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Prisoner Not Retaliated Against, Whistleblower Claim Not Allowed
The U.S. Sixth Circuit Court of Appeals held that a Michigan state prisoner
did not present sufficient evidence of retaliation to survive summary
judgment, and refused to consider the prisoner's claim of whistleblower
protection presented for the first time on appeal.
Pablo X. Feliz, a Michigan Department of Corrections (DOC) prisoner, sued
prison chaplain Edward Taylor, Jr. under 42 U.S.C. §1983 for retaliating
against Feliz for filing grievances in violation of his First Amendment
rights. Feliz claimed he received a poor work evaluation after he disclosed
to a prison guard and a prison inspector that Taylor had ordered Feliz to
destroy certain files. Confronted with Feliz's statement, Taylor denied
that he had ordered Feliz to destroy the files. Taylor then issued an
unfavorable job evaluation on Feliz. Feliz filed grievances on the job
evaluation and on Taylor's discriminatory treatment of Jewish and Muslim
prisoners. Taylor fired Feliz and hired a new clerk.
Feliz's suit alleged that Taylor retaliated against him for exercising his
First Amendment rights. He sought damages and other relief. Taylor moved
for summary judgment on the merits of the claim and on qualified immunity
grounds. The district court granted summary judgment on all grounds and
Feliz appealed, raising for the first time a claim that he was entitled to
protection under Michigan and federal laws as a "whistle blower."
The Sixth Circuit held that it would not consider Feliz's whistle blower
claims as they were raised for the first time on appeal. The appellate
court held that, using the standard of Thaddeus-X v. Blatter, 175 F.3d 378,
394 (6th Cir. 1999) (en banc), Feliz had engaged in protected conduct and
did suffer adverse effects in his job. He failed to prove, however, a
causal connection between his termination and his filing of grievances. The
appeals court deemed Feliz's evidence to be "conclusory allegations" devoid
of facts sufficient to establish the necessary causal connection for
retaliation.
The district court's judgment was affirmed. This case is published in the
Federal Appendix and is subject to rules governing unpublished cases. See:
Feliz v. Taylor, 49 Fed.Appx. 3 (6th Cir. 2002).
did not present sufficient evidence of retaliation to survive summary
judgment, and refused to consider the prisoner's claim of whistleblower
protection presented for the first time on appeal.
Pablo X. Feliz, a Michigan Department of Corrections (DOC) prisoner, sued
prison chaplain Edward Taylor, Jr. under 42 U.S.C. §1983 for retaliating
against Feliz for filing grievances in violation of his First Amendment
rights. Feliz claimed he received a poor work evaluation after he disclosed
to a prison guard and a prison inspector that Taylor had ordered Feliz to
destroy certain files. Confronted with Feliz's statement, Taylor denied
that he had ordered Feliz to destroy the files. Taylor then issued an
unfavorable job evaluation on Feliz. Feliz filed grievances on the job
evaluation and on Taylor's discriminatory treatment of Jewish and Muslim
prisoners. Taylor fired Feliz and hired a new clerk.
Feliz's suit alleged that Taylor retaliated against him for exercising his
First Amendment rights. He sought damages and other relief. Taylor moved
for summary judgment on the merits of the claim and on qualified immunity
grounds. The district court granted summary judgment on all grounds and
Feliz appealed, raising for the first time a claim that he was entitled to
protection under Michigan and federal laws as a "whistle blower."
The Sixth Circuit held that it would not consider Feliz's whistle blower
claims as they were raised for the first time on appeal. The appellate
court held that, using the standard of Thaddeus-X v. Blatter, 175 F.3d 378,
394 (6th Cir. 1999) (en banc), Feliz had engaged in protected conduct and
did suffer adverse effects in his job. He failed to prove, however, a
causal connection between his termination and his filing of grievances. The
appeals court deemed Feliz's evidence to be "conclusory allegations" devoid
of facts sufficient to establish the necessary causal connection for
retaliation.
