McCain v. Jackson et al

Filing 49

DECISION AND ENTRY adopting Report and Recommendations re 46 Report and Recommendations. Signed by Judge Timothy S. Black on 2/16/2021. (rrs)

Case: 1:19-cv-00234-TSB-SKB Doc #: 49 Filed: 02/16/21 Page: 1 of 3 PAGEID #: 760

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MICHAEL D. MCCAIN, SR.,
Plaintiff,
vs.
WARDEN JACKSON, ET AL.,
Defendants.

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Case No. 1:19-cv-234
Judge Timothy S. Black
Magistrate Judge Stephanie K.
Bowman

DECISION AND ENTRY
ADOPTING THE REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 46)
This case is before the Court pursuant to the Order of General Reference to United
States Magistrate Judge Stephanie K. Bowman. Pursuant to such reference, the
Magistrate Judge reviewed the pleadings filed with this Court and, on October 15, 2020,
submitted a Report and Recommendation (Doc. 46) on Defendant Little’s 1 motion for
summary judgment (Doc. 36). Plaintiff Michael McCain, Sr. filed objections to the
Report and Recommendation on November 19, 2020. (Doc. 48).
As required by 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), the Court has
reviewed the comprehensive findings of the Magistrate Judge and considered de novo all
the filings in this matter. Upon consideration of the foregoing and careful review of
Plaintiff’s objections, the Court finds that the Report and Recommendation (Doc. 46)
should be and is hereby adopted in its entirety.

1

Defendant Little is the sole remaining defendant in this case.

Case: 1:19-cv-00234-TSB-SKB Doc #: 49 Filed: 02/16/21 Page: 2 of 3 PAGEID #: 761

Plaintiff’s first objection is not well-taken. (Doc. 48 at 3). Plaintiff argues that the
Magistrate Judge incorrectly considered “irrelevant evidence” of other inmates refusing
to leave the dining hall on the same day and around the same time of his allegedly
protected speech. The Magistrate Judge considered this evidence when determining
Plaintiff could not establish a causal connection between any alleged protected activity
and the adverse action pursuant to the elements of a First Amendment retaliation claim.
See Maben v. Thelen, 887 F.3d 252, 262 (6th Cir. 2018). The Magistrate Judge
concluded that there was no causal connection because Defendant Little would have
taken the same action in the absence of any alleged protected activity. (Doc. 46 at 8–10).
This conclusion was not in error given the volatile and tense environment in the prison
that day, as well as the statements made by Plaintiff. 2
Plaintiff’s second objection is not well-taken. (Doc. 48 at 5). Plaintiff argues the
Magistrate Judge erred when finding his speech was not protected because the Magistrate
Judge failed to consider all the evidence and evidence in Plaintiff’s favor. This is simply
not true. The Magistrate Judge correctly “accept[ed] Plaintiff’s version of events” and
determined “Plaintiff still was not engaged in protected activity.” (Doc. 46 at 7).
Plaintiff also does not cite any law to support his proposition, or persuade this Court, that
he engaged in First Amendment protected activity or that the Magistrate Judge’s legal
conclusion was incorrect.

2

Even if the Court were to sustain Plaintiff’s objection, which the Court is not, sustaining the
objection would not change the outcome granting summary judgment in favor of Defendant
Little. The Magistrate Judge’s finding on causation is second to the Magistrate Judge’s finding
on protected activity. (Doc. 46 at 10).

2

Case: 1:19-cv-00234-TSB-SKB Doc #: 49 Filed: 02/16/21 Page: 3 of 3 PAGEID #: 762

Plaintiff’s third objection (labeled as “Fourth Objection”) is not well-taken. (Doc.
48 at 3). Plaintiff argues the Magistrate Judge incorrectly omitted any evidence or facts
that the prison violated procedural policies and that his due process rights were violated.
This Court has already considered Plaintiff’s due process/policies and procedures claims,
adopting the Magistrate Judge’s Report and Recommendation finding these claims
insufficiently pled. (Doc. 24 at 6).
Plaintiff’s final objection is not well-taken. (Doc. 48 at 13). Plaintiff objects to
the Magistrate Judge’s conclusion that there are no issues of law or facts to be decided.
Plaintiff generally repeats his same arguments related to the facts as described and
considered by the Magistrate Judge. This Court need not revisit Plaintiff’s objections
already overruled.
Accordingly, for the reasons stated above:
1.

The Report and Recommendation (Doc. 46) is hereby ADOPTED;

2.

Plaintiff’s objections (Doc. 48) are hereby OVERRULED;

3.

Defendant Little’s motion for summary judgment (Doc. 36) is GRANTED
and this case is DISMISSED; and,

4.

The Clerk shall enter judgement accordingly, whereupon this case is
TERMINATED from the docket of this Court.

IT IS SO ORDERED.
Date:

2/16/2021

s/Timothy S. Black
Timothy S. Black
United States District Judge

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