Guile #429156 v. Schneider et al

Filing 39

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 35 ; plaintiff's objections 38 are overruled, defendants' motion to dismiss 25 is granted in part as to defendants Schneider, Vandenakker, Grembowski, Sutherland, and Schafer and denied in part as to defendants Lawson and Skipper; the case to continue on plaintiff's claims against defendants Lawson and Skipper only; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, kvt)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DOUGLAS MACARTHUR GUILE, II,
# 429156,
Plaintiff,
Case No. 1:15-CV-1069
v.
HON. GORDON J. QUIST
STEVEN E. SCHNEIDER, et al.,
Defendants.
________________________________/
ORDER ADOPTING
REPORT AND RECOMMENDATION
Plaintiff, Douglas Guile II, a state prisoner, filed a civil rights action pro se against
Defendants pursuant to 42 U.S.C. § 1983. Defendants filed a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6) on the grounds of qualified immunity. (ECF No. 25.) Magistrate
Judge Phillip Green issued a Report and Recommendation (R & R) recommending that the Court
grant the motion as to Defendants Schneider, Vandenakker, Grembowski, Sutherland, and Schafer
and deny the motion as to Defendants Lawson and Skipper. (ECF No. 35.) Defendants have not
objected. Guile filed an objection on February 12, 2018,1 objecting to the dismissal of Schneider
and Grembowski and conceding the dismissal of Vandenakker, Sutherland, and Schafer. (ECF
No. 38.)
Pursuant to Federal Rule of Civil Procedure 72(b), a party “may serve and file specific
written objections” to the R & R, and the Court is to consider any proper objection. Local Rule
72.3(b) likewise requires that written objections “shall specifically identify the portions” of the R

1

Guile sought an extension of time to file objections, and Magistrate Judge Green granted the extension. (ECF Nos.
36 & 37.) Therefore, Guile’s objections were timely.

& R to which a party objects. Pursuant to 28 U.S.C. § 636(b), upon receiving objections to a report
and recommendation, the district judge “shall make a de novo determination of those portions of
the report or specified proposed findings or recommendations to which objection is made.” After
conducting a de novo review of the R & R, Guile’s Objections, and the pertinent portions of the
record, the Court concludes that the R & R should be adopted.
Guile claims Schneider and Grembowski violated his First Amendment rights by taking
retaliatory actions against him for filing grievances.

The purported retaliation related to

Defendants transferring Guile between housing units in the prison and, ultimately, to a Section V
Prison. The R & R found that Schneider and Grembowski are entitled to qualified immunity
because “[t]he Sixth Circuit has held that merely transferring a prisoner to a different facility is
not adverse conduct without a showing that the prisoner suffered something more . . .” (ECF No.
35 at PageID.205 (citing Hermansen v. Kentucky Dep’t of Corr., 556 F. App’x 476, 477 (6th Cir.
2014); Jones v. Caruso, 421 F. App’x 550, 553 (6th Cir. 2011); Siggers-El v. Barlow, 412 F.3d
693, 704 (6th Cir. 2005); King v. Zamiara, 150 F. App’x 485, 494 (6th Cir. 2005).)
Guile fails to distinguish these cases and fails to establish that Schneider and Grembowski
committed—in the eyes of the law—an adverse action against him. Instead, he recounts in factual
detail the purported scheme against him and states that Schneider and Grembowski coordinated
“to launch an attack against [Guile] and punish him for his exercising of his constitutional right to
file a grievance.” (ECF No. 38 at PageID.220.) While Guile himself may feel that transfers were
adverse to him—due, at least in part, to him to losing a prison job and having to deal with
complications from back pain—these transfers are insufficient in the eyes of the law to meet the
second prong of a retaliation claim, i.e., adverse action. Guile has not shown otherwise and,

2

therefore, has failed to establish a constitutional violation. Schneider and Grembowski are
accordingly entitled to qualified immunity.
Therefore,
IT IS HEREBY ORDERED that the Magistrate Judge’s Report and Recommendation is
APPROVED AND ADOPTED as the Opinion of this Court, and Plaintiff’s Objections (ECF No.
38) are OVERRULED.
IT IS FURTHER ORDERED that Defendants’ motion to dismiss (ECF No. 25) is
GRANTED IN PART as to Defendants Schneider, Vandenakker, Grembowski, Sutherland, and
Schafer, and DENIED IN PART as to Defendants Lawson and Skipper.
The case will continue on Plaintiff’s claims against Defendants Lawson and Skipper only.

Dated: March 5, 2018

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

3