Graham v. Chicowski et al

Filing 51

OPINION and ORDER Adopting the Magistrate Judge's 46 Report and Recommendation, and Granting Defendants' 43 Motion for Summary Judgment. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TORRANCE GRAHAM,
Plaintiff,
Case No. 16-cv-12258
Honorable Linda V. Parker

v.
v.
HEATHER CHICOWSKI, WILLER,
BOWERMAN, and MICHAEL
TROUTEN,
Defendants.
___________________________________/

OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE’S
APRIL 5, 2018 REPORT AND RECOMMENDATION AND GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (ECF NO. 43)
Torrance Graham, Petitioner, is a prisoner currently confined at Chippewa
Correctional Facility of the Michigan Department of Corrections (“MDOC”).
Petitioner filed a pro se claim under 42 U.S.C. §1983 against multiple MDOC
employees (together “Defendants”): (1) Heather Chicowski, supervising nurse; (2)
Tyler Willer, correctional officer; (3) Paul Bowerman, sergeant; and (4) Michael
Trouten, grievance coordinator, for actions that occurred while Petitioner was
confined at Duane L. Waters Health Center (“DLW”) and Saginaw Correctional
Facility (“SCF”) in Freeland, Michigan. Petitioner alleges that Defendants
violated his First and Fourteenth Amendment rights stemming from unlawful
retaliation and a violation of due process.

This matter has been assigned to Magistrate Judge David. R. Grand for all
pretrial proceedings, including a hearing and determination for all non-dispositive
matters pursuant to 28 U.S.C. §636(b)(1)(A) and/or report and recommendations
on all dispositive matters pursuant to 28 U.S.C. §636(b)(1)(B) .
I.

Background
On September 7, 2014, Petitioner was transferred to DLW in Jackson,

Michigan for intravenous antibiotic treatment. (ECF No. 1 at Pg ID 5.) During his
treatment, on September 23, 2014, Petitioner noticed a visible skin burn near the
IV site and inquired about the IV extension by questioning one of the treating
nurses about the difference of the IV bag that he received earlier that day. (Id.)
Although Petitioner claims he asked about the treatment in a peaceful manner,
Petitioner alleges Defendant Chicowski entered the room and accused him of being
“argumentative.” (Id.) Petitioner alleges that Defendant Chicowski told the nurse
in the room to document his refusal to take any medication if Petitioner continues
to ask questions. (Id. at Pg ID 6.) As Defendant Chicowski left the room,
Petitioner told Defendant Chicowski he was going to file a grievance against her.
(Id. at Pg ID 7.)
After Defendant Chicowski left the room, Petitioner alleges Defendant
Willer entered and accused him of being “argumentative” with the nurse. (Id.)
Petitioner claims Defendant Willer told him to be quiet, stop asking questions, and
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that “prisoners don’t have rights.” Additionally, Petitioner alleges that Defendant
Willer threatened to place him on “red card status.”  (Id. at Pg ID 7-8.)
According to Petitioner, the next morning, September 24, 2014 at around
2:30 a.m., an unidentified officer awoke him and his cellmate, Cliff Disney, and
removed Disney from the cell. (Id. at Pg ID 8.) Petitioner alleges the officer
informed him that Defendant Bowerman instructed him to place Petitioner on red
card status. (Id.) Petitioner states that he did not receive a notice or hearing
regarding his placement on “toplock” status per prison procedure and believes this
placement was done in retaliation of telling Defendant Chicowski he was going to
file a grievance. (Id. at Pg ID 10.) Petitioner claims he filed grievances against
Defendants on September 24 and 26, and October 23, 2014. (Id. at Pg ID 11-12.)
Also on September 24, 2014, Petitioner had a Class II and III Misconduct Hearing
for disobeying a direct order on September 19, 2014. (ECF No. 43-3.) Petitioner
was found guilty and sanctioned three days of loss privileges. (Id.)
On June 17, 2016, Petitioner commenced this pro se action, alleging
retaliation by multiple MDOC employees and a violation of due process. (ECF
No. 1.) In response to Petitioner’s complaint, on September 9, 2016, Defendants
filed a motion for summary judgment under Fed. R. Civ. P. 56 (a) for failure to
exhaust administrative remedies. (ECF No. 10.) Defendants provided the
grievance report, which presented no evidence of Petitioner filing grievances on
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September 24, 2014 and September 26, 2014. In response, Petitioner argued that
Defendants “impeded” his ability to exhaust all administrative remedies. (ECF No.
15.) Subsequently, Petitioner filed a motion for partial summary judgment on his
first amendment retaliation claim. (ECF No. 18.) On April 18, 2017, Magistrate
Judge Grand issued a Report and Recommendation (“R&R”) recommending the
Court deny both motions without prejudice, which this Court adopted on July 20,
2017. (ECF No. 30.)
On January 26, 2018, Defendants filed a second motion for summary
judgment stating: (1) Petitioner failed to establish a prima facie retaliation claim;
(2) Petitioner failed to prove which “liberty interest” was at stake with regards to
Petitioner’s due process claim; and (3) Defendants are protected by qualified
immunity. (ECF No. 43 at Pg ID 379.) On April 5, 2018, Magistrate Judge Grand
issued an R&R recommending the Court grant Defendants’ motion for summary
judgment. (ECF No. 46 at Pg ID 614.) With respect to Petitioner’s First
Amendment retaliation claim, Magistrate Judge Grand concluded that Petitioner
failed to demonstrate an adverse action was taken against him. (Id. at 621.)
Additionally, Magistrate Judge Grand found that Petitioner failed to establish an
“atypical and significant hardship” under Petitioner’s Fourteenth Amendment due
process claim. (Id. at 627.)

