Maben v. Shaheen

Filing 35

OPINION & ORDER (1) Accepting the Magistrate Judge's Recommendation Dated January 31 31, 2018 (Dkt. 32 ), (2) Overruling Plaintiff's Objections Thereto (Dkt. 33 ), (3) Granting Defendant's Motion for Summary Judgment (Dkt. 12 ), (4) Denying Plaintiff's Motion for Summary Judgment (Dkt. 19 ), and (5) Dismissing Plaintiff's Claim with Prejudice. Signed by District Judge Mark A. Goldsmith. (Sandusky, K)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JAMES MABEN,
Plaintiff,
Case No. 17-cv-10817
v.
HON. MARK A. GOLDSMITH
JANET SHAHEEN,
Defendant.
_____________________________________/
OPINION & ORDER
(1) ACCEPTING THE MAGISTRATE JUDGE’S RECOMMENDATION DATED
JANUARY 31, 2018 (Dkt. 32), (2) OVERRULING PLAINTIFF’S OBJECTIONS
THERETO (Dkt. 33), (3) GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT (Dkt. 12), (4) DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT (Dkt. 19), AND (5) DISMISSING PLAINTIFF’S CLAIM WITH
PREJUDICE
This matter is before the Court on the Report and Recommendation (“R&R”) of Magistrate
Judge Stephanie Dawkins Davis (Dkt. 32), which recommends granting Defendant Janet
Shaheen’s motion for summary judgment (Dkt. 12) and denying Plaintiff James Maben’s motion
for summary judgment (Dkt. 19). Maben filed objections to the R&R (Dkt. 32), to which Shaheen
filed a response (Dkt. 33). Because oral argument will not aid the decisional process, the
objections to the R&R will be decided based on the parties’ briefing. See E.D. Mich. LR 7.1(f)(2);
Fed. R. Civ. P. 78(b). For the reasons set forth below, the R&R is accepted, Shaheen’s motion for
summary judgment is granted, and Maben’s motion for summary judgment is denied.
I. BACKGROUND
The factual and procedural background, along with the standard of decision and legal
principles governing motions to dismiss, has been adequately set forth by the magistrate judge and
need not be repeated here in full. In brief summary, Maben is a prisoner at the Central Michigan
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Correctional Facility, where Shaheen was the Assistant Resident Unit Specialist. Maben alleges
First Amendment retaliation due to his request to send legal mail. He alleges that Shaheen had
him transferred to another unit and verbally abused him following his request.
Both parties have filed a motion for summary judgment. Shaheen argues that Maben has
not established his retaliation claim and that she is immune regardless, while Maben contends that
Shaheen was delinquent in filing a response to the complaint. The magistrate judge recommended
that Shaheen’s motion be granted, because Maben could not show that she took an adverse action.
The magistrate judge further found that Shaheen was entitled to immunity under both the Eleventh
Amendment and the doctrine of qualified immunity. She recommended a denial of Maben’s
motion because Shaheen did indeed timely file a response to the complaint. Maben filed eight
objections to the magistrate judge’s decision.
II. STANDARD OF DECISION
The Court reviews de novo any portion of the R&R to which a specific objection has been
made. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Alspaugh v. McConnell, 643 F.3d 162,
166 (6th Cir. 2011) (“Only those specific objections to the magistrate’s report made to the district
court will be preserved for appellate review; making some objections but failing to raise others
will not preserve all the objections a party may have.”). Any arguments made for the first time in
objections to an R&R are deemed waived. Uduko v. Cozzens, 975 F. Supp. 2d 750, 757 (E.D.
Mich. 2013).
III. ANALYSIS
Maben raises eight objections to the R&R. For the reasons that follow, all eight objections
are overruled.

