Catanzaro #313263 v. Michigan Department of Corrections et al
MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATION 163 re 134 , 136 , 150 : Plaintiff's Objections 170 are OVERRULED; Defendants' Motion 134 For Summary Judgment is GRANTED; Defendant McKendry's Motion 136 For Summary Judgment is DENIED; and Plaintiff's Cross Motion 150 For Summary Judgment is DENIED; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
Case No. 1:09-cv-2
HON. GORDON J. QUIST
OF CORRECTIONS, et al.,
MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATION
On December 16, 2011, the Magistrate Judge issued a Report and Recommendation (“R &
R”) recommending that Defendants’ Motion for Summary Judgment, (Dkt. #134), be granted;
Defendant McKendry’s Motion for Summary Judgment, (Dkt. #136), be denied; and Plaintiff’s
Cross Motion for Summary Judgment, (Dkt. #150), be denied. (Dkt. #163.) Plaintiff timely filed
Objections to the R & R. (Dkt. #170.) “The district judge must determine de novo any part of the
Magistrate Judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). After
conducting a de novo review of the R & R, Plaintiff’s Objections, and the pertinent portions of the
record, the Court concludes that the R & R should be adopted.
Objections 1 & 6
Plaintiff objects to the R & R’s statement that “a finding of guilt based upon some evidence
of a violation of prison rules essentially checkmates a retaliation claim.” (Pl.’s Objs. at 1, 4.)
Plaintiff contends that this finding is in error and he cites several cases that allegedly support the
proposition that a guilty finding does not checkmate a retaliation claim. (Id.) Plaintiff made this
argument to the Magistrate Judge in his Reply to Cross Motion for Summary Judgment. (Dkt. #155
The R & R did not err by making this statement. The R & R’s “finding” is a direct quote
from a Sixth Circuit case. (R & R at 6 (quoting Jackson v. Madery, 158 F. App’x 656, 662 (6th Cir.
2005)).) None of the cases that Plaintiff cites refutes the R & R’s analysis of this matter. One of
the cases Plaintiff cites, Taylor v. Lantagne, 418 F. App’x 408 (6th Cir. 2011), supports the
proposition that the general rule articulated in Jackson may be overcome if the prisoner introduces
evidence that a prison official in question engaged in selective enforcement of the relevant prison
rules and regulations. Id. at 413. Though, Taylor only said that a plaintiff pled sufficient facts to
overcome the general rule. Id. However, as the R & R recognized, Plaintiff is no longer at the
pleading stage. At this stage, summary judgment is appropriate if the defendant shows “that [he]
would have taken the same action even without the protected activity.” Thomas v. Eby, 481 F.3d
434, 441-42 (6th Cir. 2007). Defendants Booth and Wolter both put forth such evidence. Also,
besides mere allegations, Plaintiff has not put forth any evidence to show that Defendants Booth or
Wolter engaged in selective enforcement of the misconduct in which Plaintiff engaged.
Therefore, Plaintiff’s objections will be overruled.
Plaintiff objects to the R & R’s statement that “Plaintiff offers no evidence that Defendant
Booth charged him with a misconduct violation for a retaliatory purpose.” (Pl.’s Objs. at 1; R & R
at 7.) Plaintiff contends that the Magistrate Judge erred because Plaintiff’s sworn complaint, cross
motion for summary judgment, and exhibits “show a clear causal connection” between Defendant
Booth’s adverse action and Plaintiff’s protected conducted.
The R & R did not err. To be clear, the R & R said that Plaintiff offered no evidence “[a]side
from assertions of ‘bare allegations of malice.’” (R & R at 7 (citing Thaddeus-X v. Blatter, 175 F.3d
378, 399 (6th Cir. 1999) (stating that “bare allegations of malice” are insufficient to state a
constitutional claim)).) Upon review of the evidence, this Court agrees that Plaintiff has not offered
any evidence besides bare allegations of malice. Therefore, Plaintiff’s objection will be overruled.
Plaintiff alleges that the R & R overlooked two cases standing for the proposition that
disparate treatment of similarly situated individuals is appropriate to show a causal connection for
retaliatory purposes. (Pl.’s Objs. at 2.) The two cases that Plaintiff cites are not at odds with the R
& R. Additionally, the R & R addressed Plaintiff’s argument that Defendant Booth is not entitled
to summary judgment because he has allegedly engaged in selective enforcement of the prison rule
in question. (R & R at 7-10.) As discussed in Objection One, supra, the R & R’s analysis of this
issue with respect to Defendant Booth is correct.
Plaintiff objects to the R & R’s statement that Plaintiff acknowledged that he was guilty of
the misconduct violation in question–i.e., that he “acknowledge[d] that the grievance in question was
‘typed on the back of the catalog order form.’” (Pl.’s Objs. at 3; R & R at 6.) Plaintiff contends that
he never admitted to typing on the back of a catalog order form. The R & R does not make this
statement. The R & R says that Plaintiff acknowledged that the grievance in question, submitted
by Plaintiff, was typed on the back of a catalog order form; it does not state who actually typed it.
After all, the “misuse of property” misconduct violation resulted from Plaintiff submitting the
grievance using a catalog order form, which is not the intended use of the form and is also what
Plaintiff admitted to doing. Therefore Plaintiff’s objection is overruled.
Plaintiff objects to the R & R’s statement that “Plaintiff enjoys no constitutional right to
disobey legitimate prison rules and regulations.” (Pl.’s Objs. at 3; R & R at 10.) Plaintiff’s
objection is overruled because the R & R’s statement is accurate. See e.g., Turner v. Safley, 482
U.S. 78, 89, 107 S. Ct. 2254, 2261 (1987) (holding that “when a prison regulation impinges on
inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate
Plaintiff objects to the R & R’s statement that “[a]s for Plaintiff’s claim that he was fired
from his job as a porter for retaliatory purposes, the result is the same.” (Pl.’s Objs. at 4; R & R at
16.) Plaintiff argues that the record shows a genuine issue for trial because Defendant Wolter’s
supervisor’s finding that Defendant Wolter had violated policy and reinstated Plaintiff’s job as a
porter shows that Defendant Wolter acted for a retaliatory purpose. (Pl.’s Objs. at 4.)
Plaintiff’s objection is overruled because Defendant Wolter did not have the authority to
terminate Plaintiff’s job assignment. Also, Plaintiff does not allege that the person who terminated
his position did so based on retaliation. Moreover, Defendant Wolter put forth evidence, including
Plaintiff’s admission, to establish that Plaintiff was guilty of the misconduct violation in question.
IT IS HEREBY ORDERED that the Magistrate Judge's Report and Recommendation
issued December 16, 2011 (Dkt. #163) is ADOPTED.
IT IS FURTHER ORDERED that Plaintiff’s Objections (Dkt. #170) are OVERRULED.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment (Dkt. #134)
IT IS FURTHER ORDERED that Defendant McKendry’s Motion for Summary Judgment
(Dkt. #136) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Cross Motion for Summary Judgment (Dkt.
#150) is DENIED.
Dated: January 30, 2012
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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