The district court's judgment was affirmed. This case is published in the
Federal Appendix and is subject to rules governing unpublished cases. See:
Feliz v. Taylor, 49 Fed.Appx. 3 (6th Cir. 2002).
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Related legal case
Feliz v. Taylor
| Year | 2002 |
|---|---|
| Cite | 49 Fed.Appx. 3 (6th Cir. 2002). |
| Level | Court of Appeals |
| Attorney Fees | 0 |
| Damages | 0 |
| Injunction Status | N/A |
PABLO FELIZ, Plaintiff-Appellant, v. EDWARD TAYLOR, JR., Defendant-Appellee.
No. 02-1364
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
49 Fed. Appx. 3; 2002 U.S. App.
October 1, 2002, Filed
NOTICE: [**1] NOT RECOMMENDED FOR FULL-TEXT PUBLICATION. SIXTH CIRCUIT RULE 28(g) LIMITS CITATION TO SPECIFIC SITUATIONS. PLEASE SEE RULE 28(g) BEFORE CITING IN A PROCEEDING IN A COURT IN THE SIXTH CIRCUIT. IF CITED, A COPY MUST BE SERVED ON OTHER PARTIES AND THE COURT. THIS NOTICE IS TO BE PROMINENTLY DISPLAYED IF THIS DECISION IS REPRODUCED.
PRIOR HISTORY: Eastern District of Michigan. 99-76354. Steeh. 03-11-02. Feliz v. Taylor, 2000 U.S. Dist. (E.D. Mich. Dec. 29, 2000).
DISPOSITION: Affirmed.
COUNSEL: PABLO FELIZ, Plaintiff-Appellant, Pro se, New Haven, MI.
For EDWARD TAYLOR, JR., Defendant-Appellee: Linda M. Olivieri, Office of the Attorney General, Lansing, MI.
JUDGES: Before: KENNEDY and MOORE, Circuit Judges; DOWD, District Judge. *
* The Honorable David D. Dowd, Jr., United States District Judge for the Northern District of Ohio, sitting by designation.
OPINION: [*4]
ORDER
Before: KENNEDY and MOORE, Circuit Judges; DOWD, District Judge. *
* The Honorable David D. Dowd, Jr., United States District Judge for the Northern District of Ohio, sitting by designation.
This is an appeal from [**2] a summary judgment for the defendant in this prisoner civil rights case filed pursuant to 42 U.S.C. § 1983. This case has been referred to a panel of the court pursuant to Rule 34(j)(1), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).
In 1999, Michigan inmate Pablo X. Feliz filed a civil rights action against a prison chaplain (Edward Taylor, Jr.) for monetary damages and other relief for the chaplain's having allegedly retaliated against Feliz after Feliz exercised his First Amendment rights. The matter was referred to a magistrate judge and Taylor moved for summary judgment. The magistrate judge recommended that summary judgment should be granted for Taylor on the merits and, alternatively, on grounds of qualified immunity. The district court adopted the recommendation over Feliz's objections and this appeal followed.
Feliz raises two issues of law in his appeal from the grant of summary judgment, namely, that his conduct was protected by state and federal "whistle blower" statutes and that Taylor was not entitled to qualified immunity. Only the immunity argument, however, [**3] was presented to the district court. This court reviews a grant of summary judgment de novo on the issue presented to the district court. Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1176-77 (6th Cir. 1996). Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together [*5] with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). An examination of the record and law supports the district court's judgment on the merits of the action without regard to whether Taylor was entitled to qualified immunity. The argument that Feliz enjoyed statutory "whistle blower" protection, not having been presented to the district court, should not be considered on appeal. See, e.g., Enertech Elec. v. Mahoning County Comm'rs, 85 F.3d 257, 261 (6th Cir. 1996).
