Aaron v. Dyer et al

Filing 40

ORDER Granting In Part And Denying In Part 20 Defendants' Motion for Summary Judgment. Signed by District Judge Victoria A. Roberts. (LVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JEFFREY AARON,
Plaintiff,
Case No.: 15-cv-11014
v.
HONORABLE VICTORIA A. ROBERTS
JACKIE DYER, et al.,
Defendant.
/
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT (ECF No. 20)
I.

BACKGROUND
Mr. Aaron is a pro se prisoner confined in the Michigan Department of

Corrections (“MDOC”). He brings this action under 42 U.S.C. § 1983, alleging that his
civil rights were infringed by seven MDOC employees at the G. Robert Cotton
Correctional Facility and the Chippewa Correctional Facility.
Dyer failed to answer. The other six Defendants filed motions for summary
judgment (ECF Nos. 20, 23). Since filing, three have been dismissed (Hartnagel, Artis,
and Ryan). The remaining Defendants are Rennia Funches, Kelly Holden, and Richard
Cady. The motion is fully briefed. Defendants’ Motion is GRANTED IN PART and
DENIED IN PART.
Aaron asserts that Defendants retaliated against him for filing grievance reports –
a protected activity – in violation of his First Amendment Rights. They are sued in their
individual and official capacities for monetary damages and injunctive relief.
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Against Holden, Aaron alleges verbal assault, retaliation through failing to
transfer him to another cell for prior grievances, other improper conduct in connection
with a denial of relief for a grievance Aaron had filed, and instructing co-workers to
confiscate his legal work.
Aaron alleges Funches threatened him about his civil litigation, made statements
designed to instigate confrontation with other inmates against Aaron, and improperly
instructed co-workers to confiscate his legal work.
Aaron alleges Cady improperly denied his grievance request for relief, failed to
intervene or otherwise stop retaliation inflicted by Cady’s subordinates, and failed to
mitigate exposure to unhealthy conditions that posed a risk to Aaron.
Defendants argue that Aaron did not fully exhaust administrative remedies on
several of his claims and that the exhausted claims do not constitute constitutional
violations. In addition, they assert entitlement to sovereign immunity insofar as they are
sued in their official capacities, and qualified immunity on any individual liability.
II.

STANDARDS OF REVIEW
A.

Summary Judgment

Under Federal Rule of Civil Procedure 56, summary judgment is proper when
“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). A genuine issue
of material fact exists "if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.
Ct. 2505, 2507, 91 L. Ed. 2d 202 (1986). The essential inquiry is "whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it is so
2

one-sided that one party must prevail as a matter of law." Id. at 251-52.
The movant has the initial burden to demonstrate the absence of a genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91
L. Ed. 2d 265 (1986). The burden then shifts to the nonmovant, who “must set forth
specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256
(discussing FED. R. CIV. P. 56(e)). “The court must view the evidence in the light most
favorable to the non-moving party, drawing all reasonable inferences in that party's
favor.” Sagan v. United States, 342 F.3d 493, 497 (6th Cir. 2003) (citing Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d
538 (1986)).
Both parties must support their assertions “that a fact cannot be or is genuinely
disputed” by “citing to particular parts of materials in the record, including 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). Alternatively, either party may
carry its burden by “showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.” Id. 56(c)(1)(B).
It is not enough for the nonmovant to “simply show that there is some
metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. Rather, the
nonmovant must sufficiently allege a fact that, if proven, “would have [the] effect of
establishing or refuting one of the essential elements of a cause of action or defense
asserted by the parties.” Midwest Media Prop., L.L.C. v. Symmes Twp., Ohio, 503 F.3d
3

456, 469 (6th Cir. 2007) (alteration in original) (quoting Kendall v. Hoover Co., 751 F.2d
171, 174 (6th Cir. 1984)) (internal quotation marks omitted). If the nonmoving party does
not respond with specific facts showing a genuine issue for trial, summary judgment is
appropriate. Emmons v. McLaughlin, 874 F.2d 351, 353 (6th Cir. 1989).
In addition, when, as here, the non moving party files a verified complaint, ECF
No. 1 at 50 and ECF No. 1-1 at 1, the verified allegations carry the same weight as an
affidavit in response to the motion for summary judgment. See 28 U.S.C. § 1746;
Williams v. Browman, 981 F.2d 901, 904-05 (6th Cir. 1992).
B.

