United States District Court, Eastern District of Missouri, Eastern Division
MEMORANDUM AND ORDER
JEAN C. HAMILTON, UNITED STATES DISTRICT JUDGE
This matter is before the Court on Defendants Brian D. Hall and Joey Arcand’s (collectively “Defendants”) Motion for Summary Judgment, filed December 5, 2014. (ECF No. 119). The motion is fully briefed and ready for disposition.
Plaintiff Ronald Jordan is an offender in the Missouri Department of Corrections (“MDOC”), currently incarcerated at Potosi Correctional Center (“PCC”) in Mineral Point, Missouri. (ECF No. 121, ¶ 1). Defendant Brian D. Hall (“Hall”) is employed by MDOC as a Corrections Officer I (“COI”), and currently assigned to PCC. (Id., ¶ 2). Defendant Joey Arcand (“Arcand”) is employed by MDOC as a Correctional Case Manager, and currently assigned to Eastern Reception Diagnostic and Correctional Center (“ERDCC”). (Id., ¶ 3). Defendant Paul Johnson (“Johnson”) was previously employed by MDOC as a Caseworker (“CCA”) at PCC. (Id., ¶ 4).
At approximately 8:40 or 8:45 p.m. on May 2, 2010, Hall called for a lockdown in Housing Unit 5 at PCC. (ECF No. 121, ¶ 8; ECF No. 136, ¶ 8). Hall maintains the lockdown was broadcast over the loudspeaker, and the parties agree that prisoners in the housing unit began returning to their cells. (ECF No. 121, ¶¶ 9, 10). Shortly thereafter, Plaintiff exited his cell and asked whether there were five more minutes before lockdown. (Id., ¶ 11). Hall maintains Plaintiff was told no, and then proceeded to argue with Hall. (Id., ¶¶ 11, 12). The parties agree Plaintiff did return to his cell at that point. (Id., ¶ 13).
Plaintiff eventually received a conduct violation (CDV), for violation of the following rules: 19.1-Creating a Disturbance, and 20.1-Disobeying an Order. (ECF No. 121-3, P. 19).Hall believed that because of his actions during the lockdown, Plaintiff was a security risk and needed to be placed in protective custody. (ECF No. 121, ¶ 16). At approximately 9:50 p.m. on May 2, Plaintiff was interviewed by COII Chad Cooke (“Cooke”) regarding the CDV. (Id., ¶ 17). During the interview, Plaintiff stated that he did not hear the lockdown announcement over the loudspeaker. (Id., ¶ 18). He did not request that Cooke interview any witnesses. (Id.).
On May 3, 2010, Plaintiff prepared a written defense statement to the CDV. (ECF No. 121-3, PP. 20-21). On May 6, 2010 Arcand, as Disciplinary Hearing Officer (“DHO”), held a hearing on the CDV. (ECF No. 121, ¶ 20). Plaintiff requested that Arcand review video footage from Housing Unit 5 for the night of May 2, 2010, to show that he did not argue with Hall but instead returned to his cell as directed. (Id., ¶ 22). Arcand maintains he informed Plaintiff it is not MDOC’s practice or procedure to review video footage for minor conduct violations, and that nothing in the procedures required him to do so simply because Plaintiff so requested. (Id., ¶ 23). The parties agree that video recorders at PCC do not record sound, only picture, so Arcand would not have been able to tell what was being said even if he had conducted the requested review. (Id., ¶ 24).
Plaintiff was found guilty of the CDV, and the finding was recommended as submitted by Cindy Griffith, the Functional Unit Manager (“FUM”) of Housing Unit 5. (ECF No. 121, ¶ 25). On or about May 17, 2010, Plaintiff filed an Informal Resolution Request (“IRR”), stating that the DHO had failed to review requested evidence, i.e., the videotape. (Id., ¶ 26; ECF No. 121-3, PP. 15-17). Plaintiff’s IRR was denied by G. Bollinger, CCA, as follows:
I have reviewed all pertinent information regarding your complaint and can find no evidence to support your claims. Furthermore, there is nothing in SOP19-1.3A that says the DHO must use video evidence when an offender requests it. You were found guilty on the CDV, (PCC10-00712), by the DHO. The FUM reviewed these findings and the acting Assistant Warden approved the findings and sanctions.
