McDaniel v. Bechard et al
ORDER ADOPTING 35 REPORT AND RECOMMENDATION, GRANTING Defendants' Motion to Dismiss and for Summary Judgment. Signed by District Judge Terrence G. Berg. (AChu)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 15-13892
HON. TERRENCE G. BERG
HON. DAVID R. GRAND
T. BECHARD and P. STEELE,
ORDER ADOPTING REPORT AND RECOMMENDATION (DKT.
35), GRANTING DEFENDANTS’ MOTION TO DISMISS AND
FOR SUMMARY JUDGMENT (DKT. 24)
Plaintiff Christopher McDaniel (“Plaintiff”), acting in pro per, is a
state prisoner who was—at all times relevant to this action—
incarcerated at Thumb Correctional Facility (TCF) in Lapeer, Michigan.
On November 3, 2015 Plaintiff filed a lawsuit against T. Bechard and P.
Steele (“Defendants”), employees who work in TCF’s cafeteria, claiming
that they had violated Plaintiff’s civil rights under 42 U.S.C. § 1983.
Dkt. 1 at Pg ID 1.
Plaintiff alleged that Defendant Bechard, with whom he has a
history of “disagreements,” filed a misconduct report against him that
falsely accused him of physical assault. Dkt. 1 at Pg. ID 4. He further
alleged that Defendant Steele “plotted” with Defendant Bechard to file
these false assault charges against him. Id.
This matter is before the Court on Magistrate Judge David R.
Grand’s Report and Recommendation dated August 2, 2017, Dkt. 35,
which recommends that Defendants’ Motion to Dismiss and for
Summary Judgment, Dkt. 24, be granted, and that all of Plaintiff’s
claims be dismissed with prejudice except his Eighth Amendment claim
alleging denial of food, which should be dismissed without prejudice.
Dkt. 35 at Pg ID 313.
The law provides that either party may serve and file written
objections “[w]ithin fourteen days after being served with a copy” of the
Report and Recommendation. 28 U.S.C. § 636(b)(1). Plaintiff filed
timely objections to the Report and Recommendation.1 Dkt. 38.
Under the prison mailbox rule, a pro se prisoner’s complaint is
“deemed filed when it is handed over to prison officials for mailing to
the court.” Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008). In this
case, no objections had been received for over 20 days, so the Court
entered an order on August 25, 2017—23 days after the Report and
Recommendation was filed—adopting the Report and Recommendation.
Dkt. 37. Plaintiff’s objections arrived by mail on August 30, 2017, but
were date stamped by the prison on August 16, 2017. Because the
objections appear to be timely under the prison mailbox rule, the Court
Defendants filed timely responses to those objections on September 13,
2017. Dkt. 38.
The relevant facts about the underlying incident in this case were
summarized in Magistrate Judge Grand’s Report and Recommendation,
Dkt. 35, Pg. IDs 292-95, and those facts are adopted for purposes of this
After completing the Michigan Department of Corrections threestep grievance process, Plaintiff filed this Complaint on November 3,
2015.2 Dkt. 1. He claims that 1) Defendants committed perjury by
submitting retaliatory, false allegations about his conduct to the state;
2) Defendants violated his Eighth Amendment right to be free from
cruel and unusual punishment by a) prosecuting and holding him in
temporary disciplinary confinement for an offense he did not commit
and b) repeatedly failing to send him food—presumably while he was in
disciplinary confinement. Id. at Pg ID 4.
accepts them, and the Order Adopting the Report and Recommendation
entered on August 30, 2017 will be vacated. Thus Plaintiff’s objections
Plaintiff seeks $300,000 in punitive damages, $20,000 in
compensatory damages, and injunctive relief. Id. at Pg ID 5.
