McDougald v. Dillow et al

Filing 44

ORDER adopting Report and Recommendation re 38 Report and Recommendation granting 41 Motion to Amend/Correct; denying 27 Motion for Summary Judgment; granting 32 Motion for Summary Judgment and granting 36 Motion to Amend/Correct. Sign ed by Judge Michael R. Barrett on 4/18/19. (ba)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.) (Additional attachment(s) added on 4/18/2019: # 1 Corrected Order) (ba).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Jerone McDougald,
Plaintiff,
vs.

Case No. 1:17-cv-00196

Sgt. Michael Dillow, et al.,

Judge Michael R. Barrett

Defendants.
ORDER
This matter is before the Court on the Magistrate Judge’s August 10, 2018 Report
and Recommendation (“R&R”). (Doc. 38).
Proper notice was given to the parties under 28 U.S.C. § 636(b)(1)(C), including
notice that the parties would waive further appeal if they failed to file timely objections to
the R&R. See United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Objections were
due by August 24, 2018. (Docs. 39, 41). Plaintiff filed objections on August 24, 2018.
(Doc. 39). On September 4, 2018, he filed a Motion for Leave to Amend his objections
and included additional information he asks the Court to consider. (Doc. 41). Although
he does not explain why he did not include these additional arguments in his initial
objections, for purposes of this order, the Court will grant his Motion for Leave (Doc. 41),
deem his supplemental objections as timely, and consider those objections herein.
Defendants filed a Response to Plaintiff’s objections. (Doc. 40). The Magistrate Judge
completed a comprehensive review of the record and the same will not be repeated here
except to the extent necessary to address Plaintiff’s objections.

I. STANDARD OF REVIEW
When a court receives objections to a magistrate judge’s R&R on a dispositive
matter, the assigned “district judge must determine de novo any part of the magistrate
judge’s disposition that has been properly objected to.” FED. R. CIV. P. 72(b)(3). “The
district judge may accept, reject, or modify the recommended disposition; receive further
evidence; or return the matter to the magistrate judge with instructions.” Id.

II. ANALYSIS
Plaintiffs is a pro se prisoner, brings this action under 42 U.S.C. § 1983, and
asserts that Defendants violated his First Amendment rights by engaging in a
September 3, 2015 retaliatory cell search. (Doc. 3). The Magistrate Judge recommends
granting Defendants’ Motion for Summary Judgment, as Plaintiff fails to establish the third
element of his retaliation claim, namely that the cell search was motivated in part by his
protected conduct. (Doc. 38 at PageID 235-36); see Thomas v. Eby, 481 F.3d 434, 440
(6th Cir. 2007) (“To state a claim alleging retaliation for exercising a constitutional right, a
plaintiff must show that (1) he engaged in protected conduct; (2) the defendant took an
adverse action against him that would deter a person of ordinary firmness from continuing
to engage in that conduct; and (3) that the adverse action was taken (at least in part)
because of the protected conduct.”) (internal citations omitted).
The Magistrate Judge acknowledged Plaintiff’s April 27, 2015 grievance regarding
an alleged March 26, 2015 incident involving Defendant Dillow and a correctional officer
who is not a named defendant in this case. (Doc. 38 at PageID 235). She found,
however, that the filing of that April 27, 2015 grievance, five months prior to the alleged

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retaliatory September 3, 2015 cell search, “is simply too remote in time to establish the
third element of” his claim. (Id.). She further found that, in light of this lack of temporal
proximity, and the facts that Defendant Dillow was only an ancillary party to the April 27,
2015 grievance, Defendant Clere was not mentioned in that grievance, and Defendant
Dillow was assigned to Plaintiff’s range on a daily basis, Plaintiff fails to establish a
genuine issue of fact regarding whether his April 27, 2015 grievance, regarding the March
2015 incident, motivated Defendants’ September 3, 2015 cell search. (Id. at PageID 236).
In his objections, Plaintiff argues that the Magistrate Judge erred by finding that he
failed to satisfy the third element of his claim, as she failed to look at the totality of the
circumstances and, if she had, she would have found that this case is appropriate for trial.
(Doc. 39 at PageID 240). In particular, he contends that Defendant “Dillow retaliated
against plaintiff also for the filing of informal complaints against his co-workers also just
as well as himself.” (Id.). However, as the Magistrate Judge explained, he “cannot
establish First Amendment retaliation by merely alleging that defendants’ retaliatory
conduct was the result of unspecified grievances and his grievance history in general.”
(Doc. 38 at PageID 231) (citing Reyes v. Palmer, No. 1:17-CV-755, 2017 WL 5166705,
at *1 (W.D. Mich. Nov. 8, 2017)).
He also appears to assert that Defendant Dillow “was in close proxim[ity] to
retaliate on plaintiff at anytime as he was assigned to plaintiffs range on a daily basis to
conduct this malicious and destructive cell search.” (Doc. 39 at PageID 240). However,
the Court agrees with the Magistrate Judge’s totality-of-the-circumstances analysis
wherein she found that the fact that Defendant Dillow was assigned to Plaintiff’s range on
a daily basis indicates that he is required to do daily cell searches as party of his regular

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job responsibilities and does not establish that, because of his job responsibility to
conducts cell searches, he necessarily utilizes his proximity to Plaintiff to engage in
retaliatory cell searches.

See (Doc. 39 at PageID 240).

Plaintiff’s bare assertion

suggesting otherwise is unpersuasive.
Finally, Plaintiff asks the Court to consider his October 2015 grievance documents,
regarding the September 3, 2015 cell search, and contends that that the documents
establish that his October 2015 grievance “was granted in plaintiff favor that Defendant
Dillow once conducting this retaliatory cell search failed to log that the cell search was
conducted so that his retaliatory act could go unnoticed.” (Doc. 41 at PageID 246). A
review of the October 2015 Disposition of Grievance reveals two findings: that there was
“no merit staff violated AR 5120-9-04” but that “staff failed to log your [September 3, 2015]
cell search.” (Doc. 3, Attachment 1 at PageID 18). Contrary to Plaintiff’s assertion
otherwise, nowhere in the Disposition of Grievance does the author find that Defendants
intentionally failed to log the September 3, 2015 cell search or that Defendants
intentionally failed to log the September 3, 2015 cell search so that they could conduct a
retaliatory cell search.

(Id.).

The Court remains unpersuaded by Plaintiff’s bare

assertions of wrongdoing on behalf of Defendants.
In sum, and based on the Court’s de novo review of the filings in this matter, the
Court finds Plaintiff’s objections unpersuasive and agrees with the findings and
recommendation in the R&R.

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III. CONCLUSION
Based on the foregoing, the Court hereby GRANTS Plaintiff’s Motion for Leave to
Amend his Objections (Doc. 41). The Court OVERRULES Plaintiff’s objections (Doc. 39,
41) and ADOPTS in full the Magistrate Judge’s August 10, 2018 R&R. (Doc. 38).
Accordingly, Plaintiff’s Motion to Amend (Doc. 36) is GRANTED, Plaintiff’s Motion for
Summary Judgment (Doc. 27) is DENIED, and Defendants’ Motion for Summary
Judgment (Doc. 32) is GRANTED. This case is DISMISSED with prejudice and the
matter shall be CLOSED and TERMINATED from the Court’s docket.
IT IS SO ORDERED.
s/Michael R. Barrett
_____________________
Michael R. Barrett, Judge
United States District Court

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