Wilson v. Peterson et al
Filing
10
REPORT AND RECOMMENDATION that 5 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM be granted. Objections to R&R due within fourteen (14) days. Signed by Magistrate Judge Terence P. Kemp on 5/13/2015. (agm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Lawrence E. Wilson,
:
Plaintiff,
:
v.
:
:
Janis Peterson, et al.,
Defendants.
Case No. 2:14-cv-2184
JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp
:
REPORT AND RECOMMENDATION
This is a pro se prisoner civil rights action brought by
Lawrence E. Wilson, an inmate who was housed in the Madison
Correctional Institution (MACI) in London, Ohio during the time
period relevant to this lawsuit.
This matter is before the
Court on a motion to dismiss filed by Defendants Dr. Janis
Peterson, Dr. James Pomputius, and Caryn Taylor.
(Doc. 5).
The
motion to dismiss has been briefed fully and is now ripe for
disposition.
For the reasons set forth below, the Court will
recommend that the motion to dismiss be granted.
I.
Background
In this case, Mr. Wilson filed a complaint on November 14,
2014, alleging that his due process rights were violated when
prison personnel failed to provide treatment for his serious
mental health needs.
According to Mr. Wilson, “[t]he gravamen
of the complaint is that [he] followed Department of Correction
policy and procedure for diagnosis and treatment of his serious
mental health needs but received no treatment whatsoever from
MACI mental health [p]ersonnel while at MACI.”
More specifically, Mr. Wilson alleges that:
Compl. at ¶3.
he was suffering from episodes of uncontrollable crying,
the inability to eat, sleep, concentrate properly, stomach
and gastrointestinal problems, constipation, headaches,
thought disorganization, bizarre behavior, paranoia, all of
which resulted in significant disruption in his daily life
and substantial alteration of his mental functioning
causing severe mental anguish and pain.
Plaintiff contends, and his medical and dental records
show, that the above-mentioned symptoms were exacerbated by
Chronic Obstructive Pulmonary Disease, Hypertension,
Rheumatoid Arthritis which was diagnosed in 2013 due to his
request for a bottom bunk (this is supported by x-ray’s
[sic], however, Plaintiff did not receive a bottom bunk nor
any medication for pain), the extraction of all remaining
teeth (19 of Plaintiff’s teeth were pulled in two monthsDecember 2012 to January 2013) leaving Plaintiff toothless.
Additionally, severely [sic] overcrowding in the dormitory
added to these problems. Ten additional beds were added to
the dormitory in 2013. Plaintiff had a floor space of
twenty-four inches by eighteen inches, slept on a top bunk
under a leaky roof, and rained on [sic] during inclement
weather.
Id. at ¶¶4-5.
Mr. Wilson further alleges that he “was
ultimately diagnosed with major depressive disorder and treated
with psychotropic medication and therapy in November, 2013 at
the Franklin Medical Center.”
Id. at ¶6.
Mr. Wilson alleges that he used a kite to request mental
health services, which resulted in an interview on August 16,
2013 with Defendant Caryn Taylor, a social worker at the MACI.
Mr. Wilson claims that Ms. Taylor suggested that he participate
in counseling classes, but she did not schedule a “follow-up
appointment or a referral to a psychologist or psychiatrist or
any person qualified to provide mental health care.”
Id. at ¶9.
Mr. Wilson claims that he did not have the benefit of classes
after that interview, and that his symptoms became increasingly
severe.
Accordingly, Mr. Wilson filed an informal complaint to
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Defendant Dr. Janis Peterson, a mental health professional at
MACI.
Dr. Peterson responded to the informal complaint,
stating:
Mr. Wilson,
You were seen on 8/16/13 and placed on the wait list for
two mental health groups – Healthy choices (starts next
week) and Stress management. The course of treatment was
considered appropriate for the problems you presented.
Id. at 10.
Thus, Dr. Peterson denied Mr. Wilson’s request for
additional or different treatment.
Mr. Wilson then filed a notification of grievance with the
MACI Institutional Inspector, stating:
I requested mental health treatment for suspected
depression. I have completed numerous classes and
programming pertaining to conflicts that may cause a
depressed state, stress management, and medication
awareness. At this time more classes are ineffective.
require more extensive mental health treatment.
Id. at 11.