Pro se Litigants

The summary judgment rules will be qualified to the extent necessary in light of
Aaron’s status as a pro se litigant. When reviewing pro se complaints, the Court must
employ a less stringent standard than if the complaint had been drafted by counsel.
Haines v. Kerner, 404 U.S. 519, 520 (1972). But “leniency granted to pro se petitioners .
. . is not boundless.” Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004). Further,
courts are not required to conjure unstated allegations or guess the plaintiff’s claims.
Wells v. Brown et al., 891 F.2d 591, 594 (6th Cir. 1989) (citations omitted). Even pro se
litigants must meet minimal standards. Id.
III.

DISCUSSION
A.

Exhaustion of Administrative Remedies

Defendants argue that Aaron failed to exhaust administrative remedies on
several of his claims. As a result, they say he cannot recover through litigation in federal
court. This is an affirmative defense; “a prisoner may not be required to specifically

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plead or demonstrate exhaustion in his complaint.” Vandiver v. Corr. Med. Servs., Inc.,
326 F. App'x 885, 888 (6th Cir. 2009) (citing Jones v. Bock, 549 U.S. 199, 127 S. Ct.
910, 922-23, 166 L. Ed. 2d 798 (2007). Defendants must demonstrate not only that
Aaron failed to raise a dispute of material fact, but also that they have satisfied their
burden to show that administrative remedies were not exhausted.
The exhaustion provision of the Prison Litigation Reform Act (“PLRA”) states:
No action shall be brought with respect to prison conditions under [42
U.S.C. § 1983], or any other Federal law, by a prisoner confined in any
jail, prison, or other correctional facility until such administrative remedies
as are available are exhausted.
42 U.S.C. § 1997e(a). Requiring exhaustion allows prison officials an opportunity to
resolve disputes concerning the exercise of their responsibilities before being haled into
court. Jones, 549 U.S. at 204. In Woodford v. Ngo, 548 U.S. 81, 126 S. Ct. 2378, 165 L.
Ed. 2d 368 (2006), the Supreme Court interpreted the PLRA as requiring “proper
exhaustion,” meaning that a prisoner must “make full use of the prison grievance
process” and “compl[y] with the system's critical procedural rules.” Id. at 93–95;
Himmelreich v. Federal Bureau of Prisons, 766 F.3d 576 (6th Cir. 2014). Exhaustion is
mandatory, and applies to suits with respect to prison conditions regardless of the type
of relief sought. Vandiver v. Corr. Med. Servs., Inc., 326 F. App'x 885, 888 (6th Cir.
2009) (citing Booth v. Churner, 532 U.S. 731, 739, 121 S. Ct. 1819, 149 L. Ed. 2d 958
(2001); Porter v. Nussle, 534 U.S. 516, 520, 122 S. Ct. 983, 152 L. Ed. 2d 12 (2002)).
The prison's requirements, not the PLRA, define the boundaries of proper exhaustion.
Jones, 549 U.S. at 218.
Defendants assert that MDOC Policy Directive 03.02.130 sets forth exhaustion
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procedures and requires that all sued parties be named in an initial grievance. They say
Aaron failed to do this or file a Step III appeal in some of his grievances. Defendants
rely on Burton v. Jones, 321 F.3d 569, 574 (6th Cir. 2003), for a holding that was
subsequently abrogated in a unanimous decision by the United States Supreme Court.
ECF No. 20 at 24; Jones, 549 U.S. at 199 (2007). In Jones v. Bock, the Supreme Court
clarified that the PLRA does not require a plaintiff to state all defendant’s names in an
initial grievance, only compliance with state prison grievance policies. Accordingly, since
the policy in effect when the Jones grievances were filed did not require certain
individuals be named, it was error to impose a “name all defendants” requirement.
The same policy directive number at issue in Jones is now before this Court, but
on different factual grounds. Jones examined MDOC Policy 03.02.130, effective Nov. 1,
2000. The State of Michigan has revised Policy Directive 03.02.130 several times since
2000, thus limiting the application of the Supreme Court’s ruling on Aaron’s claims.
The revised directives, which were in effect throughout 2011-2013 when Aaron
filed his grievances, provide guidance about what information must be included: "The
issues shall be stated briefly. Information provided shall be limited to the facts involving
the issue being grieved (i.e., who, what, when, where, why, how). Dates, times, places
and names of all those involved in the issue being grieved are to be included.” MDOC
Policy Directive 03.02.130 ¶ R (July 9, 2007). In addition, the text before and after that
sentence requests that the information be limited to facts and that the information be
limited to the grievance form itself (of which only one third of the space is available for
narrative description). Id.
Defendants also rely on Reed-Bey v. Pramstaller, 603 F.3d 322, 323 (6th Cir.
6