Plaintiff made seven objections, which can be boiled down to three
major arguments that the Magistrate Judge erred in recommending
that the Court grant Defendants’ Motion to Dismiss and for Summary
1. the First Amendment retaliation claim was valid because
it alleged Plaintiff’s continuous complaints about
Defendant Bechard to her supervisors was a “motivating
factor” in Defendant Bechard’s decision to file the
misconduct report against him, and a genuine issue of
material fact remained regarding whether Plaintiff’s
history of disagreements with and complaints about
Defendant or their single altercation on June 8, 2014,
motivated Defendant Bechard to file the misconduct
report Dkt. 38 at Pg ID at 327-31 (Objections 1,3, and 4);
2. the allegedly false misconduct report constituted cruel
and unusual punishment under the Eighth Amendment
because it subjected Plaintiff to disciplinary confinement
and “severe mental anguish” over the consequences he
would face if found guilty, id. at Pg ID at 324-26
3. the conspiracy claim against both Defendants was
adequately pled because the sequence of events Plaintiff
alleged—Defendant Bechard’s first report without assault
allegations followed by her second report with assault
allegations and Defendant Steele’s supporting
statement—created a reasonable inference that
Defendants had conspired to file a false statement against
him, id. at Pg ID at 332-35 (Objections 5, 6, and 7)
Defendants timely filed a response to Plaintiff’s objections on
September 13, 2017. Dkt. 39.
Because Plaintiff timely filed his objections to the report and
recommendation the Court VACATES its prior order of dismissal, Dkt.
37. The Court has reviewed Magistrate Judge Grand’s Report and
Recommendation, Plaintiff’s objections thereto, and Defendants’
responses to Plaintiff’s objections. For the reasons set forth below,
Plaintiff’s objections are OVERRULED, and the Report and
Recommendation is ACCEPTED and ADOPTED as the opinion of the
Court except that both Plaintiff’s First Amendment retaliation claim
and Eighth Amendment food deprivation claim are DISMISSED
without prejudice and Plaintiff’s Eighth Amendment claims for the
allegedly false misconduct ticket and his conspiracy claims are
DISMISSED with prejudice.
STANDARD OF REVIEW
A. De novo review
A district court must conduct a de novo review of the parts of a
Report and Recommendation to which a party objects. See 28 U.S.C. §
636(b)(1). “A judge of the court may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate
judge. The judge may also receive further evidence or recommit the
matter to the magistrate judge with instructions.” Id.
B. Motion for Summary Judgment Standard
“Summary judgment is appropriate if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with any
affidavits, show that there is no genuine issue as to any material fact
such that the movant is entitled to a judgment as a matter of law.”
Villegas v. Metro. Gov't of Nashville, 709 F.3d 563, 568 (6th Cir. 2013);
see also Fed. R. Civ. P. 56(a). A fact is material only if it might affect the
outcome of the case under the governing law. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986). On a motion for summary
judgment, the Court must view the evidence, and any reasonable
inferences drawn from the evidence, in the light most favorable to the
non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (citations omitted); Redding v. St.
Edward, 241 F.3d 530, 531 (6th Cir. 2001).
As the moving party, the Defendant has the initial burden to show
that there is an absence of evidence to support Plaintiff’s case. Selby v.
Caruso, 734 F.3d 554 (6th Cir. 2013); see also Celotex Corp. v. Catrett,
477 U.S. 317, 325 (1986). Once the moving party has met its burden,
the non-moving party “may not rest upon its mere allegations or denials
of the adverse party’s pleadings, but rather must set forth specific facts
showing that there is a genuine issue for trial.” Ellington v. City of E.
Cleveland, 689 F.3d 549, 552 (6th Cir. 2012).
Plaintiff raises seven objections to the Report and
Recommendation. Objections 1, 3, and 4 all pertain to the dismissal of
Plaintiff’s First Amendment retaliation claims and are addressed
together. Objection 2 pertains to the dismissal of Plaintiff’s Eighth
Amendment claim challenging his disciplinary confinement based on a
false misconduct report.3 Objections 5, 6, and 7 all pertain to the
dismissal of Plaintiff’s conspiracy claims and are also addressed
Objections to dismissal of First Amendment claims
a. Objections, 1, 3, and 4.
Plaintiff’s first objection to the dismissal of his First Amendment
retaliation claim is that a genuine issue of material fact remains
regarding what “speech” motivated the misconduct report. Plaintiff
argues that it was his history of “complaints and disagreements,” and
not the “single disagreement” on June 8, 2014. Dkt. 38 at Pg ID 322.
