William Evans v. Harry Vinson , 427 F. App'x 437 ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0434n.06
FILED
No. 09-6283
Jun 29, 2011
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
WILLIAM EVANS, )
) ON APPEAL FROM THE
Plaintiff-Appellant, ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
v. ) DISTRICT OF KENTUCKY
)
HARRY CHRISTOPHER VINSON, Correctional ) OPINION
Officer, Kentucky State Penitentiary, et al., )
)
Defendants-Appellees. )
BEFORE: COLE, CLAY, and GILMAN, Circuit Judges.
COLE, Circuit Judge. Only two days after assisting another prisoner in filing a grievance,
Plaintiff-Appellant William Evans was placed in administrative segregation for nine days due to a
false-positive drug test. Evans then filed this 42 U.S.C. § 1983 suit against seven prison
officials—Defendants-Appellees Harry Christopher Vinson, Nancy Doom, Glenn Haeberlin, Byron
Jasis, Joe Keene, Rick Pershing, and Junior Ross—alleging violations of Evans’s First, Fourth,
Eighth, and Fourteenth Amendment rights. The district court granted Defendants’ motion for
summary judgment; Evans appeals. For the following reasons, we AFFIRM in part, REVERSE
in part, and REMAND for further proceedings.
No. 09-6283
William Evans v. Harry Vinson, et al.
I. BACKGROUND
A. Factual Background
The original seven plaintiffs in this case, Alando Sublett, James DeBow, William Evans,
Daniel Lindsey, Donnie Ashby, Aaron Burnett, and James Dunn, were all incarcerated at the
Kentucky State Penitentiary (“KSP”) in May 2005. Evans is the only plaintiff remaining in the suit.
The relevant facts, taken in the light most favorable to Evans, are as follows:
On May 17, 2005, Sublett was given a “stick test”—a urine test used in the field to screen
for illegal drug use—by Defendant Vinson, a correctional officer at KSP, and another officer.
Vinson, displeased with the results, allegedly destroyed Sublett’s first sample and ordered another
with a different witness. Sublett was then sent to his cell without an opportunity to witness the
sealing of the sample or its chain of custody, which is inconsistent with the process usually followed
for administering drug tests at KSP. Half an hour later, Sublett was placed in administrative
segregation in “3 Cellhouse” as a result of the stick test, which Defendants claimed was positive.
Defendants sent an additional sample to Aegis Sciences Corporation (“Aegis”) for confirmation.
On May 18, 2005, DeBow, an inmate grievance aide, received a message about the incident
and approached Evans, an inmate legal aide, about assisting Sublett in getting released. Evans sent
a memorandum to Defendants Pershing, Jasis, and Haeberlin requesting Sublett’s release on due
process grounds.
On May 19, 2005, Defendants received the lab report from Aegis showing that Sublett had
tested negative for drug use, and Sublett was released from segregation. That same day, Vinson
administered stick tests to DeBow and Evans, and Defendant Keene, the deputy warden for security
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at KSP, served as a witness. Following the tests, DeBow and Evans were ordered to return to their
cells. Approximately forty-five minutes later, they were placed in the “‘Super Max’ Administrative
Segregation Unit (7 Cellhouse)” based on allegedly positive stick tests. The May 19, 2005 detention
order stated that Evans was “being placed in 7 Cellhouse Admin. Seg. for investigation into Illegal
Drug Activity within the institution. This action was taken for the Safety of Staff and inmates, and
the safe and secure operation of this institution.” (Detention Order, Dist. Ct. Docket No. 71 Ex. 2.)
While in 7 Cellhouse, Evans was subjected to a nude strip search, haircut, and shave, and restricted
from his job as a legal aide and all of the privileges he enjoyed in the general population and honor
housing unit.
