Northington #193035 v. Armstrong et al

Filing 353

OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 306 ; Motion 111 for Summary Judgment is GRANTED; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

GARY NORTHINGTON,
Plaintiff,

Case No. 1:10-cv-424

v

HON. JANET T. NEFF

JIM ARMSTRONG, et al.,
Defendant.
_______________________________/

OPINION AND ORDER
This is a prisoner civil rights action filed pursuant to 42 U.S.C. § 1983 alleging numerous
claims against dozens of defendants, including Eighth Amendment claims for inhumane conditions
of confinement and denial of medical care, and retaliation in violation of the First Amendment.
Defendants Berghuis and Berlinger filed a motion for summary judgment, arguing that, applying the
standard for a First Amendment retaliation claim, Plaintiff failed to establish that Defendant
Berghuis took adverse action against him and failed to establish causation between the protected
conduct and adverse action (Dkt 112 at 4-5). The matter was referred to the Magistrate Judge, who
issued a Report and Recommendation (R & R), recommending that this Court grant Defendants’
motion (Dkt 306).
The matter is presently before the Court on Plaintiff’s objections to the Report and
Recommendation (Dkt 314). In accordance with 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b)(3),
the Court has performed de novo consideration of those portions of the Report and Recommendation

to which objections have been made. The Court denies the objections and issues this Opinion and
Order.
Plaintiff argues that the Magistrate Judge erred in relying on the false statements of
Defendant Berghuis that Plaintiff was transferred from Brooks Correctional Facility (Brooks) as part
of a trade with Kinross Correctional Facility (KCF), because Plaintiff was actually transferred to
Straits Correctional Facility (KTF) (Dkt 314 at 2). Further, Plaintiff asserts that he has obtained new
evidence that Defendant Berghuis and her administrative assistant prepared the transfer order, which
is sufficient to prove a retaliatory transfer by Berghuis. Finally, Plaintiff enumerates his injuries
resulting from the transfer including: loss of prison job, cost of new footlockers, increased distance
from his wife, denial of effective medical care at the new prison, and “being moved into a prison that
was 200% overcrowded with unreasonably high levels of allergens ...” (Dkt 314 at 4). With regard
to Defendant Berlinger, Plaintiff seems to contend that the Magistrate Judge erred in failing to
recognize that Defendant Berlinger’s failure to process grievances by throwing them in the trash is
active unconstitutional behavior (Dkt 314 at 5).
Plaintiff’s objections concerning Defendant Berghuis fail to adequately address all prongs
of the standard for First Amendment retaliation claims set forth by the Magistrate Judge (Dkt 306
at 11-14). Applying that standard, Plaintiff’s claimed injuries still do not amount to the type of
negative consequences sufficient to satisfy the exception for transfers in which “foreseeable,
negative consequences ‘inextricably follow’ from the transfer.” Jones v. Caruso, 421 Fed. App’x
550, 553 (quoting Siggers-El v. Barlow, 412 F.3d 693, 701-02 (6th Cir. 2005). However, even
assuming that Plaintiff’s claimed injuries resulting from the transfer constitute sufficiently negative
consequences, and that these negative consequences“inextricably follow[ed] from the transfer” (Dkt

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306 at 12-13), Plaintiff still fails to address, much less establish, whether Defendant Berghuis knew
or should have known that such negative consequences would result from his transfer (Dkt 306 at
12-13).
Plaintiff correctly points out that there is an inaccuracy in the affidavit submitted by
Defendant Berghuis concerning the prison to which Plaintiff was transferred. The affidavit
incorrectly states that Plaintiff was transferred to “KCF” but he was in fact transferred to “KTF,”
and the Report and Recommendation in part relies on the inaccurate affidavit to support the grant
of summary judgment in concluding that Defendant had demonstrated that the action would have
been taken, despite the protected activity.1 It appears to the Court that the inaccuracy may simply
be a typographical error since Defendant’s brief and the Report and Recommendation both
acknowledge in the text that Plaintiff was transferred to KTF (Dkt 112 at 1-2; Dkt 306 at 2, 11). To
the extent that the Magistrate Judge relied on the incorrect affidavit, the analysis is technically
incorrect and therefore rejected,2 although it is substantively valid, presuming the affidavit error is
merely typographical. Further, Plaintiff’s assertion that there was no MPRI program at LRF
(Brooks) is irrelevant; Plaintiff disregards that according to the transfer order, the transfer involved
a three-way trade between KTF, LRF-SCC and MTF, where there was an MPRI program (Dkt 1122, P. ID 1200; see also Dkt 112 at 2).

1

The Court likewise notes an apparent typographical error in Plaintiff’s Objection on this
point in that he states that he “was not transferred to KTF (Straits) not KCF (Kinross)” (Dkt 314 at
2, emphasis added).
2

The Report and Recommendation is rejected in so much as it relies on the Berghuis
Affidavit’s reference to a transfer to “KCF” as opposed to “KTF” (Dkt 306 at 12-13).
3

In any event, because Plaintiff still fails to establish the other elements of a retaliatory
transfer claim, the outcome remains the same. As such, the Magistrate Judge properly recommended
that the transfer in question be considered a de minimis incident of ordinary prison life, and not
something that would deter a person of ordinary firmness from engaging in protected activity.
Plaintiff’s objection regarding Defendant Berlinger suggests that the Magistrate Judge did
not properly consider that “active” interference by Defendant Berlinger in Plaintiff’s filing of
grievances is different from the denial of grievances. The Magistrate Judge properly determined that
Plaintiff failed to adequately support his claim of “active unconstitutional behavior” beyond his
“bare allegation of malice and legal conclusions” (Dkt 306 at 16). Plaintiff’s mere disagreement that
his allegations are conclusory, and his reiteration that Berlinger’s conduct was hostile, are
insufficient to withstand Defendant’s motion for summary judgment. Plaintiff’s objection is denied.
Therefore:
IT IS HEREBY ORDERED that Plaintiff’s Objections (Dkt 314) are DENIED and the
Report and Recommendation (Dkt 306) is APPROVED and ADOPTED as the Opinion of the Court,
except as stated herein.
IT IS FURTHER ORDERED that the Motion for Summary Judgment (Dkt 111) is
GRANTED.

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Dated: January ___, 2011

/s/ Janet T. Neff
JANET T. NEFF
United States District Judge

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