(ECF No. 121-3, P. 14). Plaintiff then filed a Grievance Appeal, which was denied on August 12, 2010, as follows:
After reviewing the pertinent material I find you were given due process and found guilty. The evidence was sufficient to support the findings with no procedural errors to warrant dismissal. Also, department property such as recorded video feed from security cameras, is not provided just because an offender requests such.
(Id., P. 5). Plaintiff further appealed to Deputy Division Director Dwayne Kempker, who denied Plaintiff’s Appeal on September 2, 2010, in relevant part as follows:
I have thoroughly reviewed your complaint and relative documentation. PCC SOP/IS-Disciplinary Hearings Minor, III, G.1. states that “The offender shall be allowed to make a statement and present evidence on her/his behalf” and d. “The reason for any such exclusion shall be listed on the Disciplinary Action Report.” You were afforded the opportunity to make a statement and present evidence; it is noted that you did not have any evidence to present at the hearing. Section III, 7. states “The disciplinary hearing officer should call witnesses available and necessary to the charge being reviewed, but need not call witnesses with repetitive information” and b. “Reasons for failing to call any witnesses or obtain statements from the witnesses requested by the offender should be recorded on the Witness Request form.” There is no indication that you requested witnesses at the interview of the violation report; therefore a Witness Request form was not completed or available for staff to note anything on. In addition, you may feel that the video footage of the housing unit wing is your “witness”; however policy is referring to individuals and not video footage when referring to the word “witness”. The video footage was not available for review when the violation was heard on 5/06/10, and video footage of the housing unit’s wing are usually not kept for an extended period of time unless certain incidents have occurred on the housing unit and staff know such may need to be referred to at a later date, i.e. assaults, use of forces, etc. Staff is not required to view videotapes, which have no audio, just because an offender requests it. I find that the violation was appropriately issued to you and you received due process on such with no noted errors. The violation and sanction will remain as written; your request for remedy is denied.
(Id., P. 3).
As a result of the May 2, 2010, CDV, Plaintiff was placed in administrative segregation (“ad-seg”). (ECF No. 121, ¶ 34). According to Defendants, a Temporary Administrative Segregation Confinement (“TASC”) Order was prepared on May 2, 2010 (the day Plaintiff was assigned to ad-seg), signed by Jeffrey Turner, CSI, and approved by Superintendent Ian Wallace. (Id., ¶¶ 34-36). Plaintiff denies that an official TASC order approving Plaintiff’s ad-seg confinement was prepared on May 2, 2010. (ECF No. 136, ¶¶ 34-36). He therefore requested an IRR from Arcand, and submitted the completed form on or about September 20, 2010. (ECF No. 1, P. 12). Plaintiff maintains the following month Johnson showed him the previously delivered document, insisted it was a TASC order, and then scolded Plaintiff for filing an IRR relating to it. (Id., PP. 12-13). According to Plaintiff, Johnson then threatened that even if Plaintiff managed to return to general population, he would not be allowed to resume his job in the chair factory. (Id., P. 13).
Plaintiff claims he never received any feedback on his filed IRR. (ECF No. 1, P. 13). He therefore followed up, first with Johnson, and then with FUM Kay Malloy and Grievance Officer Robert Savage. (Id., P. 14). Plaintiff finally wrote to Arcand in January of 2011, requesting the tracking number for the IRR, and Arcand informed Plaintiff that the computer contained no record he had filed an IRR. (Id.). Plaintiff maintains Johnson discarded his original IRR in order to obstruct Plaintiff’s ability to seek redress of his situation. (Id., P. 15).
Plaintiff filed a second IRR on March 4, 2011, for “[f]ailure to adhere to the mandates of SOP21-1.1 Temporary Administrative Segregation Confinement, resulting in arbitrary Ad-Seg confinement, in violation of procedural due process.” (ECF No. 121-4, P. 10). Plaintiff complained that he was not given a copy of the TASC form when he was placed on TASC on May 2, 2010. (ECF No. 121-4, PP. 12, 16). Plaintiff’s IRR regarding the alleged failure to provide the TASC order was denied. (Id., P. 15).
Plaintiff filed an Offender Grievance on April 1, 2011, which was denied on May 24, 2011. (ECF No. 121-4, PP. 7-8). Plaintiff then appealed to Division Director Kempker, who ...