2010), a Sixth Circuit opinion that reached a ruling contrary to the one they now seek.
That case quotes language similar to the current Paragraph R, but the Sixth Circuit
overruled this Court’s grant of summary judgment to defendant prison officials
notwithstanding procedural failure. In Reed-Bey, the Sixth Circuit held that the State of
Michigan’s substantive ruling on a grievance constituted an implicit failure to assert its
own procedural defense: by failing to assert the procedural defect of not listing all
names and instead ruling substantively on the grievance, the State waived its ability to
prevent judicial review.
Aaron says that he complied with the MDOC grievance requirements for all of his
grievances and that the MDOC answered and ruled on the merits of his grievances.
ECF No. 23 at 14. He claims that the following grievances have been administratively
exhausted: JCF-11-12-2717-17b; JCF-12-01-0209-17b; JCF-12-01-0163-17a;
JCF-12-01-0206-26b; JCF-12-01-0207-17f; JCF-12-02-0398-07e; JCF-12-03-0485-28b;
URF-14-10-3259-3b; URF-14-10-3280-19d; and an additional unnumbered grievance to
which Aaron has not received a response. He notes that JCF-12-03-0485-28b was
rejected, but Defendants still answered and replied to the allegations.
Defendants take different positions on exhaustion for each grievance.
1.

Non-Pertinent Grievances Prior to the Complaint

First, Defendants say that 5 of Aaron’s 11 Step III grievance appeals were filed in
2011 while he was incarcerated at JCF and precede all of the allegations made in
Aaron’s Complaint. ECF No. 20 at 23-23. Defendants provide four grievance numbers,
restating one of them. The prior grievances are: JCF-11-08-1755-17b
JCF-11-08-1756-17b, JCF-11-08-1640-17a (listed twice), and JCF-11-03-0515-13a.
7

Aaron does not attach those grievances to his Complaint nor does he reference them in
his Response. Any claims arising out of those grievances are DISMISSED.
2.

Grievances that Defendants Do Not Challenge

Second, Defendants do not contest exhaustion of administrative remedies for
claims JCF-12-01-0209-17b, JCF-12-01-0163-17a, and JCF-12-01-0206-26b. ECF No.
20 at 25. Those claims will be addressed for qualified immunity in section III(C), below.
3.

Grievances that Will be Considered Substantively Those that are Challenged, Yet Provide Adequate Notice

Third, Defendants assert that Aaron did not exhaust administrative remedies for
grievance JCF-11-12-2717-17b, because he did not name Cady or Funches and did not
allege any misconduct by Holden in Step I. ECF No. 20 at 24. Aaron clarified that this
grievance was only filed against Dyer and Holden, not Cady as Defendant’s assert. ECF
No. 23 at 15. Instead, Aaron had a separate grievance for Cady, who was only
mentioned to provide context in this Step II appeal. Aaron does not mention Funches in
responding to Defendants’ arguments for this grievance. As a result, any claims against
Cady and Funches arising out of this grievance are DISMISSED for failure to exhaust
administrative remedies. The Response at Step I indicates at least a fact question about
the degree to which Holden was involved. Aaron’s claims against Holden in this
grievance were administratively exhausted and will be analyzed substantively.
4.

Non-Exhausted Grievances that Will be Dismissed

Fourth, Defendants say Aaron has not properly exhausted his administrative
remedies in all remaining grievances since he did not follow the procedures of the policy

8

by filing a Step III grievance appeal prior to filing this lawsuit. ECF No. 20 at 26.
Defendants do not specify which grievances this statement covers. Reference to
Aaron’s Complaint indicates that the outstanding grievances include:
JCF-12-03-0485-28b; URF-14-10-3259-3b; URF-14-10-3280-19d; and the grievance
with no number and no response.
Aaron does not present evidence to suggest that the unnumbered grievance
complied with MDOC policies. Because no other information is provided by either side
about this unnumbered grievance, the Court cannot evaluate whether it complies with
MDOC policies; any claims arising from it are DISMISSED for failure to exhaust
administrative remedies.
Grievance JCF-12-03-0485-28b was rejected at Step I for non-compliance with
the policy; it was not answered on the merits. Pursuant to Policy Directive 03.02.130
paragraph I, “A grievant whose grievance is rejected may appeal the rejection to the
next step as set forth in this policy.” See, e.g., ECF No. 20-2 at 3. Aaron does not
present any information that the grievance was appealed further. Aaron is unable to
demonstrate exhaustion of administrative remedies. Moreover, because the grievance
was rejected on procedural grounds and was not denied on its merits, the Reed-Bey
waiver rule does not apply. Claims arising out of this grievance are DISMISSED.
Defendants’ assertion about the absence of a Step III appeal is also correct for
grievance URF-14-10-3259-3b. Aaron does not submit the State’s letter confirming
receipt of his Step III appeal and does not provide a Step III decision. Thus,
administrative remedies are not satisfied; that grievance’s claims are DISMISSED.

