Watson #148946 v. Wakefield et al

Filing 31

OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 25 ; Motion for summary judgment 15 is GRANTED IN PART and DENIED IN PART; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DERRYL WATSON,
Plaintiff,

Case No. 1:13-cv-327

v

HON. JANET T. NEFF

UNKNOWN WAKEFIELD, et al.,
Defendants.
_______________________________/

OPINION AND ORDER
Plaintiff filed this prisoner civil rights action in March 2013, alleging various claims of
unlawful retaliation. Defendants filed a Motion for Summary Judgment (Dkt 15), and the matter was
referred to the Magistrate Judge. On August 7, 2014, the Magistrate Judge issued a Report and
Recommendation (R&R), recommending that this Court grant in part and deny in part Defendants’
motion. The matter is presently before the Court on Plaintiff’s objections to the Report and
Recommendation. 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. For the following reasons, the Court denies the objections and issues
this Opinion and Order.
The Magistrate Judge determined that (1) Plaintiff’s claims against Defendant Verboncour
and Plaintiff’s claims regarding his allegedly retaliatory transfer must be dismissed for failure to state

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a claim on which relief may be granted (R&R, Dkt 25 at 8); (2) Defendants Winger, Brege, and
Vailpando are entitled to qualified immunity (id. at 13); and (3) Defendant Wakefield’s motion for
summary judgment and qualified immunity be denied as to Plaintiff’s claim that Defendant
Wakefield withheld his work pay for unlawful retaliatory reasons (id. at 14).
In his objections, Plaintiff first argues that the Magistrate Judge erred in declining to resolve
the exhaustion question presented in Defendants’ motion and instead examining whether Plaintiff’s
complaint fails to state a claim (Objs., Dkt 26 at 1). Plaintiff’s objection lacks merit. As the
Magistrate Judge pointed out, because Plaintiff is proceeding as a pauper, his claims are subject to
dismissal if they fail to state a claim upon which relief can be granted (R&R, Dkt 25 at 8, citing 28
U.S.C. § 1915(e)(2) (“the court shall dismiss the case at any time if the court determines that. . .the
action or appeal. . .fails to state a claim on which relief may be granted”) (emphasis added)).
Plaintiff also challenges the Magistrate Judge’s analysis, specifically, the Magistrate Judge’s
determination that he failed to allege facts in his complaint that would entitle him to prevail on his
claim that he was transferred to another prison for unlawful retaliatory purposes (R&R, Dkt 25 at
10). Plaintiff argues that “he averred he was threatened several times with transfer to the Upper
Peninsula to effectively prevent his elderly family from visiting him and the lost [sic] of his high
paying job” (Objs., Dkt 26 at 1). He also points out that he submitted affidavits from witnesses “who
directly heard Def. Brege and Winger threats [sic] to transfer Plaintiff ‘Up North’” (id. at 2).
However, Plaintiff’s arguments do not demonstrate any factual or legal error by the Magistrate
Judge, who properly concluded that Plaintiff’s conclusory allegations are simply insufficient under
the case law (R&R, Dkt 25 at 11, citing Siggers-El v. Barlow, 412 F.3d 693, 701 (6th Cir. 2005)
(“prisoners are expected to endure more than the average citizen, and since transfers are common
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among prisons, ordinarily a transfer would not deter a person of ordinary firmness from continuing
to engage in protected conduct”)). See also Clark v. Johnston, 413 F. App’x 804, 813 (6th Cir.
2011) (explaining that the Sixth Circuit Court of Appeals “did not accept that the defendant
accurately characterized Siggers-El’s conduct, as the conduct was not merely going over defendant’s
head, but rather was ‘part of [Siggers-El’s] attempt to access the courts’”).
Last, Plaintiff challenges the Magistrate Judge’s determination that Plaintiff cannot establish
the adverse action or causation elements of his claims that Defendants Winger, Brege and Vailpando1
retaliated against him by reducing his rate of pay (Objs., Dkt 26 at 2; R&R, Dkt 25 at 12). According
to Plaintiff, “there is absolutely no evidence other than the Defendant’s ‘bare allegations’ that
Plaintiff ever engaged in negative behavior; (playing cards on work assignment, not tutoring
prisoners)” (id.). Plaintiff emphasizes that the conflicting evidence between his claim that
Defendants improperly reduced his pay for filing grievances versus Defendants’ claim of “prorating”
Plaintiff’s pay for negative work performance is clearly a disputed question of material fact that
should go to the jury (id. at 3-4).
Plaintiff’s arguments are merely reiterations of the arguments he made in response to
Defendants’ motion. The Magistrate Judge correctly summarized and applied controlling legal
principles in concluding that Defendants’ evidence reveals that Defendants made “a reasonable, and
penologically justified, decision to simply pay Plaintiff for the time he actually worked,” and that
Plaintiff, conversely, “failed to demonstrate that his protected conduct was in any way related to the

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Plaintiff also includes Defendant Wakefield “as it pertains to this claim” (Objs., Dkt 25 at
2); however, the inclusion is misplaced as the Magistrate Judge recommends that Defendants’
motion be denied as to Plaintiff’s claim that Defendant Wakefield withheld his work pay for
unlawful retaliatory reasons.
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alleged actions by Defendants” (R&R, Dkt 25 at 12). Plaintiff identifies no factual or legal error by
the Magistrate Judge that warrants a disposition different from the Magistrate Judge’s
recommendation. Therefore:
IT IS HEREBY ORDERED that the Objections (Dkt 26) are DENIED, and the Report and
Recommendation (Dkt 25) is APPROVED and ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment (Dkt 15)
is GRANTED IN PART and DENIED IN PART; specifically, Plaintiff’s claims are DISMISSED
save his claim that Defendant Wakefield withheld his work pay for unlawful retaliatory reasons.

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

Dated: September ___, 2014
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