United States District Court, E.D. Michigan, Southern Division
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION ON DEFENDANT TERRY SANDERS' SECOND MOTION FOR SUMMARY JUDGMENT
PATRICIA T. MORRIS, Magistrate Judge.
For the reasons set forth below, IT IS RECOMMENDED that Defendant's motion for summary judgment be DENIED.
Plaintiff Kevin King filed this pro se prisoner civil rights action under 42 U.S.C. § 1983 on June 27, 2013. Plaintiff is incarcerated at the G. Robert Cotton Correctional Facility ("JCF") under the jurisdiction of the Michigan Department of Corrections ("MDOC"). (Complaint, Doc. 1.) Plaintiff alleges that Defendant Terry Sanders, a corrections officer employed by the MDOC, retaliated against him in violation of the First Amendment. ( Id. ) On September 24, 2013, Defendant filed a Motion for Summary Judgment. (Doc. 4.) On March 3, 2014, Magistrate Judge Charles E. Binder issued a Report and Recommendation that Defendant's Motion for Summary Judgment be denied. (Doc. 8.) On March 31, 2014, Judge Patrick J. Duggan adopted the Report and Recommendation and denied Defendant's Motion for Summary Judgment. (Doc. 13.) On April 24, 2014 all pretrial matters were reassigned to the undersigned magistrate judge. On December 9, 2014, Defendant asked for leave to file a Second Summary Judgment Motion (Doc. 42), which this Court granted on December 12, 2014. Before the Court is Defendant Sanders's Second Motion for Summary Judgment. (Doc. 45.) Plaintiff issued a Response in opposition, (Doc. 48), and Defendant has issued a Reply. (Doc. 49.) Accordingly, pursuant to E.D. Mich. LR 7.1(f)(1), the motion is ready for report and recommendation without oral argument.
B. Factual Background
Plaintiff alleges that "[o]n or about February 4, 2013, a prisoner named Michael Warinner asked Plaintiff to help him file a grievance against Defendant." (Compl., Doc. 1 ¶ 1.) On February 24, 2013, Warinner brought his grievance to Plaintiff and spoke with him outside the E-Unit. (Aff. of Kevin King, Doc. 48 at 47.) Within an hour of this meeting ( id. ), "Defendant Sanders entered Plaintiff's cell" and removed his black General Electric radio while "making verbal threats of continuing to shake down Plaintiff and taking property every time" because "Plaintiff should not have helped prisoner Warinner file a grievance against him." (Compl., Doc. 1 ¶¶ 2-3.) The battery compartment of the radio contained a court order, (Doc. 48-1 at 1), indicating that MDOC was not allowed to consider the radio contraband because of its broken pieces. (Dep. of Kevin King, doc. 45-2 at 4.) Defendant actually removed the radio from Plaintiff's cell mate Thomas Shulick's side of the cell, because all of the property was on his side "for cleaning purposes." ( Id. ¶ 5.) Defendant Sanders wrote Thomas Shulick a Contraband Removal Record ("Ticket") because the radio was broken and because it did not belong to him. ( Id. ) In his affidavit, Shulick stated that it was common to keep property on one side of the cell for cleaning and the practice had never presented an issue before. (Aff. of Thomas Shulick, Doc. 48 at 34.)
On February 25, 2013, Shulick "was called for an Administrative Hearing" regarding the confiscated radio. (Compl, Doc. 1 ¶ 7.) According to Plaintiff, Defendant entered the hearing and argued for the destruction of the radio. ( Id. ) In his affidavit, Shulick testified that after the hearing Defendant "apologized to me indicating that none of his actions were directed toward me, but to teach King a lesson." (Aff. of Thomas Shulick, Doc. 48 at 34.) The Administrative Hearing Report indicates that the radio was confiscated by Defendant from inmate Shulick's desk on February 24 because it belonged to someone other than Shulick and was therefore contraband. (Doc. 48 at 36.) The disposition of the hearing was as follows: "The GE Super Radio... does not belong to prisoner Shulik and is altered from its original state.... Appliance will be held for 30 days pending appeal of this disposition. Disposition is [d]isposal of appliance." (Doc. 48 at 36.) Shulick also stated that after the hearing, he "directly heard [Defendant] announce to King that his radio was gone and more property would be taken. (Aff. of Thomas Shulick, Doc. 48 at 34.)
On February 25, 2013, Plaintiff filed a grievance about the incident. (Doc. 1 ¶ 9.) He also wrote letters of complaint to the JCF warden, the deputy warden, and the Assistant Attorney General. ( Id. ¶ 9.) Plaintiff states, "On or about March 19, 2013" the radio was returned and an Administrative Order declared it was lawfully acquired, not altered, and not contraband. ( Id. ¶ 10.)
Plaintiff was without his radio for twenty-three days, and when it was returned to him it was not further-damaged and it functioned just as it had before. (Dep. of Kevin King, (doc. 45-2 at 8.) Plaintiff alleges, "On or about April 16, 2013, Defendant... announced to Plaintiff he was a smart ass' and would not elude guilt on misconducts issued by him [and] [t]hat Plaintiff should never have gotten his radio back." (Compl., Doc. 1 ¶ 11.)
C. Standard of Review
A motion for summary judgment will be granted under Rule 56 of the Federal Rules of Civil Procedure when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). All facts and inferences must be viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The moving party has "the initial burden of showing the absence of a genuine issue of material fact' as to an essential element of the non-movant's case." Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989) (quoting Celotex Corp. v Catrett, 477 U.S. 317, 323 (1986)). In determining whether the moving party has met its considerable burden, a court may consider the plausibility of the moving party's evidence. Matsushita, 475 U.S. at 587-88. Summary judgment is also proper where the moving party shows that the non-moving party is unable to meet its burden of proof. Celotex, 477 U.S. at 325.
The non-moving party cannot rest merely on the pleadings in response to a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Instead, the non-moving party has an obligation to present "significant probative evidence" to show that "there is [more than] some metaphysical doubt as to the material facts." Moore v. Philip Morris Cos., 8 F.3d 335, 339-40 (6th Cir. 1993). When the non-moving party fails to adequately respond to a summary judgment motion, a district court is not required to search the record to determine whether genuine issues of material fact exist. Street, 886 F.2d at 1479-80. ...