Veeder v. TRI-CAP

RANDY VEEDER, Plaintiff, v. TRI-CAP, SANDRA EAGLE, BRIAN MAGIPORA,¹ OPEN DOOR, NEW PATHS, INC.,and WILLIAM RALEIGH, Defendants.

CASE NO. 17-cv-11690

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

January 30, 2020

DISTRICT JUDGE TERRENCE G. BERG

MAGISTRATE JUDGE PATRICIA T. MORRIS

REPORT AND RECOMMENDATION on MOTIONS FOR SUMMARY JUDGMENT (ECF Nos. 84, 87, 90, 92 )

I. Introduction

On May 22, 2017, Plaintiff Randy Veeder filed this pro se action against the above Defendants and others since dismissed from the case. (Doc. 1). Currently before the Court are four motions for summary judgment. (ECF Nos. 84, 87, 90, 92). For the reasons that follow, I RECOMMEND GRANTING all four motions and also sua sponte DISMISSING under 28 U.S.C. § 1915(e)(2)(B) any First Amendment denial-of-court-access claim against Defendants Mangapora and Eagle.

II. Report

A. Facts and Procedural History

On May 22, 2017, Plaintiff filed his initial complaint. Over the course of the next six months, he made four motions to amend his complaint. (Docs. 9, 13, 15, 19). On January 2, 2018, the Court granted his most recent motion to amend, (Docs. 19, 20), and thus his proposed amended complaint supplanted his initial complaint. See (Doc. 25). His other motions to amend were then dismissed as moot. (Doc. 20).

Plaintiff's complaint levies accusations of numerous civil rights violations, beginning in July 2015 in Midland County. (Doc. 25). There, he contends, his parole agent, defendant Sandra Eagle and her supervisor, defendant William Raleigh, "forced [Plaintiff] to reside at the Open Door . . . a homeless shelter that is run by a church in Midland." (Id. at PageID.134). His parole agreement, signed July 15, 2015, did not mandate that he stay at Open Door; rather, its provision on housing stated that he "must not change residence without prior permission of the field agent." (ECF No. 84 at PageID.605). It also stated that Plaintiff had to "comply . . . with written or verbal orders made by the field agent." (Id.) Plaintiff testified that Eagle required him to stay at Open Door until he could find another residence she would approve. (ECF No. 87 at PageID.698-699). Eagle says she "referred him to Open Door as a possible residence," but that it was not a parole condition. (ECF No. 84 at PageID.608-609).

According to an affidavit from Renee Pettinger, the executive director of Open Door, the program "is a private, non-profit religiously affiliated organization that provides shelter, food, and clothing to less fortunate and vulnerable individuals." (ECF No. 87 at PageID.715). Pettinger also stated that Open Door was not affiliated with the state of Michigan, did not receive remuneration from the state to house parolees, did not have anongoing contractual or other arrangement to house parolees, and would not contact the state if a parolee left, although it would "provide information to a parole agent within the bounds of an executed authorization, if said parole agent inquires." (ECF No. 87 at PageID.716).

Plaintiff's complaint states that Open Door forced its residents to "wake up and attend prayer every morning, also Tuesday night meeting, religious speaker, coffe[e] house every month, and attend church on Sundays." (ECF No. 25 at PageID.134). Plaintiff asserts that "Corrections employee[s were] constantly trying to force the Plaintiff to 'choose a religion' or force the Plaintiff into some kind of faith-based program or housing." (Id. at PageID.134-135). Included in the record is a copy of Open Door's rules, signed by Plaintiff on July 15, 2015, that states he was required to attend prayer meetings, abide by a curfew, and attend a church of his choice, among other things. (ECF No. 87 at PageID.709).

Plaintiff testified that he left Open Door on July 19, 2015, and did not return by curfew, resulting in a parole violation and jail time. (ECF No. 87 at PageID.697). Plaintiff then returned to Open Door on July 29, 2015. (ECF No. 87 at PageID.703-706). In the intake paperwork, he wrote that he was referred to the program by "Self." (ECF No. 87 at PageID.703). He again signed a copy of Open Door's rules. (ECF No. 87 at PageID.711). Plaintiff testified that in August 2015, Eagle granted his request to move out of Open Door. (ECF No. 87 at PageID.697).Plaintiff's complaint alleges that his placement at Open Door violated his First Amendments by coercing participation in religious programming. (ECF No. 25 at PageID.134).

Plaintiff was subsequently convicted of other offenses in 2016. (ECF No. 90 at PageID.832-833). In a Probation Order dated January 19, 2017, Judge Michael J. Bealeordered Plaintiff to "enter and successfully complete the Tri Cap RWP Program. [Plaintiff] is to be released from the Midland County Jail on 1-18-2017 to Tri Cap custody." (ECF No. 90 at PageID.758, 760, 762). The court order named defendant Brian Mangapora as the probation officer. (ECF No. 90 at PageID.757, 759, 761).

