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Powell v. Harris

United States District Court, M.D. Florida, Ocala Division

August 27, 2019

GAYNETT POWELL, Plaintiff,
v.
JEREMY A. HARRIS, et al., Defendants.

          ORDER

          MARCIA MORALESHOWARD UNITED STATES DISTRICT JUDGE

         I. Status

         Plaintiff Gaynett Powell, an inmate of the Florida penal system, initiated this action on March 18, 2016, pursuant to the mailbox rule, by filing a pro se Civil Rights Complaint Form (Complaint; Doc. 1). In the Complaint, Powell asserts claims pursuant to 42 U.S.C. § 1983 against the following remaining Defendants: (1) Jeremy A. Harris; (2) Ernest L. Reed; (3) Carol Casimir; (4) Gail Anderson; (5) Warden Jennifer Folsom; (6) Tommie Young; (7) Faleshia A. Williams; (8) Jhon Deo (John Doe); (9) L. Braggs; and (10) Dr. Virginia Mesa, M.D., Chief Health Officer (CHO).[1] Powell asserts that the Defendants retaliated against him in 2012 and 2013 when they placed him in administrative confinement (AC), filed a disciplinary report (DR), used an invalid DR as a basis to place him in disciplinary confinement (DC) and close management (CM), transferred him to other facilities, confiscated his property, and denied him adequate medical treatment. See Complaint at 14-15. As relief, he seeks compensatory and punitive damages as well as declaratory and injunctive relief.

         This matter is before the Court on Defendants Harris, Braggs, Casimir, Reed, Folsom, Williams, Young, and Anderson's Motion for Summary Judgment (Motion; Doc. 171) and Defendant Mesa's Motion for Summary Judgment (Mesa Motion; Doc. 196). They submitted exhibits in support of their summary judgment requests. See Def. Exs. (Docs. 171-1 through 171-2; 196-1 through 196-2).[2] The Court advised Powell of the provisions of Federal Rule of Civil Procedure 56, notified him that the granting of a motion to dismiss or a motion for summary judgment would represent a final adjudication of this case which may foreclose subsequent litigation on the matter, and gave him an opportunity to respond to the Motions. See Order (Doc. 17); Summary Judgment Notices (Docs. 172, 197). Powell responded. See Responses (Docs. 190, 209); Affidavits (P. Aff.; Docs. 191, 207). Defendants' Motions are ripe for review.

         II. Plaintiff's Allegations

         In his Complaint, Powell asserts that the events leading up to Defendants' retaliatory conduct began in March 2012 at Lake Correctional Institution (LCI). See Complaint at 8. He states that there was an anonymous tip that inmates were planning an escape. See id. According to Powell, Defendant Reed placed several inmates in AC pending an investigation, and wrote a DR against one of the inmates for possession of escape paraphernalia that included a lock belonging to Powell. See id. Powell avers that the accused inmate listed Powell as a witness. See id. He states that he "executed" a statement on March 21, 2012, and admitted that he owned the lock. Id. at 8-9. He asserts that Defendant Reed directed corrections officers to place Powell in AC. See id. at 9.

         Next, Powell states that an inmate was stabbed in the recreation yard. See id. According to Powell, Defendant Reed obtained the inmate victim's statement, accusing Powell and two other inmates of the assault. See id. He avers that the inmate victim "declared" that Reed and other officers "coerced" him to identify Powell as one of the attackers. See id. He asserts that the inmate victim later recanted his accusations against Powell and another accused inmate. See id. According to Powell, Reed nevertheless relied on the inmate victim's "initial statement," and issued DRs for battery against Powell and the other accused inmates. See id. He states that Officer Campbell delivered the DR to him on March 23rd, [3] see id. at 9, and made comments, such as "we got the other inmates' statements and the accuser's two statements, [and] we already decided what we are going to do with you good buy [sic][, ]" and "yes, for that statement you did." Id. at 10.

         Powell maintains that Defendants Williams and Braggs "acquitted" the other accused inmate on March 27, 2012, based on their findings that the accuser had recanted his statement and that no officer had witnessed the stabbing. See id. He complains that Williams and Braggs "exclusively relied" on the accuser's initial statement, instead of his recantation, and found Powell guilty of the DR on March 29, 2012. Id. According to Powell, when he objected to the guilty finding, Williams stated that "the people uptop want us to find you guilty[;] you w[ere] advised against making that statement for your friend." Id. He avers that he complained about Defendants' conduct to the Regional Director and Governor in April 2012. See id.

