Taylor #240450 v. Lantagne

Filing 34

OPINION AND ORDER REJECTING REPORT AND RECOMMENDATION 31 ; denying Defendant's motion for summary judgment 26 ; denying Plaintiff's application 33 for entry of default; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, aeb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RICKY TAYLOR,
Plaintiff,

)
)
)
-v)
)
CHRIS LANTAGNE,
)
Defendant.
)
____________________________________)

No. 1:07-cv-1233
HONORABLE PAUL L. MALONEY

OPINION AND ORDER DENYING APPEAL OF MAGISTRATE JUDGE’S ORDER
AND
OPINION AND ORDER REJECTING REPORT AND RECOMMENDATION AND
DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Ricky Taylor (“Plaintiff”), a prisoner under the control of the Michigan Department
of Corrections (“MDOC”) and proceeding pro se, filed a complaint alleging retaliation under 42
U.S.C. § 1983. After the complaint was initially dismissed for failing to state a claim, on appeal,
the Sixth Circuit Court of Appeals reversed the dismissal and remanded the action for service of
process. See Taylor v. Lantagne, 418 F. App’x 408 (6th Cir. 2011).
Defendant Chris Lantagne (“Defendant”) filed a motion for summary judgment and
supporting brief. (ECF Nos. 26 and 27.) After reviewing the motion, the magistrate judge issued
a report (R&R) recommending the motion be granted and the claims against Defendant be
dismissed. (ECF No. 31.) Plaintiff filed objections to the report and recommendation. (ECF No.
33.) Plaintiff filed an application for entry of default. (ECF No. 29.) The magistrate judge denied
Plaintiff’s application. (ECF No. 32.) Reading the objections to the report and recommendation
liberally, as this Court is required to do, Plaintiff appeals the magistrate judge’s order denying his
application for entry of default.

Two matters raised in Plaintiff’s objection (ECF No. 33) need to be addressed. First,
Plaintiff appeals the order of the magistrate judge denying Plaintiff’s application for entry of default.
Second, Plaintiff objects to the magistrate judge’s recommendation that Defendant’s motion for
summary judgment be granted.
DISCUSSION
A. APPEAL OF THE ORDER DENYING APPLICATION FOR ENTRY OF JUDGMENT
On April 15, 2011, after the Sixth Circuit issued its opinion reversing and remanding the
action, but prior to the issuance of the mandate, Plaintiff filed a first amended complaint (ECF No.
11).1 On April 29, 2011, Plaintiff filed a motion for leave to file an amended complaint, attaching
a second amended complaint to the motion (ECF No. 13).2 On May 17, 2011, the Sixth Circuit
issued its mandate and this Court obtained jurisdiction over the action. On June 22, 2011, in
compliance with the Sixth Circuit opinion, the magistrate judge ordered service of the complaint on
Defendant. (ECF No. 19.) The order required the Clerk of the Court to forward the complaint to
the U.S. Marshals Service, which is authorized to mail the request for waiver of service to
Defendant.
On August 11, 2011, Plaintiff had filed a document entitled “Notice of Defendant[’s] Failure
to Respond to Waiver.”3 (ECF No. 20.)
The waiver of service was filed on August 26, 2011. (ECF No. 22.) The document indicates
that a “Notice of Lawsuit filed In Forma Pauperis in the United States District Court for the Western

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The pleading was received and entered into CM/ECF on April 19.

2

The motion and attachment were received and entered into CM/ECF on May 3.

3

This document was received and entered into CM/ECF on August 15.
2

District of Michigan and Request for Waiver of Service of Summons” (“Notice”) was mailed to
Defendant by the U.S. Marshals Service on August 11, 2011. The Notice states that the waiver, to
be effective, must be returned within 35 days of the date on which the notice was sent. The Notice
states that a stamped and addressed envelope was provided for returning the waiver to the Civil
Process Clerk for the U.S. Marshals Service. Defendant signed the waiver on August 17, 2011 and
returned it. As a result of the waiver, Defendant had until October 11, 2011 to answer or otherwise
respond. On August 31, 2011, Plaintiff sent a letter to the Court inquiring about his earlier filed
Notice.4 (ECF No. 25.) On September 8, 2011, the magistrate judge issued an order granting
Plaintiff’s motion to amend his complaint. (ECF No. 23.) On the basis of that order, Plaintiff’s
second amended complaint (“Complaint”) was entered the same day.5 (ECF No. 24.)
Defendant filed his motion for summary judgment on October 20, 2011. (ECF No. 26.) On
October 25, 2011, Plaintiff filed an application for entry of default.6 (ECF No. 29.) The magistrate
judge denied the application, finding, under Fed. R. Civ. P. 4(d), Defendant’s motion for summary
judgment served as a timely answer to the second amended complaint. Plaintiff now appeals.
Rule 72(a) allows a party to object to a ruling by a magistrate judge by filing objections in
the district court where the case is assigned. Fed. R. Civ. P. 72(a). Under the Rule, the district court
judge “must consider timely objections and modify or set aside any part of the order that is clearly
erroneous or is contrary to law.” Id.
4