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Maben’s first six objections relate to his First Amendment retaliation claim. Such a claim
consists of 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).
The first three objections relate to the magistrate judge’s summary of Shaheen’s arguments.
The magistrate judge described that Shaheen construed Maben’s complaint as bringing both a
“legal mail” claim and a retaliation claim; that Shaheen argued that Maben failed to establish a
retaliation claim; and that Shaheen contended that a certain level of harm was necessary to
constitute an adverse action in a retaliation claim. See Obj. at 2-3 (cm/ecf pages) (Dkt. 33). These
objections do not relate to any substantive portions of the magistrate judge’s analysis, and thus any
error was harmless. For that reason, the objections are overruled.
Another of Maben’s objections – Objection 5 – also only disputes an argument made by
Defendant (allegedly having to do with “misguided use” of an Eighth Amendment case citation);
it fails to address any argument made by the magistrate judge in the R&R. This is not a proper
objection, and thus it is overruled. See Fed. R. Civ. P. 72(b)(2) (“Within 14 days after being served
with a copy of the recommended disposition, a party may serve and file specific written objections
to the proposed findings and recommendations.”) (emphasis added).
Maben argues in Objection 4 that the R&R “disregards the actual elements of a First
Amendment retaliation claim.” Obj. at 3 (cm/ecf page). He then proceeds to lay out the elements
of the claim: (i) that a person was engaged in conduct protected by the Constitution or statute; (ii)
that the defendant took an adverse action; and (iii) that the adverse action was taken at least in part
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because of the protected conduct. The R&R certainly did not “disregard” these elements, as Maben
claims. Rather, the magistrate judge recited the elements of a First Amendment retaliation claim
at the very beginning of its analysis of the claim. See R&R at 12. Accordingly, this objection is
overruled.
In his sixth objection, Maben argues that the magistrate judge applied the wrong standard
for the “adverse action” element of his claim. See Obj. at 4 (cm/ecf page). Maben claims that he
must only show that the action had more than a de minimis impact on him, rather than the SiggersEl standard defining an adverse action as one that would “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). But these two standards have been equated. In Siggers-El, the panel explained that “if
no reasonable trier of fact could conclude that a retaliatory act would deter a person from exercising
his rights, then the act should be characterized as de minimis and dismissed at the summary
judgment stage.” Id. at 703. That is, if a court determines as a matter of law that a prisoner of
ordinary firmness would not be deterred, then the prisoner has not shown more than a de minimis
impact. Here, the magistrate judge properly found that the transfer and Shaheen’s alleged verbal
abuse did not rise above a de minimis impact. As the panel noted in Siggers-El, “ordinarily a
transfer would not deter a prisoner of ordinary firmness from continuing to engage in protected
conduct,” id. at 701, unless the transfer also causes “a number of foreseeable consequences that
inhibit[s] the Plaintiff’s ability to access the courts,” id. at 702. Maben has only alleged that the
transfer caused a loss of friends and fear and anxiety due to being in a new situation. These
consequences surely accompany any transfer, and thus, if a transfer ordinarily does not constitute
an adverse action, these allegations cannot satisfy the standard of foreseeable consequences that
would prevent a prisoner from exercising his ability to access the courts. Accordingly, the Court

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concludes that the magistrate judge correctly found that Maben could not satisfy the “adverse
action” element of a retaliation claim, and Maben’s objection is overruled.
In his seventh objection, Maben objects to the denial of entry of clerk’s default. See Obj.
at 5 (cm/ecf page). Maben argues that it is clear from the prison’s incoming legal mail log that
Shaheen never served the motion on him, and thus he claims that the motion for summary
judgment, which served as a response to the complaint, was untimely. He seems to argue that
Shaheen submitted a fraudulent document to show proof of mailing. See id. (“[T]he court gives
credence to defendants (proof of mailing) as if there was no way to defraud such a document.”).
There is no evidence of any fraudulent documents being submitted to the court, and, regardless,
this objection is not an objection to the R&R. Maben is specifically objecting to the denial of entry
of clerk’s default, which is not permissible in this form. See Fed. R. Civ. P. 72(b)(2) (“Within 14
days after being served with a copy of the recommended disposition, a party may serve and file
specific written objections to the proposed findings and recommendations.”) (emphasis added).
Accordingly, the objection is overruled.
Maben last objects to the magistrate judge’s immunity analysis. See Obj. at 6 (cm/ecf
page). However, as made clear in both the magistrate judge’s R&R and this opinion, Maben has
failed to establish the elements of his First Amendment retaliation claim. Thus, even if the Court
believed that the magistrate judge erred in her immunity analysis, it would be of no consequence
because the claim cannot be sustained against Shaheen. For that reason, Maben’s objection is
overruled.
IV. CONCLUSION
For the reasons set forth above, the Court accepts the magistrate judge’s recommendation
dated January 31, 2018 (Dkt. 32), overrules Maben’s objections thereto (Dkt. 33), grants Shaheen’s

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motion for summary judgment (Dkt. 12), denies Maben’s motion for summary judgment (Dkt. 19),
and dismisses Maben’s claim with prejudice.
SO ORDERED.
Dated: March 20, 2018
Detroit, Michigan

s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any
unrepresented parties via the Court's ECF System to their respective email or First Class U.S. mail
addresses disclosed on the Notice of Electronic Filing on March 20, 2018.
s/Karri Sandusky
Case Manager

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