         Additionally, Powell asserts that Defendant Anderson knew about the inmate accuser's recantation, but still used Powell's DR as the basis for referring Powell to CM confinement on April 4, 2012. See id. at 10-11. He states that Defendants Harris and Young (members of the Institutional Classification Team (ICT)) knew about the accuser's recantation, the acquittal of the other accused inmate, and the ongoing retaliatory acts, but nevertheless recommended that Powell be placed on CM on April 12th. See id. at 11. He avers that Defendant Casimir, a state classification officer, returned without action the complaint Powell had submitted to the Regional Director on April 13th, finding that the institution should address the issue. See id. According to Powell, Casimir approved both the referral and recommendation for Powell's CM confinement on April 18th. See id. He maintains that Defendant Young denied Powell's grievances relating the DR and CM issues on April 26th. See id. Notably, Powell contends that Secretary Representative Solano approved Powell's appeal and overturned the DR on June 7th. See id. Powell avers that Dr. Walker discontinued his antidepressant medication when his DR was overturned, stating Powell no longer needed the medication. See id.

         According to Powell, the Governor's Office and the Office of the Florida Department of Corrections (FDOC) Secretary directed the FDOC to release Powell to open population and remove his DR and CM designation from its records. See id. at 11-12. He states that the Defendants however "used the void DR" as the basis to transfer him to an institution where their former colonel is the Warden. Id. at 12. He avers that the Warden directed his subordinates to file similar reports and transferred him back to LCI. See Id. Powell maintains that Lieutenant Martinez placed him in AC at the Reception Center and permitted inmates to steal his property. See id. He declares that he was "reclassified" and transferred to another institution that filed "similar reports" and used those reports to involuntarily commit him to mental health hospitals when he refused to stop submitting complaints and grievances. Id.

         Powell states that he "declared" a hunger strike, lost consciousness, and was transferred to LCI's mental health hospital in 2013. Id. He alleges that Defendant Folsom seized his property when he exited the transportation van, and never returned it. See id. According to Powell, Folsom advised him that they would "secure and return" the grievances and complaints Powell had filed against them. Id. He also avers that Folsom told Defendant Mesa that Powell "is back." Id. Powell maintains that he told Mesa about his hunger-strike symptoms (thirty-five-pound weight loss, exhaustion, high blood pressure, and bloody urine). See id. at 13. He asserts that Mesa denied him medical treatment, stating "if you stop writing grievances and complaints things will get better for you." Id. He states that Officer Maldano approached his cell, stating:

So you are back? They said you lost a lot of weight[] but do not change, still complaining, doing statements and writing grievances. Colonel said you are still on the sh[-]t list. You got away easy the last time. This time I'm gong to whip you're [sic] a[--].

Id. Powell avers that he moved to another unit and filed a grievance against Mesa for the denial of medical treatment. See id. He maintains that Officer Maldano, who was reassigned to Powell's unit, advised Powell as follows:

Hey a[--]hole[, ] you thought you escaped again? But we always fix it so we could catch up with you. Dr. Mesa is one of us. I'm going to f[--]k you're [sic] a[--] up.

Id.

         According to Powell, Sergeant Furto, Officer Maldano, and John Doe gave Powell a breakfast tray with missing food portions on February 9, 2013. See id. He states that when he showed them the tray and asked for more food, Maldano grabbed the tray, stating "you don't eat." Id. He avers that he and Maldano "grappled" for the tray, and as a result, Maldano "flipped and released the tray inside the cell" which spilled the food on the walls, door, and floor. Id. Powell maintains that when he put his palm on top of the food flap and asked to speak with the lieutenant, Maldano "punched" Powell's right palm numerous times. Id. at 14. He asserts that Defendant Mesa failed to provide "meaningful treatment" for his injuries. See id. Powell declares that he reported the mistreatment to Lieutenant Robert who placed him on property restriction and special management meals and denied him access to the day room, canteen, and recreational activities. See id. Powell also asserts that when he grieved the restrictions, he was transferred to a non-medical institution, and later to a medical facility. See id. He states that the FDOC promoted Defendant Harris to an Assistant Warden position, and transferred him to the medical institution where Harris encouraged the medical staff not to treat Powell. See id.