Five days later, on May 24, 2005, Defendant Haeberlin, the warden at KSP, advised Evans
by letter that the stick tests were under review. On May 26, 2005, the May 19 samples were sent to
Aegis for further review, with “Reasonable Cause” listed as the reason for testing. The next day, the
lab reports from Aegis were reviewed, and they were negative for drugs. That same day, after nine
days of segregation in 7 Cellhouse, Evans and DeBow were released.
Defendants contend that Evans and DeBow were tested pursuant to KSP’s random testing
policy. A May 4, 2005 memorandum from Defendant Captain Junior Ross, the drug screen
coordinator at KSP, provides the following:
Attached is the random list of Drug Screen Inmates for May, 2005. Please assign
trained staff to conduct these tests. We are required to test 10% of the population.
This list contains 126 names to allow for transfers and releases and still meet the
required 84 tests. You need to have the drug-screens completed no later than the
20th[] of the month. Please forward all Employer copies of the urine samples
paperwork to Administrative Supervisor[.] The inmate donor gets the green copy,
the front blue copy goes with the specimen, and all other copies come to me . . . .
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Note: Starting last month 50% of all drug screens are done by using the (AEGIS)
Specimen collection kit and completed by the Lab, the other 50% will be done by
using (Redwood Bioteck) test device.
(Memorandum, Dist. Ct. Docket No. 56 Ex. 7.) The “random list,” which was generated by a
computer in Frankfort, Kentucky and not by anyone at the facility, included Evans and DeBow, but
not Sublett.
Evans was tested again on July 4, 2005, fourteen days after filing a grievance. He was also
on the random list that month. The lab results from the July test were negative for drugs, but this
time the reason listed for testing was “Random.” Evans was also tested, with negative results, on
September 25, 2005 and March 9, 2008. The lab results from the September test did not include a
reason for testing, and those from the March test stated “Random.”
B. Procedural History
Evans and six other pro se prisoners filed suit in the United States District Court for the
Western District of Kentucky under 42 U.S.C. § 1983, alleging violations of their state and federal
rights. All plaintiffs but Evans have since been dismissed from the action. After the district court’s
initial review under the Prison Reform Litigation Act, 28 U.S.C. § 1915A, Evans was allowed to
proceed on the following claims:
[His] Fourteenth Amendment due process claim arising out of the positive stick test
resulting in his placement in segregation against Defendant KSP Captain Junior Ross
in his individual and official capacity;
[His] Eighth Amendment claim pertaining to his placement in segregation against
Defendant KSP Corrections Officers Harry Christopher Vinson and Joe Keene in
their individual capacities and against Defendants KSP Procedures Officer Byron
Jasis, KSP Deputy Warden of Programs Nancy Doom, KSP Deputy Warden for
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Security Rick Pershing, and KSP Warden Glenn Haeberlin in their individual and
official capacities;
[His] Eighth and Fourth Amendment claims regarding the reasonableness of the urine
tests/selection process against Defendants Vinson and Keene in their individual
capacities and against Defendants Pershing, Jasis, and Haeberlin in their individual
and official capacities; and
[His] retaliation claims against Defendants Vinson and Keene in their individual
capacities and Defendants Pershing, Jasis, and Haeberlin in their individual and
official capacities.
(Mem. Op. & Order, Dist. Ct. Docket No. 71, at 1-2.) After discovery, the district court granted
Defendants’ motion for summary judgment as to all claims. Evans filed this appeal.
II. ANALYSIS
A. Standard of Review
We review the district court’s grant of summary judgment de novo. Gen. Motors Corp. v.
Lanard Toys, Inc., 468 F.3d 405, 412 (6th Cir. 2006). A moving party is entitled to summary
judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact and that the
movant is entitled to a judgment as a matter of law.” Binay v. Bettendorf, 601 F.3d 640, 646 (6th
Cir. 2010) (internal quotation marks omitted). In reviewing a summary judgment motion, we view
the evidence and reasonable inferences therefrom in the light most favorable to the non-moving
party. Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
Evans brings his claims under 42 U.S.C. § 1983. To succeed on a § 1983 claim, Evans must
demonstrate that a person acting under color of state law “deprived [him] of rights, privileges or
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immunities secured by the Constitution or the laws of the United States.” Bennett v. City of
Eastpointe, 410 F.3d 810, 817 (6th Cir. 2005).