I
Mr. Wilson alleges that, after he filed the
grievance, he was involuntarily transferred in retaliation for
exercising his First Amendment rights.
The disposition of grievance found Mr. Wilson’s claim to
lack merit.
Specifically, the disposition provided:
Lawrence, the IIS office is in receipt of your grievance
dated September 30, 2013 regarding claim of your mental
health treatment. You state that you require more
extensive mental health treatment as you feel the
programming offered is insufficient.
I have reviewed your grievance on this matter, along with
the informal complaint and response from Dr. Peterson,
Mental Health Supervisor. DRC Policy 67-MNH-15 was also
reviewed. Dr. Peterson reported that your current Mental
Health Treatment plan is deemed appropriate per policy.
She advised you that you will be enrolled in two upcoming
mental health groups. The mental health treatment you are
currently receiving is approved and considered warranted by
3
J. Peterson, PhD/Dr. Pomputius. The programming you are
receiving has been determined necessary and sufficient by
the mental health professionals.
Having conducted all relevant interviews and review of all
documentation necessary to acquire the facts, I find this
grievance lacks merit. The Mental Health Psychiatrist/s is
the ultimate mental health authority at the institution and
he/she determines the course of your mental health
treatment therefore, your grievance is denied.
Id. at 12.
Thereafter, Mr. Wilson submitted an appeal to the Chief
Inspector, again asserting that he “did not receive any
programming or treatment of any kind” to address his mental
health problems.
Id. at 13.
The Chief Inspector’s review of
the record included the following: the notification of
grievance, the denial of the grievance, the appeal, the FMC MOSS
database (which provides details of dates for scheduled medical
trips to hospitals, results of lab work or testing, and the
schedule for chronic care appointments), Mr. Wilson’s electronic
health care records, copies of his medical file provided by the
HCA at the facility, and commissary records.
Upon review of
that information, the Chief Inspector made the following
findings:
You were seen on 8-16-13. The assessment noted “affect
appropriate, mood calm, thought coherent, talkative,
average eye contact. May benefit from MH program, placed
on wait list for stress management.” On 9-9-13 you had a
“[sic] personality assessment inventory which is 9 pages
long and evaluated your mental health status. During that
examination it noted [sic] “according to the respondent’s
self-report, he describes NO significant problems in the
following areas: unusual thoughts or peculiar experiences;
antisocial behavior; problems with empathy; unhappiness and
depression; unusually elevated mood or heightened activity;
marked anxiety; difficulties with health or physical
functioning … His responses suggested that he is satisfied
4
with himself as he is, that he is not experiencing marked
distress and that, as a result, he sees little need for
changes in his behavior.” The response from Dr. Peterson
dated 9-24-13 states “you were seen on 8-16-13 and placed
on the wait list for two health groups – Healthy choices
(starts next week) and Stress management. This course of
treatment was considered appropriate for the problems you
presented.” When you transferred to FMC on 10-8-13 staff
reviewed your mental health status and noted you were not
on the caseload at the sending facility, that you had no
suicidal thoughts in the past two weeks, etc.” [sic] You
have been seen since transferring to FMC and being [sic]
following on a regular basis by Mental Health staff there.
I have copied Dr. Rarooqui, ODRC Assistant Director of
Clinical Services.
Id. at 14.
Based upon the foregoing, the Chief Inspector found
that “the mental health/medical staff at [Mr. Wilson’s] facility
is giving [him] proper care within the ODRC guidelines.”
Id.
Thus, the Chief Inspector affirmed the decision of the
Institutional Inspector and took no further action.
The Chief
Inspector did, however, “encourage [Mr. Wilson] to maintain
close contact with staff to ensure that [his] current mental
health/medical concerns are being addressed.”
Id.
Mr. Wilson sets forth claims for violations of his Eighth
Amendment and First Amendment rights.
As to his Eighth
Amendment claim, Mr. Wilson alleges that Ms. Taylor demonstrated
deliberate indifference to his serious mental health needs by
failing “to provide follow-up assessment, evaluation or
diagnosis by a mental health proffessional [sic]….”
Id. at ¶14.
Mr. Wilson further alleges that Dr. Peterson and Dr. Pomputius
demonstrated deliberate indifference to his serious mental
health needs by refusing to provide him with a follow-up
examination and treatment.
As to his First Amendment claim, Mr.
