Bouldrey v. Michigan Department of Corrections et al
Filing
16
OPINION AND ORDER Adopting Report and Recommendation In Part 12 and Granting Defendants' Motion to Dismiss 7 . Signed by District Judge Judith E. Levy. (Sandusky, K)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Christopher J. Bouldrey,
Plaintiff,
v.
Case No. 18-11543
Judith E. Levy
United States District Judge
Michigan Department of
Corrections, Warden Shawn
Brewer, and Lieutenant Amador
Ybarra,
Mag. Judge Anthony P. Patti
Defendants.
________________________________/
OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART [12] AND GRANTING
DEFENDANTS’ MOTION TO DISMISS [7]
Plaintiff Christopher J. Bouldrey brings a First Amendment
retaliation
claim
against
defendants
Michigan
Department
of
Corrections (“MDOC”), Warden Shawn Brewer, and Lieutenant Amador
Ybarra under 42 U.S.C. § 1983. Plaintiff is a corrections officer (“CO”) at
the G. Robert Cotton Correctional Facility (“JCF”), an MDOC prison. He
alleges that defendants violated his constitutional right to free speech
when they gave him a three-day suspension for sending an email to all
JCF employees. The Magistrate Judge’s report and recommendation
(Dkt. 12) that defendants’ motion to dismiss (Dkt. 7) be granted and the
parties’ objections and responses (Dkts. 13–15) are before the Court.
I.
Background
The Court adopts the factual background set forth in the report and
recommendation (Dkt. 12), but provides a brief summary for context.
Bouldrey is a CO at JCF and employed by MDOC. (Dkt. 1 at 1–3.) On
December 20, 2015, Bouldrey sent an email to the JCF listserv, “JCFLAN-GRP”:
First of all, merry Christmas and happy new years to all.
Unfortunately, this is the time of year at Cotton that morale
is lowest. Why? Because of how staff REALLY treat one
another. Christmas is a Christian holiday. There is no down
side to being Christian.It is doing more for others than for
yourself, treating others the way you would like to be treated,
being selfless not selfish. Last year 40 officers called in sick
on Christmas day alone. and it was no better over new years.
I spent this entire year pushing to undo this incredibly selfish
“tradition” here and don’t think I could have been treated
more like a convict. Supervisors cowered behind blaming the
union, the union did what it always does, acts like a lousy
parent and stands in front of it’s worst behaving children and
says” you get your filthy hands off my little angels”, human
resources pointed the finger at Cotton, the administration hid
behind the comforting cloak of ignorance and pretended not to
know this problem existed, all while around 100 staff were
mandated lest year between Christmas and new years
holidays. I was lied to, spun, etc.. for months. Enough. It’s
time to stand together, call a truce, and practice “ do unto
2
others” like we all were raised as right. Having an enjoyable
workplace is up to us, and how we treat each other. It should
be a lot easier to distinguish between convicts and staff based
on behavior than it is here! We have been trained to
“dehumanize” people from the time we hired in. “Convicts are
the lowest vermin[] on the planet” .And so we have power over
them. Abraham Lincoln said, “If you want to see the true
character of a man . . . give him power”. Many of us here
struggle to handle this responsibility. Treating everyone. .
.family members ,spouses, coworkers, and neighbors like they
are beneath us. The only people that have “nothing coming”
are those of us who were unlucky enough to get the holidays
to fall on our rdo’s or have an annual leave spot reserved. As
we say in the military, “carry your OWN pack, Pull your own
weight’” The difference between a man and a boy is a boy does
what he WANTS to do but a man does what he NEEDS to do.
Saddly there are a lot of boys here. If you plan on calling in
sick again this holiday season forcing your coworker to stay
for another 8 hours and “carry your pack” for you, come see
me in E unit, I'm there everyday about 10 minutes early for
2nd shift, I have some print offs identifying sociopaths that
might interest you and help you. Otherwise, do unto others
and lets help each other have a great holiday season with
what’s left of our time with family without it being “stolen”
from us from the selfish staff. Remember, do unto others
means something positive, not sticking it to someone else
first. God bless you all and merry Christmas, Bouldrey.