9

Defendants’ broad statement about the absence of a Step III appeal is incorrect
with respect to grievance URF-14-10-3280-19d. The State’s Step III response is dated
January 23, 2015. ECF No. 1-2 at 41. But, Aaron is still unable to demonstrate
exhaustion of administrative remedies for this grievance because it does not comport
with the MDOC policy requiring that all parties be named, at least as applied to the
Defendants who brought this motion. The grievance responses at the various steps of
the process do not mention Holden, Cady, or Funches. Moreover, neither the Complaint
nor the Response mention any named Defendant with respect to these grievances.
Aaron has not made a showing sufficient to state a claim against any of the named
Defendants in this motion. Claims arising out of this grievance are DISMISSED.
5.

Grievances that Will be Considered Substantively Those that are Challenged, Yet Step III was Filed

Defendants’ allegations about the absence of a Step III appeal are incorrect
about other grievances. Defendants do not state that administrative remedies were
exhausted on grievance JCF-2012-01-0207-17f, so their residual claim that Aaron has
not properly exhausted his administrative remedies because he did not file a Step III
applies. But Defendants also provided the State’s response to grievance JCF-12-010207-17f at Step III, which notes that the grievance had been fully reviewed. ECF No.
20-3 at 12. The Step III response is dated May 16, 2012, which is before this lawsuit
was filed on March 18, 2015. Thus, Defendant’s have not established that Aaron failed
to exhaust administrative remedies by not submitting a Step III appeal.
The same is true with grievance JCF-12-02-0398-07e. The State’s Step III

10

response is dated July 12, 2012, well before this suit was filed. Aaron has exhausted
administrative remedies on this grievance.
6.

Summary of Grievances that Survive Exhaustion

In summary, Defendants do not raise exhaustion for grievances JCF-12-01-020917b, JCF-12-01-0163-17a, and JCF-12-01-0206-26b. Defendants do not meet their
burden to show that grievance JCF-11-12-2717-17b provides inadequate information
and notice; that claim survives exhaustion as to Holden only. Grievances
JCF-12-01-0207-17f and JCF-12-02-0398-07e were appealed through Step III, and
thus, were exhausted. Claims arising out of these grievances will be reviewed
substantively.
B.

Sovereign Immunity

Defendants contend that sovereign immunity prevents Aaron from maintaining
his suit against the named Defendants to the extent that they were sued in their official
capacities. The Court agrees.
Defendants are entitled to sovereign immunity for Aaron’s 42 U.S.C. § 1983
claims made against them in their official capacities. The Eleventh Amendment
generally bars a suit for money damages brought in federal court against a state unless
the state has waived its sovereign immunity or consented to be sued. The State of
Michigan has not done so. See Kovacevich v. Kent State Univ., 224 F.3d 806, 817 (6th
Cir. 2000). The Defendants named in their official capacities are entitled to immunity
with respect to Aaron’s § 1983 claim because "a suit against a state official in his or her
official capacity is [ ] a suit against the official's office," which is "no different from a suit
against the State." Will v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304,
11

105 L. Ed. 2d 45 (1989); McCoy v. Michigan, 369 F. App'x 646, 654 (6th Cir. 2010).
C.

Qualified Immunity

Aaron's § 1983 claims against the Defendants in their individual capacities, are
not barred by sovereign immunity. See Johnson v. Univ. of Cincinnati, 215 F.3d 561,
571 (6th Cir. 2000); McCoy v. Michigan, 369 F. App'x 646, 654 (6th Cir. 2010). But, they
may be entitled to qualified immunity for claims against them in their individual
capacities.
Under the doctrine of qualified immunity, “government officials performing
discretionary functions generally are shielded from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). Qualified immunity involves a two-step
inquiry. First, the court must determine whether, based upon the applicable law, the
facts viewed in the light most favorable to the plaintiff show that a constitutional violation
has occurred. Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 2156, 150 L. Ed. 2d 272
(2001). Second, “if a violation could be made out on a favorable view of the parties'
submissions, the next, sequential step is to ask whether the right was clearly
established.” Id.; see also Dickerson v. McClellan, 101 F.3d 1151, 1158 (6th Cir. 1996).
The Court may address these steps in any order. See Pearson v. Callahan, 555 U.S.
223, 239-43, 129 S. Ct. 808, 820-22, 172 L. Ed. 2d 565 (2009).
1.

