Clardy v. Mullens et al

Filing 39

ORDER Adopting 36 Report and Recommendation granting 23 Motion for Summary Judgment filed by Patrick Merry and granting 15 Motion for Summary Judgment filed by Michael Mullens, Kevin Smith Signed by District Judge Bernard A. Friedman. (CMul)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

BARRY CLARDY,
Plaintiff,

Case No. 12-cv-11153
HON. BERNARD A. FRIEDMAN
MAG. JUDGE LAURIE J. MICHELSON

vs.
MICHAEL MULLENS, et al.,
Defendants.
______________________________________/

OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION AND GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
I.

Introduction
Pro se plaintiff, an inmate in the custody of the Michigan Department of Corrections

(“MDOC”), commenced this action against defendants, current and former MDOC employees,
for violating several of his constitutional rights pursuant to 42 U.S.C § 1983. Plaintiff
specifically alleges that defendants Michael Mullins (incorrectly spelled “Mullens” in the
caption) and Patrick Merry placed him in a segregated inmate unit and had him transferred to
another correctional facility after he failed to provide defendants with information concerning an
illegal contraband smuggling operation. Plaintiff also maintains that defendant Kevin Smith
improperly refused to serve process on defendant Merry.
Before the Court is plaintiff’s objections to Magistrate Judge Michelson’s August 29,
2012 Report and Recommendation (“R&R”) [docket entries 36 and 37]. The R&R granted
defendants’ motions for summary judgment [docket entries 15 and 23]. Defendants have not

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filed a response to plaintiff’s objections. Since the Court has reviewed this matter de novo
pursuant to Fed. R. Civ. P. 72(b)(3), and finds that the Magistrate Judge’s recitation of the
underlying facts is accurate, the Court will adopt the Magistrate Judge’s summary of the factual
record as it appears on pages 1 through 4 of the R&R.
In his objections, plaintiff argues that defendants Mullins and Merry deprived him of due
process when they placed him in a segregated inmate unit and had him transferred to another
correctional facility. Plaintiff alleges that these defendants violated his due process liberty
and/or property interest in continued employment with Michigan State Industries (“MSI”), an
inmate jobs program. Plaintiff also contends that defendants Mullins and Merry retaliated
against him for exercising his First Amendment right to claim ignorance of the underlying facts
in an investigation of prisoner misconduct. Plaintiff asserts that the Michigan Attorney General
can no longer represent defendant Merry because he is not a current MDOC employee.
Furthermore, plaintiff maintains that defendant Smith, in effect, denied him access to the courts
when he declined to serve process on defendant Merry.
II.

Analysis
Pursuant to its de novo standard of review, the Court finds that the Magistrate Judge’s

conclusions are correct. The Magistrate Judge properly noted that plaintiff does not have a due
process liberty interest “in remaining free of disciplinary segregation,” McKinley v. Bowlen, 8
F. App’x 488, 492 (6th Cir. 2001), or “in transfer from one prison to another ‘for whatever
reason or for no reason at all.’” Bazzetta v. McGinnis, 430 F.3d 795, 804 (6th Cir. 2005) quoting
Meachum v. Fano, 427 U.S. 215, 228 (1976). Similarly, plaintiff does not possess either a due
process liberty or property interest in continued prison employment. See Dobbins v. Craycraft,

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423 F. App’x 550, 552 (6th Cir. 2011); Roberts v. Croft, No. 12-0936, 2012 U.S. Dist. LEXIS
104571, at *31 (N.D. Ohio Jul. 26, 2012).
Additionally, plaintiff’s contention that defendants Mullins and Merry retaliated against
him for exercising his First Amendment right to assert ignorance of the underlying facts of a
prison investigation is without merit because “[t]he act of refusing to provide information about
fellow inmates is not ‘protected conduct’ under the First Amendment.” Canosa v. State of
Hawaii, No-05-00791, 2007 U.S. Dist. LEXIS 2790, at *28-29 (D. Haw. Jan. 11, 2007); see e.g.
Hardeman v. Quarterman, No. 10-0016 , 2010 U.S. Dist. LEXIS 99271, at *3-4 (E.D. Tex. Sept.
20, 2010); but see Watson v. Norris, No. 07-0102, 2007 U.S. Dist. LEXIS 89525 (E.D. Ark. Dec.
5, 2007).
Plaintiff also lacks the requisite standing to challenge the Attorney General’s
representation of defendant Merry on the ground that he is no longer an MDOC employee. See
Washington v. Randall-Owens, No. 06-12588, 2007 U.S. Dist. LEXIS 28484, at *5 (E.D. Mich.
Apr. 18, 2007). In any event, the Director of the MDOC or his designee “ has the
final authority as to whether a request for Department of Attorney General representation will be
[approved or] denied,” MDOC Policy 02.01.102(I),1 and “[t]his Court has no. . . legal basis to
alter the representation of” defendant Merry. Washington, 2007 U.S. Dist. LEXIS 28484, at *56.
Finally, the Magistrate Judge properly dismissed plaintiff’s claim that defendant Smith,
in effect, denied him access to the courts because defendant Smith’s refusal to serve process on
defendant Merry did not thwart plaintiff’s ability to bring suit on his underlying claims and

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http://www.michigan.gov/documents/corrections/02_01_102_219888_7.pdf.
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obtain redress in the courts. See Christopher v. Harbury, 536 U.S. 403, 415 (2002); Brown v.
Matauszak, 415 F. App’x 608, 612 (6th Cir. 2011).
As the Court has reviewed the record, and finds that Magistrate Judge Michelson reached
the correct result on the appropriate grounds, the R&R is affirmed.
Accordingly,

IT IS ORDERED that the Magistrate Judge’s Report and Recommendation is affirmed.

IT IS FURTHER ORDERED that plaintiff’s objections are denied.

Dated: October 19, 2012
Detroit, Michigan

s/ Bernard A. Friedman___________________
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE

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