The crux of this complaint is Feliz's insistence that he lost his prison job as Taylor's file clerk in retaliation for Feliz's having exercised his First Amendment rights to file prison grievances with and reveal certain details [**4] of his job to a prison guard. Feliz was acting as Taylor's file clerk at the Lakeland [Michigan] Correctional Facility on February 26, 1999, when Taylor directed Feliz to dispose of certain filed documents. Feliz and Taylor differ as to what documents Feliz was to discard. Feliz claims that he was told to dispose of all documents that were more than two months old; Taylor maintains he told Feliz to dispose of all documents over one year old but to save the remainder. Feliz apparently proceeded to act on his own interpretation. When he received a staff request for a recently-filed, but mistakenly-destroyed, document, he sent a note to Taylor telling him that the document had been destroyed according to Taylor's instructions. A prison guard saw the note, made a copy, and took it to an internal inspector. All parties subsequently met. On March 17, 1999, Taylor issued an unfavorable work evaluation of Feliz but did not request a new clerk.
Feliz filed the first of his formal grievances in this matter on March 24, 1999. Feliz contended that the unfavorable evaluation was in direct retaliation for Feliz having disclosed to the guard and inspector Taylor's order to dispose of old documents. [**5] In this grievance, Feliz sought to be transferred from his position as Taylor's file clerk. Feliz filed another grievance on April 21, 1999, directed to Taylor's alleged discriminatory treatment of Jewish and Muslim inmates. On April 22, 1999, Taylor orally informed Feliz that he was being relieved of his position as clerk. Felix filed a third grievance in response the next day, and Taylor officially requested a new clerk on April 26, 1999.
Feliz filed the present complaint on October 1, 1999, in which he sought damages and other relief under 42 U.S.C. § 1983 for alleged violations of his federal constitutional rights. There is no mention of any state or federal "whistle blower" statute in the complaint or in any responsive pleading filed by Feliz. Taylor eventually moved for summary judgment on the merits of the claim as well as on a qualified immunity theory. The magistrate judge to whom the matter was referred recommended granting the motion on all grounds, and Feliz filed objections to this recommendation. Feliz specifically objected to the conclusion that there was no causal connection between the exercise of his First Amendment rights and the loss of [**6] his prison job and to the conclusion that Taylor was entitled to qualified immunity. The district court reviewed the objections and adopted the report and recommendation.
On appeal, Feliz assigns two issues for review. First, Feliz contends that the district court erred in not finding Feliz to have been protected by state and federal "whistle blower" statutes.
Was the activity for which plaintiff was fired protected activity under both the Michigan and federal whistle-blower' [*6] protection acts. MCL 15.361; 42 USCA 9610; 42 USCA 7622; 29 USCA 660?
In addition, Feliz contends that the district court erred in concluding that Taylor was entitled to qualified immunity for his actions.
The record and law support the district court's conclusion that Taylor was entitled to summary judgment, as Feliz's evidentiary material did not show a jury question of retaliation. Feliz claimed that he lost his prison job because he 1) grieved his unfavorable job evaluation, and 2) disclosed Taylor's document-disposal instructions to a prison guard and inspector. In order to state a First Amendment claim for retaliation, [**7] a plaintiff must establish that: 1) he engaged in protected conduct; 2) he suffered an adverse action that would deter a person of ordinary firmness from continuing to engage in the protected conduct; and 3) the adverse action was motivated at least in part by the protected conduct. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). It is apparent that there was no causal connection between Feliz's first grievance and the initial unfavorable evaluation because the evaluation preceded the grievance by one week. In addition, the uncontradicted evidentiary material of record shows that the April 22, 1999, meeting was marked by Feliz being confrontational and demanding to be reassigned to another prison job. Although Feliz asserts that the defendant's actions were in retaliation for the grievances and disclosure of the document-disposal orders, he presents no facts to support this assertion beyond his conclusory allegations. Such conclusory allegations are insufficient to show that the defendants were motivated by the exercise of Feliz's First Amendment rights, see Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996), and bare allegations [**8] of malice on Taylor's part are not enough to establish retaliation claims against him. See Crawford-El v. Britton, 523 U.S. 574, 588, 140 L. Ed. 2d 759, 118 S. Ct. 1584 (1998). Feliz's failure to show any factual support for his retaliation claim or to bring his "whistle blower" claims to the district court, Enertech Elec., 85 F.3d at 261, means that the district court's judgment must be affirmed.
