Bills et al v. Klee

Filing 124

ORDER (1) Overruling Plaintiff's 123 Objections to 120 Report and Recommendation, (2) Adopting Recommended Disposition of 120 Report and Recommendation, and (3) Granting in Part and Denying in Part Defendants' 100 Motion for Summary Judgment. Signed by District Judge Matthew F. Leitman. (HRya)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RICKEY BILLS,
Plaintiff,

Case No. 15-cv-11414
Hon. Matthew F. Leitman

v.
PAUL KLEE, et al.,
Defendants.
__________________________________________________________________/
ORDER (1) OVERRULING PLAINTIFF’S OBJECTIONS (ECF No. 123)
TO REPORT AND RECOMMENDATION (ECF No. 120), (2) ADOPTING
RECOMMENDED DISPOSITION OF REPORT AND
RECOMMENDATION, AND (3) GRANTING IN PART AND DENYING
IN PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT (ECF No. 100)
Plaintiff Rickey Bills is a state inmate in the custody of the Michigan
Department of Corrections (the “MDOC”). In this prisoner civil-rights action, Bills
alleges that certain employees of the MDOC violated his constitutional rights. More
specifically, Bills claims that (1) Defendants Renee Diver and Vaughn Stewart
intentionally interfered with his access to the courts; and (2) Defendant Kristopher
Steece retaliated against him for filing grievances and lawsuits by transferring him
to a prison in Michigan’s Upper Peninsula.
On June 18, 2021, Defendants moved for summary judgment on all of Bills’
claims. (See Mot., ECF No. 100.)

The motion was referred to the assigned

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Magistrate Judge. On February 10, 2022, the Magistrate Judge issued a report and
recommendation in which he recommended that the Court (1) grant summary
judgment against Bills on his retaliation claim against Steece; and (2) deny summary
judgment against Bills on his access-to-the-courts claim against Diver and Stewart
(the “R&R”). (See R&R, ECF No. 120.)
Bills filed objections to the R&R on February 25, 2022. (See Objections, ECF
No. 123.) He contends that the Magistrate Judge erred when he recommended that
the Court grant summary judgment against him on his retaliation claim against
Steece. (See id.) The Court has carefully reviewed Bills’ objections, and for the
reasons explained below, they are OVERRULED.

The Court will therefore

GRANT summary judgment against Bills on his claim that Steece retaliated against
him in violation of the First Amendment and DENY summary judgment against
Bills on his claim that Diver and Stewart denied him access to the courts.1

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Defendants did not file any objections to the portion of the R&R that recommended
the Court deny their motion with respect to Bills’ access-to-the-courts claim against
Defendants Diver and Stewart. The failure to object to an R&R releases the Court
from its duty to independently review the matter. See Thomas v. Arn, 474 U.S. 140,
149 (1985). In addition, the failure to file objections to an R&R waives any further
right to appeal. See Howard v. Sec’y of Health and Human Servs., 932 F.2d 505 (6th
Cir. 1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th
Cir. 1987). Therefore, because Defendants have not filed any objections to the R&R,
the Court will adopt Magistrate Judge’s recommendation and DENY summary
judgment against Bills with respect to his access-to-the-courts claim against
Defendants Diver and Stewart.
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I
A
Bills is currently serving a life sentence in the custody of the MDOC. In
March 2017, he was incarcerated at the Macomb Correctional Facility (“MRF”).
(See Bills Location Log, ECF No. 100-3, PageID.1049.) Steece was a deputy
warden at MRF at all relevant times. On March 23, 2017, Bills was transferred from
MRF to the Kinross Correctional Facility (“Kinross”) in Michigan’s Upper
Peninsula. (See id.) Bills alleges that Steece ordered the transfer in retaliation for
Bills having previously filed lawsuits and grievances against other MDOC
employees. (See Am. Compl., ECF No. 67, PageID.604.) Bills further claims that
Steece “directed officials at [Kinross] to isolate [him]” when he arrived at that
facility. (Id.)
B
Defendants moved for summary judgment on all of Bills’ claims on June 18,
2021. (See Mot., ECF No. 100.) Relevant here, Defendants argued the Court should
enter summary judgment against Bills on his First Amendment retaliation claim
against Steece because (1) Bills had not shown that “Steece knew of Bills’ lawsuits
and grievances […] when Bills was transferred,” (2) Bills’ transfer did “not rise to
the level of an adverse action” because the transfer did not change his security level

