Anderson v. True et al

Filing 72

OPINION AND ORDER ACCEPTING REPORT AND RECOMMENDATION 66 AND GRANTING DEFENDANTSMOTION FOR SUMMARY JUDGMENT 46 . Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DEXTER ANDERSON,
Plaintiff,

Case No. 15-cv-11703

v.

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

B. TRUE, ARDETTA MOODY, MATTHEW
BURNETT, and ANDRE MCCLATCHEY,

UNITED STATES MAGISTRATE JUDGE
DAVID R. GRAND

Defendants.
OPINION AND ORDER ACCEPTING REPORT AND RECOMMENDATION [66] AND
GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [46]
I. INTRODUCTION
Dexter Anderson (“Mr. Anderson” or “Plaintiff”), an incarcerated person,
brought this Bivens action alleging that B. True, Ardetta Moody, Matthew Burnett,
and Andre McClatchey (collectively “Defendants”) unlawfully retaliated against the
Plaintiff for exercising his First Amendment rights. See Dkt. No. 1. All of the
Defendants were employed by the Federal Bureau of Prisons (“BOP”). Id. Pending
before the Court is Defendants’ Motion for Summary Judgment. Dkt. No. 46. This
matter was referred to Magistrate Judge David R. Grand, who issued a Report and
Recommendation urging the Court to grant the Defendants’ Motion for Summary
Judgment. Dkt. No. 66. Mr. Anderson objects to the Magistrate Judge Grand’s
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Report and Recommendation. Dkt. No. 69. For the reasons stated below, the Court
ACCEPTS Magistrate Judge Grand’s Report and Recommendation [66] and
GRANTS Defendant’s Motion for Summary Judgment [46].
II. FACTUAL BACKGROUND
The events giving rise to this claim began in June of 2013. Dkt. No. 1, p. 5
(Pg. ID 5). At that time, Plaintiff was housed at the Federal Correctional Institute in
Milan, Michigan (“FCI Milan”), where the Defendants worked. In early June of
2013, Plaintiff requested his then-Unit Manager, Defendant Moody to verify his
inmate account and to complete documentation, which would enable the Plaintiff to
apply for informa pauperis (“IFP”) status. Id. According to the Plaintiff, Moody
refused. Id. After consulting with Moody’s supervisory, Warden B. True, Plaintiff
contacted the Unit Secretary to get the documents signed and notarized. Id. The Unit
Secretary, however, informed the Plaintiff that he could not notarize the forms
without Moody’s approval.
On June 7, 2013, Plaintiff met with Defendant Moody. Id. Moody accused the
Plaintiff of trying to “circumvent the system.” Id. Plaintiff alleges that Moody
became disrespectful and hostile, then threatened to send the Plaintiff to the Special
Housing Unit (SHU). Id. Shortly after the meeting with Defendant Moody, Plaintiff
filed a Request for Administrative Remedy, also known as a B-9, which is a formal
grievance. Id., p. 6 (Pg. ID 6). In the B-9, Plaintiff complained about Defendant
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Moody’s “misconduct” and stated that, “[a]ny retaliation based on the filing of this
Staff Misconduct complaint … will result in the filing of a Civil Lawsuit again those
individuals.” Dkt. No. 1, p. 36 (Pg. ID 36). On August 8, 2013, Plaintiff received a
formal response finding “no evidence of staff misconduct.” Id., p. 37 (Pg. ID 37).
On January 27, 2014, more than six months later, the BOP issued a memo
soliciting inmates to be relocated to a Federal Correctional Institute located in
Hazelton, West Virginia (“FCI Hazelton”). Id., pp. 7–8 (Pg. ID 7–8). The memo
sought medium or low security prisoners with at least one year of clear conduct and
a release date after March 17, 2016. Id. In response to the memo, Defendant Moody
suggested the Plaintiff for transfer. Id., p. 40 (Pg. ID 40). However, Defendant
Burnett, Plaintiff’s case manager, explained that Mr. Anderson was not a good fit
because he was a low security inmate.
On February 25, 2014, the BOP issued another memo, this time soliciting
inmates to be relocated to a Federal Correctional Institute located in Danbury,
Connecticut (“FCI Danbury”). Id., p. 41 (Pg. ID 41). The memo sought low security
prisoners with at least one year of clear conduct and a release date after October 15,
2015. Id. Again, Defendant Moody suggested the Plaintiff for transfer. Four months
later, Mr. Anderson learned that he would be transferred to FCI Danbury. Dkt. No.
1-1, p. 6 (Pg. ID 56).

