Banks #504504 v. Torrey et al
Filing
91
MEMORANDUM OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 87 ; motion for summary judgment 77 is GRANTED IN PART and DENIED IN PART; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
Case 1:18-cv-00538-JTN-SJB ECF No. 91, PageID.976 Filed 09/15/21 Page 1 of 3
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.
____________________________/
MEMORANDUM OPINION AND ORDER
This is a prisoner civil rights action filed pursuant to 42 U.S.C. § 1983. On leave granted
(ECF No. 76), Defendant Torrey filed a motion for summary judgment (ECF No. 77). The matter
was referred to the Magistrate Judge, who issued a Report and Recommendation (R&R),
recommending that this Court grant in part and deny in part the motion. The matter is presently
before the Court on Defendant Torrey’s objections to the Report and Recommendation, to which
Plaintiff filed a response. 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 Memorandum Opinion and Order.
The Magistrate Judge recommends dismissing the portion of Plaintiff’s retaliation claim
based on his termination from his food services position but allowing the claim based on the Class
II misconducts to proceed (R&R, ECF No. 87 at PageID.923). Defendant Torrey makes three
Case 1:18-cv-00538-JTN-SJB ECF No. 91, PageID.977 Filed 09/15/21 Page 2 of 3
arguments in support of his position that the Magistrate Judge should have instead recommended
summary judgment in his favor on all pending claims (ECF No. 88 at PageID.925).
First, Defendant Torrey argues that the affidavits upon which Plaintiff relied do not
demonstrate a genuine issue of material fact, and Defendant Torrey argues that case law clearly
supports summary judgment where the affidavits lack corroboration (id. at PageID.925-932).
Defendant Torrey’s argument lacks merit. As Plaintiff sets forth more fully in his response (ECF
No. 90 at PageID.972-973), the affidavits were based on the affiants’ personal knowledge of the
particular events that occurred during their time working in food service at Lakeland Correctional
Facility and were properly considered by the Magistrate Judge as supporting the allegations set
forth in Plaintiff’s Amended Complaint.
Second, Defendant Torrey argues that the Magistrate Judge erred in finding that the mere
issuance of a minor misconduct report constitutes adverse action (ECF No. 88 at PageID.932-934).
As the Magistrate Judge pointed out (R&R, ECF No. 87 at PageID.922), this issue was previously
decided in the September 16, 2019 Report and Recommendation (ECF No. 47 at PageID.478),
which this Court adopted (ECF No. 51). In any event, as the Magistrate Judge also points out,
Defendant Torrey’s argument for a contrary result is “simply incorrect” (R&R, ECF No. 87 at
PageID.922, citing, e.g., Maben v. Thelen, 887 F.3d 252, 267 (6th Cir. 2018)). See also Scott v.
Churchill, 377 F.3d 565, 572 (6th Cir. 2004) (“[T]he mere potential threat of disciplinary sanctions
is sufficiently adverse action to support a claim of retaliation.”).
Last, Defendant Torrey argues that the Magistrate Judge erred in determining that she could
not make findings regarding Plaintiff’s failure to exhaust his administrative remedies (ECF No. 88
at PageID.934-936). The Court disagrees. The Magistrate Judge properly limited her review of
Defendant’s motion to those issues on which leave was granted.
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Therefore:
IT IS HEREBY ORDERED that the Objections (ECF No. 88) are DENIED and the
Report and Recommendation of the Magistrate Judge (ECF No. 87) is APPROVED and
ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that the Motion for Summary Judgment (ECF No. 77) is
GRANTED IN PART and DENIED IN PART for the reasons stated in the Report and
Recommendation.
/s/ Janet T. Neff
Dated: September 15, 2021
JANET T. NEFF
United States District Judge
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