Ball v. Evers

LARRY BALL, Plaintiff, v. BRIAN EVERS, FREDERICK UDELL, JESSICA SMALLEY-THOMPSON, and ROBERT JOHNSON, Defendants.

No. 19-10315

United States District Court, E.D. Michigan, Southern Division

July 27, 2021

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

DAVID M. LAWSON United States District Judge

Larry Ball, a former Michigan prisoner, is a gay man who was subjected to sexual harassment during his incarceration by Zachary Perkins, a prison guard employed by the Michigan Department of Corrections (MDOC). He brought suit against Perkins and other MDOC employees under federal and state law. Perkins was fired for his misconduct and no longer is part of this lawsuit. The remaining defendants have moved for summary judgment, raising several arguments, including qualified immunity as to Ball's federal claims. Ball has not produced sufficient evidence to establish a triable case on any of his claims as to defendants Evers, Smalley-Thompson or Johnson. Fact issues preclude summary judgment for defendant Udell on Ball's Eighth Amendment and First Amendment retaliation claims and part of the claim based on state law. Therefore, the Court will grant in part and deny in part the motion for summary judgment.

I.

Via his second amended complaint, Ball asserts claims against defendants Fredrick Udell (a corrections officer) and Robert Johnson (an MDOC investigator) for violating his rights under the Eighth Amendment's prohibition against cruel and unusual punishment; against defendants Udell and Brian Evers (a resident unit manager) for unlawful retaliation under the First Amendment; and against all defendants, including Jessica Smalley-Thompson (a prison counselor) under Michigan's Elliot Larsen Civil Rights Act, Mich. Comp Laws § 37.2701, et seq., for creating a hostile environment and quid pro quo discrimination. Ball has abandoned all his claims against defendant Smalley-Thompson. The claims against the other remaining defendants are based on the following facts in the record.

A. Perkins's Harassing Conduct

On July 18, 2014, Ball, an openly gay African-American man, began serving a four-year sentence for retail fraud at the MDOC's Charles Egeler Reception Center. During his initial intake, the MDOC identified Ball as a likely victim of sexual assault due to his open homosexuality and small stature (5'7” tall and weighing 135 pounds).

The MDOC transferred Ball to various facilities until it placed him at the Gus Harrison Correctional Facility (formerly the Adrian Residential Facility, commonly referred to by the parties as “ARF”) on November 26, 2014. There, Ball was housed in the C-Unit, a semi-open, minimum-security housing unit composed of “cubes” that hold eight prisoners each in cells. The cubes are not fully enclosed; the walls are “a couple feet high, ” allowing corrections officers to view and hear activities in the cubes. The MDOC housed Ball in the fourth cube in the front hall of the C-Unit, and housed another homosexual prisoner, Austin Cook, in the first cube in the front hall. Generally, the MDOC stations an officer at a desk inside the C-Unit's lobby.

Around the beginning of 2016, Ball alleges that corrections officer Zachary Perkins had become sexually attracted to him and started “to act on that attraction.” Perkins first saw Ball in the C-Unit, where, after seeing Ball's apparent sexual orientation (he occasionally dressed in drag), he said, “Hi Ma'am. I mean Sir.” Perkins then began repeatedly calling Ball out on the prison yard. Ball believed that as an inmate, he had no choice but to obey Perkins's requests to approach him. When Ball complied, Perkins conducted intrusive pat-downs followed by discussions about personal sexual matters. During these pat-downs, Perkins often groped Ball's genitals, which Ball found extremely offensive and upsetting.

By around March or April 2016, Perkins began regularly visiting the C-Unit, even though he was not stationed there. Perkins would initially stop by the officer's station in the lobby to converse with defendant Frederick Udell, a corrections officer who usually was stationed in the C-Unit from 2:00 p.m. to 10:00 p.m. Then Perkins would visit and chat with Cook, the other homosexual inmate in the C-Unit. From there, Perkins would work his way to Ball's cell, where he would spend up to twenty minutes talking with Ball, including conversations that were sexually oriented.” Perkins regularly visited Ball up to four times per week for over eight weeks, through early June 2016. Joseph Christlieb, who occupied the same cube as Ball, swore that “Perkins would come into the cube almost every day when [] Udell was on duty, even though Perkins was obviously not assigned to C-Unit.” Christlieb Aff., ECF No. 71-16, PageID.1367, ¶ 2.