The letter was entered into the CM/ECF system on September 22, 2011.

5

The second amended complaint contains a 28 U.S.C. § 1746 statement of verification,
which carries the same weight as an affidavit for the purposes of summary judgment. See El Bey
v. Roop, 530 F.3d 407, 414 (6th Cir. 2008).
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The document is entitled “Motion for Affirmative Injunction to Enter Default and
Default Judgment.”
3

Plaintiff recounts his various submissions to the Court regarding Defendant’s alleged failure
to either file the waiver or an answer to the pleading. From the record, it appears Plaintiff was not
informed when Defendant returned the waiver of service to the US Marshals Service. Although the
Local Rules require counsel opposing pro se litigants to mail “pleadings or other papers” to those
litigants, the Rules do not require other entities, like the Office of the U.S. Marshals, to mail
documents to pro se litigants. Compare W.D. Mich. L. Civ. R. 5.7 (i)(iii) (service on pro se parties
of electronically filed documents by counsel) with 5.7 (e)(vi) (authorization of the Office of the U.S.
Marshals to file and serve documents electronically). The Notice itself did not require Defendant
to send anything to Plaintiff. The fact that the U.S. Marshals Service did not mail a certificate of
service to Plaintiff of Defendant’s waiver does not render to waiver ineffective. The Federal Rules
of Civil Procedure require only that “[a]ny paper after the complaint that is required to be served together with a certificate of service - must be filed within a reasonable time after service.” Fed. R.
Civ. P. 5(d)(1) (emphasis added).
Plaintiff has not established that the magistrate judge’s order denying his application for
entry to default was either clearly erroneous or contrary to law. In lieu of a responsive pleading or
motion under Rule 12, Defendant filed a motion for summary judgment. Rule 56 authorizes the
filing of summary judgments “at any time until 30 days after the close of all discovery.” Fed. R.
Civ. P. 56(b). “Courts and commentators have acknowledged that no answer [to the complaint] need
be filed before a defendant’s motion for summary judgment may be entertained.” INVST Fin. Grp.,
Inc. v. Chem-Nuclear Sys., Inc., 815 F.2d 391, 403 (6th Cir. 1987) (citations omitted). Because,
under Fed. R. Civ. P. 55(a), Defendant has not “failed to plead or otherwise defend,” Plaintiff’s
application for entry of default was properly denied.

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Therefore, Plaintiff’s appeal of the magistrate judge’s order is DENIED.

B. OBJECTIONS TO THE REPORT AND RECOMMENDATION
1. Actions Giving Rise to the Complaint
The complaint alleges that, on August 15, 2007, Plaintiff filed a grievance against Defendant
after Defendant was smoking in front of a building, allowing second-hand smoke to blow into the
sleeping area. (Compl. ¶¶ 3 and 4.) Defendant was aware of the grievance by August 22, 2007.
(Id. ¶ 7.) On August 23, Defendant was assigned yard duties and was not assigned to work in the
unit where Plaintiff was housed. (Id. ¶¶ 9 and 10.) Nevertheless, around 8:20 p.m., Defendant
appeared outside of Plaintiff’s cell. (Id. ¶ 11.) Plaintiff was on loss of privileges (“LOP”) status and
was watching television in his cell.7 (Id.) Defendant ordered Plaintiff to turn off his television due
to Plaintiff’s LOP status. (Id.) As a result of the interaction that followed, Defendant completed a
major misconduct ticket on Plaintiff for three offenses. (ECF No. 27-2 Attachment 2 to Def. Aff.
PgID 138.) Defendant charged Plaintiff with (1) interference with administration of rules by
watching television while on LOP status, (2) disobeying a direct order, and (3) insolence. (Id.) A
misconduct hearing was held where the first charge was dismissed and Plaintiff was found guilty
of the second and third charges. (Attachment 3 to Def. Aff. PgID 139.) The hearing officer
dismissed the first charge finding that the “no watching rule” of one’s television while on LOP status
has not been enforced in recent history. (Id.)

