Kitchen v. Winn et al

Filing 108

ORDER Adopting in Part and Rejecting in Part 103 Report and Recommendation for Granting in Part and Denying in Part Defendant's 94 Motion for Summary Judgment and Denying Plaintiff's 96 Motion for Summary Judgment. Signed by District Judge George Caram Steeh. (BSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL KITCHEN,
Plaintiff,

Case No. 17-11627

v.

Hon. George Caram Steeh

O’DELL WINN, et al.,
Defendants.
________________________/

ORDER ADOPTING IN PART AND REJECTING
IN PART REPORT AND RECOMMENDATION (ECF No. 103)
On August 11, 2020, Magistrate Judge Anthony P. Patti issued a
report and recommendation proposing that the court grant in part and deny
in part the parties’ cross-motions for summary judgment. Both sides have
submitted objections. With one exception, as discussed below, the court
will overrule the parties’ objections and grant in part and deny in part the
cross-motions for summary judgment.
BACKGROUND FACTS
Plaintiff Michael Kitchen, a pro se prisoner, filed this suit against
eighteen prison officials. Plaintiff alleges that he was transferred to a
“sanction wing,” resulting in fewer privileges, as a result of complaints he
lodged against Defendant Morris, a prison counselor. Plaintiff also alleges
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that various officers retaliated against him for filing grievances, including by
subjecting him to unreasonable strip and cell searches. Count I of his
complaint alleges a First Amendment retaliation claim related to his
transfers; Count II alleges First, Fourth, Eighth, and Fourteenth
Amendment claims related to the strip and cell searches; and Count III
alleges intentional infliction of emotional distress. See ECF No. 61
(amended complaint).
STANDARD OF REVIEW
With respect to reports and recommendations from magistrate
judges, this court “shall make a de novo determination of those portions of
the report or specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1)(C). The court “may accept, reject
or modify, in whole or in part, the findings or recommendations made by the
magistrate.” Id.
ANALYSIS
I.

Defendants’ Objections
A. Objections 1-3
The magistrate judge recommends that the court deny summary

judgment with respect to Plaintiff’s First Amendment retaliation claims
against Defendants Wendt, Massick, Huizar, and Rozier. Defendants
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object, arguing in Objections 1-3 that Plaintiff has failed to establish
protected conduct, an adverse action, or a causal connection between the
two. See Thaddeus-X v. Blatter, 175 F.3d 378, 386-87 & n.3 (6th Cir.
1999) (elements of a retaliation claim). Plaintiff argues that these
defendants ordered or conducted cell and strip searches in retaliation for
his filing of grievances. Plaintiff points to the fact that the searches
occurred soon after he submitted his grievances and after his family called
to complain on his behalf. Plaintiff also notes that he has rarely been
subject to non-routine strip searches, the searches were not properly
authorized, and that his property was vandalized during the searches.
Plaintiff has failed to establish, however, that Wendt, Massick, Huizar, and
Rozier knew about his grievances or family phone calls before ordering or
conducting the searches. “[T]he defendant must have known about the
protected activity in order for it to have motivated the adverse action.”
Thaddeus-X, 175 F.3d at 387 n.3. Plaintiff did not file grievances against
these Defendants prior to the alleged retaliatory actions, and there is no
evidence that these Defendants were aware of Plaintiff’s grievances
against other officers. See ECF No. 104 at PageID 2081-85; ECF No. 25
at PageID 159-61,195, 208-209, 215, 218. Although Plaintiff disputes
Defendants’ justifications for the searches, none of his evidence creates a
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reasonable inference that these Defendants knew about his protected
activity and were motivated by it. Accordingly, the court will sustain
Defendants’ objection that Plaintiff failed to establish a causal connection
between the adverse actions and protected conduct (Objection 3). As this
disposes of Plaintiff’s First Amendment claim against these Defendants, the
court will deny Objections 1 and 2 as moot.
B. Objection 4
The magistrate judge noted that Defendants failed to move for
summary judgment regarding Plaintiff’s Fourth Amendment strip search
claim and that, therefore, the claim should survive. ECF No. 103 at PageID
2071. Defendants object, arguing that Count II of Plaintiff’s complaint was
unclear and that this claim should have been dismissed by the court upon
an initial screening. To the extent Defendants are suggesting that they
were not on notice that Plaintiff was asserting a Fourth Amendment claim,
their argument is unavailing. The complaint alleges that the strip searches
violated Plaintiff’s constitutional rights under the First, Fourth, Eighth, and
Fourteenth Amendments. See ECF No. 61 at ¶ 87. Plaintiff also moved for
summary judgment on the basis that the strip searches violated his right to
privacy. ECF No. 96 at Page ID 1702-1703. Defendants neither
responded to this argument nor moved for summary judgment on this
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claim. See ECF No. 98. Because they did not present this argument to the
magistrate judge in the first instance, the court will not consider it. See
Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000) (“[A]bsent
compelling reasons, [the Magistrate Judge Act] does not allow parties to
raise at the district court stage new arguments or issues that were not
presented to the magistrate.”).
C. Objection 5
In their summary judgment motion, Defendants argued that the court
should decline to exercise supplemental jurisdiction over Plaintiff’s
intentional infliction of emotional distress claim. The magistrate judge
declined to dismiss the claim, noting that Defendants did not address the
merits. Defendants attempt to do so now, arguing that because no
constitutional claims remain against Defendants Winn, Foy, Culberson,
Haynes, and Chalker, they also cannot be liable for intentional infliction of
emotional distress. Again, because Defendants failed to present this
argument to the magistrate, the court will not consider here. See id.
D. Objection 6
Defendants argue that they are entitled to qualified immunity
regarding the strip searches because these searches did not violate the
Fourth Amendment. Defendants failed to raise any argument regarding
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Plaintiff’s Fourth Amendment claims before the magistrate judge.
Moreover, Plaintiff has stated a Fourth Amendment claim regarding at least
one of the strip searches, which he alleges was performed in view of other
inmates and staff. “[S]trip searches performed in view of other inmates
without a legitimate penological justification violates inmates’ clearly
established Fourth Amendment rights.” Salem v. Michigan Dep't of Corr.,
643 Fed. Appx. 526, 530 (6th Cir. 2016). The court will overrule
Defendants’ objection.
II.

