Lashuay #176424 v. Fornwalt et al

Filing 45

ORDER ADOPTING REPORT AND RECOMMENDATION 41 and granting Defendants' motion for summary judgment 18 ; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JERRY W. LASHUAY, JR., # 176424,
Plaintiff,
-vJAMES FORNWALT, et al.,
Defendants.

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No. 1:15-cv-1109
Honorable Paul L. Maloney

ORDER ADOPTING REPORT AND RECOMMENDATION
AND
GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Jerry Lashuay filed this prisoner civil rights lawsuit under 42 U.S.C. § 1983, alleging
retaliation in violation of the First Amendment.

Specifically, Lashuay asserts he was

transferred from one facility to another facility after he filed a grievance. The named
defendants, James Fornwalt and James Schiebner, filed a motion for summary judgment.
(ECF No. 18.) The magistrate judge issued a report recommending the motion be granted
and Lashuay’s claims be dismissed. (ECF No. 41.) Lashuay filed objections. (ECF No. 42.)
After being served with a report and recommendation (R&R) issued by a magistrate
judge, a party has fourteen days to file written objections to the proposed findings and
recommendations. 28 U.S.C. ' 636(b)(1); Fed. R. Civ. P. 72(b). A district court judge
reviews de novo the portions of the R&R to which objections have been filed. 28 U.S.C. '
636(b)(1); Fed. R. Civ. P. 72(b). Only those objections that are specific are entitled to a de
novo review under the statute. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (per
curiam) (holding the district court need not provide de novo review where the objections are

frivolous, conclusive or too general because the burden is on the parties to Apinpoint those
portions of the magistrate=s report that the district court must specifically consider@).
Lashuay has filed specific objections to a number of the proposed findings of fact and
conclusions of law. This Court need not resolve all of the objections. The Court has
reviewed de novo the objections identified below. By resolving those matters, the motion
for summary judgment may be resolved.
1. Plaintiff was found to be a good candidate for an exchange for the prisoner coming
to ICF. (R&R at 10 PageID.322.)
Defendants make this argument to support their assertion that they would have
transferred Lashuay even if he had not filed a grievance. If true, this fact would undermine
the causal element necessary for Lashuay’s retaliation claim. (See ECF No. 41 R&R at 19–
20 PageID.331–32.)
Lashuay objects. (ECF No. 42 at 5–6 PageID.343-44.) Lashuay asserts that, as a
Prisoner Observation Aide (POA), he should not have been subject to an institutional
transfer, absent a prisoner request, a change in his security classification, or a disciplinary
concern. As evidence of this fact, Lashuay relies entirely on statements made in his
complaint and in affidavits or declarations made by other prisoners. Assuming, for the sake
of argument only, that these statements are made under penalty of perjury and may be
considered by the Court as evidence, all of the statements are hearsay and none of the
statements would be admissible at trial.1 In his complaint, Lashuay asserts that he heard

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The magistrate judge explained why the complaint failed to use the required language for
verification. The magistrate judge identifies this hearsay concern on page 8 note 3 of the R&R. (ECF

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Resident Unit Manager Gilke (Paragraph 35 PageID.12–13) and Regular Unit Officer Stine
(Paragraph 36 PageID.13) both state that POA workers would not be transferred for routine
purposes. In Exhibit 22 (ECF No. 26-1 PageID.277), prisoner Paul Blanton states that Gilke
and C/O Greene both told him that POAs are essentially on hold for transfers unless there
were disciplinary concerns or personal requests. Blanton also says this no-transfer policy is
common knowledge. Finally, in Exhibit 23 (ECF No. 37-1 PageID.305), prisoner John
Wolfenbarger states that he read a memorandum authored by Resident Unit Manager Smith
in which it stated that POAs were not supposed to be transferred unless there were
disciplinary reasons. Wolfenbarger also states that, after Lashuay was transferred, on behalf
of POAs, he spoke with RUM Smith and Fornwalt, who both stated that generally POAs
were not supposed to be transferred, but that Lashuay had upset someone by writing
grievances. (Id.)
Lashuay relies on hearsay testimony. Laushuay relies on these statements to prove
the existence of a no-transfer policy for POAs. In each chase, the declarant of the statement
about the policy is not the individual providing the testimony to this Court. Lashuay has not
established that the statements might fall under an exception to the hearsay rule. The Court
cannot consider hearsay evidence on a motion for summary judgment. Carter v. Univ. of

Toledo, 349 F.3d 269, 274 (6th Cir. 2003).
Lashuay’s objection is overruled.