(Dkt. 9 at 22 (errors in original).)1
In response to the email, defendant Ybarra initiated an
investigation, which led to five disciplinary charges against plaintiff: “1)
The Court may consider the original email without converting the motion into
one for summary judgment because plaintiff relies on and references the email in his
complaint. Watermark Senior Living Ret. Cmtys., Inc. v. Morrison Mgmt. Specialists,
Inc., 905 F.3d 421, 425–26 (6th Cir. 2018).
1
3
Misuse of State Equipment; 2) Conduct [U]nbecoming; 3) Enforcing Rules
Regulations[,]
etc.;
4)
Humane
Treatment;
and
5)
Class
I
Insubordination.” (Dkt. 1 at 3.) Plaintiff received a three-day suspension.
(Id. at 5.)
Plaintiff brings a First Amendment retaliation claim, alleging that
defendants violated his freedom of speech by punishing him for sending
the email. (Id. at 7.) He claims that in the email, he was speaking as a
private citizen on a matter of public concern. (Id.) Plaintiff sues
defendants in their individual and official capacities. (Id. at 1.)
Defendants filed a motion to dismiss. (Dkt. 7.) Plaintiff opposes the
motion and requests discovery. (Dkt. 9 at 2.) The Magistrate Judge issued
a report and recommendation that the Court grant defendants’ motion to
dismiss. (Dkt. 12). The parties filed objections (Dkts. 13, 14), and
defendants responded to plaintiff’s objections. (Dkt. 15.)
II.
Legal Standard
A party may object to a magistrate judge’s report and
recommendation on dispositive motions. 28 U.S.C. § 636(b)(1)(B)–(C);
Fed. R. Civ. P. 72(b)(1)–(2). A district judge must resolve proper
objections to a report and recommendation on a dispositive motion under
4
a de novo standard of review. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). “De
novo review in these circumstances entails at least a review of the
evidence that faced the magistrate judge; the Court may not act solely on
the basis of a report and recommendation.” Spooner v. Jackson, 321 F.
Supp. 2d 867, 869 (E.D. Mich. 2004) (citing 12 Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 3070.2 (2d ed. 1997)).
A proper objection identifies the portion of the report and
recommendation that the objecting party takes issue with and then
specifies the factual or legal basis of the error. E.D. Mich. LR 72.1(d)(1);
see Andres v. Comm’r of Soc. Sec., 733 F. App’x 241, 244 (6th Cir. 2018).
Objections disputing the general correctness are improper. Spencer v.
Bouchard, 449 F.3d 721, 725 (6th Cir. 2006), abrogated on other grounds
by Andres v. Comm’r of Soc. Sec., 733 F. App’x 241 (6th Cir. 2018).
Moreover, objections must be clear so that the district court can “discern
those issues that are dispositive and contentious.” Miller v. Currie, 50
F.3d 373, 380 (6th Cir. 1995) (citing Howard v. Sec’y of Health and
Human Servs., 932 F.2d 505, 509 (6th Cir. 1991)).
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III. Analysis
“[T]he First Amendment protects a public employee’s right, in
certain circumstances, to speak as a citizen addressing matters of public
concern.” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006) (citing cases);
Connick v. Myers, 461 U.S. 138, 143–44 (1983). To state a claim for First
Amendment retaliation, a public employee “must satisfy three
requirements:” He must plead that (1) he spoke as a private citizen (2) on
a matter of public concern, and (3) “that his speech interest outweighs
the ‘interest of the State, as an employer, in promoting the efficiency of
the public services it performs through its employees.’” Mayhew v. Town
of Smyrna, 856 F.3d 456, 462 (6th Cir. 2017) (citations omitted) (quoting
Evans-Marshall v. Bd. of Educ., 624 F.3d 332, 338 (6th Cir. 2010)). This
third factor is known as the Pickering balancing test. See Farhat v. Jopke,
370 F.3d 580, 593 (6th Cir. 2004) (quoting Pickering v. Bd. of Educ., 391
U.S.
563,
568
(1968)).2
Plaintiff
objects
to
the
report
and
recommendation’s analysis of the first requirement in his second
objection, and the defendants do the same in their sole objection;
Plaintiff must also plead that he suffered an adverse action and the protected
speech caused the adverse action, id. at 588 (citing Leary v. Daeschner, 349 F.3d 888,
897 (6th Cir. 2003)), but these issues are not in dispute.
2
6
plaintiff’s first and third objections are to the analysis of the second
requirement; plaintiff’s fourth and sixth objections are to the analysis of
the third requirement; and plaintiff’s fifth objection is to the qualified
immunity analysis.