Plaintiff’s Objections
A. Objection 1
Plaintiff objects that the magistrate judge did not explicitly rule on his

motion for summary judgment and argues that he is entitled to judgment in
his favor. In particular, Plaintiff claims that he is entitled to summary
judgment on his Fourth and Fourteenth Amendment strip search claims.
The magistrate judge properly analyzed Plaintiff’s strip search claims under
the Fourth Amendment’s right to privacy, rather than a under a Fourteenth
Amendment substantive due process standard. See Stoudemire v.
Michigan Dep’t of Corr., 705 F.3d 560, 572 (6th Cir. 2013) (analyzing
reasonableness of strip search under Fourth Amendment); Salem v.

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Michigan Dep’t of Corr., No. 13-14567, 2015 WL 1966727, at *9 (E.D. Mich.
May 1, 2015), aff'd in part, 643 Fed. Appx. 526 (6th Cir. 2016).
In evaluating whether a strip search violates a prisoner’s right to
privacy,
we first examine the scope, manner, and location of the
search – as well as the justification for initiating it – in order
to assess the degree to which it invaded the prisoner’s
right to privacy. We next evaluate the need for the search,
giving due deference to the correctional officer’s exercise
of her discretionary functions. Finally, we determine
whether the search was reasonably related to legitimate
penological interests by weighing the need against the
invasion.
Stoudemire, 705 F.3d at 572. The magistrate judge determined that a
question of fact existed regarding the justification and need for the
searches. See ECF No. 103 at PageID 2065. Further, there is a dispute
regarding the manner of at least one of the searches. Plaintiff alleges that
he was searched in view of other prisoners and staff, whereas Officer
Trombley contends that he blocked any outside view of the search. See
ECF No. 94-19. As the magistrate judge implicitly recognized, these
factual disputes preclude summary judgment in Plaintiff’s favor on his
Fourth Amendment claim.
Plaintiff also objects that the magistrate judge did not explicitly
consider his Eighth Amendment claim based upon frequent, unjustified cell
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searches when his property was vandalized. In this regard, Plaintiff’s oneparagraph argument in his brief does not suffice to sustain his summary
judgment burden. See ECF No. 96 at PageID 1703. Additionally, as
discussed above, there is a question of fact regarding whether the cell
searches were unjustified and whether Plaintiff’s property was vandalized,
rendering summary judgment inappropriate. 1 Plaintiff’s objection is
overruled.
B. Objection 2
Plaintiff also objects to the magistrate judge’s recommendation to
dismiss his First Amendment retaliation claims against Karl, Odette,
Trombley, and Glynn. Plaintiff alleges that these Defendants searched his
cell and strip searched him as part of a concerted effort to retaliate against
him. He asserts that Defendants are not entitled to summary judgment
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Moreover, the court questions whether Plaintiff has alleged sufficient facts to state an
Eighth Amendment violation or overcome qualified immunity. See generally Rafferty v.
Trumbull Cty., Ohio, 915 F.3d 1087, 1093-94 (6th Cir. 2019) (“The Eighth Amendment
prohibition on cruel and unusual punishment protects prisoners from the unnecessary
and wanton infliction of pain.”); George v. Ballard, 2017 WL 7550768, at *2 (6th Cir.
Aug. 23, 2017) (“We have consistently recognized that harassing behavior from prison
officials does not alone rise to the level of cruel and unusual punishment.”); Dyer v.
Hardwick, 2012 WL 4762119, at *38 (E.D. Mich. Aug. 3, 2012), report and
recommendation adopted in relevant part, 2012 WL 3695671 (E.D. Mich. Aug. 23,
2012) (finding Eighth Amendment right not to be subject to frequent cell searches not
clearly established); Williams v. Washington, 2018 WL 6190497, at *12 (W.D. Mich.
Nov. 28, 2018) (frequent cell searches and pat downs did not rise to the level of an
Eighth Amendment violation). Because this issue was not fully briefed and considered
by the magistrate judge, however, the court will not address it here.