B. Monetary Claims Against Defendants in their Official Capacities
Evans brought suit against Ross in his official capacity only, and against Jasis, Doom,
Pershing, and Haeberlin in both their individual and official capacities. To the extent Evans seeks
monetary damages from these defendants in their official capacities, his claims are barred by the
Eleventh Amendment. Thiokol Corp. v. Dep’t of Treas., 987 F.2d 376, 381 (6th Cir. 1993). As a
result, we AFFIRM the district court’s grant of summary judgment on these claims. However, to
the extent Evans seeks injunctive relief against these defendants in their official capacities, the suit
may proceed. Cf. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 n.10 (1989) (“[O]fficial-
capacity actions for prospective relief are not treated as actions against the State.”).
C. Constitutional Claims
The district court found that summary judgment was appropriate because the evidence taken
in the light most favorable to Evans did not establish a constitutional violation on any of Evans’s five
claims. We consider each of Evans’s claims in turn.
1. Fourteenth Amendment Due Process
Evans first argues that Defendants’ act of placing him in administrative segregation based
on the positive result of his stick test deprived him of liberty without due process of law. Defendants
respond that placement in administrative segregation does not constitute an actionable deprivation
of liberty under the Fourteenth Amendment. Because Evans has not met his burden of establishing
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that he had a liberty interest in avoiding temporary placement in administrative segregation, his due
process claim fails.
The Due Process Clause of the Fourteenth Amendment “protects persons against deprivations
of life, liberty, or property.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). “A liberty interest may
arise from the Constitution itself, by reason of the guarantees implicit in the word ‘liberty,’ or it may
arise from an expectation or interest created by state laws or policies.” Id. (citation omitted).
Because “lawful incarceration brings about the necessary withdrawal or limitation of many privileges
and rights, a retraction justified by the considerations underlying our penal system,” prisoners have
limited liberty interests. Sandin v. Conner, 515 U.S. 472, 485 (1995). Although “[t]he Constitution
itself does not give rise to a liberty interest in avoiding transfer to more adverse conditions of
confinement,” the Supreme Court has held that “a liberty interest in avoiding particular conditions
of confinement may arise from state policies or regulations.” Wilkinson, 545 U.S. at 221-22.
“[T]he touchstone of the inquiry into the existence of a protected, state-created liberty interest
in avoiding restrictive conditions of confinement is not the language of regulations regarding those
conditions but the nature of those conditions themselves ‘in relation to the ordinary incidents of
prison life.’” Wilkinson, 545 U.S. at 222 (quoting Sandin, 515 U.S. at 484). When a restraint does
not lengthen a sentence, the appropriate inquiry is whether it “imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484.
There is no evidence in the record about the conditions Evans faced in administrative
segregation. While Evans detailed the conditions of his confinement in his response to the motion
for summary judgment, he did not, as the district court acknowledged, “provide these details under
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penalty of perjury, in his verified complaint, or in his affidavit attached to his response.” (Mem. Op.
& Order, Dist. Ct. Docket No. 71, at 4 n.4.) As a result of Evans’s failure to meet his burden of
production, we are unable to review whether Evans’s transfer to administrative segregation imposed
an atypical and significant hardship. Defendants are thus entitled to judgment as a matter of law, and
the district court did not err in granting summary judgment on this claim.