Clearly Established

Qualified immunity analysis requires the constitutional violation to be “clearly
established.” “For a right to be clearly established, ‘[t]he contours of the right must be
12

sufficiently clear that a reasonable official would understand that what he is doing
violates that right.’” Bell v. Johnson, 308 F.3d 594, 601-02 (6th Cir. 2002) (quoting
Russo v. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir. 1992); Anderson v. Creighton,
483 U.S. 635, 639, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987)).
Defendants make a conclusory assertion that their actions were objectively
reasonable under the circumstances [and presumably not “clearly established”] without
providing any analysis in support. ECF No. 20 at 37. The Court disagrees. In Newsom
v. Norris, 888 F.2d 371 (6th Cir. 1989), the Sixth Circuit “clearly established that an
inmate need not show that the retaliatory action, standing alone, was sufficiently
egregious to violate the Constitution.” Bell, 308 F.3d at 609 (6th Cir. 2002). “[E]ven
minimal infringement upon First Amendment values constitutes irreparable injury.” Id.
(quoting Newsom, 308 F.3d at 378). Accordingly, Defendants’ alleged violations were
clearly established in 2011 and 2012 when the conduct occurred.
2.

Constitutional Violation: First Amendment Claims

Proper qualified immunity analysis requires a court to determine whether, in
viewing the facts in the light most favorable to the plaintiff, a constitutional violation
occurred. Aaron asserts one violation: retaliation in violation of his First Amendment
rights.

Although Defendants believe that Aaron alleges Eighth Amendment

violations of the proscription against cruel and unusual punishment, Aaron expressly
says he did not bring an Eighth Amendment claim but he is not opposed to his
Complaint being deemed to raise Eighth Amendment claims. ECF No. 23 at 6. The
Court will take Aaron at his word: to the extent any part of his Complaint can be
construed as alleging an Eighth Amendment violation, those claims are dismissed.
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Aaron asserts that Defendants retaliated against him for filing grievances against
them and their colleagues. The controlling legal test for prisoners' First Amendment
retaliation claims was set forth by the Sixth Circuit Court of Appeals in Thaddeus-X v.
Blatter, 175 F.3d 378, 394 (6th Cir. 1999):
A retaliation claim essentially entails three elements: (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.
Id. at 394. "Although the elements of a First Amendment retaliation claim [are] constant,
the underlying concepts that they signify will vary with the setting – whether activity is
'protected' or an action is 'adverse' will depend on context." Bell v. Johnson, 308 F.3d
594, 602-03 (6th Cir. 2002) (quoting Thaddeus-X, 175 F.3d at 388).
Defendants only challenge the second of the three elements – adverse action.
An action is “adverse” if it “would deter a person of ordinary firmness from the
exercise of the right at stake.” Thaddeus-X, 175 F.3d at 396. “While certain threats or
deprivations are so de minimis that they do not rise to the level of being constitutional
violations, this standard is intended to weed out only inconsequential actions.” Id. at
398. As a result, “government actions, which standing alone do not violate the
Constitution, may nonetheless be constitutional torts if motivated in substantial part by a
desire to punish an individual for exercise of the constitutional right.” Bell v. Johnson,
308 F.3d 594, 603 (6th Cir. 2002) (quoting Thaddeus-X, 175 F.3d at 386). “[P]risoners
‘may be required to tolerate more than average citizens before an action taken against
them is considered adverse,’” but an act against a prisoner need not be egregious to be
14

adverse. LaFountain v. Harry, 716 F.3d 944, 948 (6th Cir. 2013) (quoting Thaddeus-X,
175 F.3d at 398).
Aaron alleges a string of retaliatory acts occurred from late 2011 through 2012,
reflected in several grievances he filed during that time period and described
chronologically below.
a.

Grievance JCF-11-12-2717-17b

The first grievance is JCF-11-12-2717-17b, which was filed on December 22,
2011, against Dyer and Holden, Dyer’s supervisor, alleging that Aaron was reassigned
to an unhealthy cell with a dangerous and mentally ill cellmate because he previously
filed grievances against Dyer’s husband who also worked at the prison. ECF No. 1 at
17. Aaron says his new cell is unhealthy because his cellmate is unhygenic, his cellmate
smears feces on himself and all around the cell, and because Dyer refused to allow him
to have proper cleaning products to disinfect the cell. ECF No. 1 at 17, 35, 36. The new
cellmate is said to be dangerous and mentally ill because he, for example, has
demanded that Aaron help him commit suicide.” ECF No. 1 at 36. Aaron alleges that his
cell reassignment happened one day after “Lansing ordered an investigation regarding
my grievance against Dyer’s husband.” ECF No. 1-1 at 30. The retaliatory nature of the
transfer is said to be corroborated by Dyer asking, while laughing, “You like it better
down there?” ECF No. 1-1 at 30. Aaron filed this grievance to request that he “not be
subjected to any more retaliation, e.g., from Dyer’s coworkers, shakedowns,
confiscations, setups, etc.” ECF No. 1-1 at 30.
The Step II and III appeals assert that Cady falsified the reasons in the Step I
response to cover for Dyer and her coworkers’ wrongdoing. Aaron supports this claim
15