5
Wilson claims that he was involuntarily transferred to a
different facility in retaliation for filing grievances.
II.
Standard of Review
A 12(b)(6) motion to dismiss is directed solely to the
complaint and any exhibits attached to it.
Roth Steel Products
v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1983).
The
merits of the claims set forth in the complaint are not at issue
in a motion to dismiss for failure to state a claim.
Consequently, a complaint will be dismissed pursuant to Fed. R.
Civ. P. 12(b)(6) only if there is no law to support the claims
made, or if the facts alleged are insufficient to state a claim,
or if on the face of the complaint there is an insurmountable
bar
to relief.
See Rauch v. Day & Night Mfg. Corp., 576 F.2d
697, 702 (6th Cir. 1978).
When analyzing a claim under a 12(b)(6) motion to dismiss,
a court must take all well-pleaded factual allegations as true
and construe those allegations most favorably toward the nonmovant. Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009).
Federal Rule of Civil Procedure 8(a) admonishes a court to look
only for a “short and plain statement of the claim showing that
the pleader is entitled to relief,” rather than requiring the
pleading of specific facts.
(2007).
8(a).
Erickson v. Pardus, 551 U.S. 89, 93
Rule 12(b)(6) must be read in conjunction with Rule
The moving party is entitled to relief only when the
complaint fails to meet this liberal standard.
5A Wright &
Miller, Federal Practice and Procedure §1356 (1990).
On the other hand, more than bare assertions of legal
conclusions are required to satisfy the notice pleading
standard.
Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d
434, 436 (6th Cir. 1988).
“In practice, a complaint must
6
contain either direct or inferential allegations respecting all
the material elements to sustain a recovery under some viable
legal theory.”
Id. (emphasis in original, quotes omitted).
When a court considers a 12(b)(6) motion to dismiss, it
“may begin by identifying allegations that, because they are
mere conclusions, are not entitled to the assumption of truth.”
Ashcroft v. Iqbal, 556 U.S. 662, 665 (2009).
However, “[w]hen
there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they plausibly
give rise to an entitlement to relief.”
Id.
To survive a
motion to dismiss, a plaintiff’s claim “requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action” will not suffice.
Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Bell Atlantic
A complaint must be
dismissed if it does not plead “enough facts to state a claim to
relief that is plausible on its face.”
Id. at 570.
Finally,
pro se complaints are held to “less stringent standards than
formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S.
519, 520 (1972), “and should therefore be liberally construed.”
Williams v. Curtain, 631 F.3d 380, 383 (6th Cir. 2011).
It is
with these standards in mind that the motion to dismiss will be
decided.
III. Discussion
In their motion to dismiss, Defendants make the following
arguments:
(1) sovereign immunity bars Mr. Wilson’s §1983 claim
against them in their official capacities; (2) they are not
“persons” amenable to suit under §1983 when acting in their
official capacities; (3) Mr. Wilson’s complaint fails to allege
any constitutional deprivation; and (4) they are entitled to
qualified immunity.
Defendants also argue that Mr. Wilson does
7
not have a constitutionally protected interest in a particular
housing assignment or transfer to a particular prison.
In his opposing memorandum, Mr. Wilson argues that his
complaint adequately sets forth an Eighth Amendment violation
because he did not receive adequate mental health treatment.
More specifically, Mr. Wilson states:
Plaintiff specifically denies that he received a mental health
evaluation from a psychiatrist or psychologist as required by
DRC Policy, 67-MNH-02; 67-MNH-07; or 67-MNH 15[.] It is
asserted that “on September 9, 2013 plaintiff was given a
separate, nine page personality assessment inventory to
further evaluate his mental health status.” Plaintiff
contends that this was an assessment which was not relevant to
his mental health care needs at that time. Plaintiff was not
present at, nor did he have the ability to provide input into
[sic] the alleged September 9, 2013 personality assessment
inventory. Plaintiff, again, specifically requested mental
health “treatment” but received none. (See Informal Complaint
Resolution and Notification of Grievance attached to Compliant
[sic]). Moreover, any review of Plaintiff’s medical/mental
health records clearly reveals a history of treatment with
psychotropic medication; psychotherapy; and psycho educational
groups and classes or support groups. (It must be noted that
the Plaintiff was prescribed psychotropic medication to
control high blood pressure for several years.) Even the most
generous imaginations could not construe the defendant’s [sic]
actions as “treatment.”