Accordingly, the district court's judgment is affirmed. Rule 34(j)(2)(C), Rules of the Sixth Circuit.
No. 02-1364
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
49 Fed. Appx. 3; 2002 U.S. App.
October 1, 2002, Filed
NOTICE: [**1] NOT RECOMMENDED FOR FULL-TEXT PUBLICATION. SIXTH CIRCUIT RULE 28(g) LIMITS CITATION TO SPECIFIC SITUATIONS. PLEASE SEE RULE 28(g) BEFORE CITING IN A PROCEEDING IN A COURT IN THE SIXTH CIRCUIT. IF CITED, A COPY MUST BE SERVED ON OTHER PARTIES AND THE COURT. THIS NOTICE IS TO BE PROMINENTLY DISPLAYED IF THIS DECISION IS REPRODUCED.
PRIOR HISTORY: Eastern District of Michigan. 99-76354. Steeh. 03-11-02. Feliz v. Taylor, 2000 U.S. Dist. (E.D. Mich. Dec. 29, 2000).
DISPOSITION: Affirmed.
COUNSEL: PABLO FELIZ, Plaintiff-Appellant, Pro se, New Haven, MI.
For EDWARD TAYLOR, JR., Defendant-Appellee: Linda M. Olivieri, Office of the Attorney General, Lansing, MI.
JUDGES: Before: KENNEDY and MOORE, Circuit Judges; DOWD, District Judge. *
* The Honorable David D. Dowd, Jr., United States District Judge for the Northern District of Ohio, sitting by designation.
OPINION: [*4]
ORDER
Before: KENNEDY and MOORE, Circuit Judges; DOWD, District Judge. *
* The Honorable David D. Dowd, Jr., United States District Judge for the Northern District of Ohio, sitting by designation.
This is an appeal from [**2] a summary judgment for the defendant in this prisoner civil rights case filed pursuant to 42 U.S.C. § 1983. This case has been referred to a panel of the court pursuant to Rule 34(j)(1), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).
In 1999, Michigan inmate Pablo X. Feliz filed a civil rights action against a prison chaplain (Edward Taylor, Jr.) for monetary damages and other relief for the chaplain's having allegedly retaliated against Feliz after Feliz exercised his First Amendment rights. The matter was referred to a magistrate judge and Taylor moved for summary judgment. The magistrate judge recommended that summary judgment should be granted for Taylor on the merits and, alternatively, on grounds of qualified immunity. The district court adopted the recommendation over Feliz's objections and this appeal followed.
Feliz raises two issues of law in his appeal from the grant of summary judgment, namely, that his conduct was protected by state and federal "whistle blower" statutes and that Taylor was not entitled to qualified immunity. Only the immunity argument, however, [**3] was presented to the district court. This court reviews a grant of summary judgment de novo on the issue presented to the district court. Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1176-77 (6th Cir. 1996). Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together [*5] with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). An examination of the record and law supports the district court's judgment on the merits of the action without regard to whether Taylor was entitled to qualified immunity. The argument that Feliz enjoyed statutory "whistle blower" protection, not having been presented to the district court, should not be considered on appeal. See, e.g., Enertech Elec. v. Mahoning County Comm'rs, 85 F.3d 257, 261 (6th Cir. 1996).
The crux of this complaint is Feliz's insistence that he lost his prison job as Taylor's file clerk in retaliation for Feliz's having exercised his First Amendment rights to file prison grievances with and reveal certain details [**4] of his job to a prison guard. Feliz was acting as Taylor's file clerk at the Lakeland [Michigan] Correctional Facility on February 26, 1999, when Taylor directed Feliz to dispose of certain filed documents. Feliz and Taylor differ as to what documents Feliz was to discard. Feliz claims that he was told to dispose of all documents that were more than two months old; Taylor maintains he told Feliz to dispose of all documents over one year old but to save the remainder. Feliz apparently proceeded to act on his own interpretation. When he received a staff request for a recently-filed, but mistakenly-destroyed, document, he sent a note to Taylor telling him that the document had been destroyed according to Taylor's instructions. A prison guard saw the note, made a copy, and took it to an internal inspector. All parties subsequently met. On March 17, 1999, Taylor issued an unfavorable work evaluation of Feliz but did not request a new clerk.