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Defendant filed a misconduct report against Plaintiff on August 13, 2007, for disobeying
a direct order and for being out of place. (ECF No. 27-2 Attachment 1 to Def. Aff. PgID 137.)
On August 17, at a hearing, Plaintiff entered a no contest plea and was found guilty on both
charges, resulting in a loss of privileges from August 21 through August 28. (Id. PgID 136.)
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2. Circuit Court Opinion
Upon initial review, the complaint was dismissed for failing to state a claim. Plaintiff
appealed. In reversing and remanding the action, the Sixth Circuit held that the district court
misapplied the favorable termination rule of Heck v. Humphrey, 512 U.S. 477 (1994), Wilkinson v.
Dotson, 544 U.S. 74 (2005) and Muhammad v. Close, 540 U.S. 749 (2004). Taylor, 418 F. App’x
at 411-12. The Court explained that because Plaintiff was not eligible for good-time credits, his
major misconduct violation did not affect the duration of his confinement and, therefore, the
misconduct violation did not bar his § 1983 claim. Id. The court concluded
Taylor has adequately pled a retaliation claim. Taylor initiated a legitimate
grievance against Lantagne. A major misconduct violation substantially limits
prisoners’ rights, so a prisoner of ordinary firmness would be dissuaded by
Lantagne’s retaliatory actions. And Taylor has alleged that Lantagne both had no
business being in Taylor’s housing unit and did not discipline other prisoners who
were doing the same thing as Taylor, which suggests that Lantagne acted for
retaliatory reasons.
Id. at 413.
The court also addressed Taylor’s argument in the alternative. Taylor argued that were the
court to deny his retaliation claim by finding that it would affect the duration of his sentence, he
should still be allowed to proceed on a § 1983 claim for damages. The court agreed. The court
reasoned that, where a prisoner’s disciplinary time arose from his refusal to obey an order, the
prisoner “could be found guilty of the major misconduct and lose his good time credits while still
having a § 1983 claim that would in no way challenge that guilty finding.” Id. at 413. “The prisoner
would not be able to have his disciplinary conviction expunged, but he would be eligible for
monetary damages.” Id.
3. Defendant’s Motion for Summary Judgment

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In his motion for summary judgment, Defendant addresses only the third element of a
retaliation claim, whether a causal connection exists between Plaintiff’s protected conduct, the filing
of a grievance, and the adverse action, the misconduct ticket. Defendant submitted an affidavit
setting forth factual assertions in an attempt to undermine the basis for the causal connection
outlined in the complaint. First, Defendant states that, on August 23, he was Level II ESA rover,
which meant he was “responsible for maintaining order and providing supervision for all areas of
the facility, including the Michigan State Industries (MSI) building, gym, level II yard, and level II
Housing Units.” (Def. Aff. ¶ 5.) Plaintiff was assigned to level II Housing Unit 6. (Id. ¶ 6.)
Defendant states, as part of his duties, he entered Housing Unit 6 and, while making rounds, he
observed Taylor watching television. (Id. ¶ 7.) Defendant was aware Plaintiff was on LOP status,
having issued the misconduct ticket. (Id. ¶ 8.) Defendant ordered Plaintiff to turn off his television
because Plaintiff was on LOP, Plaintiff refused, and Plaintiff cursed at Defendant. (Id. ¶ 9.)
Defendant states he would have taken this same action with any prisoner, regardless of any
grievance. (Id. ¶¶ 11 and 12.) Defendant states he was not aware of any other inmates in the unit
who were either on top lock or LOP status. (Id. ¶ 14.) Defendant states that, had he been aware of
any other inmate on LOP status, he would have taken the same action that he took with Plaintiff.
(Id. ¶ 16.)
Plaintiff did not file any response to the motion.
4. Report and Recommendation
In the context of a summary judgment motion for a retaliation claim, the causation element
is evaluated under the burden-shifting standard outlined in Mount Health Sch. Dist. Bd. of Ed. v.
Doyle, 429 U.S. 274 (1997). See Thomas v. Eby, 481 F.3d 434, 441-42 (6th Cir. 2007) and