         III. Summary Judgment Standard

         Under Rule 56 of the Federal Rules of Civil Procedure (Rules(s)), "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The record to be considered on a motion for summary judgment may include "depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed.R.Civ.P. 56(c)(1)(A).[4] An issue is genuine when the evidence is such that a reasonable jury could return a verdict in favor of the non-moving party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (quoting Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 919 (11th Cir. 1993)). "[A] mere scintilla of evidence in support of the non-moving party's position is insufficient to defeat a motion for summary judgment." Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

         The party seeking summary judgment bears the initial burden of demonstrating to the court, by reference to the record, that there are no genuine issues of material fact to be determined at trial. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). "When a moving party has discharged its burden, the non-moving party must then go beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir. 1995) (internal citations and quotation marks omitted). Substantive law determines the materiality of facts, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. In determining whether summary judgment is appropriate, a court "must view all evidence and make all reasonable inferences in favor of the party opposing summary judgment." Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995) (citing Dibrell Bros. Int'l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571, 1578 (11th Cir. 1994)).

         IV. Rulings on Defendants' Motions to Dismiss

          The Court previously partially granted Defendants Braggs, Harris, and Casimir's motions to dismiss (Docs. 65, 66) and Defendants Folsom, Reed, Williams, Anderson, and Young's motion to dismiss (Doc. 94) as to Powell's (1) claims for monetary damages from them in their official capacities, see Orders (Docs. 111, 125) at 7-8; (2) Eighth Amendment claims, see Doc. 111 at 8; Doc. 125 at 9-11; and (3) Fifth and Fourteenth Amendment claims, see Doc. 111 at 8-10; Doc. 125 at 11-12. Additionally, the Court sua sponte dismissed Powell's requests for compensatory and punitive damages, see Doc. 111 at 5-6; Doc. 125 at 6-7, and his equal protection claims, see Doc. 111 at 6-7; Doc. 125 at 7. However, the Court denied the motions to dismiss as to Powell's First Amendment retaliation claims against the Defendants. See Doc. 111 at 10-14; Doc. 125 at 12-14.

         V. Summary of the Arguments

          In the Motion, Defendants Harris, Braggs, Casimir, Reed, Folsom, Williams, Young, and Anderson assert that there are no genuine issues of material fact, and therefore, the Court should grant summary judgment in their favor. They assert that some of Powell's First Amendment retaliation claims are barred by the four-year statute of limitations. See Motion at 13-14. Additionally, they maintain that they are entitled to qualified immunity. See Id. at 20. In his Response, Powell relies on his affidavit (Doc. 191) and deposition (P. Depo.; Docs. 171-2, 196-2) and asserts that there are genuine issues of material fact that preclude summary judgment in Defendants' favor. See Response (Doc. 190).

         Defendant Mesa asserts that the Court should grant summary judgment in her favor as to Powell's Eighth Amendment claim, see Mesa Motion at 6-9, First Amendment retaliation claim, see id. at 9-11, and Fourteenth Amendment claim, see id. at 11-13. She also maintains that she is entitled to qualified immunity. See id. at 13-14. Additionally, she asserts that Powell's request for injunctive relief is moot, and he is not entitled to compensatory and punitive damages under 42 U.S.C. § 1997e(e) because he has not alleged any physical injuries resulting from Defendants' acts and/or omissions. See id. at 14-15. Relying on his affidavit (Doc. 207) and deposition, Powell asserts that there are genuine issues of material fact that preclude summary judgment in Defendant Mesa's favor. See Response (Doc. 209).

         VI. Analysis [5]

         A. Defendants' Motion for Summary Judgment (Doc. 171)

         1. Four-Year Statute of Limitations

         Defendants assert that some of Powell's claims are barred by the four-year statute of limitations. See Motion at 13-14. In his Response, Powell states that the Defendants "are absolutely right" about the applicability of the four-year statute of limitations. Response (Doc. 190) at 19. Nevertheless, he maintains that the Defendants "misapplied" it. Id. He asserts, and this Court agrees, that he filed the Complaint on March 18, 2016, pursuant to the mailbox rule, [6] not April 25, 2016, as Defendants assert. See id. In the Complaint, Powell alleges that Defendants' retaliatory acts began on March 21, 2012. See Complaint at 8. A 42 U.S.C. § 1983 action brought in Florida is governed by Florida's four-year personal injury statute of limitations. Henyard v. Sec'y, Dep't of Corr., 543 F.3d 644, 647 (11th Cir. 2008). Therefore, Powell had until March 21, 2016, to file his claims against the Defendants. As such, his claims are timely filed.