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In response to Magistrate Judge Grand’s R&R, Petitioner filed two separate
objections, April 23, 2018 and May 3, 2018. (EFC Nos. 49 & 50.) Both
objections are substantively identical. In Petitioner’s objections, he asserts that
Magistrate Judge Grand erred in his findings, and Defendants’ motion for
summary judgment should be denied.
II.

Standard of Review
When objections are filed to a magistrate judge’s R&R on a dispositive

matter, the court “make[s] a de novo determination of those portions of the report
or specified proposed findings or recommendations to which the objection is
made.” 28 U.S.C. §636(b)(1). The court, however, “is not required to articulate all
of the reasons it rejects a party’s objections.” Thomas v. Halter, 131 F. Supp. 2d
942, 944 (E.D. Mich. 2001)(citations omitted). A party’s failure to file objections
to certain conclusions of the R&R waives any further right to appeal on those
issues. See Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373
(6th Cir. 1987). Likewise, the failure to object to certain conclusions in the
magistrate judge’s R&R releases the court from its duty to review independently
those issues. See Thomas v. Arn, 474 U.S. 140, 149 (1985).
Additionally, only timely objections that are specific are entitled to a de
novo review under the statute. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir.
1986). “A general objection, or one that merely restates the arguments previously
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presented, does not sufficiently identify alleged errors on the part of the magistrate
judge.” VanDiver v. Martin, 304 F. Supp. 2d 934, 937 (E.D. Mich. Feb. 12, 2004).
(An objection that does nothing more than disagrees with a magistrate judge’s
determination, “‘without explaining the source of the error,’ is not considered a
valid objection.”); Howard v. Sec’y of HHS, 932 F.2d 505, 509 (6th Cir. 1991).
III.

Objections and Analysis

Petitioner lists multiple “objections” in his April 23, 2018 filing. (ECF No. 49.)
Throughout his objections, Petitioner continuously asserts that Magistrate Judge
Grand erred in his analysis of the case, and Defendants’ motion for summary
judgment should be denied. As stated in the standard of review, objections must
be made specifically. See Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986).
Overall, Petitioner’s objections are conclusory and meritless.
First, Petitioner objects to Magistrate Judge Grand’s recommendation to
grant the Defendants’ motion for summary judgment. (EFC No. 49 at Pg ID 637.)
Petitioner asserts, “the recommendation to grant the Defendants’ motion for
summary judgment was a plain error” and restates the plain error standard. (Id.)
Here, Petitioner simply reiterates the standard and objects to Magistrate Judge
Grand’s recommendation. (Id.). A party who merely disagrees with the magistrate
judge’s decision and generally objects to a decision has not asserted sufficient