2. Eighth Amendment Cruel and Unusual Punishment
Evans’s second claim is that Defendants violated the Eighth Amendment when they subjected
him to a strip search, haircut, and shave upon his entry into administrative segregation. The Eighth
Amendment prohibition on cruel and unusual punishment protects prisoners from the “unnecessary
and wanton infliction of pain.” Whitley v. Albers, 475 U.S. 312, 319 (1986) (internal quotation
marks omitted). The district court treated Evans’s Eighth Amendment argument as a conditions-of-
confinement claim; however, it may also be interpreted as a claim of excessive force. Under either
standard, Evans has failed to assert a violation of his Eighth Amendment rights.
A conditions-of-confinement claim has two elements: a sufficiently serious deprivation and
prison officials’ deliberate indifference to the prisoner’s health or safety. Spencer v. Bouchard, 449
F.3d 721, 728 (6th Cir. 2006). A deprivation is sufficiently serious when it “result[s] in the denial
of the minimal civilized measure of life’s necessities.” Id. (quoting Wilson v. Seiter, 501 U.S. 294,
302-03 (1991)) (internal quotation mark omitted). Although the list is not exhaustive, we have found
the minimal civilized measure of life’s necessities to include food, clothing, shelter, medical
treatment, and reasonable safety. See id. at 727 (citing Farmer v. Brennan, 511 U.S. 825, 832
(1994)). The district court found that Evans’s complaints of a strip search, haircut, and shave failed
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to demonstrate a sufficiently serious deprivation. We agree. Evans has not asserted that he was
denied any basic human needs while in administrative segregation, and his conditions-of-
confinement claim thus fails.
Evans has likewise failed to make out a valid claim of excessive force. “The Eighth
Amendment’s prohibition of ‘cruel and unusual’ punishments necessarily excludes from
constitutional recognition de minimis uses of physical force, provided that the use of force is not of
a sort ‘repugnant to the conscience of mankind.’” Hudson v. McMillian, 503 U.S. 1, 9-10 (1992)
(quoting Whitley, 475 U.S. at 327). Here, the force asserted to search Evans and remove his hair was
minor, and not the type to invoke Eighth Amendment protection. The district court did not err in
granting summary judgment to Defendants on this claim.
3. Fourth Amendment Reasonableness of the Search
Next, Evans argues that the stick test constituted an unreasonable search in violation of his
Fourth Amendment rights. Although drug tests constitute searches within the ambit of Fourth
Amendment protection, see Pendleton v. Vance, No. 94-6468, 1995 WL 592048, at *2 (6th Cir. Oct.
5, 1995) (unpublished disposition) (citing Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 617-20
(1989)), drug tests conducted under a prison policy of randomized testing pass Fourth Amendment
scrutiny because they are rationally related to legitimate government interests, see Gibbs v. Johnson,
No. 95-1339, 1995 WL 739470, at *1 (6th Cir. Dec. 12, 1995) (unpublished disposition) (citing
Turner v. Safley, 482 U.S. 78, 84-91 (1987)); accord Lucero v. Gunter, 52 F.3d 874, 877 (10th Cir.
1995). Non-random searches are constitutional if they are reasonable. See Bell v. Wolfish, 441 U.S.
520, 559 (1979).
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Evans argues that he was not searched pursuant to the random-testing policy, pointing to the
evidence that, although he was on the randomly generated list of inmates who might be subject to
a drug test in May, the report from Aegis listed “Reasonable Cause” as the basis for his test. This
evidence, along with the evidence referenced in section II.C.5, is sufficient to create a genuine issue
of fact concerning whether Evans was tested in accordance with the policy authorizing randomized
drug tests. The district court pushed this factual dispute to the side, stating:
While Plaintiff makes much of the reasons for testing listed on the Aegis lab reports,
Plaintiff, nonetheless, concedes that he was on the random computer-generated lists.
That KSP officers may have some leeway in choosing 84 inmates from the list of 126
to account for those transferred or released prisoners or that Plaintiff was tested on
three occasions in 2005 does not cause the Court to find that the testing process is
unreasonable or otherwise allows for repeated harassment by KSP personnel.