A. Whether Plaintiff Spoke as a Private Citizen
i. Plaintiff’s Objection No. 2
Plaintiff argues that the Magistrate Judge erred when he
considered the impetus, setting, and audience of the speech to determine
that plaintiff did not speak on matter of public concern. (Dkt. 14 at 3–4.)
Specifically, he contends that whether the speech was communicated
privately is not determinative. (Id.) But the Magistrate Judge properly
considered the impetus, setting, and audience of plaintiff’s email to
determine whether he spoke as a private citizen—not whether his speech
was on a matter of public concern.3 (Dkt. 12 at 14.) However, the Court
In Weisbarth v. Geauga Park District, the setting, impetus, and audience of
the speech was considered to determine whether the plaintiff spoke as a private
citizen. 499 F.3d 538, 546 (6th Cir. 2007). But in Perry v. McGinnis, the court
determined that whether the speech was communicated privately did not affect the
analysis of whether the plaintiff spoke on matter of public concern. 209 F.3d 597, 608
(6th Cir. 2000) (citing Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 415–16
(1979)). These two distinct inquiries must be considered separately. See Boulton v.
Swanson, 795 F.3d 526, 534 (6th Cir. 2015) (citing cases).
3
7
departs from the report and recommendation upon de novo review and
finds that plaintiff spoke as a private citizen.
An individual speaks as a public employee when the speech was
“ma[de] pursuant to his . . . official responsibilities.” Garcetti, 547 U.S. at
424. In Lane v. Franks, this inquiry was formulated as “whether the
speech at issue is itself ordinarily within the scope of an employee’s
duties, not whether it merely concerns those duties.” 573 U.S. 228, 240
(2014). The Sixth Circuit further clarified, stating that the question is
whether the speech was “made in furtherance of the ordinary
responsibilities of employment.” Mayhew, 856 F.3d at 464 (quoting
Boulton, 795 F.3d at 534). This is a “practical” inquiry that encompasses
“ad hoc or de facto duties,” as well as formal “written job description[s].”
Fox v. Traverse City Area Pub. Schs. Bd. of Educ., 605 F.3d 345, 348 (6th
Cir. 2010) (emphasis omitted) (citing Weisbarth, 499 F.3d at 544). Courts
analyze “non-exhaustive” “‘who, where, what, when, why, and how’
considerations” to determine when speech is made in furtherance of the
ordinary responsibilities of employment. Haddad v. Gregg, 910 F.3d 237,
246–47 (6th Cir. 2018) (quoting Mayhew, 856 F.3d at 464). These
considerations have also been formulated as the formal “employment
8
duties, the speech’s impetus; its setting; its audience; and its general
subject matter.” Mayhew, 856 F.3d at 646; Weisbarth, 499 F.3d at 546.
For example, in Garcetti, the speech in question arose under formal
“official responsibilities” because an internal memorandum a deputy
district attorney wrote recommending dismissal of a case was a key
component of a district attorney’s job. 547 U.S. at 422, 424. In other
words, making such recommendations would have appeared in his formal
job description. Relatedly, the Sixth Circuit in Haynes v. City of
Circleville, 747 F.3d 357 (6th Cir. 2007), and Weisbarth considered ad hoc
duties. In Haynes, a police officer’s communication with his supervisor
about his formal duties—there, a memorandum cataloguing his
grievances about canine program changes—was necessarily related to his
formal duties, and so he was speaking as a public employee. See 747 F.3d
at 364–65. The police officer in Haynes also spoke pursuant to ad hoc
duties when, upon instructions from his supervisor to send canine
equipment back, he impertinently wrapped the equipment like a
Christmas gift and addressed it to his supervisor. See id. The same was
so in Weisbarth, where a park ranger spoke about “morale and
performance issues” with a consultant that her department had hired to
9
make a recommendation. See 499 F.3d at 544. Ad hoc duties may
therefore flow from professional requirements or work-related impetuses.
Plaintiff successfully pleads that he spoke as a private citizen
because there is no indication the email was sent in furtherance of his
duties—formal, de facto, or ad hoc. It is impossible to infer from the
complaint that plaintiff had any duties other than the usual duties of a
CO. Presumably, his duties were to address the inmates’ well-being and
safety and security at JCF.4 Unlike Garcetti, plaintiff’s email addressing
the abuse of sick time is not a formal responsibility that would be in his
written job description. There is also nothing in the complaint that
suggests he had unofficial administrative or human resources duties
such that they were de facto professional responsibilities.