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and did not remove him from the prison’s general population, and (3) Steece did not
“order or approve Bills’ transfer from MRF.” (Id., PageID.1031–1036.)
The Magistrate Judge agreed. In the R&R, he concluded, among other things,
that Bills had “failed to raise a genuine dispute of material fact as to whether his
transfer from MRF to [Kinross] constituted an adverse action.” (R&R, ECF No. 120,
PageID.1397–1398.) In reaching this conclusion, the Magistrate Judge highlighted
that “[a]ll of the salient MDOC paperwork reflect[ed] that Bills was kept at the same
security level of II” after his transfer from MRF to Kinross and that there was “no
evidence supporting Bills’ assertion that Steece ordered him to be ‘isolated’ upon
his transfer.” (Id., PageID.1396.)
Bills filed objections to the R&R on February 25, 2022. (See Objections, ECF
No. 123.) Bills contends, among other things, that the Magistrate Judge erred when
he concluded that Steece did not take an adverse action against him by having him
transferred from MRF to Kinross. (See id., PageID.1424.) The Court will examine
Bills’ reasoning in detail below.
II
When a party objects to portions of a Magistrate Judge’s report and
recommendation, the Court reviews those portions de novo. See Fed. R. Civ. P.
72(b)(3); Lyons v. Comm’r of Soc. Sec., 351 F.Supp.2d 659, 661 (E.D. Mich. 2004).
The Court has no duty to conduct an independent review of the portions of a report

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and recommendation to which a party did not object. See Thomas v. Arn, 474 U.S.
140, 149 (1985).
III
A
In order to prevail on his First Amendment retaliation claim against Steece,
Bills must establish three elements: (1) he engaged in protected conduct, (2) Steece
took an adverse action – i.e., an action that would deter a person of ordinary firmness
from continuing to engage in that conduct – against him, and (3) Steece’s adverse
action was motivated at least in part by that protected conduct. See Thaddeus–X v.
Blatter, 175 F.3d 378, 394 (6th Cir. 1999). As explained above, the Magistrate Judge
concluded, among other things, that Bills could not establish the adverse action
element of his claim. The Court agrees – albeit for a slightly different reason.
Bills alleges that Steece took an adverse action against him by having him
transferred from MRF to Kinross. The Sixth Circuit has explained that prisoner
transfers generally do not constitute adverse actions because “prisoners are expected
to endure more than the average citizen, and since transfers are common among
prisons, ordinarily a transfer would not deter a prisoner of ordinary firmness from
continuing to engage in protected conduct.” Siggers-El v. Barlow, 412 F.3d 693, 701
(6th Cir. 2005). For these reasons, “a prison official’s decision to transfer a prisoner
from the general population of one prison to the general population of another is not

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[generally] considered adverse.” LaFountain v. Harry, 716 F.3d 944, 948 (6th Cir.
2013). Likewise, where a prisoner is transferred between prisons at the same
security level, such a transfer is not usually considered adverse. See Ward v. Dyke,
58 F.3d 271, 275 (6th Cir. 1995) (holding that where prisoner was transferred
between two “Level II” facilities, transfer did not constitute an adverse action even
where “defendants admit[ed] that [the prisoner] was transferred in part to give prison
staff a respite from his continuous barrage of grievances”).
Bills has failed to show that Steece’s conduct amounted to an adverse action
under these standards. At most, Bills has shown that Steece may have played some
role in the decision to transfer him to Kinross. Bills made that showing by pointing
out that Steece’s name appears on a security classification screen review form that
was completed in connection with his transfer. (See ECF No. 100-5, PageID.10591060.) Critically, however, that review form and the other paperwork completed at
MRF in connection with Bills’ transfer to Kinross indicate that Bills’ security level
at Kinross should be the same as it was at MRF – Level II – and that Bills should
not be placed in a “special handling” unit, such as “administrative segregation” or
“detention” following his transfer. (Id.) Thus, Bills has shown only that Steece may
have had participated in a “decision to transfer [him] from the general population of
one prison to the general population of another,” and to do so while maintaining his
same security level; such a decision “is not [generally] considered adverse.”