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because they failed to demonstrate that they would have conducted the
searches in the absence of his protected activity. See Thaddeus-X, 175
F.3d at 399. The burden does not shift to Defendants to make this
showing, however, unless Plaintiff establishes that “his protected conduct
was a motivating factor behind any harm.” Id. The court agrees with the
magistrate judge that Plaintiff has not demonstrated that his protected
conduct motivated Karl, Odette, Trombley, or Glynn to conduct the
searches. There is no evidence that these Defendants were aware of
Plaintiff’s protected conduct when they conducted the searches. See id. at
387 n.3. Plaintiff’s objection is overruled.
C. Objections 3 and 4
Plaintiff argues that the magistrate judge erred by recommending that
the court grant summary judgment in favor of Winn, Foy, Culberson,
Haynes, Chalker, and Vittitow on his retaliatory transfer claim. This
argument is misplaced as to Vittitow, because the magistrate judge
recommended that the court deny Defendants’ motion for summary
judgment as to him. ECF No. 103 at PageID 2055, 2074. Defendants also
acknowledge that a question of fact exists as to Plaintiff’s claims against
Vittitow and Morris. ECF No. 104 at PageID 2101.

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As for Winn, Foy, Culberson, Haynes, and Chalker, the magistrate
judge determined that Plaintiff did not establish that they were actively
involved in his transfer or had a retaliatory motive. ECF No. 103 at PageID
2051-52, 2056-57. The court agrees that Plaintiff neither established an
active role or an inference of retaliatory motive with respect to these
Defendants.
As for his claim against Morris, Plaintiff argues that the court should
grant summary judgment in his favor. Essentially, Plaintiff contends that
the court should grant summary judgment on his retaliatory transfer claim
because Morris’s reason for transferring him is unworthy of credence. The
court does not, however, weigh the credibility of witnesses when ruling on a
motion for summary judgment. The court agrees with the magistrate judge
that there is a question of fact regarding Morris’s motive for transferring
Plaintiff and that summary judgment is inappropriate. Accordingly,
Plaintiff’s objections are overruled.
D.

Objection 5

Plaintiff further objects to the magistrate judge’s recommendation that
the court grant summary judgment to Defendants Biddle, Smith, and Close
with respect to his retaliatory search claims. The magistrate judge
determined that Plaintiff did not establish that these Defendants acted with
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a retaliatory motive. ECF No. 103 at PageID 2065-66. Biddle and Smith
relayed orders to conduct the searches, while Close signed a search
authorization after the fact. See id. at PageID 2062-66. Plaintiff argues
that he has cast doubt on these Defendants’ explanations regarding their
involvement in the searches or authority to authorize them. Regardless,
Plaintiff has not demonstrated that these Defendants were motivated to
retaliate against him for filing grievances or other protected conduct.
Accordingly, Plaintiff’s objection is overruled.

ORDER
IT IS HEREBY ORDERED that Magistrate Judge Anthony P. Patti’s
report and recommendation (ECF No. 103) is ADOPTED IN PART and
REJECTED IN PART. The court rejects only the recommendation that
Plaintiff’s First Amendment retaliation claim against Wendt, Massick,
Huizar, and Rozier should survive. The court otherwise adopts Magistrate
Judge Patti’s recommendations.
IT IS FURTHER ORDERED that Defendant’s motion for summary
judgment (ECF No. 94) is GRANTED IN PART and DENIED IN PART,
consistent with Magistrate Judge Patti’s recommendation and this opinion.

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IT IS FURTHER ORDERED that Plaintiff’s motion for summary
judgment (ECF No. 96) is DENIED.
Dated: September 29, 2020
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
September 29, 2020, by electronic and/or ordinary mail and
also on Michael Kitchen #189265, Michigan Reformatory,
1342 West Main Street, Ionia, MI 48846.
s/Brianna Sauve
Deputy Clerk

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