Feliz filed the first of his formal grievances in this matter on March 24, 1999. Feliz contended that the unfavorable evaluation was in direct retaliation for Feliz having disclosed to the guard and inspector Taylor's order to dispose of old documents. [**5] In this grievance, Feliz sought to be transferred from his position as Taylor's file clerk. Feliz filed another grievance on April 21, 1999, directed to Taylor's alleged discriminatory treatment of Jewish and Muslim inmates. On April 22, 1999, Taylor orally informed Feliz that he was being relieved of his position as clerk. Felix filed a third grievance in response the next day, and Taylor officially requested a new clerk on April 26, 1999.
Feliz filed the present complaint on October 1, 1999, in which he sought damages and other relief under 42 U.S.C. § 1983 for alleged violations of his federal constitutional rights. There is no mention of any state or federal "whistle blower" statute in the complaint or in any responsive pleading filed by Feliz. Taylor eventually moved for summary judgment on the merits of the claim as well as on a qualified immunity theory. The magistrate judge to whom the matter was referred recommended granting the motion on all grounds, and Feliz filed objections to this recommendation. Feliz specifically objected to the conclusion that there was no causal connection between the exercise of his First Amendment rights and the loss of [**6] his prison job and to the conclusion that Taylor was entitled to qualified immunity. The district court reviewed the objections and adopted the report and recommendation.
On appeal, Feliz assigns two issues for review. First, Feliz contends that the district court erred in not finding Feliz to have been protected by state and federal "whistle blower" statutes.
Was the activity for which plaintiff was fired protected activity under both the Michigan and federal whistle-blower' [*6] protection acts. MCL 15.361; 42 USCA 9610; 42 USCA 7622; 29 USCA 660?
In addition, Feliz contends that the district court erred in concluding that Taylor was entitled to qualified immunity for his actions.
The record and law support the district court's conclusion that Taylor was entitled to summary judgment, as Feliz's evidentiary material did not show a jury question of retaliation. Feliz claimed that he lost his prison job because he 1) grieved his unfavorable job evaluation, and 2) disclosed Taylor's document-disposal instructions to a prison guard and inspector. In order to state a First Amendment claim for retaliation, [**7] a plaintiff must establish that: 1) he engaged in protected conduct; 2) he suffered an adverse action that would deter a person of ordinary firmness from continuing to engage in the protected conduct; and 3) the adverse action was motivated at least in part by the protected conduct. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). It is apparent that there was no causal connection between Feliz's first grievance and the initial unfavorable evaluation because the evaluation preceded the grievance by one week. In addition, the uncontradicted evidentiary material of record shows that the April 22, 1999, meeting was marked by Feliz being confrontational and demanding to be reassigned to another prison job. Although Feliz asserts that the defendant's actions were in retaliation for the grievances and disclosure of the document-disposal orders, he presents no facts to support this assertion beyond his conclusory allegations. Such conclusory allegations are insufficient to show that the defendants were motivated by the exercise of Feliz's First Amendment rights, see Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996), and bare allegations [**8] of malice on Taylor's part are not enough to establish retaliation claims against him. See Crawford-El v. Britton, 523 U.S. 574, 588, 140 L. Ed. 2d 759, 118 S. Ct. 1584 (1998). Feliz's failure to show any factual support for his retaliation claim or to bring his "whistle blower" claims to the district court, Enertech Elec., 85 F.3d at 261, means that the district court's judgment must be affirmed.
Accordingly, the district court's judgment is affirmed. Rule 34(j)(2)(C), Rules of the Sixth Circuit.