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LaFountain, 716 F.3d at 948. Bills has therefore failed to show that Steece’s alleged
decision to transfer him to the general population and same security level at Kinross
was an adverse action.
B
Bills counters that the Court’s analysis ignores the true circumstances of the
transfer to Kinross that Steece ordered. He asserts that even though the review form
bearing Steece’s name suggests that he was to be placed in the same security level
upon arriving at Kinross, that is not what actually happened. He says that, in fact,
he “never spen[t] any time” in the general population at Kinross. (Objections, ECF
No. 123, PageID.1421.) He insists that, instead, as soon as he arrived at Kinross, he
was placed into “segregation/‘suicide observation.’” (Id.) And he contends that even
though Steece may have stated on the classification review form that he (Bills)
should be placed in the same security level at Kinross, Steece actually directed the
officials at Kinross to place him in segregation upon his arrival. (See id.) Bills says
that Steece’s actual role in the transfer thus amounts to an adverse action.
But the evidence that Bills relies upon does not sufficiently establish any
connection between Steece and the decision by officials at Kinross to place Bills in
segregation upon his arrival at that facility. Bills first says that an unnamed
psychologist at Kinross told him that someone in the “MRF Deputy Warden Office”
told Kinross officials that Bills “should be locked up and placed in protected

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custody[] for the protection of staff.” (Id.) But it would be pure speculation to
conclude that Steece was the person in the “MRF Deputy Warden Office” to whom
the psychologist was referring. Indeed, Bills has previously identified a second
deputy warden at MRF who was involved in the decision to transfer him to Kinross
– deputy warden Darnell Stewart (see Bills Resp. to Defs.’ Mot. for Summ. J., ECF
No. 112, PageID.1178–1179; Bills Aff., ECF No. 119, PageID.1319). And Bills has
not presented an affidavit, declaration, or other statement from the psychologist
confirming that she was talking about Steece, as opposed to Stewart or some other
person in the MRF Deputy Warden Office. Simply put, the psychologist’s statement
does not link Steece to Bills’ placement in segregation at Kinross. See, e.g., Clemente
v. Vaslo, 679 F.3d 482, 495 (6th Cir. 2012) (affirming summary judgment and
explaining that “mere speculation [or] conjecture” is “insufficient to survive a
motion for summary judgment”) (internal quotation marks and citation omitted).
Bills next asserts that he was told that “prison officials from ‘down state’”
played a role in his placement in segregation at Kinross (Bills Resp. to Defs.’ Mot.
for Summ. J., ECF No. 112, PageID.1176), but he never identifies those “down
state” officials or produces any evidence that any official at Kinross ever identified
Steece as playing a role that decision. Nor has Bills presented any evidence that
Steece communicated with anyone at Kinross with respect to Bills’ placement in

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segregation at that facility. Simply put, Bills has not presented any evidence that
Steece had any connection to his placement in segregation at Kinross.
In sum, the record with respect to Bills’ transfer to Kinross reflects (at most)
that Steece recommended that Bills be transferred to the same security level at
Kinross. There is no evidence linking Steece to the decision by Kinross officials to
deviate from Steece’s recommendation and place Bills in segregation upon his
arrival. The record therefore fails to persuade the Court that Steece’s role in Bills’
transfer amounted to an adverse action.
C
In the alternative, Bills argues that even if Steece participated in a decision to
transfer him to a different facility at the same security level, that decision nonetheless
constituted an adverse action because it was “reasonably foreseeable” that the
transfer would cause him to suffer negative consequences. Siggers-El, 412 F.3d at
702. See also Hill v. Lappin, 630 F.3d 468, 474 (6th Cir. 2010) (“[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”). This argument fails
because Bills has not identified any cognizable negative consequences here that
transform his transfer to Kinross into an adverse action.
Bills first says that his transfer involved a foreseeable negative consequence
because “up north facilities” like Kinross are known to be “disciplinary prisons and

