The opinion of the court was delivered by: Paul L. Maloney Chief United States District Judge
HONORABLE PAUL L. MALONEY
OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION OVER OBJECTIONS
Plaintiff Wayne Lafountain, a prisoner under the control of the Michigan Department of Corrections (MDOC), filed a civil rights claim under 42 U.S.C. § 1983. Plaintiff alleges Defendants Mikkelson, Hargrave and Rittenhouse, all employees of the MDOC, retaliated against him for exercising his First Amendment rights. Defendants Mikkelson and Hargrave filed a motion for summary judgment. (Dkt. No. 15.) Defendant Rittenhouse filed a motion for summary judgment (Dkt. No. 20) and an amended motion for summary judgment (Dkt. No. 23). Plaintiff filed a combined response to the motions. (Dkt. No. 28.) The magistrate judge issued a report recommending the motions for summary judgment be granted and the action be dismissed. (Dkt. No. 32.) Plaintiff filed objections. (Dkt. No. 34.) Defendants also filed an objection. (Dkt. No. 35.) This court has reviewed the complaint, briefs, the report, objections, and relevant legal authority.
After being served with a report and recommendation (R&R) issued by a magistrate judge, a party has ten days to file written objections to the proposed findings and recommendations. 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005). A district court judge reviews de novo the portions of the R&R to which objections have been filed. 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b). Only those objections that are specific are entitled to a de novo review under the statute. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (per curiam) (holding the district court need not provide de novo review where the objections are frivolous, conclusive or too general because the burden is on the parties to "pinpoint those portions of the magistrate's report that the district court must specifically consider"). The United States Supreme Court has held that the statute does not "positively require some lesser review by the district court when no objections are filed." Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file an objection results in a waiver of the issue and the issue cannot be appealed. Sullivan, 431 F.3d at 984; see also Arn, 474 U.S. at 155 (upholding the Sixth Circuit's practice). The district court judge may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b).
The magistrate judge's report is thorough, detailed, and well reasoned. The report is therefore ADOPTED OVER OBJECTIONS. Both parties have filed very specific objections, which are addressed below.
Although the magistrate judge recommends granting the motions for summary judgment,
Defendants opted to file an objection. The magistrate judge found Plaintiff engaged in protected conduct when he threatened to take legal action against a prison guard if the prison guard charged him with a disciplinary infraction. Specifically, Defendants take issue with the magistrate judge's conclusion finding no relevant legal distinction between the actual filing of a grievance and statements by a prisoner that he or she would pursue such relief if wronged by a prison official. Defendants argue the authority cited by the magistrate judge in support of that conclusion, Hightower v. Vose, No. 95-2296, 1996 WL 516123 (1st Cir. Sept. 12, 1996) and Figueroa v. Regan, No. 02-2402, 2003 WL 1751612 (E.D. Pa. Apr. 3, 2003), do not support the conclusion.
Defendants' objection is OVERRULED. There is sufficient authority within this circuit to conclude a prisoner's threat to file a lawsuit constitutes protected conduct. The Sixth Circuit Court of Appeals, in an unpublished decision, has held that a prisoner who threatens to file a federal lawsuit was engaged in protected conduct for the purposes of a First Amendment retaliation claim. Dean v. Conley, No. 98-5906, 1999 WL 1045166, at * 2 (6th Cir. Nov. 9, 1999). Since the R&R was issued, the Sixth Circuit concluded a prisoner, who alleged retaliation for threatening to file grievances, set forth sufficient facts to support a retaliation claim under the First Amendment to survive a motion to dismiss. Pasley v. Conerly, 345 F.App'x 981, 2009 WL 3079719, at * 2 (6th Cir. Sept. 29, 2009). As explained in Pasley, the Sixth Circuit opinions to the contrary involved threats to file frivolous lawsuits, which would not constitute protected conduct. Id. (citing Scott v. Kilchermann, No. 99-1711, 2000 WL 1434456, at * 2 (6th Cir. Sept. 18, 2000) and Thaddeus-X v. Love, No. 98-2211, 2000 WL 712345, at * 3 (6th Cir. May 22, 2000)); see also Wade-Bey v. Fluery, No. 2:07-cv-117, 2008 WL 2714450, at * 6 (W.D. Mich. July 8, 2008) (Miles, J.) (finding the plaintiff's threat to sue did not constitute protected conduct because "it would be virtually unheard of for a prisoner to prevail in a lawsuit complaining of deprivation of a single meal.").
B. PLAINTIFF'S OBJECTIONS
The magistrate judge concluded Plaintiff had not presented sufficient evidence to establish a causal connection between his protected conduct and the adverse action. Plaintiff offers three objections. Under the first objection, Plaintiff argues the report and recommendation must be rejected because there is evidence in the record to create a genuine issue of fact on the issue of a causal connection. Plaintiff first argues he has alleged sufficient non-conclusory facts to overcome Defendants' motion. Plaintiff argues he filed a verified complaint, which functions as the equivalent of an affidavit. Plaintiff asserts he includes a chronology of non-conclusory facts in his verified complaint sufficient to create a genuine issue of material fact. Plaintiff argues the alleged falsity of the misconduct ticket is sufficient to satisfy the causation element of a retaliation claim, citing Thomas v. Eby, 481 F.3d 434, 441 (6th Cir. 2007). Second, Plaintiff argues the report and recommendation contains erroneous factual conclusions. Specifically, Plaintiff disagrees (1) that he ever entered the building containing the law library, (2) that he admitted to the conduct for which he was charged, and (3) that his complaint contains only bare allegations of malice.
Plaintiff's first objection is OVERRULED. Having reviewed Plaintiff's verified complaint, Defendant Mikkelson's affidavit, and the documents concerning the misconduct ticket, Plaintiff's verified complaint does not allege sufficient facts to create a genuine issue of material fact on the causal connection issue. In his verified complaint, Plaintiff concedes he violated Defendant Mikkelson's order not to go to the library without a pass. After the "halftime" bell rang, Plaintiff went to the library, although he apparently did not cross the threshold of the library. Plaintiff then returned to Defendants' Mikkelson and Rittenhouse to give them the information he learned. When threatened with disciplinary action for being out of place, Plaintiff informed Defendants he did not go into the library and therefore any discipline would be false and would subject Defendants to ...