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Mr. Anderson filed the present lawsuit on May 11, 2015, alleging that the
Defendants violated his First Amendment rights by transferring him from FCI Milan
to FCI Danbury. According to Mr. Anderson, placement in FCI Danbury is less
desirable because: (1) it is farther from his release residence of Wisconsin and too
far for his family to visit; (2) the transfer has caused him great emotional and mental
distress for fear of being retaliated against again; (3) FCI Danbury does not offer
ceramics and other classes that Mr. Anderson needs to “cope with the stress of being
incarcerated;” and (4) because Mr. Anderson lost his job, which allowed him to help
suicidal and mentally challenged inmates. Dkt. No. 69, pp. 5–6 (Pg. ID 837–38). Mr.
Anderson seeks compensatory and punitive damages from each Defendant. Pending
before the Court is Defendants’ Motion for Summary Judgment and Magistrate
Judge Grand’s Report and Recommendation, which Mr. Anderson objects to.
III. LEGAL STANDARD
A district court performs de novo review of timely and specific objections to
a magistrate judge’s report and recommendation. See FED. R. CIV. P. 72(b)(2)–(3).
Additionally, a district court may adopt, reject, or amend the portions of the report
and recommendation to which no party properly objects. See FED. R. CIV. P.
72(b)(3); Thomas v. Arn, 474 U.S. 140, 150 (1985).

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IV. FIRST AMENDMENT RETALIATION AND QUALIFIED IMMUNITY
“A [First Amendment] 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.” Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999)
(emphasis added). However, “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 (1982) (emphasis added).
V. DISCUSSION OF PLAINTIFF’S OBJECTIONS TO THE REPORT AND
RECOMMENDATION
Defendants argue that Summary Judgment is proper on qualified immunity
grounds because at the time of the allegedly unlawful conduct, it was not “clearly
established” that Anderson’s transfer was unlawful. In his November 30, 2016
Report and Recommendation, Magistrate Judge Grand recommended the Court to
grant Defendants’ Motion for Summary Judge because it was not clearly established
that transferring Anderson was an adverse action within the meaning of relevant
First Amendment jurisprudence. Dkt. No. 66, p. 8 (Pg. ID 815) (emphasis added).
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As best as the Court can tell, Plaintiff objects to the Report and Recommendation on
five grounds.
First, Anderson seems to argue that he engaged in protected conduct pursuant
to the First Amendment. See Dkt. No. 69, pp. 2–4 (Pg. ID 834–36). That objection,
however, is immaterial because Magistrate Judge Grand assumed for the purposes
of his analysis that the Plaintiff engaged in protected conduct. Dkt. No. 66, p. 8 (Pg.
ID 815) (“Thus, for purposes of the analysis that follows, the Court will assume that
Anderson’s grievance with respect to Moody constitutes protected speech.”).
Second, the Plaintiff argues that a retaliatory transfer constitutes adverse
action. This argument, however, misses the critical issue in Mr. Anderson’s case.
The Defendants moved for summary judgment on qualified immunity grounds.
Under qualified immunity, government officials—such as BOP employees—are
immune from civil liability unless their conduct violates a clearly established
constitutional right. See Harlow, 457 U.S. 800, 818 (1982) (emphasis added). A
clearly established constitutional right exists when a reasonable officer would know
that his/her conduct was unlawful. Id. Where binding case law is inconsistent on an
issue, the constitutional right is not clearly established and officers can be entitled
qualified immunity.  Barrett v. Steubenville City Sch., 388 F.3d 967, 972 (6th Cir.
2004). Therefore, in this case, the critical issue is not whether the retaliatory transfer

