Dixon #158463 v. Pratt et al

Filing 29

OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 26 ; Defendant Snow's Motion for Summary Judgment 22 is GRANTED; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

FREDERICK LAMAR DIXON,
Plaintiff,

Case No. 1:14-cv-991

v

HON. JANET T. NEFF

DAVID PRATT, et al.,
Defendants.
_______________________________/

OPINION AND ORDER
This is a prisoner civil rights action filed pursuant to 42 U.S.C. § 1983, alleging a retaliation
claim. Defendant Snow, the remaining Defendant in this action, filed a motion for summary
judgment, arguing that Plaintiff did not sustain an adverse action. The matter was referred to the
Magistrate Judge, who issued a Report and Recommendation (R & R), recommending Defendant’s
motion be granted. 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. The Court denies the objections and issues this Opinion and
Order.
Plaintiff argues that the Magistrate Judge is “incorrect when [s]he allege’s [sic] Dixon
acknowledged in his deposition that the insolence misconduct was immediately re[s]cinded” (Pl.
Obj., Dkt 27 at PageID.192).

Plaintiff’s argument is meritless. Plaintiff’s objection fails because the premise is inaccurate.
Plaintiff stated during his deposition that the insolence misconduct was immediately rescinded.
(Dkt 23-2 at PageID.96-97). Plaintiff stated, “He wrote me a ticket for writing the warden and all
this, and he came back and told me, don’t worry about it, and they pulled the ticket. They had the
ticket pulled” (id.). Plaintiff also stated the ticket was pulled “the next day” (id. at PageID.97). The
Magistrate Judge properly concluded that the insolence misconduct was immediately rescinded.
Plaintiff also argues that the existence of an insolence misconduct, even if immediately
rescinded, is “capable of deterring a person of ordinary firmness from exercising a constitutional
right” (Pl. Obj., Dkt 27 at PageID.192). Plaintiff states that an insolence misconduct “could arguable
[sic] deter someone from filing a grievance in the future” or “could have resulted in serious
consequences” and that “consequences can flow from erroneous charges” (id. at PageID.193).
Plaintiff describes possible consequences as “loss of disciplinary credit, adverse parole decision, and
increase in custody” (id.).
Plaintiff’s argument is misguided. The adverseness inquiry is determined by an objective
standard. Bell v. Johnson, 308 F.3d 594, 606 (6th Cir. 2002). Plaintiff identifies no consequences
that have befallen him as a result of the rescinded insolence misconduct. And nothing in the record
supports the conclusion that Plaintiff is deterred from exercising his constitutional right. Plaintiff’s
objection to the Magistrate Judge’s deterrence analysis is without merit.
Last, Plaintiff argues Defendant’s “accumulative behavior and actions . . . are in no way de
minimis" (Pl. Obj., Dkt 27 at PageID.193). Plaintiff states the 20-day loss of privilege is connected
to the insolence misconduct and not de minimus (id. at PageID.194).

2

Plaintiff’s argument is meritless. Plaintiff’s objection fails to demonstrate any factual or legal
error in the Magistrate Judge’s analysis or conclusion. It is well accepted that if a disciplinary action
is withdrawn before any consequence befalls a plaintiff, the disciplinary action is de minimus.
Brightwell v. Lehman, 637 F.3d 197, 194 (3d Cir. 2011); Pope v. Bernard, 2011 WL 478055, at *2
(1st Cir., Feb. 10, 2011); Barry v. Norris, 2008 WL 4442521, at *6 (W.D. Tenn., Sept. 25, 2008).
De minimus actions do not rise to the level of adverse action such that a person of ordinary firmness
would be deterred from exercising a constitutional right. Brightwell, 637 F.3d at 194. The
Magistrate Judge properly concluded that the immediately rescinded insolence misconduct was de
minimus.
Accordingly, this Court adopts the Magistrate Judge’s Report and Recommendation as the
Opinion of this Court. A Judgment will be entered consistent with this Opinion and Order. See FED.
R. CIV. P. 58. Because this action was filed in forma pauperis, this Court certifies pursuant to 28
U.S.C. § 1915(a)(3) that an appeal of this decision would not be taken in good faith. See McGore
v. Wrigglesworth, 114 F.3d 601, 610 (6th Cir. 1997), overruled on other grounds by Jones v. Bock,
549 U.S. 199, 206, 211-12 (2007).
Therefore:
IT IS HEREBY ORDERED that the Objections (Dkt 27) are DENIED and the Report and
Recommendation of the Magistrate Judge (Dkt 26) is APPROVED and ADOPTED as the Opinion
of the Court.
IT IS FURTHER ORDERED that Defendant Snow’s Motion for Summary Judgment (Dkt
22) is GRANTED.

3

IT IS FURTHER ORDERED that the Court certifies pursuant to 28 U.S.C. § 1915(a) that
an appeal of the decision would not be taken in good faith.

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

Dated: January 18, 2017

4