(Doc. 7 at 4)(emphasis in original).
Mr. Wilson also alleges
that he sets forth a valid claim for a violation of his First
Amendment rights because “[a] liberal construction of the
complaint reveals that Plaintiff’s grievances were timely filed
pursuant to the Ohio Administrative Code 5102-9-31, and that
Plaintiff was subsequently involuntarily transferred.”
6.
Id. at
For these reasons, Mr. Wilson asks this Court to deny
Defendants’ motion to dismiss.
8
In reply, Defendants argue that Mr. Wilson’s complaint only
“vaguely references retaliation,” and it does not assert any
facts in support of this claim.
(Doc. 8 at 1).
Defendants
maintain that Mr. Wilson’s transfer did not deter him from
utilizing the grievance process and reiterate that he has “no
constitutionally protected interest in being transferred to a
particular prison.”
Id. at 2.
Defendants argue that, because
Mr. Wilson fails to set forth any facts showing a causal
connection between filing his grievances and the involuntary
transfer, he fails to set forth a valid First Amendment claim.
As to the Eighth Amendment claim, Defendants argue that Mr.
Wilson has no constitutional right to choose a particular course
of treatment.
Consequently, Defendants urge the Court to
dismiss Mr. Wilson’s complaint.
The legal principles applicable to Mr. Wilson’s claim
regarding the alleged denial of medical treatment are well
settled.
To establish an Eighth Amendment violation, a prisoner
must show that he or she has a serious medical condition and
that the defendants displayed a deliberate indifference to his
or her health.
Estelle v. Gamble, 429 U.S. 97 (1976);
Wilson v. Seiter, 501 U.S. 294 (1991).
This formulation has
both a subjective and an objective component.
Objectively, the
medical condition at issue must be “serious” as opposed to
“trivial,” “minor,” or “insubstantial.”
Subjectively, the
defendants accused of violating the Eighth Amendment must have
acted with a state of mind that can be accurately described as
“deliberate indifference.”
Each of these components requires
some elaboration.
It is not always easy to distinguish serious medical
conditions from those that are not sufficiently substantial to
9
implicate the constitutional prohibition against cruel and
unusual punishment, and the facts concerning the seriousness of
an inmate’s condition are frequently in dispute.
In evaluating
such claims, courts have given weight to a variety of factors,
including whether the condition is one that a doctor or other
health care professional would find worthy of treatment, whether
it significantly affects everyday activities, and whether it
causes (or, if left untreated, has the potential to cause)
chronic and substantial pain.
See Chance v. Armstrong, 143 F.3d
698, 702-03 (2d Cir. 1998); see also Harrington v. Grayson, 811
F.Supp. 1221 (E.D. Mich. 1993)(focusing on the severity of the
condition, the potential for harm if treatment is delayed, and
whether such a delay actually caused additional harm).
Under some circumstances, expert testimony may be needed to
establish the seriousness of a medical condition, particularly
if the inmate’s claim is founded upon an unreasonable delay in
treatment.
See Napier v. Madison Co., Ky., 238 F.3d 739 (6th
Cir. 2001).
In other cases, however, when the condition does
not involve “minor maladies or non-obvious complaints of a
serious need for medical care,” but rather “an obvious need for
medical care that laymen would readily discern as requiring
prompt medical attention by competent health care providers,”
expert testimony is not essential to a finding that a serious
medical condition is present.
Blackmore v. Kalamazoo County,
390 F.3d 890, 898 (6th Cir. 2004).
As to the subjective element, in Farmer v. Brennan, 511
U.S. 825, 839 (1994), the Court adopted “subjective recklessness
as used in the criminal law” as the appropriate definition for
deliberate indifference. It held that “a prison official cannot
be held liable under the Eighth Amendment for denying an inmate
10
humane conditions of confinement unless the official knows of
and disregards an excessive risk to inmate health or safety….”
Id. at 837.
Officials must be aware of facts from which they
could conclude that a substantial risk exists and must actually
draw that conclusion.
Id.
Prison officials who know of a
substantial risk to the health or safety of an inmate are free
from liability if “they responded reasonably to the risk, even
if the harm ultimately was not averted.”
Id. at 844.