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was an adverse action, but rather, whether it was clearly established that such a
transfer was unlawful.
Here, case law is inconsistent about whether a retaliatory inmate transfer
resulting in loss of visitation and prison programs, amounts to adverse action. Mr.
Anderson admits this fact. See Dkt. No. 69, p. 6 (Pg. ID 838). According to Mr.
Anderson, “it is true that the many cases in the Sixth Circuit can sway either way in
the finding of an adverse action.” Id. Mr. Anderson continues and admits that the
Sixth Circuit has not decided whether transferring a federal prisoner over 500 miles
from his release residence, resulting in the loss of visitation and other foreseeable
negative consequences, amounts to adverse action. Id. This admission is fatal to Mr.
Anderson because it demonstrates that it was not clearly established that Mr.
Anderson’s transfer was unlawful. Therefore, because a reasonable officer would
not know that Mr. Anderson’s transfer was unlawful, the Defendants are entitled
qualified immunity.
Mr. Anderson relies on two cases: Siggers-El v. Barlow, 412 F. 3d 693 (6th
Cir. 2004), and Pasley v. Conerly, 345 F. App’x 981 (6th Cir. 2009). However, the
facts in Siggers-El are distinguishable and the holding in Pasley is contradicted by
another Sixth Circuit case.
Siggers-El involved an inmate who was transferred for exercising his First
Amendment rights. Siggers-El was transferred over seventy miles, to a remote
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prison. Siggers-El, 412 F. 3d at 698–99. As a result of the transfer, Siggers-El lost
his high-paying job that he needed to pay his attorney and the transfer made it more
difficult for his attorney to visit and represent him. Id. The Sixth Circuit found that
Siggers-El’s transfer constituted adverse action for the purposes of his retaliation
claim. Id. at 702. Importantly, the Sixth Circuit based its holding on Siggers-El’s
access to court. The Court explained:
In this case, however, the transfer would deter a person of ordinary
firmness from engaging in protected conduct, since here, the Defendant
was not only transferred, but also suffered a number of foreseeable
consequences that inhibited the Plaintiff’s ability to access the courts.
As a result of the transfer, the Plaintiff not only lost his high paying job
that he needed in order to pay his attorney, but the transfer also made it
more difficult for his attorney to visit with or represent him because he
was moved further away from her.
Id. (emphasis added).
Mr. Anderson admits that his case is distinguishable from Siggers-El on the
basis of access to courts, because Mr. Anderson “does not claim to have lost a high
paying job that he used to pay his attorney nor does [Mr. Anderson] claim to now
have ‘limited access’ to his attorney[.]” Dkt. No. 61, p. 14 (Pg. ID 639). Despite
those distinguishing facts, Mr. Anderson argues that his case is similar to Siggers-El
because he suffered “foreseeable negative consequences.” Id. See also Dkt. No. 69,
p. 5 (Pg. ID 837). That argument, however, fails because it misstates the holding of
Siggers-El. Siggers-El did not hold that any foreseeable negative consequences give
rise to an adverse action. Rather, Siggers-El focused on the “foreseeable
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consequences that inhibited access to courts.” Siggers-El, 412 F.3d at 702.
Therefore, because Mr. Anderson’s transfer did not limit his access to courts, and
because the Siggers-El holding was limited to foreseeable consequences that
inhibited access to court, Mr. Anderson’s reliance on Siggers-El is misplaced.
Next, Mr. Anderson cites Pasley v. Conerly, 345 F. App’x 981 (6th Cir. 2009).
Pasley alleged that a prison employee threatened to transfer him such that he would
lose his job and be too far for his family to visit him. Id. at 983. Before serving
Pasley’s complaint on the defendant, the district court dismissed the prisoner’s First
Amendment retaliation claim. Id. at 986. The Sixth Circuit vacated the district
court’s decision, holding that because of the low requirement for surviving
dismissal, Pasley’s allegations could state a plausible retaliation claim. The Pasley
court explained that, “[a]lthough Pasley has not made an effective argument for First
Amendment retaliation either in his original complaint or his brief to this court, the
facts alleged in Pasley’s complaint arguably contain the elements of such a claim.”
Id. Mr. Anderson cites Pasley, then argues that, “[i]f a reasonable trier of fact could
conclude that a retaliatory act would deter a person from exercising his rights, then
the act may not be dismissed at the summary judgment stage.” Bell v. Johnson, 308
F.3d 594, 603 (6th Cir. 2002).” Dkt. Bo. 69, p. 7 (Pg. ID 839). Mr. Anderson’s
conclusion is flawed because it misstates the holding of Pasley and confuses the
critical issue in this case.
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Turning back to Pasley, it is important for Mr. Anderson to realize that Pasley
involved judicial dismissal of a complaint and not a motion for summary judgment.
The distinction between the two is vital. The requirements to survive dismissal are
relatively low. See 28 U.S.C. §1915A (stating that courts shall dismiss prisoner
complaints against the government that are frivolous, malicious or that fail to state a
claim upon which relief may be granted). On the other hand, the standard to survive
summary judgment is more burdensome. See Fed. R. Civ. Pro. 56(c) (directing that
summary judgment shall be granted if there is no genuine issue of material fact).