         2. First Amendment Retaliation [7]

         Defendants Harris, Braggs, Casimir, Reed, Folsom, Williams, Young, and Anderson assert that they are entitled to summary judgment as to Powell's First Amendment retaliation claims against them. See Motion at 14-20. They maintain that, as to the third element, Powell "cannot show a causal connection between Defendants['] conduct and his protected speech." See id. at 15 (citations omitted). In his Response, Powell argues that there are genuine issues of material fact that preclude summary judgment in Defendants' favor. See Response (Doc. 190).

         The chronology of events on which Powell bases his retaliation claims is as follows. On March 5, 2012, there was an anonymous tip that inmates were planning an escape. See Complaint at 8; Def. Ex., Doc. 171-1 at 15, MINS[8] Incident Report. Defendant Reed placed three inmates (whom Powell describes as his cell mate, countryman, and friend) in AC pending an investigation. See Complaint at 8; Powell Aff. (Doc. 191) at 1. Deeann Hensley described what transpired that day.

On 3/5/12, at approximately 300 PM., Captain Faleshia Williams received an anonymous note alleging that inmates in E dorm were planning an escape with the assistance of a security staff member. Inmates named were strip searched and their property [was] searched. During the search of inmate property, Officer Ryan Reedyk located 3 sheets, 2 pieces of sheet, 2 pillow cases and 2 locks tied together in a bundle under the heater vent in cell E4104L. Inmate Graham received a DR for escape paraph[erna]lia. Inmates Pack, Gray, and Dudley were placed in AC pending investigation. All inmates denied the allegation and provided written statements.

Def. Ex., Doc. 171-1 at 15. Powell states that his friend Graham "listed" him as a witness because one of the locks belonged to Powell. Complaint at 8; Powell Aff. at 1.

         On March 21, 2012, Defendant Reed summoned Powell to the dormitory, see Complaint at 8, "warned" Powell about executing a statement for his friend, id. at 9, and commented "we don't play that sh-t[.]" Powell Aff. at 1. Powell completed the statement (admitting that he owned one of the locks), and gave it to Sergeant Broadway. See Complaint at 9; Powell Aff. at 2. That same day, there was an inmate stabbing on the recreation yard, see Complaint at 9, and Officer McCrary advised Defendant Reed about the incident, see Def. Ex., Doc. 171-1 at 19.

On 3/21/12 at approximately 130 pm[, ] I ofc McCrary received a transmission from of. Duncan.... At approx. 138 pm I/M Dieudonne, Timmis # A-W11268 and Johnson, Justin # A-R21488 arrived. I/M Johnson stated, "This I/M just walked in medical, stating he just got into a fight." I just escorted him here. Later, I talked with I/M Dieudonne and he stated to me, "When the yard opened, 3 guys had jumped me, all 3 had knives, and no officer was present on the compound.["]

Def. Ex., Doc. 171-1 at 19. Defendant Reed prepared an Incident Report, stating in pertinent part:

On March 21, 2012, at approximately 2:00 pm[, ] I was advised by Medical Officer CO Larhonda McCrary that inmate Dieudonne, Timmis DC #W11268, had been assaulted with a weapon on the recreation field. The Institution was immediately placed on Level B Status. All additional staff from outside grounds and in service training were utilized to provide security and assist with searches. All inmates on the recreational field (400) were staged, searched, and escorted to their housing units along with all inmates in the program areas. Assistant Warden, A. Price and Major V. Barber were immediately notified of the incident and actions taken. The Emergency Management site was initiated by Sgt. S. Jackson in the main control room summarizing the course of events. I conducted an initial interview of Inmate Dieudonne who stated that inmates McKinney, Desmond, DC #L40919, assaulted him. Inmate McKinney was apprehended and restrained without incident. Inmates Powell, Gaynett, DC #L07899, and Head, Jamal, DC #M45505, were also placed in Administrative Confinement pending Investigation for being involved in the assault. Inmate Johnson, Justin, DC #R21488 was also placed in Administrative Confinement pending Investigation after he walked inmate Dieudonne to Medical, as a potential participant/witness. Inmate Dieudonne was placed in Administrative Confinement pending Protective Management review. Two (2) homemade weapons were discovered on the Recreation field, although neither appear to be the weapon used in the assault. The weapons were photographed and placed in the evidence locker.