Defendants respond that the Report and Recommendation took all
of Plaintiff’s alleged facts about the history of complaints he filed
against Defendant Bechard as true and still found he had not stated a
claim for retaliation under the First Amendment. Dkt. 39 at Pg ID 342.
Plaintiff’s third and fourth objections to the dismissal of his First
Amendment claims are substantively similar to one another. In both he
The Court agrees with the Report and Recommendation that Plaintiff
has not properly exhausted his administrative remedies under the
Prison Litigation Reform Act, 42 U.S.C. §1997(e), for his Eighth
Amendment claim for alleged food deprivation, which he raised for the
first time in his Complaint, but makes no mention of in his grievances.
See id. at Pg ID 301-303
argues that he pleaded sufficient facts to create a reasonable inference
that retaliation was a “motivating factor” for Bechard filing a false
misconduct report against him. Dkt. 38 at Pg ID 327-28. He argues
that the facts he included in his Complaint about the “many verbal
complaints to [Bechard’s] supervisor about her” support such an
inference. Dkt. 38 at Pg ID 328.
Defendants respond that Plaintiff’s allegations are merely
conclusory and do not contain any facts showing that Defendant was
aware of the complaints he made against her, or that they motivated
her to file the misconduct report. Dkt. 39 at Pg ID 344. Defendants also
argue that the fact that an adverse action follows protected speech is
not alone sufficient to state a claim for First Amendment retaliation. Id.
The Magistrate Judge was correct that Plaintiff did not plead a
prima facie claim of First Amendment retaliation. Such a prima facie
claim requires that Plaintiff plead facts showing: 1) he participated in a
constitutionally protected speech; 2) Defendant took an adverse action
against him “likely to chill a person of ordinary firmness” from engaging
in that protected speech; and 3) Plaintiff’s constitutionally protected
speech was a motivating factor in Defendant’s decision to file the
misconduct report against him. Scarbrough v. Morgan Cnty. Bd. Of
Educ., 470 F.3d 250, 255 (6th Cir. 2006)(citing Thaddeus-X v. Blatter,
175 F.3d 378, 394 (6th Cir. 1999)(en banc)).
1. Protected Conduct
Plaintiff alleges he filed “countless complaints” against Bechard,
which culminated in the June 8, 2014 encounter and the misconduct
report she filed against him. Dkt. 1 at Pg ID 4. He then alleges that this
final confrontation “caused [Bechard] to send [him] in.” Id. In his
response to Defendants’ Motion for Summary Judgment he states that
the protected speech he engaged in were “the many verbal complaints”
he made to Defendant Bechard’s supervisor about her. Dkt. 30 at Pg ID
If Plaintiff’s allegations may be read as claiming that Defendant
Bechard disciplined him in retaliation for his having made complaints
to her supervisors, the Complaint satisfies this first factor, because
complaints against a prison employee are constitutionally protected
speech. See Davis v. Straub, No. 1:07-CV-156, 2009 WL 4908433 at * 1
(W.D. Mich. Dec. 11, 2009)(“[A] prisoner’s oral and written complaints
to a warden about the misconduct of the prisoner’s job supervisor are
protected speech under the First Amendment). But if the Complaint
merely alleges retaliation due to Plaintiff’s conduct in yelling and
swearing at a prison employee, such behavior is not constitutionally
protected speech and he has not satisfied this first factor.
In his Complaint Plaintiff referred to the “countless complaints”
he filed against Defendant Bechard, which resulted in their “final
confrontation,” on June 18, 2014. Dkt. 1 at Pg ID 4. He then claimed
that Defendants engaged in “perjury” by filing the misconduct report
against him “for retaliation purposes.” Id.
