Over $7,600 Awarded to Tennessee Prisoner for Retaliatory Cell Search and Transfer
On March 13, 2023, the federal court for the Western District of Tennessee awarded $3,176.67 in costs to a state prisoner in his suit against the warden and three guards at West Tennessee State Penitentiary (WTSP). After a jury earlier found in his favor on his retaliation claim, the Court awarded damages of $1,776 to Kenneth W. Parnell on November 10, 2022. Another $2,664 in attorney fees – of which Parnell was ordered to cover $444 – was added on January 10, 2023. That brought the total judgment in his favor to $7,616.67.
Parnell’s prison job at WTSP was grievance clerk under Associate Warden Johnny Yolanda Fitz. According to the complaint he later filed, Fitz appointed Sgt. Kristy Parker the new grievance chairperson when Cpl. Sueann Brewer took a temporary leave of absence in April 2017. But Parker allegedly violated grievance policies and practices, and when Parnell drew this to her attention, she entered a false “adverse contact note” against him.
Parnell prepared a grievance, including details about Parker’s policy violations and her apparent goal of taking over Brewer’s position permanently. On June 13, 2017, two guards then searched Parnell’s cell, finding and taking the grievance he had prepared – on the order of Fitz, one of the guards reportedly said.
Within 18 hours, Parnell was transferred from WTSP to Trousdale Turner Correctional Complex (TTCC), a notoriously violent lockup operated for the state Department of Corrections (DOC) by private prison giant CoreCivic. Before leaving WTSP, Parnell submitted a grievance about the cell search, but it was never logged. Worse, as a result of the transfer, he lost his prison job, recreational opportunities, family visits and the ability to participate in religious activities.
Parnell mailed a third grievance concerning the transfer, cell search and confiscation of his prepared grievance to the grievance office at WTSP, since no grievance chairperson was assigned at TTCC. Months later it was rejected as “non-grievable.”
Alleging retaliation for exercising his First Amendment rights, Parnell filed suit pro se in the Court pursuant to 42 U.S.C. § 1983 against Fitz, Parker and three guards. After initial screening, his claims against Parker and one of the guards were dismissed.
The remaining defendants moved for summary judgment, arguing that none of what happened to Parnell constituted retaliation and, further, that he had not exhausted the grievance process as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e.
The Court denied that motion on March 22, 2022. Citing Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999) (en banc), it found that Parnell had adequately stated a retaliation claim because the adverse consequences he allegedly suffered for engaging in protected conduct would deter a person of “ordinary firmness” from continuing to engage in that conduct.
The Court further determined there were genuine issues of material fact as to the motivation for the cell search and whether the grievance had been seized (which Defendants denied), as well as the reason for Parnell’s transfer from WTSP to TTCC. While transfers to other prisons generally are not considered adverse actions, the U.S. Court of Appeals for the Sixth Circuit held in Hill v. Lappin, 630 F.3d 468 (6th Cir. 2010), that a transfer in retaliation for exercising First Amendment rights stated a claim.
Defendants also claimed that mailing his grievances to WTSP was improper, but the Court said instead that “[a] reasonable juror could find both that [Parnell] properly exhausted his administrative remedies; and, in the alternative, that the grievance process was unavailable to him,” since his earlier grievance “disappeared” from WTSP and the absence of an authority at TCCC left no way to comply with the grievance policy there. See: Parnell v. Fitz, U.S.D.C. (W.D. Tenn.), Case No. 2:17-cv-02847.
The Court then appointed Parnell counsel from attorney Jacob W. Brown of Apperson Crump PLC in Memphis. The case proceeded to trial, and the jury found against Fitz on October 28, 2022. The Court then took up the issue of damages 13 days later and determined that $8.00 per day in compensatory damages was appropriate for the 222 days Parnell spent at TTCC before being moved to another facility.
“Deprived of liberty,” the Court wrote, “an incarcerated person’s right to petition a grievance is his only shield. Without it, the incarcerated person lives at the mercy of his custodians. That is not how we do things in this country.” See: Parnell v. Fitz, 2022 U.S. Dist. LEXIS 241708 (W.D. Tenn.).