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Tolbert v. Gerberding

March 8, 2006

MICHAEL TOLBERT, PLAINTIFF,
v.
DALE GERBERDING, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Harold A. Baker United States District Judge

ORDER

This cause is before the court for consideration of the defendants' motion for summary judgment. [d/e 24]. The plaintiff asked for additional time to file a response to the dispositive motion which the court granted. See September 23, 2005. More than four months have passed since the extended deadline, and the plaintiff has failed to file a response. Therefore, the court will consider this motion without input from the plaintiff.

BACKGROUND

The plaintiff, Michael Tolbert, filed this complaint pursuant to 42 U.S.C.§1983 claiming that his constitutional rights were violated at Pontiac Correctional Center. The plaintiff named two defendants including Officer Dale Gerberding and Administrative Review Board Member Sherry Hile Benton. The court conducted a merit review of the plaintiff's complaint and found that he had adequately alleged that the defendants retaliated against him in violation of his First Amendment rights. Specifically, the plaintiff alleged that on September 16, 2003, he filed a grievance against Defendant Gerberding for his failure to allow the plaintiff yard time. The plaintiff says from then on, the defendants participated in a campaign of retaliation against him which included: 1) conspiring with Officer Burger to write a false disciplinary ticket; 2) taking the plaintiff's television on October 2, 2003; 3) denying the plaintiff access to the law library; 4) forcing the plaintiff to undergo a strip search and 5) interfering with his legal mail.

FACTS

Since the plaintiff has not responded to the pending dispositive motion, the following facts are taken from the plaintiff's complaint, defendants' motion for summary judgment and exhibits attached to both.

The plaintiff was incarcerated at Pontiac Correctional Center from March 21, 2003 to October 5, 2003 in the segregation unit. On September 16, 2003, Defendant Gerberding denied the plaintiff yard privileges for one day. The plaintiff was denied yard time because he was not in the required clothing for yard exercise and was still wearing his segregation jumpsuit. The plaintiff responded by filing a grievance against Defendant Gerberding. The grievance was denied.

The plaintiff appealed the denial of his grievance. Defendant Hile Benton was the chairperson of the Administrative Review Board and responsible for reviewing the plaintiff's appeal. Hile Benton sent a letter to the plaintiff dated December 1, 2003 informing the plaintiff that she had denied his grievance. Hile Benton stated that:

Officer Gerberding was contacted and stated that every effort was made to acquire the appropriate clothing. Unfortunately, R & D could not provide the clothes until after the time allotted for yard. Inmate Tolbert was in non-compliance and therefore could not attend yard. (Comp, Ltr Ex)

Benton says she denied the grievance "based on the fact that the offender only missed one day of yard time" and the inability to acquire the proper clothing. (Def. Memo., Benton Aff., p. 1).

On September 17, 2003, Officer Burger wrote a disciplinary report against the plaintiff accusing him of violating prison rule 310, abuse of privileges; rule 403, disobeying a direct order; and rule 404 violation of rules. The report states that Officer Burger told the plaintiff to stop yelling to another inmate in a loud, disruptive tone. The officer claims the plaintiff continued to yell and ignore the officer's order. Officer Burger listed Defendant Gerberding as a witness to the event.

The plaintiff claims Gerberding conspired with Officer Burger to write this "false" ticket and agreed to be a witness in retaliation for the plaintiff's September 16, 2003 grievance. Defendant Gerberding says although he was listed as a witness, he did not initiate the disciplinary charges against the plaintiff. Gerberding further says he has never had any role in the review of disciplinary charges or the decision of whether to impose disciplinary sanctions against an inmate. Lastly, the defendant says he was not aware the plaintiff had filed a grievance against him until he was contacted for his statement on or after October 7, 2003.

As a result of the disciplinary ticket, the Adjustment Committee revoked the plaintiff's audio/visual privileges for one month. Inmates on this restriction are not allowed to have a television in their cells. On October 2, 2003, Defendant Gerberding confiscated the plaintiff's television.

On October 6, 2003, Defendant Gerberding conducted a strip search of the plaintiff prior to his entering the segregation library. Gerberding says its his understanding that department policy requires officers to strip search all inmates as they come and go from the segregation law library. The plaintiff's complaint alleges that the defendant did not strip search any other inmates. The plaintiff also alleges that he had not been strip searched during the previous five months coming and going from the segregation law library. The plaintiff does admit that he had been strip ...


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