Doss #785510 v. Maki et al
ORDER ADOPTING REPORT AND RECOMMENDATION 42 ; Defendant's motion for summary judgment 37 is granted in part and denied in part; signed by Judge Gordon J. Quist (jas)
Case 2:17-cv-00044-GJQ-MV ECF No. 47, PageID.399 Filed 01/08/21 Page 1 of 4
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
DOMINIQUE DOSS #785510,
Case No. 2:17-CV-44
HON. GORDON J. QUIST
ORDER ADOPTING REPORT AND RECOMMENDATION
This is a civil rights action brought by state prisoner, Dominique Doss, pursuant to 42
U.S.C. § 1983. Doss asserts four retaliation claims again Defendant Mitchell McPherson. On
June 5, 2020, U.S. Magistrate Judge Maarten Vermaat issued a Report and Recommendation (R
& R), recommending that the Court grant Defendant McPherson summary judgment on three of
the four retaliation claims. (ECF No. 42.) Plaintiff has filed objections. (ECF No. 43.) Upon
receiving objections to the R & R, 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.” 28 U.S.C. § 636(b)(1). This Court may accept, reject, or modify any or all of the magistrate
judge’s findings or recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). After
conducting a de novo review of the R & R, the objections, and the pertinent portions of the record,
the Court concludes that the R & R should be adopted.
To begin, Defendant McPherson argues that the Court should not accept Plaintiff’s
objections because they are untimely. According to Defendant McPherson, Plaintiff’s objections
Case 2:17-cv-00044-GJQ-MV ECF No. 47, PageID.400 Filed 01/08/21 Page 2 of 4
were postmarked four days after the deadline to file objections. Plaintiff has not addressed the
timeliness of his objections.1 Therefore, the Court finds that Plaintiff’s objections are untimely.
Even if Plaintiff’s objections were timely, they are without merit. Plaintiff makes one
objection that focuses on only the fourth retaliation claim. In this claim, Plaintiff alleges that
Defendant McPherson issued Plaintiff a misconduct for threatening behavior on October 6, 2015,
in retaliation for Plaintiff filing grievances. (ECF No. 43 at PageID.379.) Specifically, Plaintiff
said, “McPherson if you pass my mail under the door again I will beat your fucking ass.” (ECF
No. 38-4 at PageID.297.) The magistrate judge recommended granting Defendant McPherson
summary judgment on this claim because he had met his burden to show that he would have issued
the misconduct in the absence of Plaintiff’s protected conduct. See Thaddeus-X v. Blatter, 175
F.3d 378, 399 (6th Cir. 1999) (“If the defendant can show that he would have taken the same action
in the absence of the protected activity, he is entitled to prevail on summary judgment.”).
Plaintiff argues that the magistrate judge erred by improperly weighing evidence, failing
to accept Plaintiff’s evidence as true, and improperly evaluating creditability. Plaintiff contends
that the magistrate judge incorrectly determined that Defendant McPherson knew of Plaintiff’s
misconduct record when he issued the misconduct on October 6, 2015. At issue is the following
statement from the magistrate judge: “Given Doss’s extensive history of misconduct, it is difficult
to believe that a Corrections Officer would fail to issue a Class I misconduct ticket when
confronted with the conduct described in the ticket.” (ECF No. 42 at PageID.370.) To the extent
the magistrate judge assumed that Defendant McPherson knew of Plaintiff’s misconduct record,
that assumption is not supported by the evidence. It is not clear, however, that the magistrate judge
made such an assumption.
The Court notes that it is unclear when Plaintiff received the R & R.
Case 2:17-cv-00044-GJQ-MV ECF No. 47, PageID.401 Filed 01/08/21 Page 3 of 4
Plaintiff next argues that the magistrate judge erred when analyzing Plaintiff’s previous
threat toward Defendant McPherson. In the Complaint, Plaintiff alleged that he told Defendant
McPherson on July 30, 2015, “I’m going to beat your ass for playing with my mail.” (ECF No.1
at PageID.3.) Plaintiff further alleged that Defendant McPherson responded, “There’s no need to
make threats, . . . .” (Id.) Defendant McPherson did not issue Plaintiff a misconduct based on the
July 30, 2015, threat. In his discovery responses, Defendant McPherson claimed that “Plaintiff
did not threaten me at that time, if he did, I would have written a misconduct.” (ECF No. 40-1 at
PageID.348.) According to Plaintiff, Defendant McPherson issued the misconduct for the second
threat because Plaintiff had filed grievances.
Plaintiff relies on Thomas v. Eby, 481 F.3d 434 (6th Cir. 2007). There, the Sixth Circuit
reversed the district court’s order granting the defendant’s motion to dismiss on Plaintiff’s
misconduct retaliation claim. Id. at 442. The Sixth Circuit opined that “it was possible that after
discovery” a plaintiff “could prove that he had exposed himself to [the defendant] in the past, but
she had never pursued disciplinary action until after he filed a grievance against another guard.”
Id. Plaintiff contends that he has shown that he threatened Defendant McPherson in the past, but
Defendant McPherson did not issue a misconduct until after he filed grievances.
Viewing the evidence in the light most favorable to Plaintiff, the Court agrees with the
magistrate judge’s conclusion that Defendant McPherson is entitled to summary judgment on this
claim. Plaintiff has not produced any additional evidence after discovery. Further, the misconduct
at issue in the instant case is serious—threatening to beat up a corrections officer. The record
establishes that it is not unusual for an inmate to receive a misconduct for threatening behavior. In
fact, Plaintiff has received at least four other “threatening behavior” misconducts before the
Case 2:17-cv-00044-GJQ-MV ECF No. 47, PageID.402 Filed 01/08/21 Page 4 of 4
October 6, 2015, misconduct.2 (ECF No. 38-7 at PageID.310.) In the Court’s view, Defendant
McPherson has shown that he would have taken the same action in absence of the grievance. See
Thaddeus-X, 175 F.3d at 399; see also Nieves v. Bartlett, __ U.S. __, 139 S. Ct. 1715, 1722 (2019)
(“It is not enough to show that an official acted with a retaliatory motive and that the plaintiff was
injured—the motive must cause the injury.”).
Accordingly, IT IS HEREBY ORDERED that the June 5, 2020, Report and
Recommendation (ECF No. 42) is adopted as the Opinion of the Court.
IT IS FURTHER ORDERED that Defendant McPherson’s motion for summary
judgment (ECF No. 37) is GRANTED IN PART and DENIED IN PART. Plaintiff’s second,
third, and fourth retaliation claims, as well as the claims against Defendant McPherson in his
official capacity are dismissed with prejudice.
This case will proceed to trial on Plaintiff’s first retaliation claim.
Dated: January 8, 2021
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
While Plaintiff asserts in his Complaint that he threatened to beat up Defendant McPherson on July 30,
2015, he has maintained throughout the record that he never threatened Defendant McPherson on October 6, 2015.
Thus, it is difficult for the Court to accept Plaintiff’s new argument that he made nearly the identical threat on July
30, 2015, and October 6, 2015.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?