Surviving dismissal merely requires proper pleading. Surviving summary judgment
requires a substantive factual inquiry. With those principles in mind, surviving
dismissal does not mean a party will survive summary judgment. The Pasley Court
makes this explicit. See Pasley, 345 F. App’x 981, 986 (6th Cir. 2009) (“Regardless
of whether Pasley can ultimately prevail on his claim, or even survive summary
judgment, Pasley’s pleading meets the low requirements for surviving dismissal.”).
Therefore, when Mr. Anderson cites Pasley, but argues summary judgment, he
erroneously conflates dismissal with summary judgment.
Next, even assuming that the Mr. Anderson could establish a constitutional
violation—that is not the dispositive issue in this case. The dispositive issue is
whether the Defendants are shielded from liability because their alleged violation
was not clearly established by case law. See Harlow, 457 U.S. 800, 818 (1982). In
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this case, it is true that Pasley, an unpublished case, suggests that under certain
conditions, a retaliatory transfer resulting in the loss of visitation could be considered
adverse action. Nevertheless, Friedmann v. Corrections Corp. of America, 11 Fed.
App’x 467 (2001), another unpublished Sixth Circuit case, contradicts Pasley.
Friedmann held that a retaliatory transfer to a location “farther away from those who
visited [the plaintiff]” and to an institution that “did not offer the programs in which
[the plaintiff] had previously participated … are not sufficient to support a showing
of adverse action for the purposes of a retaliation claim.” Friedmann v. Corr. Corp.
of Am., 11 F. App’x 467, 471 (6th Cir. 2001). Friedmann is thus at odds with Pasley.
Therefore, because the case law is inconsistent, it cannot be said that it was clearly
established that Mr. Anderson’s transfer was unlawful. See Wilson v. Layne, 526
U.S. 603, 618 (1999) (“If judges thus disagree on a constitutional question, it is
unfair to subject police to money damages for picking the losing side of the
controversy.”).
Third, Mr. Anderson argues that, the Defendants were on notice that their
conduct was unconstitutional. Mr. Anderson cites Hope v. Pelzer, 536 U.S. 730, 731
(2002), which states “officials can be on notice that their conduct violates established
law even in novel factual situations.” Mr. Anderson argues that the Defendants were
put on notice because, “Anderson informed Burnett that his transfer was based on
retaliation and would be a violation of his Constitutional rights if the transfer
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proceeded.” Dkt. No. 69, p. 8 (Pg. ID 840). Although novel, Anderson’s argument
falls short of the standard articulated in Hope. Hope continued to explain that
previous cases must not be “fundamentally similar”, but in “light of pre-existing law
the unlawfulness must be apparent”. Hope, 536 U.S. 730, 739 (2002). Again, in this
case, two different Sixth Circuit panels have come out differently on the issue
presented. Therefore, because jurists within the circuit disagree on the same issue
the pre-existing law is inconsistent and the unlawfulness is no apparent. Thus,
despite Mr. Anderson’s warning, there was not sufficient notice to the officers that
their conduct violated the law. Mr. Anderson’s second and third objections are
insufficient to deny the Defendants qualified immunity.
Fourth, Mr. Anderson briefly argues that the Magistrate Judge defined Mr.
Anderson’s rights too narrowly and defined qualified immunity too broadly. Dkt.
No. 69, p. 8 (Pg. ID 840). The Court disagrees. In determining whether a right was
clearly established, courts are instructed not to define the right at a high level of
generality, thereby narrowly tailoring the facts to invariably confer qualified
immunity. See Myers v. Potter, 422 F.3d 347, 356 (6th Cir. 2005). In this case the
Magistrate Judge discussed that, “the salient question is whether it was clearly
established at the time of Anderson’s transfer that it was unlawful to transfer him
between two prisons of the same security classification for having engaged in
protected conduct.” Dkt. No. 66, p. 11 (Pg. ID 818). The Magistrate Judge then
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considered whether being transferred far away from visitors to a facility that did not
offer the same programs was considered adverse action. Id., p. 14 (Pg. ID 821).
Accordingly, the Magistrate Judge defined Mr. Anderson’s rights at the appropriate
level of generality. Furthermore, the Magistrate Judge recited the law of qualified
immunity correctly. Therefore, Mr. Anderson’s fourth objection fails.
Fifth, Mr. Anderson argues that this Court “has decided previously that a
factual dispute does exist and summary judgment should fail.” Dkt. No. 69, p. 10
(Pg. ID 842). Mr. Anderson is incorrect and again confuses the standard required for
summary judgment.
Mr. Anderson refers to a May 5, 2016 order issued by the Court. See Dkt. No.
40. On May 5, 2016, the Court accepted Magistrate Judge Grand’s Report and
Recommendation to deny Mr. Anderson’s Motion for Judgment on the Pleadings,
pursuant to Fed. R. Civ. P. 12(c). “For purposes of a motion for judgment on the
pleadings, all well-pleaded material allegations of the pleadings of the opposing
party must be taken as true, and the motion may be granted only if the moving party
is nevertheless clearly entitled to judgment.” JPMorgan Chase Bank, N.A. v. Winget,
510 F.3d 577, 582 (6th Cir. 2007) (internal citations omitted). “A Rule 12(c) motion
is granted when no material issue of fact exists and the party making the motion is
entitled to judgment as a matter of law.” Id.