by providing statements allegedly made by the Inspectors to him stating that he was not
under investigation as stated in the Step I response. The Step III response says that
“the response you received at Step I reflects that your issues were in fact considered
and appropriately responded to at the facility level.” ECF No. 1-1 at 35. Although Aaron
names Cady in the two appeals, he says that Cady is not a party to this grievance and
that grievance JCF-12-01-0206-26b sets forth retaliatory allegations against Cady. ECF
No. 23 at 5.
Defendants deny a retaliatory motive. The initial grievance names Holden, but
says only that Holden told Aaron that she did not move him. The Step I response, which
was drafted by Cady, indicates that Holden told Cady that she had received information
indicating “Aaron may be up to some mischief there in that cell,” and so “it was decided”
that a move would “keep Aaron out of trouble.” ECF No. 1-1 at 31. As a matter of law,
Defendants say that a transfer is not an adverse action. ECF No. 20 at 33.
“Cell assignments are a normal part of prison life, and thus typically do not
amount to an adverse action,” absent extraordinary circumstances. LaFountain, 716
F.3d at 949. In Lafountain, The Sixth Circuit found that forcing a prisoner to cell with a
mentally ill prisoner who presented foreseeable risks – the mentally ill prisoner had
threatened to use one of two knives he hid in the prison yard on the plaintiff –
constituted an adverse action. Id.
Aaron’s assertion that he was reassigned to a cellmate, who had a well-known
and long history of mental illness that manifested in extremely unhygienic practices,
constitutes an extraordinary circumstance, especially if it is true that he was denied
supplies to clean his cell. See, e.g., Penrod v. Zavaras, 94 F.3d 1399, 1404 (10th Cir.
16

1996) (refusal to provide inmate with hygiene items). As stated in the administrative
remedies section, the nature of Holden’s involvement in the transfer is a question of
fact. See ECF No. 1 at 38; ECF No. 20 at 15-16. Summary judgment on claims against
Holden pertaining to retaliatory reassignment and cell conditions is DENIED.
b.

Grievance JCF-2012-01-0163-17a

In grievance JCF-2012-01-0163-17a, filed January 19, 2012, Aaron alleges that
Funches engaged in retaliatory behavior against him on January 17, 2012, the day after
he filed a Step II appeal in grievance JCF 2011-12-2717-17b. In Step I of grievance
JCF-2012-01-0163-17a, Aaron alleges that Funches threatened him about his civil
litigation, that Funches would not respond to his questions, and that Funches told Aaron
to "Tell the truth [...] tell them you're a snitch" in front of other prisoners. ECF No. 1-1 at
41. Aaron alleges that as a result, people purportedly affiliated with Funches – the
“Jack-Town Posse” prison gang – assaulted, accosted and threatened Aaron about
Funches' statements. ECF No. 1 at 19-20; ECF No. 1-1 at 41. Aaron alleges in his Step
III appeal that Holden accosted and interrogated him during a “second interview” on the
grievance within hours after it was sent to the grievance coordinator. ECF No. 1 at 21.
These allegations appear below in grievance JCF-2012-01-0209-17b.
Funches’ alleged statements constitute an adverse action. See Aaron v. Tyluki,
2013 WL 4670902 at *7-8, 12-cv-14866 (E.D. Mich. 2013) (citing Jackson v. Peterson,
No. 96-1144, 1996 WL 636180 (6th Cir. 1996)) (listing numerous opinions denying
summary judgment under similar facts). Summary judgment on claims against Funches
pertaining to this grievance and course of conduct is DENIED.

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c.