(Mem. Op. & Order, Dist. Ct. Docket No. 71, at 14.) The pertinent question, however, is not
whether the testing process in general was reasonable, but whether the drug test administered to
Evans on May 19, 2005 was reasonable. The district court seems to rely on a theory akin to
inevitable discovery—that is, that the drug test would have been administered to Evans because he
was on the random list. But testing was not inevitable under the circumstances—only two-thirds of
prisoners on the random list are actually tested in a given month. So while it was likely that Evans
would have been tested, it was not a foregone conclusion. Moreover, inevitable discovery is a
doctrine relating to the exclusionary rule; it does not speak to the legality of the search itself and is
thus inapplicable to the § 1983 context. Cf. Nix v. United States, 467 U.S. 431, 443-44 (1984).
Finally, the Supreme Court has indicated that, although the subjective motivation and reasoning of
the officer undertaking the search is not relevant where the search is otherwise supported by probable
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cause, the true purpose of the search does matter when the only support for the search is
administrative. See Whren v. United States, 517 U.S. 806, 811 (1996). For that reason, the random
policy can justify the search only if it was actually undertaken pursuant to that policy. Because there
is a genuine question of material fact on that issue, and because Defendants have not asserted that
the search was reasonable on some other basis, we find that the district court erred in granting
summary judgment on Evans’s Fourth Amendment claim.
4. Eighth Amendment Harassment
Evans also argues that Defendants administered the May 2005 drug test to him solely for
harassment purposes, in violation of the Eighth Amendment. Prisoners retain a remedy for
“calculated harassment unrelated to prison needs.” Hudson v. Palmer, 468 U.S. 517, 530 (1984).
The district court cited the Seventh Circuit’s pronouncement that “the Eighth Amendment’s
prohibition against cruel and unusual punishment stands as a protection from bodily searches which
are maliciously motivated, unrelated to institutional security, and hence ‘totally without penological
justification.’” Meriwether v. Faulkner, 821 F.2d 408, 418 (7th Cir. 1987) (quoting Rhodes v.
Chapman, 452 U.S. 337, 346 (1981)). However, we have neither adopted nor cited our sister
circuit’s rule, and the Supreme Court has stated that even punishments that are “totally without
penological justification” do not violate the Eighth Amendment unless they inflict some level of
pain. Rhodes, 452 U.S. at 346. Because Evans has failed to make out a cognizable claim, the district
court did not err in granting summary judgment to Defendants on this claim.
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5. First Amendment Retaliation
Finally, Evans claims that he was tested and placed in administrative segregation in
retaliation for assisting Sublett in filing a complaint with the prison administration. There are three
elements to a retaliation claim:
(1) the plaintiff engaged in protected conduct; (2) an adverse action was taken against
the plaintiff that would deter a person of ordinary firmness from continuing to engage
in that conduct; and (3) there is a causal connection between elements one and
two—that is, the adverse action was motivated at least in part by the plaintiff’s
protected conduct.
Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc) (plurality opinion). We review
each element in turn.
a. Protected Conduct
The first question is whether Evans engaged in protected conduct. Although there is no
constitutional right to assist other prisoners with legal matters, “prisoners are entitled to receive
assistance from jailhouse lawyers where no reasonable alternatives are present and to deny this
assistance denies the constitutional right of access to the courts.” Gibbs v. Hopkins, 10 F.3d 373,
378 (6th Cir. 1993). Thus, “prison officials may not prevent such assistance or retaliate for
providing such assistance where no reasonable alternatives are available.” Id. Evans has not alleged
or presented evidence tending to show that Sublett was unable to file his own complaint or
grievance, or that Evans’s help was otherwise necessary. However, in Gibbs, this Court remanded
to allow the plaintiff, who was in a similar situation, to amend his complaint to make such an
allegation. 10 F.3d at 379-80. Evans maintains that he is a qualified legal aide who has completed
several hours of training, that he is required to help anyone who comes to him for legal assistance,
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and that Sublett was in segregation and requested Evans’s assistance. Given the liberal pleading
standard applied to pro se litigants, see Thaddeus-X, 175 F.3d at 395 (citing Estelle v. Gamble, 429
U.S. 97, 106 (1976)), and our precedent in Gibbs, and assuming that Evans has established the
remaining elements of his claim, we find it equitable to reverse the district court’s grant of summary
judgment on this claim and remand to allow Evans to amend his complaint and present evidence that
Sublett had no reasonable alternative to his assistance.