Construing Plaintiff’s pro se pleadings liberally, the Court finds
that Plaintiff has made a prima facie showing that he engaged in
2. Adverse Action
Plaintiff has adequately alleged adverse action by claiming that
the disciplinary charges against him caused him to be placed in
segregation. Dkt. 35 at 310. A prisoner “of ordinary firmness” would
likely be deterred from making the type of complaints Plaintiff alleges
he made about Defendant Bechard if he thought making such
complaints would cause him to be placed in segregation. See, e.g.,
Herron v. Harrison, 203 F.3d 410, 416 (6th Cir. 2000)(“[P]lacing an
inmate in administrative segregation could deter a person of ordinary
firmness from exercising his First Amendment rights”)(internal citation
and quotation omitted).
3. Causal Connection
The Report and Recommendation correctly concluded that
Plaintiff has not plead sufficient facts from which it could be inferred
that his prior complaints about Defendant Bechard were a motivating
factor in her decision to file the misconduct report against him. See Dkt.
35 at Pg ID 310. As the Report and Recommendation notes, Plaintiff
has plead no facts showing that Defendant Bechard was even aware of
Plaintiff’s complaints when she filed her misconduct report. Id.
Plaintiff’s Objections 3 and 4 both argue that he alleged in his
response to Defendants’ Motion for Summary Judgment that Defendant
Bechard was aware of the complaints he had filed against her thus
creating a reasonable inference that his protected speech was a
motivating factor in her decision to file the misconduct complaint
against him. Dkt. 38 at Pg ID 327-29. The Report and Recommendation
liberally construed Plaintiff’s pleadings by treating the allegations he
made in his response as though they were part of his Complaint. Dkt.
35 at Pg ID 309, 310, n. 13 (quoting Plaintiff’s allegations from that
response). However, even if the Court agreed that it could consider
allegations from Plaintiffs response in deciding a motion to dismiss,
those allegations are insufficient. They merely state that Plaintiff
“constantly complained” to Defendant Bechard’s Aramark supervisor
about her, which in turn “fueled the disagreement” between Plaintiff
and Defendant Bechard, and led to the false misconduct report. Dkt. 30
at Pg ID 241-43. These allegations do not include specific facts that
create a reasonable inference that a) Defendant Bechard actually knew
that Plaintiff had lodged these verbal complaints about her, and b) that
knowledge of these complaints motivated her, at least in part, to file the
misconduct report against Plaintiff.
Had Plaintiff pleaded facts about a conversation with Defendant
Bechard about these complaints, or cited any formal grievance of which
she had notice, such allegations might be sufficient to state a claim. But
he alleges only that he made numerous complaints, without any causal
connection between the complaints and the disciplinary action.
Thus, Plaintiff’s Objections 1, 3, and 4 are overruled, and his First
Amendment retaliation claims are dismissed without prejudice.
ii. Objections related to dismissal of Eighth Amendment claims
a. Objection 2
Plaintiff’s second objection is to the dismissal of his Eighth
Amendment claim: that Defendants’ filing of a false misconduct report
against him constituted cruel and unusual punishment. Dkt. 38 at Pg
ID 324-26. He argues that the disciplinary confinement he endured
pending the investigation and hearing as well as the fear of the
consequences he would face if found guilty caused him “severe mental
Plaintiff cites a district court case from Massachusetts for the
proposition that filing of false disciplinary charges with the knowledge
that it will lead to confinement could create a cause of action for
intentional infliction of emotional distress. Dkt. 38 at Pg ID 325 (citing
Orwat v. Maloney, 360 F. Supp. 2d 146, 165 (D. Mass. 2005)(“A jury
could find that falsely testifying against an inmate, knowing that the
testimony would result in confinement, amounts to extreme and
outrageous conduct”)(internal quotations omitted). But Orwat says
nothing about whether a false misconduct report or testimony in
support thereof would amount to cruel and unusual punishment and
violate a prisoner’s Eighth Amendment rights.
As both the Magistrate Judge and Defendants noted, the Sixth
Circuit has considered this question, and concluded that filing a false
misconduct report is not cruel and unusual punishment under the
Eighth Amendment. Dkt. 35 at Pg ID 307 (quoting Ford v. Kennerly,
No. 1:16-CV-243, 2016 WL 3049311, at *19 (W.D. Mich. May 31,
2016)(“The Sixth Circuit has held that the filing of a false misconduct
report does not constitute punishment under the Eighth Amendment”));
see also Williams v. Reynolds, 198 F.3d 248 (6th Cir. 1999)(unpublished
table decision)(“[N]either verbal harassment or threats nor the filing of
a false misconduct report constitute punishment within the context of
the Eighth Amendment”).