Because an Eighth Amendment medical claim must be premised
on deliberate indifference, mere negligence by a prison doctor
or prison official with respect to medical diagnosis or
treatment is not actionable under 42 U.S.C. §1983.
“[A]
complaint that a physician has been negligent in diagnosing or
treating a medical condition does not state a valid claim of
medical mistreatment under the Eighth Amendment.
Medical
malpractice does not become a constitutional violation merely
because the victim is a prisoner.”
Estelle v. Gamble, 429 U.S.
97, 106 (1976); see also Brooks v. Celeste, 39 F.3d 125 (6th
Cir. 1994).
In addressing Mr. Wilson’s claims regarding the alleged
denial of mental health care, in addition to the above
standards, the Court is mindful that the Sixth Circuit Court of
Appeals distinguishes “between cases where the complaint alleges
a complete denial of medical care and those cases where the
claim is that a prisoner received inadequate medical treatment.
Where a prisoner has received some medical attention and the
dispute is over the adequacy of the treatment, federal courts
are generally reluctant to second guess medical judgments and to
constitutionalize claims which sound in state tort law.”
Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir. 1976).
11
“A
patient’s disagreement with his physicians over the proper
medical treatment alleges no more than a medical malpractice
claim, which is a tort actionable in state court, but is not
cognizable as a federal constitutional claim.”
Owens v.
Hutchinson, 79 Fed. Appx. 159, 161 (6th Cir. 2003).
In their motion to dismiss, Defendants do not argue that
Mr. Wilson has failed to set forth sufficient facts to
demonstrate that his mental health needs were sufficiently
serious to satisfy the objective component of the deliberate
indifference standard.
Rather, Defendants focus on the
subjective component of the deliberate indifference standard,
contending that the allegations set forth in Mr. Wilson’s
complaint demonstrate that they were not deliberately
indifferent to his mental health needs.
Defendants state:
For instance, Plaintiff admits that in response to his
kite, he was assessed and evaluated by Defendant Caryn
Taylor, a mental health social services worker, on August
16, 2013. (Complaint at ¶ 9, Page ID # 19). Shortly
thereafter, on September 9, 2013, Plaintiff was given an
additional mental health assessment which found no
significant problems with a vast array of mental health
indicators, including depression, anxiety, and physical
functioning. See Decision of Chief Inspector on a
Grievance Appeal, attached to Plaintiff’s Complaint. (Doc.
1-2, Page ID # 26). Furthermore, the fact that Plaintiff
was transferred to FMC on October 8, 2013 (where he
maintains he was treated with psychotropic medication and
therapy) utterly belies any claim of deliberate
indifference.
(Doc. 5 at 7) (footnote omitted).
This Court agrees.
Despite Mr. Wilson’s arguments to the contrary, the
complaint does not support a claim for complete denial of mental
health care.
Instead, the complaint reflects that Mr. Wilson
did receive treatment – that treatment, however, was not the
12
treatment that Mr. Wilson preferred or believed that he should
have been given in light of his condition.
The distinction
between a claim for a complete denial of care and a claim for
inadequate medical care is significant because “[t]he fact that
alternative procedures might have better addressed a prisoner’s
particular needs does not show … deliberate[ ] indifferen[ce]”
to a prisoner’s medical needs.
Graham ex rel. Estate of Graham
v. County of Washtenaw, 358 F.3d at 377, 384 (6th Cir. 2004);
see also Abdul-Wadwood v. Nathan, 91 F.3d 1023, 1024-25 (7th
Cir. 1996) (finding that inmate’s disagreement with “selection
of medicine and therapy falls well short of demonstrating
deliberate indifference to a serious medical need”).
In
addition, as Defendants argue, Mr. Wilson does not allege any
direct involvement or affirmative action taken by Dr. Peterson
and Dr. Pomputius.
The fact that Dr. Peterson reviewed and
responded to Mr. Wilson’s informal complaint alone is
insufficient to set forth a deliberate indifference claim
against her.
Ross v. McGuiness, 471 Fed. Appx. 608, 609 (9th
Cir. 2012)(“To the extent that Ross contended that defendant
McGuiness violated Ross’s constitutional rights in reviewing and
responding to Ross’s grievance about his medical care, the
district court properly granted summary judgment because such
allegations cannot give rise to a §1983 claim”); see also
Strickland v. Militania, 2013 WL 1951862, at *13 (W.D. Va. Mar.
