The opinion of the court was delivered by: Honorable David M. Lawson
Magistrate Judge Charles E. Binder
ORDER REJECTING IN PART MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, SUSTAINING PLAINTIFF'S OBJECTIONS, OVERRULING DEFENDANT'S OBJECTIONS, DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, AND REFERRING CASE FOR FURTHER CONSIDERATION
This matter is before the Court on the third report and recommendation filed by Magistrate Judge Charles E. Binder, which deals with defendant Bency Mathai's second motion for summary judgment. The history of the case is well known to the parties and need not be repeated here, except to say that the plaintiff, who was a prisoner in the custody of Michigan's Department of Corrections but presently is on parole, filed a four-count complaint alleging that he has a foot condition that is aggravated by wearing state-issued prison shoes. He apparently had permission to wear commercially-available athletic shoes, but that permission was withdrawn. He contends that withdrawal of this permission amounted to a violation of his federal constitutional rights by several individuals. Through previous motion practice, an appeal, and remands, all the defendants and all the claims were dismissed but one: that Dr. Bency Mathai, the remaining defendant, retaliated against the plaintiff by canceling the authorization for special shoes because he exercised his First Amendment right to file non-frivolous grievances. After the Court granted various motions by several former defendants, the Court referred the case back to Judge Binder to complete pretrial proceedings under 28 U.S.C. § 636(b)(1)(B). Although defendant Mathai already had filed a motion for summary judgment in the case in November 2007 attacking the remaining count of the complaint, which the Court had denied in part, Judge Binder entertained another motion raising the same issues. Apparently, he allowed a period of formal discovery followed by a motion deadline. Judge Binder then filed a report on April 30, 2009 recommending that defendant Mathai's motion be granted. He concluded that there was no evidence in the record creating a fact issue on the causation element of a retaliation claim, because he did not find that the plaintiff filed a grievance before Mathai cancelled his special shoe authorization, and other protected activity was too remote in time to support an inference of causation.
Both parties filed timely objections. The defendant challenged the magistrate judge's determination that the defendant's cancellation of the special shoe authorization would have deterred a person of ordinary firmness from engaging in protected activity. The plaintiff contended that the magistrate judge overlooked evidence that the plaintiff in fact had filed grievances against Dr. Mathai and the medical staff before the cancellation, and other evidence taken in the light most favorable to him supported an inference of causation.
The Court has reviewed the file, the report and recommendation, and the plaintiff's objections, and has made a de novo review of the record in light of the parties' submissions. The Court finds that fact issues preclude summary judgment. Therefore, the magistrate judge's recommendation will be rejected and defendant Mathai's second motion for summary judgment will be denied.
The parties are familiar with the facts. To summarize, Jones was incarcerated at Parnall Correctional Facility ("SMT") in 2002 and 2003. He claims that he suffers from"a[b]normal feet" that do not fit the normal state-issued walking shoes, which cause him to develop painful "corns (callous)" on his feet. Compl. at ¶ 49. After X-rays were taken of the plaintiff's feet, he was issued a notice of special accommodation on December 6, 2000 that permitted him to wear tennis shoes. He says that on April 21, 2003, defendant Mathai cancelled the plaintiff's accommodation. The plaintiff claims that he reported for a psychiatrist call-out on that date to be considered for placement in the assaultive offender group, and therefore he had to report to the SMT Med/Psych building. He arrived and was stopped by Steve Hood, a guard (and formerly a defendant in this case), who told him that gym shoes were not allowed in the building. When he reported that he had a special accommodation, Hood ordered him to retrieve the notice from his cell and report back. The plaintiff complied and then saw that Hood had his medical file. Hood then took the notice, placed it with the file, and stated, "you will not be getting this back!" Compl. at 17. The plaintiff was then led to defendant Mathai's office, even though there was no appointment scheduled. Mathai then told the plaintiff, "I have reviewed your records and I am canceling your 'special accommodation notice' to wear 'gym shoes.'" Compl. at 19. The plaintiff claims that Dr. Mathai cancelled the accommodation under orders from MDOC staff, specifically Sergeant Hood, in retaliation for his protected activity of filing grievances.
The plaintiff filed a number of grievances after the cancellation, but he had not submitted to the magistrate judge copies of grievances filed beforehand. He did refer to prior-filed grievances in his filings, however.
The parties do not dispute the governing law that applies to claims of retaliation for exercising First Amendment rights. The standard was set forth by the Sixth Circuit in Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc): A retaliation claim essentially entails three elements: (1) the plaintiff engaged in protected conduct; (2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) there is a causal connection between elements one and two-that is, the adverse action was motivated at least in part by the plaintiff's protected conduct.
The parties agree that the record supports the first element, as well they should. "An inmate has an undisputed First Amendment right to file grievances against prison officials on his own behalf." Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000); see also Thomas v. Eby, 481 F.3d 434, 440 (6th Cir. 2007).
In his report, Judge Binder concluded that the second element was satisfied as well. He drew that conclusion from the Court's prior order in this case so finding. The defendant has objected to that conclusion on the ground that the prior finding was made in the context of a motion to dismiss, and the present motion is for summary judgment, which requires the application of different standards.
Judge Binder found no evidence to support the third element. He reasoned that since the plaintiff did not file grievances until after the special accommodation was removed, there could be no causal connection between the protected conduct and the adverse action. He found that there was no evidence that the defendant was aware of the plaintiff's other protected activity, the threat to contact a lawyer. He also noted that the plaintiff did not claim that he was retaliated against because of a threat to file a lawsuit, but instead was retaliated against at the request of Sergeant Hood. The magistrate judge found a lack of temporal proximity between the threat and the removal of the special accommodation, which prevented him from drawing a reasonable inference of retaliation.
The plaintiff's objections consist mainly of additional evidence he did not submit to the magistrate judge. He also criticizes the magistrate judge for not mentioning the MDOC shoe policy guideline, which did not permit the defendant to cancel his accommodation without an examination. He acknowledges that he had an examination on November 6, 2002, but notes that the April 21, 2003 cancellation order did not refer to that examination. The plaintiff further argues that Dr. Mathai did review the progress notes she claims not to have seen, which was evidenced by the fact that she berated the plaintiff and urged him to file a grievance on November 6, 2002, which is exactly what he did.
The plaintiff objects to the magistrate judge's finding that he did not file grievances against the defendant before April 21, 2003. He says that he previously listed the grievances he filed in his answer to the defendant's motion for summary judgment (as well as in other places in the record). These grievances addressed the improper treatment of his eye condition by Dr. Mathai on November 6, 2002; the improper care of his left arm, back, and foot condition, also by Dr. Mathai; and removing a comment about legal action in his medical records. The plaintiff contends that he was engaged in protected conduct throughout the appeals process on these grievances, which concluded on February 20, 2003. He reasons that because MDOC policy requires questioning of the object of the grievance, defendant Mathai must have known about the plaintiff's grievances against her. The plaintiff ...