The email also is not related to furthering plaintiff’s ordinary
employment responsibilities or in response to a work-related impetus
such that he had an ad hoc duty to send the email. Unlike Haynes,
It appears that the report and recommendation may not have construed the
complaint in the light most favorable to plaintiff, including drawing all reasonable
inferences in favor of plaintiff, Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir.
2012), when it stated: “[W]hile the Court suspects that communications about abuse
of sick time is not a standard responsibility of a Corrections Officer, it recognizes that
ad hoc or de facto duties can fall within the scope of an employee’s official
responsibilities.” (Dkt. 12 at 11 (quotations omitted).) Such an inference is in favor of
defendants and cannot be drawn at this stage of the litigation.
4
10
plaintiff was not communicating about his formal duties as a CO. Nor
was he was responding to a supervisor’s command or a departmental
action as in Haynes and Weisbarth, even though his email is similar in
tone to the Haynes’ plaintiff’s giftwrap incident; it is crucial that there
was no professional impetus for plaintiff’s speech. According to
defendants, plaintiff was not permitted to use the listserv and so it is
difficult to see how plaintiff’s email could have been in furtherance of his
ordinary duties. Moreover, the email was about Christmas, Christianity,
complaints about the union, and various gripes and grievances with
plaintiff’s coworkers that could not have been related to furthering any
official or unofficial job duty of a CO. Presumably, all employees have an
ad hoc duty to respect JCF policies, such as the sick leave policy, but the
email was not about plaintiff’s own compliance with the policy. Rather, it
was a mass email about global compliance with the policy. Plaintiff had
no formal, de facto, or ad hoc duty to send this email, and so the email
was not in furtherance of his ordinary security and safety duties.
The appropriate formulation of the Garcetti-Lane inquiry is:
whether “speech that an employee made [is] in furtherance of the
11
ordinary responsibilities of his employment.”5 Boulton, 795 F.3d at 534.
The Magistrate Judge did not consider whether the speech was made in
furtherance of plaintiff’s employment responsibilities. Where a plaintiff
has already plausibly pleaded that the speech was not in furtherance of
his ordinary employment responsibilities, it is unnecessary to consider
the other Weisbarth factors, such as the subject matter, setting, and
audience of the speech in question. Cf. Lane, 573 U.S. at 240 (holding
that a plaintiff does not speak as a public employee merely because he
learned of the subject matter of his speech “by virtue of his public
employment); Boulton, 795 F.3d at 533 (stating that the fact that the
employee could not have made the speech but for his public employment
is insufficient to demonstrate a plaintiff spoke as a public employee). For
these reasons, the objection is sustained, and the report and
recommendation is not adopted to the extent it finds that plaintiff spoke
as a public employee.
Specifically, Boulton recognized that Lane narrowed Garcetti, holding that
Garcetti’s language that “[r]estricting speech that owes its existence to a public
employee’s professional responsibilities does not infringe” an employee’s First
Amendment right must “be read narrowly as speech that an employee made in
furtherance of the ordinary responsibilities of his employment.” Id. at 532, 534
(emphasis added)).
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12
ii. Defendant’s Objection No. 1
Defendants object to preserve their right to appeal the Magistrate
Judge’s “assumption that Plaintiff was speaking as a private citizen.”
(Dkt. 13.) This objection is improper because it does not specifically
identify an error the Magistrate Judge made. The objection is overruled.
B. Whether Plaintiff Spoke on a Matter of Public Concern
i. Plaintiff’s Objection No. 3
Plaintiff asserts that the Magistrate Judge did not consider
plaintiff’s email as “mixed speech” when he evaluated whether plaintiff
spoke on a matter of public concern. To determine whether speech is on
a matter of public concern, courts examine “the point or focus of the
speech” and “whether the point ‘relat[es] to any matter of political, social,
or other concern to the community.’” Gillis v. Miller, 845 F.3d 677, 689
(6th Cir. 2017) (quoting Rodgers v. Banks, 344 F.3d 587, 600 (6th Cir.