Courts have also found that the collateral consequences of a
disciplinary ticket—which Plaintiff asserts caused him “severe mental
anguish”—such as confinement or loss of privileges “for a few days” do
not constitute cruel and unusual punishment under the Eighth
Amendment. See Hill v. Hoffner, No. 1:15-CV-1143, 2016 WL 1165405,
at * 5 (W.D. Mich. Mar. 25, 2006). In Hill the Plaintiff’s loss of
privileges for seven days, as a consequence of what he alleged were false
misconduct accusations against him, did not rise to the level of cruel
and unusual punishment. Id. In so holding the district court noted that
the Supreme Court had found the even “more serious sanction” of
disciplinary segregation was still a “routine discomfort” of prison life,
and thus not a violation of a prisoner’s Eighth Amendment rights. Id
(citing Hudson v. McMillian, 503 U.S. 1, 9 (2002)). Accordingly, the
Court adopts the Report and Recommendation’s conclusion that a false
misconduct ticket and any temporary disciplinary confinement
resulting from it do not constitute cruel and unusual punishment in
violation of the Eighth Amendment. Objection 2 is therefore overruled
and Plaintiff’s Eighth Amendment claim regarding his disciplinary
confinement is dismissed with prejudice.
b. Objections related to the dismissal of conspiracy claims
a. Objections 5, 6, and 7
Plaintiff’s fifth, sixth, and seventh objections all relate to his
conspiracy claims. He argues that he has plead sufficient facts showing
that Defendants Bechard and Steele developed a “single plan” to falsely
accuse him of physical assault. Dkt. 38 at Pg. ID 332 -335. Plaintiff
contends that his conspiracy claim pleadings are sufficient because they
include, or show, the following: (1) a copy of Bechard’s misconduct
report with Steele’s ratifying statement attached; (2) a copy of
Bechard’s questionnaire in which she states “Aramark staff” mentioned
to her that Plaintiff had assaulted her; and (3) the “proximity” in time
between Bechard’s first incident report, which did not mention an
assault, and her second misconduct report, which did, and which also
named Steele as a supporting witness. Id.
These facts are insufficient to support a conspiracy claim,
however, because none of them show that Defendants agreed to commit
an act that deprived Plaintiff of his constitutional rights. See Bey v.
VandeCasteele, No. 11-13115, 2012 WL 5947635 at *1, *6 (E.D. Mich.
Nov. 28, 2012)(allegation that one prison official submitted a supporting
statement for another prison official’s allegedly false misconduct report
was not sufficient to establish the two had conspired).
Because Plaintiff has not stated a claim under the First or Eighth
Amendment rights, nor has he pleaded facts that show Defendants
agreed to commit an act depriving him of these rights, Plaintiff’s
objections 5, 6, and 7 are overruled. Plaintiff’s conspiracy claims are
dismissed with prejudice.
For the reasons set forth above, Plaintiff’s objections are
OVERRULED, and the Report and Recommendation is ACCEPTED
and ADOPTED as the opinion of the Court with the exception that
Plaintiff’s First Amendment claims are dismissed without prejudice.
Accordingly, Defendants’ Motion to Dismiss/for Summary Judgment,
Dkt. 24, is GRANTED. Count 1 of Plaintiff’s complaint, which
contains his First Amendment retaliation claims, is DISMISSED
without prejudice. Count 2 of Plaintiff’s Complaint, which contains
his Eighth Amendment claims, is also DISMISSED: the Eighth
Amendment deprivation of food claim is dismissed without prejudice;
the Eighth Amendment false misconduct report claim and conspiracy
claims are dismissed with prejudice.
This Court’s previous Order Adopting the Report and
Recommendation, Dkt. 37, is hereby VACATED.
Dated: November 28, 2017
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Certificate of Service
I hereby certify that this Order was electronically filed, and the
parties and/or counsel of record were served on November 28, 2017.
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