The opinion of the court was delivered by: Robert Holmes Bell United States District Judge
MEMORANDUM OPINION AND ORDER ADOPTING THE REPORT AND RECOMMENDATION
This is a prisoner civil rights action brought by pro se Plaintiff Aubrey Stanley pursuant to 42 U.S.C. § 1983. On February 16, 2010, the Magistrate Judge issued a Report and Recommendation ("R&R"), recommending that this Court grant the motion to dismiss and/or for summary judgment filed by Defendants Douglas Mason, Thomas Salo, and Linda Maki. (Dkt. No. 34, R&R.) Plaintiff filed objections to the R&R on March 2, 2010. (Dkt. No. 35.)
This Court makes a de novo determination of issues in an R&R to which specific objections are made. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The 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).
On June 15, 2007, Plaintiff was confined at the Alger Maximum Correctional Facility. According to Plaintiff, Defendant Mason, a Resident Unit Officer at the facility, arrived at Plaintiff's cell to escort him to a major misconduct hearing. Plaintiff's affidavit asserts, in relevant part:
7. . . . RUO Mason came to my cell and asked if I was ready for court. I said, "Yeah." Mason then told me that the hearing officer was not in the unit yet, and that he would be back to get me when she arrived. Mason then left my cell front.
8. Later, RUO Mason returned and asked me, "Are you ready for court?" I said, "Yeah." And got up of my bunk and waked to the cell door so that I could be placed into restraints. Mason then said, "Yeah, you're ready, as ready as you'll ever be." He then opened that slot, and stood in front of the door staring at me. He did not make an attempt to place me in restraints. I then stated, "Man, what's up Mason? Are you still on that homosexual shit, man, I told you to stop playing with me like that, I don't get down like that. Mason looked directly at me, and said, "Who me? I don't know what you're talking about!"
9. I then heard [Assistant Resident Unit Supervisor] Salo talking with another prisoner and called to him, saying, "Salo, tell Mason to stop playing with me!" Mason appeared angry. His face turned red and contorted. He immediately closed my door's slot, took the key out and told me that I wasn't ready for court. I said, "I'm not ready? What do you mean, I'm not ready?" Mason then walked off.
10. I attempted to explain the situation to Salo, and Salo asked Mason, "Why he's not ready?" Salo stepped to my cell window and looked inside at me and stated to Mason, "He looks ready to me." At that time I was wearing my state issued orange shorts, t-shirt and black segregation shoes, in addition to my underclothes.
11. Mason stated to Salo, "He's not dressed." Salo replied, "What's he supposed to have on?" Mason retorted, "State blue pants!" I interjected, "That not in the rules!" Salo then asked Mason, "Where is that in the rules? He's dressed!" I said, "That's not in the rules." Mason stated, "It's what I stated you have to have on!" Then Mason walked off and went upstairs.
12. I told ARUS Salo that I wanted to go to my hearing, that the ticket was written in retaliation, and that Mason could not deny me that right. I also told Salo, "I told him like I told you Salo, several times before to stop playing homosexual games with me and to stop playing with me."
13. Salo stated, "Put some blues on and I'll have them come and get you Stanley." He then left.
14. I immediately pulled my state blue pants and shirt out of my footlocker, walked to the door and attempted to get an Salo's attention, saying "Salo, I'm ready for my hearing, I wanna go to my hearing Salo." . . .
18. At no time did Mason direct me to put on my state blues. (Dkt. No. 32, Pl.'s Aff. (errors in original).) According to Plaintiff, no one came to take him to his misconduct hearing, which was ultimately conducted in his absence. Plaintiff contends that his Fourteenth Amendment right to due process was violated because he was not afforded the opportunity to be present at the misconduct hearing. Plaintiff also contends that Defendants denied him the right to attend his misconduct hearing in retaliation for his exercise of his First Amendment right to file grievances. The R&R recommends granting summary judgment in favor of Defendants ...