2003) (alterations in original)); Chappel v. Montgomery Cty. Fire Prot.
Dist. No. 1, 131 F.3d 564, 576 (6th Cir. 1997). Speech that is “incidentally
. . . conveyed” or a “passing reference” to a matter of public concern is
insufficient. Id. at 686, 689 (citations omitted). Internal activities of a
public employer may address matters of public concern, Perry, 209 F.3d
13
at 609 (holding an internal grievance about racial discrimination
addressed a matter of public concern), as can the management of public
organizations and public monies, Chappel, 131 F.3d at 578–79 (holding
that an employee’s criticisms of board management, including the
misappropriation of funds, was a matter of public concern); Marohnic v.
Walker, 800 F.2d 613, 616 (6th Cir. 1986) (holding a speech that
“concerned fraudulent billing by the Board” was a matter of public
concern). To succeed under a mixed speech theory, only some of the
speech must touch on a matter of public concern. See Bonnell v. Lorenzo,
241 F.3d 800, 812 (6th Cir. 2001). To determine whether some of the
speech touches on a matter of public concern, courts focus on the content
of the speech. Vaughn v. Lawrenceburg Power Sys., 269 F.3d 703, 716
(6th Cir. 2001) (“[W]e generally look to what was said, rather than why
it was said.”)
The subject matter of plaintiff’s email is personal grumbling that
raises the distant inference that JCF employees abusing leave polices
could lead to a management and fiscal problem for MDOC, a public
organization that is run with public monies. But the focus of the email is
clear from its content: to criticize his coworkers for inconsiderately taking
14
sick leave around the holidays at plaintiff’s expense and to complain that
the administration and the union failed to intervene. Nowhere does he
mention the fraudulent or wasteful use of public monies or the
irresponsible management of JCF or MDOC as public organizations due
to the lackadaisical use of sick leave. In Perry, Chappel, and Marohnic,
the focus of the speech was about management of public funds and
organizations. Plaintiff’s email does not mention public funds or the
mismanagement of JCF or MDOC as public organizations. Not even part
of his email addresses a matter of public concern.
Plaintiff recharacterizes his email in his complaint and his
objections to bring his email within the gamut of First Amendment
protection. But in his complaint, plaintiff only offers bare legal
conclusions that there was “fraud” and “corruption” at JCF related to the
use of sick time. (Dkt. 1 at 2.) In his objection, plaintiff argues that the
Magistrate Judge erred when he did not consider that forty employees
called in sick on Christmas day and “the 100’s of sick time usage
demonstrating a misuse of public funds and fraud.” (Dkt. 14 at 4–5.)
However, the Court may only consider the factual allegations in
plaintiff’s complaint and documents his complaint relies on at this stage
15
of the litigation. Neither the complaint nor the email reference the
statistics that plaintiff cites to in his response. Therefore, the Court
cannot consider them. For these reasons, plaintiff’s objection is overruled.
ii. Plaintiff’s Objection No. 1
Plaintiff argues that the Magistrate Judge did not properly analyze
whether he spoke on a matter of public concern because he did not permit
fact discovery under Federal Rule of Civil Procedure 12(b)(6). (Dkt. 14 at
2–3.) Rule 12(b)(6) requires the Court to assume that all of plaintiff’s
well-pleaded facts are true, Keys, 684 F.3d at 608, and then apply the law
to determine if plaintiff has stated a plausible claim for which relief can
be granted based on those facts, see Ashcroft v. Iqbal, 556 U.S. 662, 680–
84 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564–70 (2007). A
complaint with deficient factual allegations will “not unlock the doors of
discovery for plaintiff” at the pleading stage. Iqbal, 556 U.S. at 678–79.
In other words, plaintiff is not entitled to fact discovery on whether he
spoke on a matter of public concern simply because he filed a complaint.
He must make factual allegations in his complaint that would satisfy the
elements of a First Amendment retaliation claim if they were proven
true.