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prison[ers] who are transferred across the bridge [to Michigan’s Upper Peninsula]
are [transferred] for disciplinary purpose[s].” (Objections, ECF No. 123,
PageID.1424.) But Bills has not presented any actual evidence that the prisoner
population of Kinross differs in any material respect from the prisoner population of
MRF. Moreover, as the Sixth Circuit has explained, a transfer between prison
facilities does not generally rise to the level of an adverse action even if the facility
to which a prisoner is transferred is “less desirable”:
Nor is it relevant that the new facility, although also
a level II facility, is less desirable than the facility
from which Ward was transferred. See Meachum [v.
Fano], 427 U.S. [215,] 225 [(1976)] (“That life in
one prison is much more disagreeable than in
another does not in itself signify that a Fourteenth
Amendment liberty interest is implicated when a
prisoner is transferred to the institution with the
more severe rules.”).
The transfer here was to another level II facility; the
fact that a prisoner may not like a certain prison
location does not automatically transform a valid
transfer into a constitutional violation. [Plaintiff]
ha[d] no constitutional right to remain at a specific
facility or to prevent a transfer to another level II
facility for a permissible reason.
Ward, 58 F.3d at 275.
Bills next says that “[w]hen prisoners are transferred (500) miles away from
love[d] ones,” such a transfer constitutes “a lost[] privilege[] that causes a great deal
of stress and mental depression.” (Objections, ECF No. 123, PageID.1425.) While

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being transferred far away from family could potentially qualify as a cognizable
negative consequence in some circumstances, Bills has not presented any evidence
that he suffered such a consequence here. For example, he has not presented any
evidence as to where his friends and family live or work. Nor has he presented
evidence that his friends and family actually visited him at MRF, and without such
evidence it is impossible to determine whether his move to Kinross truly resulted in
the loss of in-person contact with family and friends that he otherwise would have
had if not for the transfer.
Finally, Bills says that Steece “knew or should have known” that the transfer
to Kinross would be especially traumatic to him because he was stabbed during a
prison attack while imprisoned in Michigan’s Upper Peninsula 40 years ago. (Id.,
PageID.1425-1426.) Bills therefore says it was foreseeable to Steece that the
transfer to Kinross would cause him mental anguish from this post-traumatic stress.
(See id.) But Bills has not presented any evidence that Steece knew that Bills had
been previously attacked at a facility in the Upper Peninsula or that it was
“foreseeable” to Steece that transferring Bills to Kinross would be especially
traumatic. And while Bills says that his “mental medical records [indicate] that he
not been transferred up north” (id., PageID.1425), Bills has neither submitted those
records to the Court nor provided evidence Steece had access to them or knew about
them prior to the transfer.

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D
For all of these reasons, Bills has not shown that Steece took an adverse action
against him. Accordingly, the Court agrees with the Magistrate Judge’s conclusion
that Bills’ First Amendment retaliation claim against Steece fails as a matter of law.
Bills’ objections to the Magistrate Judge’s recommendation to grant summary
judgment against him on his First Amendment retaliation claim against Steece are
therefore OVERRULED.2
IV
For the reasons stated above, IT IS HEREBY ORDERED as follows:
 Bills’ objections to the R&R (ECF No. 123) are OVERRULED;
 The recommended disposition of the R&R (ECF No. 120) is
ADOPTED; and
 Defendants’ motion for summary judgment (ECF No. 100) is
GRANTED IN PART AND DENIED IN PART as set forth
above. The motion is DENIED with respect to Bills’ access-to-thecourts claim against Defendants Diver and Stewart. The motion
GRANTED with respect to Bills’ retaliation claim against
Defendant Steece.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE

Dated: March 24, 2022

2

Because the Court concludes that Bills has not established the required adverse
action element of his First Amendment retaliation claim, it need not and does not
address the Magistrate Judge’s alternative bases for granting summary judgment
against Bills on his claim against Steece.
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I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on March 24, 2022, by electronic means and/or
ordinary mail.
s/Holly A. Ryan
Case Manager
[phone]

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