Def. Ex., Doc. 171-1 at 17-18. Defendants Harris and Folsom reviewed the report, and Defendant Folsom stated that "[a]ll inmates involved were placed in confinement pending charges and transfer." Id. at 17. Defendant Reed directed officers to place Powell in AC "[s]hortly" after Powell had executed his statement for inmate Graham. See Powell Aff. at 2; Def. Ex., Doc. 171-1 at 7 (showing that Powell was assigned to AC on March 21, 2012). Defendant Reed obtained Dieudonne's statement that accused Powell and inmates McKinney and Head in the stabbing incident. See Def. Ex., Doc. 171-1 at 22-23. Dieudonne stated that Powell stabbed him in his "left top shoulder." Id. at 23.

         As a result of Dieudonne's accusation, Defendant Reed issued a DR against Powell for aggravated battery or attempted aggravated battery on an inmate. See Complaint at 9; Def. Ex., Doc. 171-1 at 27. The facts supporting the DR are as follows:

Inmate Powell, Gaynett DC #L07899 is being charged with 1-10 aggravated battery or attempted aggravated battery on an inmate. On March 21, 2012 at approximately 2:00 PM while assigned as third shift supervisor, I was notified of an aggravated battery which ha[d] occurred on the recreation yard. Inmate Dieudonne, Timmis DC #W11268, had been cut several times in his upper torso, facial, and arms area. Upon interviewing inmate Dieudonne, he advised me that inmate McKinney, Desmond DC #L40919, Inmate Head, Jamal DC #M54505, and Inmate Powell, Gaynett DC #L07899 were his attackers. Inmate Dieudonne also states "all three of them were stabbing me from different angles."[9] A subsequent search of the recreation field was conducted and inmate Powell was located in E-dormitory. Inmate Powell was interviewed and stated that he was not on the recreation field. He was in E-dormitory when the incident occurred. This is untrue. I had the control room page inmate Powell numerous times to report to E-dormitory to submit a witness statement on an unrelated incident. I was in E-dormitory when the pages were made and inmate Powell was not in the dormitory. As I departed E-dormitory to deal with this incident, inmate Powell walked by me and entered E-dormitory. At the time that we passed each other, I was unaware that he was possibly involved in this attack. Inmate Powell is being housed in administrative confinement pen[d]ing the disposition of this report.

Def. Ex., Doc. 171-1 at 27 (emphasis added). An investigation was conducted from March 21st until March 25th. See id. at 28. During the investigation, Dieudonne made a second statement, dated March 25, 2012, asserting that Powell had "nothing to do" with the stabbing incident. Id. at 30.

I'm not writ[]ing this witness statement out of any kind of fear nor was I force[d] [in] any kind of way. On March 21[][, ] 2012 We[d]n[e]sday I got stab[b]ed on the rec yard by only one inmate[.] But being that I was very mad at the time I wrote a witness statement saying three people w[ere] invol[v]ed with the stab[b]ing. Cause I was just going with wh[at]ever question I was being ask[ed] at the time being that I was mad. But at the time of the stab[b]ing Inmate Gaynett Powell DC #L07899 was not on the rec yard nor was he invol[v]ed in it. The only reason I wrote his name in the first statement was because I thought he sent the person at me who stab[bed] me being that I owed him money an[d] we w[ere] mad at each other. So when the police ask[ed] me was he invol[v]ed I said yes but he really wasn't. I was just mad at all the people I done had problems with in the past. But no[, ] inmate Powell DC #L07899 did not have nothing to do with [the] stab[b]ing on [the] rec yard nor was he [sic] present at the time cause he was in [the] dorm when I got stab[b]ed. I know who stab[b]ed me an[d] it was not Powell who did it. The person who did it they found his shirt on the rec yard with my blood on it an[d] his name [was] rip[ped] off of his shirt. But I'm writ[]ing this statement cause I have to free the innocent. This is the truth. I swear inmate Gaynett Powell DC #L07899 had nothing to do with me getting stab[bed].

