LaFountain #171248 v. Harry et al
ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 94 as modified by this Order; the objections of both Plaintiff and Defendants are overruled; motion for summary judgment 77 is granted in part and denied in part; the case will proceed with the First Amendment retaliation claims against Defendants Harry, Hoffner, Wells-Finos, and Barbier; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
CASE NO. 1:10-cv-943
HON. ROBERT J. JONKER
SHIRLEE HARRY, et al.,
ORDER APPROVING AND ADOPTING
REPORT AND RECOMMENDATION
This matter is before the Court on Defendants’ (ECF No. 96) and Plaintiff’s (ECF No. 95)
Objections to Magistrate Judge Kent’s Report and Recommendation (ECF No. 94). Under the
Federal Rules of Civil Procedure, where, as here, a party has objected to portions of an Order, “[t]he
district judge . . . has a duty to reject the magistrate judge’s recommendation unless, on de novo
reconsideration, he or she finds it justified.” 12 WRIGHT, MILLER, & MARCUS, FEDERAL PRACTICE
AND PROCEDURE §
3070.2, at 381 (2d ed. 1997). Specifically, the Rules provide that:
The district judge must determine de novo any part of the magistrate
judge’s disposition that has been properly objected to. The district
judge may accept, reject, or modify the recommended disposition;
receive further evidence; or return the matter to the magistrate judge
FED R. CIV. P. 72(b)(3). De novo review in these circumstances requires at least a review of the
evidence before the Magistrate Judge. Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981).
The Court has reviewed de novo the claims and evidence presented to the Magistrate Judge; the
Report and Recommendation itself; Defendant’s objections; and Plaintiff’s objections. After its
review, the Court adopts the Magistrate Judge’s recommendations and overrules the parties’
Defendants Hawkins and Hoffner moved for summary judgment on Plaintiff’s claim that
he was retaliatorily transferred in violation of a settlement agreement. The Magistrate Judge
recommends granting summary judgment to Hawkins because he was not personally involved in
any transfer decision. Plaintiff objects, but does not assert any personal involvement by Hawkins.
Instead, Plaintiff relies on a theory already rejected by this Court and the Court of Appeals. The
Magistrate Judge recommends denying summary judgment as to Defendant Hoffner because
Defendant has done nothing to develop the factual record to undercut Plaintiff’s basic claim of a
retaliatory transfer in violation of the settlement agreement. Instead, Defendant relies on the general
theory that a prison transfer is not ordinarily enough to amount to adverse action, which is true
enough but beside the point given the record of this case, including the Court’s ruling. Accordingly,
the Court overrules both Plaintiff and Defendant’s objections.
Defendant Harry also moved for summary judgment based on lack of personal involvement
in Plaintiff’s allegedly retaliatory cell assignment. The Magistrate Judge recommends denying the
motion because sufficient evidence of personal involvement exists. Defendant objects, but the Court
agrees there is sufficient factual support to permit a finding of personal involvement. The
Magistrate Judge relied only on Plaintiff’s written communications to Defendant Harry. The Court
would not rest on this alone since it would allow any prisoner to create a fact issue simply by
writing the warden. But here Plaintiff also swears that a guard told him Defendant Harry made the
cell assignment decision. A fact finder could accept this as non-hearsay party admission.
Under Rule 801(d)(2)(D), a “sufficient foundation to support introduction of vicarious
admissions . . . requires only that a party establish (1) the existence of an agency relationship,
(2) that the statement was made during the course of the relationship, and (3) that it relates to a
matter within the scope of the agency.”Pappas v. Middle Earth Condo. Ass’n, 963 F.2d 534, 537
(2d Cir. 1992). In Lipton v. County of Orange, NY, the Southern District of New York held that
correctional officers’ statements that a jail administrator had expressed improper motive for
transferring a pretrial detainee were admissible against the jail administrator to establish retaliatory
intent on motion for summary judgment on the plaintiff’s First Amendment retaliation claim. 449
F. Supp. 2d 434, 449 (S.D.N.Y. 2004). The court held that the statements were admissions made
by agents of the defendant prison officer, because they related to the agents’ duties in executing the
transfer order notwithstanding the fact that the agents were low-level employees. Id. Similarly, here
Plaintiff’s allegations that Officer Wood told him that Defendant Harry would not allow Plaintiff
to come out of segregation unless he was celled with a mentally ill prisoner are admissible against
Defendant Harry. Plaintiff has alleged that these statements were made by Officer Wood, an agent
of Defendant Harry, while he was acting under her orders, and that the statements related to Wood’s
duties in executing a transfer order.
ACCORDINGLY, IT IS ORDERED that the Report and Recommendation of the
Magistrate Judge (ECF No. 94) is adopted as modified by this Order, and the objections of both
Plaintiff and Defendants are overruled.
IT IS FURTHER ORDERED that Defendants Harry and Hoffner’s Motions for Summary
Judgment (ECF No. 77) are DENIED; and that Defendant Hawkins’ Motion for Summary
Judgment is GRANTED.
IT IS FURTHER ORDERED that Defendant Cooley’s Motion for Summary Judgment
(ECF No. 77) is GRANTED as the Magistrate Judge recommended with no objections from any
The case will proceed with the First Amendment retaliation claims against Defendants
Harry, Hoffner, Wells-Finos, and Barbier.
November 21, 2016
/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE
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