Sixth Circuit Reverses Dismissal of Retaliation Suit by Pro Se Michigan Prisoner
The court’s June 30, 2020 opinion was issued in an appeal brought by Michigan prisoner Leon Taylor. His civil rights action alleged David Kimmel, the quartermaster at Carson City Correctional Facility, violated his First Amendment rights by issuing him a major misconduct ticket in retaliation for filing a grievance against Kimmel. Taylor appealed after the district court granted summary judgment to Kimmel.
The first issue the Sixth Circuit resolved was Taylor’s contention that the district court abused its discretion by denying his motion to compel discovery. At Taylor’s request, the discovery deadline was extended to September 4, 2018. Taylor issued subpoenas to Kimmel on August 9, 2018, to produce video surveillance, emails, grievances, and misconduct reports. It was not until December 14, 2018 that Taylor filed a motion to compel Kimmel to answer the subpoenas.
The Sixth Circuit found Taylor failed to properly raise his argument before the district court. He was denied evidence needed to respond to Kimmel’s motion for summary judgment. In his response to that motion, he did not assert a need for additional discovery. He also failed to file an affidavit or declaration stating he could not present facts essential to justify his opposition to the motion. Because he did not comply with Federal Rule of Civil Procedure 56(d) or otherwise alert the district court of the need for additional discovery, the district court’s order denying the motion to compel was not an abuse of discretion.
The Sixth Circuit then turned to Taylor’s challenge to the grant of summary judgment in Kimmel’s favor. The court found no error in the district court finding Taylor’s complaint was not properly verified to constitute admissible evidence. While his verification statement was made “under the penalty of perjury,” it said the allegation was believed to be “true and correct except those based on information and belief.” The court said Taylor failed to distinguish between the allegations made on personal knowledge and those made on information and belief in the complaint.
The district court, however, failed to consider Taylor’s affidavit filed in response to Kimmel’s motion for summary judgment. While an unsworn affidavit cannot be used to oppose such a motion, ‘‘a statutory exception to this rule exists which permits an unsworn declaration to substitute for a conventional affidavit if the statement contained in the declaration is made under the penalty of perjury, certified as true and correct, dated, and signed.’’ Pollock v. Pollock, 154 F.3d 601 (6th Cir. 1998).
The district court further erred by failing to consider Taylor’s grievance and misconduct ticket because he failed to cite the specific record number for each document. While the court is under no duty to search the record to establish it is bereft of a genuine issue of material fact, those documents were attached to Kimmel’s motion and should have been considered.
The next issue was whether Taylor presented sufficient evidence to support his retaliation claim. The Sixth Circuit found he did. It noted that Taylor told Kimmel he was filing a grievance against him because he refused to “snitch” on a co-worker and that Kimmel said he was writing, and did write, a misconduct ticket against Taylor because he filed the grievance. Taylor was removed from his job in the quartermaster as a result, which was adverse action. These facts met the three elements of a First Amendment retaliation claim. Thus, the district court erred in granting judgment to Kimmel and that order was vacated.
Finally, Taylor’s motion to appoint counsel was denied because he ably represented himself on appeal. As this issue goes to press the case remains set for trial. See: Taylor v. Kimmel, 2020 U.S. App. Lexis 20443 (6th Cir. 2020).
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Related legal case
Taylor v. Kimmel
|Cite||2020 U.S. App. Lexis 20443 (6th Cir. 2020)|
|Level||Court of Appeals|