In addition, we take this opportunity to correct the district court’s unduly restrictive statement
of the law: “[E]ven if Plaintiff Sublett was somehow prevented from filing a complaint/grievance
while segregated, Plaintiff Evans’ [sic] fails to show that his assistance, as opposed to Grievance
Aide DeBow’s or another legal aide’s assistance, was necessary to vindicate Plaintiff Sublett’s right
to access the courts.” (Mem. Op. & Order, Dist. Ct. Docket No. 71, at 18.) While there must be a
showing that the “individual prisoner’s right to access the courts has been impaired,” Thaddeus-X,
175 F.3d at 396 n.11 (citing Lewis v. Casey, 518 U.S. 343 (1996)), we have not held, nor can it be
true, that the prisoner must need assistance from the particular plaintiff at issue. Cf. Gibbs, 10 F.3d
at 378-80. If a prisoner needs assistance in filing his legal documents, and any legal aide would be
retaliated against for providing assistance and is therefore deterred from doing so, it matters not
whether there is one qualified aide or ten; retaliation against the aide who chooses to help still
prevents the prisoner from accessing the courts, and the aide thus has a derivative claim for
retaliation. Cf. Thaddeus-X, 175 F.3d at 395 (stating that “a ‘jailhouse lawyer’s’ right to assist
another prisoner is wholly derivative of that prisoner’s right of access to the courts”). As a result,
on remand Evans may establish protected conduct by proving not that he was the only person who
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could assist Sublett, but that Sublett needed assistance and had no reasonable alternative but to seek
that assistance from another prisoner.
b. Adverse Action
The second requirement is an adverse action. In the prison context, an adverse action is “an
action comparable to transfer to administrative segregation,” or an “action[] of lesser severity” that
“would ‘deter a person of ordinary firmness’ from the exercise of the right at stake.” Thaddeus-X,
175 F.3d at 397 (quoting Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982)). It is undisputed that
Evans was administered a drug test and placed in administrative segregation pending investigation
into possible drug activity. Evans contends that Defendants also did not maintain the proper chain
of custody for that test. These contentions are supported by evidence in the record and sufficient to
deter a person of ordinary firmness from assisting other prisoners in filing legal complaints and
grievances.
c. Causal Connection
The final requirement is a causal connection between the protected conduct and the adverse
action. This element comes from the familiar test in Mount Healthy City School District Board of
Education v. Doyle, 429 U.S. 274 (1977), and is met where the plaintiff establishes that his protected
conduct was a “motivating factor” in the adverse action. Id. at 287 (internal quotation marks
omitted); see also Thaddeus-X, 175 F.3d at 399. The burden of production then shifts to the
defendant to “show that he would have taken the same action in the absence of the protected
activity.” Thaddeus-X, 175 F.3d at 399. We assume, for the purposes of this analysis, that on
remand Evans could show that his assistance of Sublett was protected conduct.
