Banks #504504 v. Torrey et al

Filing 51

OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 47 ; Plaintiff's motion for summary judgment 33 is DENIED; Defendant's motion for summary judgment 35 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

DAMIEN BANKS,
Plaintiff,
Case No. 1:18-cv-538
v.
HON. JANET T. NEFF
GREG TORREY, et al.,
Defendants.

____________________________/

OPINION AND ORDER
This is a prisoner civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff and
Defendant Greg Torrey filed cross-motions for summary judgment. The matter was referred to
the Magistrate Judge, who issued a Report and Recommendation (R&R), recommending
Plaintiff’s motion be denied and Defendant’s motion be granted in part and denied in part. The
matter is presently before the Court on Defendant’s objections to the denial of summary judgment
as to Plaintiff’s retaliation claim. 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.
Objection One. Defendant argues that the Magistrate Judge erred in finding the following
facts “undisputed or beyond genuine issue”:
(1) “[o]n November 2, 2017, Food Service Director Greg Torrey stated to another
prisoner that, ‘I don’t know who Banks thinks he is, that grievance he wrote just
got his ass fired’” and (2) that “[o]n March 11, 2018, an MDOC officer searched
Plaintiff’s cell at Torrey’s behest on the ground that Plaintiff had stolen a time

card…[and] stated to Plaintiff, ‘you are making things easy for Greg, Greg is going
to love this, you are done in food service.’”
(Pl. Obj., ECF No. 48 at PageID.484-485, citing R&R, ECF No. 47 at PageID.470-471). However,
this objection mischaracterizes the Report and Recommendation as the Magistrate Judge did not
find the facts undisputed. The Magistrate Judge merely identified the evidence before the court
from both Plaintiff and Defendant and ultimately concluded, “[t]his evidence reveals there exists
a genuine factual dispute …” (R&R, ECF No. 47 at PageID.480). Defendant’s objection is without
merit.
Objection Two.

In his second objection, Defendant apparently disagrees with the

Magistrate Judge’s determination that a reasonable trier of fact could find causation1 (Pl. Obj.,
ECF No. 48 at PageID.484-487; R&R, ECF No. 47 at PageID.478-480). Defendant asserts that
he presented developed arguments establishing that Plaintiff failed to meet the causation element
of his First Amendment retaliation claim. Defendant also challenges the “findings” in the Report
and Recommendation that Defendant terminated Plaintiff from his food service assignment, and
asserts that he had no control over Plaintiff’s work assignment or Plaintiff’s termination (ECF No.
48 at PageID.487).
Defendant’s objection essentially reiterates the governing legal principles, which were
acknowledged by the Magistrate Judge in the Report and Recommendation, and restates his
contention that no evidence supports the requisite causation (ECF No. 48 at PageID.485-487).
However, the Magistrate Judge appropriately considered whether Plaintiff could satisfy the “but-

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Defendant’s objection states “Defendant further objects to the Magistrate’s September 16, 2019
Report and Recommendation denial of her Motion as to Plaintiff’s First Amendment retaliation
claim because (1) the Court improperly found that Defendant presented arguments which
demonstrated that no reasonable trier of fact could find in Plaintiff’s favor on the causation element
of the his First Amendment retaliation claim. . . .” (ECF No. 48 at PageID.484). The Court
interprets this to refer to the Report and Recommendation not finding for Defendant based on
causation arguments.
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for” causation standard based on the evidence presented and properly concluded that there were
genuine factual disputes precluding summary judgment. Defendant’s objection to the contrary is
denied.
Objection Three. Defendant also argues that the Magistrate Judge erred in disregarding
Defendant’s respondeat superior argument (Pl. Obj., ECF No. 48 at PageID.487-489; R&R, ECF
No. 47 at PageID.476). The Magistrate Judge considered Defendant’s argument and noted that it
reflected a “profound misunderstanding of applicable law” (ECF No. 47 at PageID.476). In his
objection, Defendant restates his legal theory of respondeat superior in the context of the general
legal principles, but again provides no valid basis for application of these principles under the
circumstances presented (ECF No. 48 at PageID.488).

As the Magistrate Judge observed,

respondeat superior in inapplicable because “Plaintiff has not asserted a claim against Defendant’s
employer or any other entity (ECF No. 47 at PageID.476). This objection is denied.
Accordingly, this Court adopts the Magistrate Judge’s Report and Recommendation as the
Opinion of this Court. 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 (ECF No. 48) are DENIED and the
Report and Recommendation of the Magistrate Judge (ECF No. 47) is APPROVED and
ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary Judgment (ECF No.
33) is DENIED, and Defendant’s Motion for Summary Judgment (EFC No. 35) is GRANTED in

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part and DENIED in part. Plaintiff’s intentional infliction of emotional distress and equal
protection claims are dismissed, but Plaintiff’s retaliation claim shall go forward.
IT IS FURTHER ORDERED that 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.

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

Dated: January 10, 2020

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