Colvin #192744 et al v. MacLaren et al

Filing 82

ORDER ADOPTING REPORT AND RECOMMENDATION 71 re 41 : Plaintiff Colvin's Motion for Summary Judgment 41 is DENIED; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

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

KENNETH COLVIN, JR. #192744 and
GEORGE BETTS #145197,
Plaintiffs,

Case No. 2:16-CV-202

v.
HON. GORDON J. QUIST
DUNCAN MACLAREN, et al.,
Defendants.
/

ORDER ADOPTING REPORT AND RECOMMENDATION
On October 1, 2018, Magistrate Judge Greeley issued a Report and Recommendation (R &
R) recommending that the Court deny Plaintiff Colvin’s motion for summary judgment against
Defendants MacLaren and Daley on Colvin’s retaliation claim. (ECF No. 41.) After reviewing
Colvin’s arguments, the magistrate judge concluded that genuine issues of material fact remained
as to whether Plaintiffs were transferred in retaliation for performing their duties as block
representatives and filing grievances and whether the timing and manner in which Plaintiffs were
transferred—being handcuffed, transferred on short notice, and not permitted to pack their
property—were due to unlawful retaliation. (ECF No. 71 at PageID.555.)
Plaintiff Colvin has filed a timely Objection to the R & R, arguing that the magistrate judge
erred in denying Colvin’s motion for summary judgment.1
Pursuant to 28 U.S.C. § 636(b), upon receiving an objection to a report and recommendation,
the district judge “shall make a de novo determination of those portions of the report or specified

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Although Colvin states that he is objecting on behalf of his co-Plaintiff, Betts, as well, a prisoner may not sign
documents on behalf of another prisoner in federal court. See Fed. R. Civ. P. 11(a); Currie-Lamar v. Stephenson, No.
18-cv-11663, 2018 WL 3222797, at *2 (E.D. Mich. July 2, 2018).

proposed findings or recommendations to which objection is made.” After conducting a de novo
review of the R & R, Plaintiff Colvin’s Objection, and the pertinent portions of the record, the Court
concludes that the R & R should be adopted.
Where, as here, the party with the burden of proof moves for summary judgment, “a
substantially higher hurdle must be surpassed.” Arnett v. Myers, 281 F.3d 552, 561 (6th Cir. 2002)
(internal quotation marks omitted). That is, a moving party with the burden of persuasion at
trial—in this case, Colvin—“must show that the record contains evidence satisfying the burden of
persuasion and that the evidence is so powerful that no reasonable jury would be free to disbelieve
it.” Id. (internal quotation marks omitted). In the Court’s judgment, Colvin has not met this burden.
Colvin first objects that the magistrate erred in denying his motion because Defendants
offered only “conclusory” reasons for their actions without specific facts explaining, for example,
why Plaintiffs presented a security threat. Colvin further argues that Defendants responded with
inadmissible hearsay, rather than evidence that would suffice to create a genuine issue of fact for
trial. Finally, Colvin notes that the magistrate judge failed to consider that Defendant MacLaren did
not mention in his response to Colvin’s Step II grievance appeal that Plaintiffs posed a security
threat.
While Colvin is correct that Defendants did not present affidavits or declarations to support
their response to Colvin’s motion, they did cite Defendant MacLaren’s answers under oath to
Colvin’s first set of interrogatories as support that Plaintiffs’ transfer was motivated by security
concerns. (ECF No. 48 at PageID.474 (citing ECF No. 34-1 at PageID.387–88).) Such evidence
is competent to defeat a motion for summary judgment. See Clemons v. Shelby Cnty. Bd. of Educ.,
No. 3:15-CV-552-GNS-DW, 2018 WL 1476678, at *13 n.24 (W.D. Ky. Mar. 26, 2018) (“Verified
or sworn pleadings are competent summary judgment evidence; unverified answers to
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interrogatories and interrogatories not based on personal knowledge are not.” (internal quotation
marks omitted)). Colvin’s argument, essentially, is that Defendants’ lack of specificity about why
they considered Plaintiffs security threats mandates summary judgment. However, the lack of
specifics is not a basis for judgment in favor of Plaintiffs, particularly since a “[d]efendant’s
motivation and intent are clearly jury issues.” Sweeney v. Corr. Med. Servs., Inc., No. 04-40284,
2007 WL 1005962, at *8 (E.D. Mich. Mar. 30, 2007); see also Ctr. for Bio-Ethical Reform v. City
of Springboro, 477 F.3d 807, 824–25 (6th Cir. 2007) (the issue of a defendant’s retaliatory intent
“presents very squarely a factual question inappropriate for resolution on summary judgment”).
Thus, the magistrate judge did not err in concluding that Defendants presented proper and sufficient
evidence to defeat Colvin’s motion.
Colvin also argues that the magistrate judge erred in concluding that a genuine issue of
material fact remains for trial because Defendants’ reasons for transferring Plaintiffs do not hold up
in light of all of the surrounding circumstances. Colvin’s arguments, however, present issues of fact
and credibility for the jury, not an issue of law for the Court. Of course, on summary judgment, a
court may not “weigh the evidence,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct.
2505, 2511 (1986), or make credibility determinations. See Centra, Inc. v. Estrin, 538 F.3d 402, 412
(6th Cir. 2008) (noting that in ruling on summary judgment “[i]t is an error for the district court to
resolve credibility issues against the nonmovant”).

As noted above, Defendants’ intent in

transferring Plaintiffs is a factual question for the jury. Colvin’s second objection is thus also
overruled.
Therefore,

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IT IS HEREBY ORDERED that the October 1, 2018, Report and Recommendation (ECF
No. 71) is ADOPTED as the Opinion of the Court, and Plaintiff Colvin’s Objection (ECF No. 74)
is OVERRULED.
IT IS FURTHER ORDERED that Plaintiff Colvin’s motion for summary judgment (ECF
No. 41) is DENIED.

Dated: November 29, 2018

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

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