Grievance JCF-2012-01-0209-17b

In grievance JCF-2012-01-0209-17b, Aaron says he was “ambushed” by Holden
on January 20, 2012 regarding a grievance he filed against Funches the night before on
January 19, 2012 (above). ECF No. 1 at 23; see also ECF No. 20-3 at 28 (the Step III
appeal of grievance JCF-12-01-0163-17a). Holden allegedly called Aaron to her office
and demanded to know who authored the grievance against Funches, demanding
Aaron tell her that it was authored by particular inmate. ECF No. 1 at 23-25; ECF No.
20-3 at 25. The grievance reviewers monitored the alleged retaliatory conduct over a
period of several weeks, during which Aaron alleges he suffered severe anxiety that
caused him to lose sleep, appetite, and to live in a state of constant fear. ECF No. 1 at
26. In the Step III appeal, Aaron alleges that after he filed the grievance, Holden told
him, “if you don’t like the way you’re being treated, think first about writing grievances
next time” and “save us the problem of getting rid of you.” ECF No. 20-3 at 23.
Defendants believe that Aaron claims he has been harassed and retaliated
against by the housing staff for writing grievances. The grievance was denied at Step I
because there were no continuing instances of retaliation and because the staff
reported they have not retaliated against Aaron. The denial notes that Holden stated
that she has not attempted to intimidate or ambush the prison [sic]. Aaron’s Step II
appeal reiterated concerns of retaliation. The Step II response indicates that a
grievance coordinator attempted to intervene and that the coordinator offered to move
Aaron, but Aaron refused that relocation offer. Finding no proof of retaliation, and
recommending continued work with JCF Psych. Services, the Step II appeal was
denied. ECF No. 20-3 at 24.
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“Rough words are common in prisons, particularly coming from prisoners. Such
language does not deter ‘ordinary prisoners’ from filing actions, and did not deter
Plaintiff from pursuing this lawsuit, or even from pursuing his grievance to Steps 2 and
3.” Root v. Towers, No. 99-cv-70867-DT, 2000 WL 424193, at *2 (E.D. Mich. Mar. 31,
2000) aff'd, 238 F.3d 423 (6th Cir. 2000). These claims allege only “intimidating” or
“ambush” questioning by Holden; they are DISMISSED.
d.

Grievance JCF-12-01-0206-26b

After filing grievances for several allegedly retaliatory encounters with Dyer,
Funches and Holden, Aaron contacted Cady, their supervisor, on January 24, 2012, to
resolve the issues. ECF No. 1 at 29. Aaron says that Cady instead engaged in
retaliatory conduct that adopted and endorsed his subordinates’ behavior, leading to
grievance JCF-12-01-0206-26b against Cady. Aaron alleges that Cady said “I told you
to stop filing those grievances,” made a reference to Charlie’s Angels suggesting that,
as in the popular movie, the three women (Dyer, Funches, and Holden) carried out their
male superior’s (Cady’s) requests, reiterated that he “warned [Aaron] to stop writing
grievances,” and cautioned that Aaron had a bulls-eye on his back. ECF No. 20-3 at 20.
During that encounter, Cady also allegedly made reference to an effort to transfer
Aaron, stating “Don’t worry about my girls; you won’t be here long.” ECF No. 20-3 at 20.
In addition, the Step I grievance alleges that Cady told Aaron “they” do not care about
his grievances, made an expletive-laden sarcastic suggestion about where Aaron could
file his grievances, and warned Aaron to “stop looking at [him] like that” because he
“had to put down a black [expletive] before.” ECF No. 20-3 at 20. Further, Aaron alleges

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that Cady told him that he is “sick and tired of all you black [expletive] writing me and my
staff up. I’m going to put an end to that [expletive].” ECF No. 1 at 30.
Aaron was transferred to Chippewa Correctional Facility on August 6, 2013.
Defendants say there can be no claim of retaliation for a transfer from one prison
to another, relying on Smith v. Yarrow, 78 Fed. Appx. 529, 543 (6th Cir. 2003). This is
misleading; transfers are not per se immune from retaliation suits. The Sixth Circuit’s
position is better articulated in Hill v. Lappin, 630 F.3d 468 (6th Cir. 2010), which states:
Although several unpublished Sixth Circuit cases have held that transfers
to the general population of another prison are not typically an adverse
action, see Smith v. Yarrow, 78 Fed. Appx. 529, 543 (6th Cir. 2003)
(collecting cases), this court has held in other cases that a prison transfer
or the threat of a transfer can be an adverse action if that transfer would
result in foreseeable, negative consequences to the particular prisoner.
Id. at 474; see also Titlow v. Corr. Med. Servs., Inc., 654 F. Supp. 2d 651, 656 (E.D.
Mich. 2009) (weighing summary judgment on an allegedly retaliatory transfer upon a
lengthy discussion of “retaliatory motive.”). Defendants have not offered sufficient
factual support to show the absence of negative consequences or a retaliatory motive.
Several other aspects of this grievance cast doubt on the appropriateness of
summary judgment. There is at least a question of fact about whether “you won’t be
here long” was either a threat or admission of pending effort to transfer Aaron. Cady’s
declaration that he would “put an end to” Aaron’s grievances could constitute a threat to
take action. Cady’s references to prior warnings and a “bulls-eye” on Aaron’s back as
explanations for why Aaron had encountered trouble with Cady’s subordinates could
reasonably be treated as acknowledgment and adoption of that prior conduct.
Regardless, because physical threats – in this case death threats through Cady’s
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statements about having had to “put down,” i.e. kill, people before – "would likely have a
strong deterrent effect" on an ordinary person, and, thus, are adverse actions, summary
judgment is DENIED for these claims against Cady. Thaddeus-X, 175 F.3d at 398.
e.