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grounds for an objection. See Howard, 932 F.2d at 509. Therefore, Petitioner’s
objection is denied.
Second, in his objection, Petitioner restates his First and Fourteenth
amendment rights. The R&R sets forth Magistrate Judge Grand’s summarization of
the facts, which are directly from Petitioner’s complaint. (ECF No. 49 at Pg ID
638.) . Again, in order to object to an allegation or statement, the objecting party
must do so specifically. See e.g., Enyart v. Coleman, 29 F. Supp. 3d 1059, 1068
(N.D. Ohio 2014) (“[P]etitioner had a duty to pinpoint those portions of the
magistrate’s report that the district court must specially consider”) (citing Mira,
806 F.2d at 637). To clarify, “an objection must be clear enough to enable the
district court to discern those issues that are dispositive and contentious.” Miller v.
Currie, 50 F.3d 373, 380 (6th Cir. 1995). Petitioner fails to address any disputes
regarding the factual allegations of the case. Simply restating the First and
Fourteenth Amendment is not sufficient to establish an objection. Id. Therefore,
Petitioner’s objection is denied.
Third, Petitioner objects to Magistrate Judge Grand’s summary judgment
standard of review. Magistrate Judge Grand accurately outlines the standard for
summary judgment under Rule 56 of the Federal Rules of Civil Procedure. (ECF
No. 49 at Pg ID 5.) Petitioner asserts that there is a genuine issue of material fact,
stating that he supplied an affidavit alleging the facts are true. However, Petitioner
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may not rely on his pleadings to defeat the Defendants’ motion for summary
judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
Court concludes that Magistrate Judge Grand applied the proper standard and
denies Petitioner’s objection.
A. First Amendment Retaliation Claim
Petitioner further objects to Magistrate Judge Grand’s standard for “adverse
action” under the retaliation claim, stating that Magistrate Judge Grand erred in
applying the correct standard. (ECF No. 49 at Pg ID 14.) To establish a prima
facie retaliation claim, Petitioner must prove (1) he participated in a
constitutionally protected activity; (2) Defendants took an adverse action against
him for engaging in the activity; and (3) there is a causal connection between the
first two elements. Thaddeus-X v. Blatter, 175 F.3d 378, 385 (6th Cir. 1999). In
the motion for summary judgment, Defendants state Petitioner was subject to loss
privileges, not “toplock.”  (ECF No. 43 at Pg ID 385.) Additionally, Defendants
contend that there was no causal connection between Petitioner’s sanction of loss
privileges and his behavior at the hospital because Petitioner was subject to loss
privileges for the unrelated conduct of disobeying a direct order on September 19,
2014. (Id.) Therefore, the Petitioner failed to prove that an adverse action was
taken against him concerning his dispute with medical staff.

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Magistrate Judge Grand set forth the standard of an adverse action and
continued to outline the Sixth Circuit’s approach to test whether an action is
considered to be adverse, which ultimately states that the Petitioner must prove
more than a mere de minims effect on his protected right. (ECF No. 46 at Pg ID
621.) Assuming Petitioner was placed on toplock for threatening to file grievances
against the medical staff, Magistrate Judge Grand found that being placed on
toplock/loss privileges is not sufficient to deter a person with ordinary firmness
from exercising a protected right because it “would [not] impose anything more
than a de minimis effect on protected activity.” (Id.) In short, the two sanctions
are insufficient for a successful First Amendment retaliation claim. Accordingly,
this Court agrees with Magistrate Judge Grand’s finding that there was no adverse
action and three days of loss privileges is insufficient to state a retaliation claim.
See Ingram v. Jewell, 94 F. App’x 271, 273 (6th Cir. 2004).
B. Fourteenth Amendment Claim
Petitioner objects to Magistrate Judge Grand’s application of the standard
under Petitioner’s Fourteenth Amendment due process claim. (ECF No. 49 at Pg
ID 18.) Petitioner states that Magistrate Judge Grand erred in his finding that
Petitioner does not have a constitutionally protected liberty at stake.
In this situation, to succeed under a Fourteenth Amendment due process
claim, the Petitioner must prove that the disciplinary sanction imposed “[an]
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atypical and significant hardship relative to the ordinary incidents of prison life.”
Bazzetta v. McGinnis, 430 F. 3d 795, 802 (6th Cir. 2001). The basis of Petitioner’s
due process claim stems from him not receiving a notice or hearing for the
disciplinary sanction imposed against him. (ECF No. 1 at Pg ID 17.) Magistrate
Judge Grand explains that being placed on “toplock”/three days of loss privileges
is not sufficient to amount to an “atypical and significant hardship because it is not
an extreme circumstance which would interfere in ordinary incidents of prison
life.” (ECF No. 46 at Pg ID 626.) Furthermore, a hearing was held on September
19, 2014, which resulted in Petitioner’s loss privileges sanction. Petitioner has
failed to make any showing that his sanction was a direct result of his interaction
with medical staff on September 23, 2014. Accordingly, this Court agrees with
Magistrate Judge Grand’s finding and denies Petitioner’s objection.
C. Qualified Immunity
As to Petitioner’s objection to the finding of qualified immunity, that
objection is also denied. “The doctrine of qualified immunity protects government
officials 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.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Due to the
findings above, the Court determines the Defendants did not violate Petitioner’s
rights and, therefore, rejects Petitioner’s objection.
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IV.

Conclusion
The Court has carefully reviewed the R&R and Petitioner’s objections and

concurs with the conclusions reached by Magistrate Judge Grand. The Court
therefore adopts the R&R.
Accordingly,
IT IS ORDERED that Defendants’ Motion for Summary Judgment (ECF
No. 43) is GRANTED.
IT IS SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: August 2, 2018
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, August 2, 2018, by electronic and/or U.S.
First Class mail.
s/ R. Loury
Case Manager

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