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Thaddeus-X v. Blatter, 175 F.3d 378, 399 (6th Cir. 1999). Under this standard, if the plaintiff can
establish that the protected conduct was a motivating factor in the defendant’s action, the burden
shifts to the defendant to show that the same action would have been taken in the absence of the
protected conduct. Thaddeus-X, 175 F.3d at 399-400. The magistrate judge addressed each of the
three misconduct charges as separate bases for retaliation. The magistrate judge concluded Plaintiff
failed to establish the causal connection element of his retaliation claim. With regard to the first
charge, interference with the administration of rules, the magistrate judge pointed out that, in the
complaint, Plaintiff concedes he was watching television and failed to comply with Defendant’s
order. (R&R 6.) The magistrate judge held that although Plaintiff was found not guilty of the
interference with administrative rules charge, the charge itself was not inappropriate because MDOC
policy provided that, while on LOP status, prisoners shall lose television privileges, unless the
hearing officer provided otherwise. (Id.) The magistrate judge found that Defendant adequately
explained why he did not order the other inmates to turn off their televisions. (Id. 7-8.) With regard
to the other two charges, the magistrate judge concluded that because Plaintiff was found guilty of
misconducts for insolence and disobeying a direct order, Plaintiff cannot maintain a retaliation claim
against Defendant, citing Jackson v. Madery, 158 F. App’x 656, 662 (6th Cir. 2005). (Id. 8.) The
magistrate judge reasoned that the evidence of guilt constituted sufficient evidence on the issue of
causation to warrant summary judgment for Defendant.
4. Plaintiff’s Objections
After being served with a report and recommendation (R&R) issued by a magistrate judge,
a party has fourteen days to file written objections to the proposed findings and recommendations.
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). A district court judge reviews de novo the portions

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of the R&R to which objections have been filed. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Only
those 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) (per curiam) (holding the district court need not provide
de novo review where the objections are frivolous, conclusive or too general because the burden is
on the parties to “pinpoint those portions of the magistrate’s report that the district court must
specifically consider”).
Plaintiff offers several arguments. First, Plaintiff asserts that Defendant had no reason to be
near Plaintiff’s cell on August 23 because Defendant was assigned as the yard officer that day.
Second, Plaintiff objects to the conclusion that Defendant was justified in writing the misconduct
ticket for watching television. Plaintiff explains that the rule on which the order was based was not
enforced, which is why the charge was dismissed. Third, Plaintiff argues the fact that other inmates
who were on LOP status and were allowed to watch television reinforces the conclusion that the rule
was not enforced. Plaintiff reasons that because the rule was typically not enforced, he has put forth
sufficient evidence to undermine the conclusion that the first charge was not based on retaliation.
Plaintiff’s objection is GRANTED. Taking the evidence in the record in the light most
favorable to Plaintiff, there exists a genuine issue of material fact whether the first charge in the
misconduct ticket was issued for the purpose of retaliation. Although Defendant has established that
he had the authority to be in Plaintiff’s housing unit on August 23, Defendant had not established
that his duties required him to be in the Housing Unit on August 23. Furthermore, the record shows
that the administrative rule on which Defendant’s order was based was not enforced at the facility.
Defendant has not explained why he opted to enforce the rule against Plaintiff, when the rule was
generally not enforced against any similarly situated prisoner. The evidence in the record allows

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for the inference that Defendant sought to enforce the loss of privileges rule against Plaintiff in
retaliation for Plaintiff filing a grievance against him. It follows that had Defendant not issued the
order for Plaintiff to turn off his television, Plaintiff would not then have defied the order or become
insolent. This conclusion is consistent with the manner in which the Sixth Circuit handled Plaintiff’s
argument in the alternative in the order of remand. Plaintiff could be guilty of refusing to obey an
order, but still maintain a suit for retaliation and seek damages. See Taylor, 418 F. App’x at 413.
Such conclusion undermines the holding in Jackson v. Madery, upon which the magistrate judge
relied.
For these reasons, the Report and Recommendation is REJECTED and Defendant’s motion
for summary judgment is DENIED.

ORDER
For the reasons provided in the accompanying opinion, IT IS HEREBY ORDERED that
1.

Plaintiff’s appeal (ECF No. 33) of the magistrate judge’s order (ECF No. 32) denying
Plaintiff’s application for entry of default is DENIED.

2.

Plaintiff’s objection (ECF No. 33) to the report and recommendation (ECF No. 31) is
GRANTED. The report and recommendation is REJECTED. Defendant Lantagne’s
motion for summary judgment (ECF No. 26) is DENIED.

Date:

January 27, 2012

/s/ Paul L. Maloney
Paul L. Maloney
Chief United States District Judge

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