Grievance JCF-12-01-0207-17f

Grievance JCF-12-01-0207-17f names several Defendants, but is, in substance,
only against Dyer. Aaron alleges that on January 24, 2012, just one day after he filed a
grievance against Holden, Dyer expressed dissatisfaction with Aaron filing grievances
against Dyer’s husband, used racial epithets and insults towards Aaron, conducted a
“shake-down” of Aaron’s cell in which she threw around his legal work, admitted that
she took some of his belongings, and told him that she and Cady, her supervisor, were
going to transfer Aaron “Up North.” ECF Nos. 1 at 27-28; 20-3 at 15.
Aaron says that this grievance is not against Cady and that grievance JCF-1201-0206-26b addresses Cady’s retaliatory conduct. The Court will take Aaron at his
word: to the extent this grievance can be construed as alleging a claim against Cady, it
is incorporated in the prior analysis of JCF-12-01-0206-26b, in which the Court denied
summary judgment. In addition, Defendants do not make specific arguments about
particular grievances or cite to the record when discussing alleged conduct by each
Defendant. But, they make general arguments against liability in 1983 suits when
plaintiffs fail to make a clear showing that each named defendant was personally
involved in alleged activity. Although Aaron alleges that actions were taken in response
to him filing a grievance against Holden, Aaron does not allege any wrongdoing or
adverse action by Holden or Funches. Consequently, claims against Holden and

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Funches arising out of grievance JCF-12-01-0207-17F are DISMISSED; claims against
Cady will go forward.
f.

Grievance JCF-12-02-0398-07e

Aaron alleges in grievance JCF-12-02-0398-07e that Dyer interfered with mail
distribution by mishandling forms pertaining to his misconduct proceedings. His
Complaint emphasizes that “[t]his is the third grievance filed on (RUO) Jackie Dyer.”
ECF No. 1 at 32. The Step I grievance refers only generally to “C/O Dyer and her
coworkers.” Neither his grievance nor subsequent appeals otherwise implicates any of
this motion’s Defendants. Holden is mentioned only once – in the response to the Step
II appeal – and only to note that Dyer could not have done the alleged acts or delivered
institutional mail unless first directed by Holden, which she was not. Aaron has not
alleged acts by Cady, Holden, or Funches sufficient to constitute an adverse action.
Claims against them arising out of grievance JCF-12-02-0398-07e are DISMISSED.
IV.

CONCLUSION
1.

Summary judgment is GRANTED for claims made in several grievances

that were not administratively exhausted; those are: JCF-11-12-2717-17b (Cady and
Funches), JCF-12-03-0485-28b (all Defendants), URF-14-10-3259-3b (all Defendants),
URF-14-10-3280-19d (all Defendants), and the grievance with no number and no
response (all Defendants).
2.

Claims related to grievances JCF-2012-01-0209-17b (Holden), JCF-12-01-

0207-17f and JCF-12-02-0398-07e are administratively exhausted, but do not provide
sufficient facts to establish an adverse action took place by one of the Defendants.

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Summary judgment is GRANTED.
3.

Summary judgment is DENIED for actions related to JCF-12-01-0206-26b

(Cady), JCF-11-12-2717-17b (Holden), and JCF-2012-01-0163-17a (Funches). This
case will proceed to trial on these claims.
4.

Finally, Dyer has failed to answer, despite this Court’s order to do so. ECF

No. 38 (“On December 30, 2015, the Waiver of the Service of a Summons as to Jackie
Dyer was returned executed. Dyer’s answer to the complaint is due 60 days from the
date of service.”) Her answer or motion was due on February 29, 2016. She is subject
to default judgment being entered against her.
IT IS ORDERED.

S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: March 31, 2016
The undersigned certifies that a copy of this
document was served on the attorneys of record
and Jeffrey Aaron by electronic means or U.S.
Mail on March 31, 2016.
s/Linda Vertriest
Deputy Clerk

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