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In Mr. Anderson’s Motion for Judgment on the Pleadings, he argued that the
Defendants’ denials in their Answer were insufficient to create a genuine issue of
material fact under Fed. R. Civ. P. 56. On that basis, Mr. Anderson argued that he
was entitled to judgment on the pleadings. Dkt. No. 33, p. 3–4 (Pg. ID No. 264–65).
The Court rejected that argument and explained that “Plaintiff has not brought a
motion for summary judgment under Fed. R. Civ. P. 56. Plaintiff moved for
judgment on the pleadings under Fed. R. Civ. P. 12(c).” Dkt. No. 40, p. 4 (Pg. ID
423). The Court continued to explain that, “[w]hile a Rule 56 motion for summary
judgment requires more than a mere denial of the adverse party’s pleading, a Rule
12 motion for judgment on the pleadings require the Court to accept the non-moving
party’s denials as truth.” Id. Therefore, the Defendants’ denials of Plaintiff’s
allegation were sufficient, at that stage, to create issues of fact to survive a motion
for judgment on the pleading. The Court did not hold that summary judgment, in
either party’s favor, should fail. Mr. Anderson’s fifth objection, therefore,
incorrectly characterized the Court’s prior order.
V. CONCLUSION
Mr. Anderson’s objections confuse issues or misstate the law. For the
preceeding reasons the Court ACCEPTS Magistrate Judge Grand’s November 30,
2016 Report and Recommendation over Mr. Anderson’s objections [66].
Defendants’ Motion for Summary Judgment is GRANTED [46].
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SO ORDERED.
Dated: March 20, 2017
/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge

Detroit, MI

I hereby certify that a copy of the foregoing document was mailed to the attorneys
of record on this date, March 20, 2017, by electronic and/or ordinary mail.

/s/Tanya Bankston
Case Manager, [phone]

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