Tesley v. Martin et al

Filing 25

ORDER Accepting Report and Recommendation 20 and Dismissing Action. Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
NATHANIEL TESLEY,
Plaintiff,
V.

Case No. 17-11249
Honorable Denise Page Hood

D. MARTIN and COOK,
Defendants.
/
ORDER ACCEPTING REPORT AND RECOMMENDATION
AND DISMISSING ACTION
Pro se Plaintiff Nathaniel Tesley filed this action pursuant to 42 U.S.C. § 1983
against Defendants Dave Martin and A. Cook . Plaintiff has alleged that Defendants
violated his First, Fifth, Eighth and Fourteenth Amendment rights. On July 19, 2017,
Defendants filed a Motion to Dismiss and/or for Summary Judgment (the “Motion”).
[#12] Plaintiff filed a response on August 15, 2017, wherein he withdrew the claims
he had asserted against Cook (including the only Eighth Amendment claim). Plaintiff
later sought leave to amend his complaint [#16], but the Magistrate Judge denied that
request. [#21]
This matter comes before the Court on Magistrate David R. Grand’s Report and
Recommendation. [#20] The Magistrate Judge recommends that the Court grant the
Defendants’ Motion because Plaintiff: (1) failed to exhaust his administrative

remedies with respect to the confiscation of his typewriter; (2) failed to allege that he
suffered a cognizable adverse action that would support his First Amendment claim
against Martin; (3) has no Fifth Amendment claim because Defendants are employed
by the State of Michigan, not federal employees; and (4) did not plead any misconduct
that would implicate his due process rights.
The Court has had an opportunity to review this matter and finds that the
Magistrate Judge reached the correct conclusions for the proper reasons. Plaintiff
filed two objections with respect to the Report and Recommendation, each of which
the Court now addresses.
Plaintiff first argues that the Magistrate Judge erred by analyzing Plaintiff’s
claims under the Rule 12(b)(6) “failure to state a claim” standard rather than the Rule
56 “genuine dispute of material fact” standard. The Court finds that the Magistrate
Judge applied the proper standard when analyzing Defendants’ motion. The motion
was filed before discovery had commenced, and there was little in the record other
than Plaintiff’s allegations. For that reason, it was not possible for the Magistrate
Judge to determine if there was any genuine dispute of material fact. The Court also
finds that the standard utilized by the Magistrate Judge, in addition to being proper,
benefitted Plaintiff because it meant Plaintiff: (a) only had to allege that Defendants
violated his rights; and (b) did not have the burden to show that there were facts to
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support his claims. The Court denies Plaintiff’s first objection.
Plaintiff’s second objection is that the Magistrate Judge erred in concluding that
Plaintiff did not sufficiently allege that he suffered an adverse action. Plaintiff
contends that the question of whether an action is sufficiently adverse is generally a
question of fact for the jury. Citing King v. Williams, 2013 WL 4718335, at *3 (E.D.
Mich. Sept. 3, 2013); Bell v. Johnson, 308 F.3d 594 (6th Cir. 2002). Although
Plaintiff accurately cites King and Bell, the applicable law cited by the Magistrate
Judge establishes that the alleged actions to which Plaintiff was subjected by
Defendant are not sufficient, as a matter of law, to be considered adverse.
Specifically, prisoners do not have a constitutional right to prison employment and are
not subjected to adverse actions when they continue to have access to the courts, even
if they lost a prison job and suffered a short term loss of privileges such as being given
four days in toplock. See, e.g., Siggers-El v. Barlow, 412 F.3d 693, 702 (6th Cir.
2005); Walton v. Gray, 695 F. App’x 144, 145-46 (6th Cir. 2017); Dykes v.
McRoberts, 2015 WL 9948793, at *6 (E.D. Mich. Nov. 5, 2015). The Court denies
Plaintiff’s second objection.
Finding no error in the Magistrate Judge’s Report and Recommendation, the
Court adopts the Report and Recommendation in its entirety.
For the reasons stated above,
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IT IS ORDERED that the Report and Recommendation [Docket No. 20, filed
November 15, 2017] is ADOPTED as this Court’s findings of fact and conclusions
of law.
IT IS FURTHER ORDERED that Plaintiff’s objections [Docket No. 23, filed
January 2, 2018] are DENIED.
IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss and/or for
Summary Judgment [Docket No. 12, filed July 19, 2017] is GRANTED.
IT IS FURTHER ORDERED that this action is DISMISSED WITH
PREJUDICE.
IT IS ORDERED.

S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: January 30, 2018
I hereby certify that a copy of the foregoing document was served upon counsel of
record on January 30, 2018, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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