Ball contends that officer Udell knew about Perkins's improper interactions with Ball because “Udell's desk was only a couple feet away, [] he was looking directly at Perkins and me during these interactions, ” and “Perkins would speak in a loud voice, ” making the conversations easily heard. Ball Aff., ECF No. 71-13, PageID.1284, ¶ 35; Ball dep., ECF No. 71-10, PageID.1232. During his deposition, Udell admitted that he saw Perkins repeatedly visit Ball's cell, but he could not recall how long the visits lasted and insisted that he could not hear what they were discussing. During a subsequent interview, however, he stated that Perkins “always” went to Ball's cell when he visited the C-Unit and that the visits lasted a “while . . . maybe 10 or 15 minutes, ” sometimes longer. Johnson Report, ECF No. 71-5, PageID.1018-19.

Additionally, Perkins conducted “shakedowns” of Ball's cube in the presence of Udell. During these shakedowns, Perkins asked Ball to step out of the cube, and Perkins would pat him down, often groping his genitals. Perkins also called Ball derogatory names, including “fag, ” “sissy” and “d*ck sucker, ” according to a C-Unit inmate, in a voice “loud[] enough to be heard throughout the front hall.” Christlieb Aff., ECF No. 71-16, PageID.1367, ¶ 9. Then Perkins would direct Ball to go to the dayroom, which was beside the officer's station in the lobby, and they would pass Udell on the way.

Ball also alleges that Perkins wrote a letter to him and Cook, indicating that Ball's appearance got him sexually aroused and that if he had an opportunity, he “would take [Ball] into the front hall closet as well as Austin Cook.” Ball dep., ECF No. 71-10, PageID.1211; Johnson dep., ECF No. 71-9, PageID.1170-71.

B. Report, Investigation, and Perkins's Termination

The parties provide different accounts of what happened next.

Ball contends that, on May 24, 2016 around 9:15 a.m., he verbally reported Perkins's sexual harassment to defendant Robert Johnson, an officer in charge of investigating sexual harassment of prisoners.

The defendants tell a different story. They note that Ball never filed a grievance or kite about Perkins's conduct until August 29, 2016, after the MDOC resolved the issue and transferred Ball to a different facility. Ball's prison record reflects only one grievance filed while he was housed in the Gus Harrison facility, but it pertains to unrelated harassment by different officers.

The defendants contend that Investigator Johnson never learned about Perkins's harassment of Ball until June 10, 2016, when he investigated complaints that Perkins was harassing Cook, the gay inmate in the first cube of the C-Unit. According to Johnson, he heard rumors that Perkins delivered an inappropriate letter to Cook. Johnson followed up with Cook, who denied having received any letters from Perkins but stated that Perkins “is always stopping by my cube on his way to Ball's cube.” When asked to elaborate, Cook told Johnson that “everyone knows that Perkins has a thing for Ball, ” that he hangs out with Ball almost every night, and that they discuss intensely sexual subjects, like “who has seen more d*cks and what gay clubs” they attend. Johnson reported that the alleged incidents occurred on May 28 through 30, 2016.

Following up on Cook's allegations, Investigator Johnson interviewed Perkins on June 13, 2016. In his report, Johnson expressed the belief that “Perkins was actively manipulating his presentation to conceal certain facts[, ] making it probable that Perkins' actions” violated various employee rules. Johnson Report, ECF No. 71-5, PageID.1016. Investigator Johnson reported his suspicions, and the Warden assigned him to formally begin an investigation. The next day, Johnson alerted Perkins about the allegations and began interviewing various persons of interest. He interviewed Udell, Perkins (twice), Ball, Cook, prisoners Williams, Prince, Christlieb, Britton, Jackson, and Cole; and he issued written questionnaires to Udell (returned on June 27) and Perkins (July 1).

After conducting his investigation, Johnson concluded that Perkins engaged in a nonmutual relationship with Ball, he often left his post to visit Ball without authorization, he tried to conceal the relationship, and “Perkins knew that this relationship and those communications were improper.” Id. at PageID.1024. Johnson submitted his report to the Deputy Warden on August 2, 2016, concluding that “there appears to be sufficient evidence to support the allegation made and as such, Zachary Perkins may have violated” several employee rules. Ibid. The Deputy Warden reviewed the report, agreed with Johnson, and presented it to the Warden on August 4, 2016.

The Warden agreed, and on August 8, 2016, the Deputy Warden issued a “Stop Order” prohibiting Perkins from entering the prison. The prison then held a disciplinary hearing on August 28, 2016 and terminated Perkins's employment on September 12, 2016.

Ball interprets the...