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As examined above in section II.C.3, there is a genuine issue of material fact whether the
actual reason for Evans’s drug test was his presence on the random testing list. From the listing of
“reasonable cause” on Evans’s testing form, the date of testing only two days after his assistance was
rendered and on the day Sublett was released, the delay in sending the results to the lab, his
placement in 7 Cellhouse instead of 3 Cellhouse, the fact that others involved in the assistance were
also tested and had “reasonable cause” listed as the purpose, and the failure to allow Evans to
observe that proper testing procedures were followed and the chain of custody remained intact, a
reasonable jury could conclude that Evans’s protected conduct was a motivating factor in
Defendants’ administration of the drug test and extended placement of Evans in administrative
segregation. This evidence also rebuts Defendants’ claim that they would have taken the adverse
action in the absence of the protected conduct, and is sufficient to preclude summary judgment on
this claim.
Because Evans has otherwise made out a viable claim of First Amendment retaliation, we
reverse the district court’s grant of summary judgment and remand to allow Evans to amend the
complaint and present evidence that Sublett had no reasonable alternatives to another prisoner’s
assistance.
D. Qualified Immunity
Although the evidence viewed in the light most favorable to Evans establishes that
Defendants violated Evans’s First and Fourth Amendment rights, Defendants may still be entitled
to qualified immunity if the constitutional rights at issue were not clearly established at the time of
their conduct. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Defendants asserted the defense of
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qualified immunity both below and on appeal; however, they did so in both instances in a one-and-a-
half page statement of the law with no attempt at argument, and they cited only the first prong of the
test: whether their alleged conduct violated a constitutional right. Defendants have failed to argue
that the rights at issue were not clearly established, and as a result they have waived that defense.
See Hills v. Kentucky, 457 F.3d 583, 588 (6th Cir. 2006) (accepting the district court’s conclusion
for the first step in the qualified immunity analysis where the defendant made no attempt to explain
where the district court erred); Spirko v. Mitchell, 368 F.3d 603, 612 (6th Cir. 2004) (“It is a ‘settled
appellate rule that issues averred to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived.’” (quoting United States v. Elder, 90 F.3d 1110, 1118
(6th Cir. 1996)).
E. Untimely Filing of Defendants’ Motion for Summary Judgment
Finally, Evans argues that the district court erred by allowing Defendants to file their motion
for summary judgment after the allotted time for filing dispositive motions had lapsed. This
contention lacks merit.
The original deadline for dispositive motions was August 13, 2008. On that day, Defendants
moved for an extension, which the district court granted. The new deadline was September 12,
2008. On September 19, 2008, Defendants moved for leave to file their motion for summary
judgment out of time within the next fifteen days, stating as the reason for the delay that the district
court had not ruled on a motion for removal of one of the plaintiffs in the action until September 18,
2008. The district court granted that motion on March 27, 2009, finding that “Defendants ha[d]
shown good cause for filing their motion for summary judgment within 20 days after its original due
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date and Plaintiff ha[d] shown no prejudice by this minor delay.” (Order, Dist. Ct. Docket No. 64,
at 1.)
“When an act may or must be done within a specified time, the court may, for good cause,
extend the time . . . on motion made after the time has expired if the party failed to act because of
excusable neglect.” Fed R. Civ. P. 6(b)(1). We review the district court’s determination of
excusable neglect for abuse of discretion. Nafziger v. McDermott Int’l, Inc., 467 F.3d 514, 522 (6th
Cir. 2006). In granting Defendants’ motion, the district court cited the short length of the delay, the
lack of prejudice to Evans, and that the delay was for good cause—all appropriate considerations
weighing in favor of finding excusable neglect, see id. (citing Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)). Evans has not explained how the district court
abused its discretion in granting Defendants’ motion for leave to file out of time. His contention that
summary judgment should be denied based on Defendants’ failure to comply with the briefing
schedule thus fails.
III. CONCLUSION
For the foregoing reasons, we REVERSE district court’s grant of summary judgment as to
Evans’s First Amendment retaliation and Fourth Amendment unreasonable-search claims against
Defendants in their individual capacities—and their official capacities to the extent injunctive relief
is sought— AFFIRM the district court’s judgment in all other respects, and REMAND the case for
further proceedings consistent with this opinion.
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