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Michigan Prisoner’s Whistleblowing on GED Test Cheating Survives Summary Judgment

by David M. Reutter

A Michigan federal district court found on January 6, 2020 that allegations by a prisoner tutor that prison officials retaliated against him for blowing the whistle on GED test cheating were sufficient to survive summary judgment.

Munin Kathawa, a prisoner at Michigan’s G. Robert Cotton Correctional Facility (JCF), is a lifer who decided to use his talents as a tutor to help other prisoners earn their GEDs. “There is no dispute that Kathawa was an excellent tutor,” the court found.

From July 2016 to September 2017, Kathawa worked in non-party Laura Bendele’s classroom to help prisoners with learning disabilities and those who struggled to pass the GED. He was reassigned to Spencer Kinney’s classroom by Principal Brian Friedman after the latter received a report on concerns regarding Kathawa and Bendele.

Shortly thereafter, Kathawa was asked to help a prisoner who was due to go home in November. When the student passed with a 169 score, Kathawa was surprised. After questioning the student, he realized he could not have fairly passed the exam.

The student told him that Kinney and others had provided him with the exam answers. Kathawa documented eight other instances of cheating. Kathawa complained that the GED program was geared more toward testing than toward learning.

During a February 2018 staff meeting, the topic of the “overfamiliarity” between Kathawa and Bendele was discussed. The school guards were told that Kathawa should have no contact with Bendele, but this was never relayed to Kathawa. He was subsequently issued a misconduct report for being outside Bendele’s classroom. That report was dismissed on a technicality.

Meanwhile, Friedman received kites from other prisoners requesting that Kathawa be reassigned to Bendele’s classroom, which were viewed by officials that Kathawa was manipulating other prisoners. Kathawa was ultimately removed from his tutor position because prison officials alleged that Bendele had expressed concerns for her safety around Kathawa. Bendele was called into a meeting but refuted that account and subsequently was given a split schedule between JCF and another prison.

Prison officials recommended Kathawa be disciplined for filing allegedly frivolous grievances on the GED matter, and he was transferred to another prison. Because he was in a college program and should have never been transferred, he was returned to JCF. After he filed his civil rights complaint alleging his First Amendment right to freedom of speech was violated by the defendants’ retaliatory actions, they filed a motion for summary judgement.

The district court found that the “temporal proximity of Kathawa’s protected conduct to the adverse actions taken against him, and the substantial circumstantial evidence is more than enough to raise an inference of retaliatory intent in this case.”

While the record does not show the defendants had actual knowledge of Kathawa’s complaints about the GED program, the circumstantial evidence shows they had such knowledge. Additionally, they could not show that absent his complaints they would have taken the action of removing him as a tutor. The court also held the defendants were not entitled to qualified immunity. The defendants’ motion for summary judgment was denied. See: Kathawa v. Friedman, USDC (E.D. MI), Case No. 2:18-cv-13026.

Related legal case

Kathawa v. Friedman