26, 2013)(finding that responding to informal complaints is an
administrative task that does not give rise to liability under
the Eighth Amendment).
Allegations of direct involvement in
constitutional deprivations, rather than attempts to impose
liability by virtue of the doctrine of respondeat superior, are
necessary in order to hold an individual defendant liable under
13
§1983.
Monell v. Department of Social Servs., 436 U.S. 658, 98
S. Ct. 2018, 56 L. Ed.2d 611 (1978).
Furthermore, the mere
failure to act cannot serve as a basis for liability under
§1983.
Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir.
1999)(“[L]iability under §1983 must be based on active
unconstitutional behavior and cannot be based upon ‘a mere
failure to act’”), quoting Salehpour v. University of Tennessee,
159 F.3d 199, 206 (6th Cir. 1998).
For these reasons, Mr.
Wilson fails to state a claim for a violation of his Eighth
Amendment rights, and the Court will recommend that Defendants’
motion to dismiss this claim be granted.
The Court now turns to Mr. Wilson’s First Amendment
retaliation claim.
In order to make out a successful First
Amendment retaliation claim, an inmate must make a prima facie
case proving that (1) the inmate engaged in protected conduct;
(2) an adverse action was taken against the inmate that would
deter a person of ordinary firmness from continuing to engage in
that conduct; and (3) that the adverse action was motivated, at
least in part, by the inmate’s protected conduct.
Blatter, 175 F.3d 378, 394 (6th Cir. 1999).
Thaddeus-X v.
A prison transfer
typically does not qualify as an adverse action.
Hermansen v.
Ky. Dept. of Corr., 556 Fed. Appx. 476, 477 (6th Cir. 2014);
Siggers-El v. Barlow, 412 F.3d 693, 701–02 (6th Cir. 2005)
(explaining that “prisoners are expected to endure more than the
average citizen, and since transfers are common among prisons,
ordinarily a transfer would not deter a prisoner of ordinary
firmness from continuing to engage in protected conduct”).
That
is, a prison transfer is only considered to be an adverse action
in rare circumstances.
See, e.g., Morris v. Powell, 449 F.3d
682, 686–87 (5th Cir. 2006)(involving a transfer to a more
14
dangerous prison); Siggers-El, 412 F.3d at 702 (finding a
transfer constituted a sufficiently adverse action where
plaintiff suffered “a number of foreseeable consequences” which
inhibited his “ability to access the courts”).
This is true
because, as the Court of Appeals has found, the transfer from
one prison to another prison would not deter a person of
ordinary firmness from the exercise of his First Amendment
rights.
Friedmann v. Corrections Corp. of Am., 11 Fed. Appx.
467, 470 (6th Cir. Apr. 26, 2001)(“It seems clear … that a mere
transfer to another institution of the same security level, with
no other aggravating factors, is not sufficiently adverse to
deter a person of ordinary firmness from engaging in the
exercise of protected First Amendment activity”).
In the instant case, Mr. Wilson argues that he was
transferred involuntarily as a result of filing grievances
pertaining to his mental health treatment.
Under the relevant
law, Mr. Wilson cannot set forth a First Amendment retaliation
claim simply because he was transferred.
In addition, as
Defendants point out, Mr. Wilson indeed was undeterred after his
transfer, given that he pursued his appeal to the Chief
Inspector after the transfer took place.
Thus, Mr. Wilson is
unable to state a claim upon which relief can be granted, and
the Court will recommend that Defendants’ motion to dismiss this
claim be granted.
IV.
Recommendation and Order
For the reasons set forth above, the Court recommends that
the motion to dismiss filed by Defendants Dr. Janis Peterson,
Dr. James Pomputius, and Caryn Taylor be granted.
15
(Doc. 5).
V.
Procedure on Objections
If any party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of this
Report, file and serve on all parties written objections to
those specific proposed findings or recommendations to which
objection is made, together with supporting authority for the
objection(s).
A judge of this Court shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.
Upon proper objections, a judge of this Court may accept,
reject, or modify, in whole or in part, the findings or
recommendations made herein, may receive further evidence or may
recommit this matter to the magistrate judge with instructions.
28 U.S.C. §636(b)(1).
The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver of the
right to appeal the decision of the District Court adopting the
Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
/s/ Terence P. Kemp__________
United States Magistrate Judge
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