He does not have admissible evidence to

undermine Defendants’ factual assertion that Lashuay was a good candidate for the transfer.

No. 41 PageID.320.) Lashuay responds to the footnote on page 4 of his objection. (ECF No. 42
PageID.342.)

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2.

Fornwalt was not aware of the grievance filed by Lashuay.

(R&R at 10

PageID.322.)
In their motion, Defendants argue that Fornwalt was not aware that Lashuay had filed
a grievance naming Fornwalt. If true, this fact would undermine the causation element
necessary for Lashuay’s retaliation claim.
Lashuay objects. (ECF No. 42 at 6 PageID.344.) Lashuay contends he has presented
evidence showing that Fornwalt was aware that a grievance was “forthcoming.” In his
complaint, Lashuay alleged that at the hearing he “stated his intention to challenge
[Fornwalt’s] hearing decision.” (ECF No. 1 Compl. ¶ 50 PageID.16.) Lashuay has also
submitted a declaration from a prisoner, Josh Puckett. (ECF No. 16-3 PageID.163.) Puckett
claims to have overheard the hearing. Puckett interpreted Fornwalt’s response to Lashuay
“to mean that if Lashuay were to file a grievance against Fornwalt, that Fornwalt would
transfer him to another facility.” (Id.) The exchange allegedly occurred on April 9, 2015.
The grievance was allegedly filed on April 14, 2015. Fornwalt completed his portion of the
transfer form on April 22, 2015. Assuming, for the sake of argument only, that the complaint
and Puckett’s declaration could be considered as evidence, neither establish that Fornwalt
knew Lashuay filed a grievance. Both Lashuay and Puckett are explaining an exchange that
occurred before the grievance was allegedly filed. Evidence of awareness that Lashuay
intended to file a grievance is not the same as evidence of knowledge that a grievance was
filed.
3. Eleventh Amendment Immunity.

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The magistrate judge recommends dismissing the official capacity claims for monetary
damages brought against Defendants.
Lashuay objects, explaining that he has brought a damages claim against Defendants
in their individual capacities.
Lashuay’s objection is overruled. To the extent Lashuay has requested damages
against Defendants in their official capacities, those damage requests are dismissed.
4. Adverse Action
The magistrate judge recommends finding that the transfer was not an adverse action
for the purpose of Lashuay’s retaliation claim. Lashuay objects.
Lashuay’s objection is overruled. The Sixth Circuit authority cited on pages 15 and
16 of the R&R (PageID.327–28) compels this Court to find that a transfer within the prison
system to a different facility of the same security level is not an adverse action. Lashuay has
not alleged facts to show the “something more” that is necessary to make a transfer an adverse
action.
5. Causation.
The magistrate judge recommends finding that Lashuay has not established the
causation element for his retaliation claim. Lashuay objects.
Lashuay’s objection is overruled. Both Defendants have provided evidence that they
would have taken the same action even if Lashuay had not filed a grievance. Resolving the
factual findings discussed above against Lashuay necessarily results in the legal conclusion
that Lashuay has not established the causal connection element of his claim.
6. Mootness

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The magistrate judge recommends dismissing both the requests for injunctive relief
and the requests for declaratory relief as moot. The magistrate judge reasons that the transfer
renders these prayers for relief moot.
Lashuay objects to the dismissal of his prayer for declaratory relief. He reasons that
his request for a declaration that his rights were violated is not moot.
Lashuay’s objection is overruled. Having concluded that Lashuay’s retaliation claim
must be dismissed, his prayer for declaratory relief is moot.

For these reasons, the Report and Recommendation (ECF No. 41) is ADOPTED as
the Opinion of this Court. And, Defendants’ motion for summary judgment (ECF No. 18)
is GRANTED. IT IS SO ORDERED.
Date: September 20, 2017

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

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