According to an affidavit from Gary Davis, TRI-CAP's executive director, "[n]either the courts nor the Michigan Department of Corrections [MDOC] are involved in the daily activities of TRI-CAP, and do not direct the programming offered by TRI-CAP to individuals who stay at TRI-CAP as part of their probation or parole." (ECF No. 90 at PageID.817).

Plaintiff's amended complaint alleges that Mangapora and Eagle forced him to enter and complete the TRI-CAP program. (ECF No. 25 at PageID.135). He claims that while there he was "forced to attend a faith based," church-run program called "RU" to meet a weekly hours requirement. (ECF No. 25 at PageID.136). Failure to meet the requirement would allegedly have resulted in a write up, termination from the program, a probation or parole violation, and jail or prison time. (Id.).

While Plaintiff was a resident at TRI-CAP, he alleges, Eagle and Mangapora "forced" him to participate in a program that put him to work in a Saginaw cemetery. (Id. at PageID.135). He describes working outside in winter without proper food or clothing, and also complains that he had to work as a pall bearer and "acknowledge and participate with Mangapora from family's church, pastor and prayer." (Id. at PageID.135-136). He claims that Mangapora and Eagle were also aware of Plaintiff's complaints about TRI-CAP and "ignored" his request for a pass to access legal materials or "to talk to a[n]attorney to make a complaint." (Id. at PageID.140). According to the complaint, Mangapora informed Plaintiff that if he was uncomfortable being at TRI-CAP, he could move Plaintiff to New Paths, but that Plaintiff would have to start over with no credit for the time he had spent at TRI-CAP. (Id.). Plaintiff's complaint alleges that his placement at TRI-CAP violated his First Amendment rights. (ECF No. 25 at PageID.136).²

On April 20, 2017, Plaintiff absconded from TRI-CAP and was arrested and sentenced to 30 days in jail. (Id. at PageID.141). On June 1, 2017, Plaintiff's Probation Order was amended by Judge Stephen P. Carras, adding a new condition signed by Mangapora: "The defendant must enter and successfully complete New Paths SUD Program. Defendant is to be remanded until bed is available and released to the custody of New Paths staff." (ECF No. 92 at PageID.911-913).

An unsigned "Service Agreement" was completed on June 12, 2017. (Id. at PageID.951). New Paths' brief indicates that the Agreement was "executed" by Mangapora, whose name was typed on the agreement. (Id. at PageID.887, 951). The Agreement provided instructions and terms of Plaintiff's stay. Included were that New Paths would send Mangapora monthly updates and notices of program violations; that Plaintiff was to receive substance abuse treatment and Substance Abuse Disorder (SUD) programing; that he could leave the facility for substance abuse treatment; and that he could not have access to a cell phone or the internet. (Id. at PageID.951-952). New Paths'executive director, James Hudgens, provided an affidavit stating that the SUD program required patients to be "confined to the New Paths' facility for the initial sixty (60) days of the program." (Id. at PageID.932).

New Paths attaches to its brief various reports it gave Mangapora, many of which indicated Plaintiff committed infractions or failed to attend programing. (Id. at PageID.958, 960). A report from August 9, 2017, stated that Plaintiff had been terminated after 60 days due to his lack of participation. (Id. at PageID.962).

Plaintiff makes several allegations of civil rights violations that occurred at New Paths. First, he asserts his due process rights were violated when, after he took items from an open vending machine, New Paths staff made him "restart the SUD program" without issuing him a write-up or providing a hearing. (ECF No. 25 at PageID.142, 150). At his deposition, he testified that he was denied a hearing to "refute" the allegations, (ECF No. 90 at PageID.772), but he admitted that he had taken the candy and was "guilty . . . for participating." (Id. at PageID.786).

Second, Plaintiff alleges that he described his complaints about TRI-CAP to his caseworker, Mitchell, and said that he needed access to legal materials, to which Mitchell responded that "he would not be allowed to have any access to any legal materials or . . . a pass for that purpose." (ECF No. 25 at PageID.141-142). According to Plaintiff, this violated his First Amendment right to access the courts. (Id.)

Third, Plaintiff argues his First Amendment rights were violated when Mitchell "and staff" terminated him from New Paths for making a Facebook post from his cell phone about the "poor conditions of living" at the facility. (Id. at PageID.143, 151). Additionally,he says that his due process rights were violated because he had no chance to challenge the violation and no notice of hearing regarding the termination. This is despite the fact, according to Plaintiff, that "[r]esidents at New Paths Inc. are allowed to have cell phones outside in...