Id. (emphasis added). Officer Campbell notified Powell of the DR charge on March 25th. See id.

         On March 29, 2012, Defendant Braggs (the DR team chairman) and Williams (a DR team member) found Powell guilty of the aggravated battery infraction based on Defendant Reed's written statement of the facts. See id. at 28-29. Defendant Braggs submitted an Affidavit, describing her involvement in the disciplinary process. Id. at 57-58, Affidavit of Lourdes Braggs (Braggs Aff.). She stated, in pertinent part:

I was involved with inmate Powell's disciplinary hearing where he was found guilty of aggravated assault. The disciplinary hearing process allows the inmate to present evidence and witness statements. We review the documentation, statements and determine the involvement or guilt of the inmate. I understand that the victim inmate recanted his testimony about inmate Powell's involvement. This is not unusual and we see this happen frequently in areas of inmate assault. It is a consideration in the process but just because the victim inmate recants, this does not mean the case is automatically dismissed. Often, the victim inmate recants later on because he fears retaliation. We would look at inmate Powell's history of violence and disciplinary history to assist in determining credibility. It is important to consider the safety and security of everyone and also the nature and severity of the charge. If inmate Powell was violent and caught lying at the hearing, it could affect his credibility and the outcome of the hearing.

Id. at 58. Defendant Williams submitted a similar account. See id. at 59-60, Declaration of Feleshia Williams (Williams Decl.). She explained her role, stating in pertinent part:

I was the Captain at Lake Correctional Institution in March 2012. I was one of the Disciplinary Hearing members for the stabbing incident involving inmate Gaynett Powell, L07899. Inmate Powell was found [g]uilty by the disciplinary team for the aggravated assault of another inmate. The victim inmate did recant his testimony that inmate Powell was involved. We see this often. It is almost always true the initial statement made in such a case is the true one. Once the victim inmate gets away from the incident, they often are threatened or have second thoughts about naming another inmate for fear of retaliation or just being labeled a snitch. The disciplinary hearing team would also look at inmate Powell's record and history.
As to his claim I said anything about what "people up top" want, this is untrue. The decision to find inmate Powell guilty is a decision of the disciplinary review team after hearing and receiving testimony and evidence. Inmate Powell was present at the hearing. No. one person makes the decision and the decision has to be approved by the warden.

Id. at 60. Defendant Young, as Assistant Warden of Programs, responded to Powell's grievance on April 28, 2012, stating in pertinent part:

It is the responsibility of the disciplinary team to weigh the facts, review all the statements and determine the credibility of any witness. In this case, the team accepted the reported officer's statement as credible and a decision was rendered to uphold the requirements set forth in Chapter 33-601-602.

Id. at 40. Young reviewed and approved the disciplinary team's decision on May 2, 2012. See id. at 29.

         On April 4, 2012, Defendant Anderson "referred" Powell for CM assignment. See Complaint at 10; Def. Ex., Doc. 171-1 at 35, CM Report; 61-62, Declaration of Gail Anderson (Anderson Decl.). Anderson explained the basis for the CMI referral.

Inmate being recommended for CM1 based on the events in his DR for 1-10 aggravated battery or attempted aggravated battery on an inmate. On March 21, 2012 shift supervisor was notified of an aggravated battery which occurred on the recreation yard. An inmate had been cut several times in upper torso, facial and arm area. Inmate Powell was identified as one of the attackers. During last six months, inmate had one other DR for 2-4 fighting.[10] He has no BLEO [(battery on a law enforcement officer)] convictions on staff at this time.

Def. Ex., Doc. 171-1 at 35. In her declaration, Anderson states, in pertinent part:

I was a Corrections Probation Officer at Lake Correctional Institution in 2012. I was involved with inmate case management and disciplinary hearings. I would make recommendations for close management designations for inmates who qualify for such classification. As [I] recall, Ms. Braggs was involved with inmate Powell's disciplinary hearing, so I was the one who recommended him for close management. As with inmate Powell, he was involved in an assault of another inmate, which qualifies him for close management. I only made the ...

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