16
Plaintiff offers Rookard v. Health and Hospitals Corp., 710 F.2d 41
(2d Cir. 1983), Perry, and Weisbuch v. County of Los Angeles, 119 F.3d
778 (9th Cir. 1997), in support of his argument that he is entitled to
discovery, but these cases are distinguishable. Rookard addresses
discovery in the context of a bench trial, 710 F.2d at 43; and Perry and
Weisbuch address the necessity of discovery in some cases on a motion to
dismiss for the third requirement of a First Amendment retaliation
claim, the Pickering balancing test, Perry, 209 F.3d at 607 (“In many
cases, due to inadequate factual development, the [Pickering] balancing
test ‘cannot be performed on a 12(b)(6) motion.’” (quoting Weisbuch, 119
F.3d at 783)). Plaintiff’s case is not at the trial stage, nor does he object
to the lack of fact discovery for the Pickering balancing test. Plaintiff fails
to state a claim for First Amendment retaliation because his email is not
on a matter of public concern, and no amount of discovery will change the
content of the original email. The objection is overruled.
C. Pickering Balancing Test
i. Plaintiff’s Objection No. 4
Plaintiff disagrees with the Magistrate Judge’s balancing of the
Pickering factors, particularly the characterization of plaintiff’s email’s
17
language when the Magistrate Judge considered the state’s interest.
(Dkt. 14 at 5.) This objection is improper because plaintiff does not
identify an error by the Magistrate Judge; he simply disagrees with the
Magistrate Judge’s conclusion. It is also moot because plaintiff did not
speak on a matter of public concern, even considering his mixed speech
argument. Therefore, the Court cannot reach the Pickering balancing test
because plaintiff has no interest to weigh since his First Amendment
rights were not violated by defendants. See Mayhew, 856 F.3d at 462. The
objection is denied.
ii. Plaintiff’s Objection No. 6
Plaintiff asserts that the Magistrate Judge did not consider the fact
that plaintiff was at home when he sent the email. The Magistrate Judge
did consider plaintiff’s allegation that he sent the email from home when
the Magistrate Judge examined whether plaintiff spoke as a private
citizen or a public employee. (Dkt. 12 at 10–13.) However, plaintiff seems
to object to the Magistrate Judge’s application of the Pickering balancing
test. He cites Connick for the proposition that his location when he sent
the email could impact the Pickering analysis. (Dkt. 14 at 8 (citing
Connick, 461 U.S. at 153 n.13).) As stated previously, this objection is
18
moot because defendants did not violate plaintiff’s First Amendment
rights, and so the Court cannot reach the Pickering balancing test.
To support his argument, plaintiff cites law holding that speech
does not need to be communicated publicly to be a matter of public
concern and that the key inquiry is the focus of the speech. E.g., Jennings
v. Wayne Cty., No. 12-10392, 2015 U.S. Dist. LEXIS 126906, at *40 (E.D.
Mich. Sept. 22, 2015) (considering Perry, Chappel, and Givhan). The
Court’s de novo review is consistent with these cases, and plaintiff’s
reliance upon them in the context of the Pickering balancing test is
misplaced. The objection is overruled.
D. Plaintiff’s Objection No. 5
Plaintiff argues that it was improper for the Magistrate Judge not
to engage in a qualified immunity analysis, and that the Magistrate
Judge did not consider plaintiff’s claims against defendants in their
personal capacities. First, based on the Court’s conclusion that plaintiff
did not speak on a matter of public concern, there has been no
constitutional violation. Therefore, the question of qualified immunity is
moot. See Higgason v. Stephens, 288 F.3d 868, 876 (6th Cir. 2002).
19
Second, the report and recommendation, as well as the Court’s de
novo review here, addresses plaintiff’s claims in their individual capacity.
Because plaintiff is correct that sovereign immunity only applies to the
state and state officials sued in their official capacity, Will v. Mich. Dep’t
of State Police, 491 U.S. 58, 70–71 & n.10 (1989), there were no other
claims left to consider except the claims against the individuals. The
report and recommendation considers sovereign immunity after
analyzing the First Amendment retaliation claim on the merits, but the
analysis of a § 1983 claim against individual defendants in their personal
capacities is the same, regardless of the capacity they are sued in. For
these reasons, the objection is overruled.
IV.
Conclusion
Accordingly, the report and recommendation (Dkt. 12) is
ADOPTED IN PART as to all recommendations except that plaintiff
spoke as a public employee, and defendants’ motion to dismiss (Dkt. 7) is
GRANTED.
IT IS SO ORDERED.
Dated: February 20, 2019
Ann Arbor, Michigan
s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
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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 February 20, 2019.
s/Karri Sandusky on behalf of
SHAWNA BURNS
Case Manager
21
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