability for damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,” per Harlow v. Fitzgerald, 457 U.S. 800 (1982). It determined that the magistrate failed to properly take into account the two hours Burley was forced to sit in the classroom in cold, rain-soaked clothing. It noted that in Burchett v. Kiefer, 310 F.3d 937 (6th Cir. 937), the plaintiff was detained in the back of an unventilated police car for three hours in 90-degree heat, and the court found the right to be free from exposure to extreme heat while detained was already clearly established – in Hope v. Pelzer, 536 U.S. 730 (2002). So Burley had “shown that the right to be free from exposure to severe weather and temperatures was clearly established at the time of the incident alleged,” the Court concluded. It denied summary judgment as to Bosworth’s personal participation and also denied QI to Miller and Heilman. See: Burley v. Miller, 241 F. Supp. 3d 828 (E.D. Mich. 2017).

In the settlement reached on February 11, 2020, Burley accepted $12,000 from Defendants, who promised to issue a Director’s Memorandum. However, the Director’s Memorandum was never posted in state prison libraries, and DOC even denied its existence in response to a Michigan Freedom of Information Act request.

In fact, DOC spokesman Chris Gautz repeatedly denied the memorandum’s existence until confronted with a copy obtained from the Michigan Attorney General’s Office by a journalist. Gautz then admitted the memorandum existed but insisted it was “only a memo from the director, not a Director’s Office Memorandum” – a stunning bit of double-speak to a Detroit Free Press reporter who just pointed out the words “Director’s Office Memorandum” emblazoned across the top in bold capital letters!

DOC’s conduct – misleading the Court, hiding the Director’s Memorandum, failing to comply with the newspaper’s public-records requests – has prompted a bipartisan investigation by Michigan lawmakers. Meanwhile White’s latest suit largely survived a motion to dismiss by Defendants, when the Court decided on June 28, 2023, that his claims may proceed against DOC Director Heidi Washington and several guards, including Mosely. See: White v. Mich. Dep’t of Corr., 2023 U.S. Dist. LEXIS 111543 (E.D. Mich.).  

Additional source: Detroit Free Press

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