United States District Court, W.D. Michigan, Southern Division
ORDER APPROVING AND ADOPTING REPORT AND
J. JONKER, CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants' (ECF No. 96)
and Plaintiff's (ECF No. 95) Objections to Magistrate
Judge Kent's Report and Recommendation (ECF No. 94).
Under the Federal Rules of Civil Procedure, where, as here, a
party has objected to portions of an Order, “[t]he
district judge . . . has a duty to reject the magistrate
judge's recommendation unless, on de novo
reconsideration, he or she finds it justified.” 12
Wright, Miller, & Marcus, Federal Practice and Procedure
§ 3070.2, at 381 (2d ed. 1997). Specifically, the Rules
The district judge must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.
Fed R. Civ. P. 72(b)(3). De novo review in these
circumstances requires at least a review of the evidence
before the Magistrate Judge. Hill v. Duriron Co.,
656 F.2d 1208, 1215 (6th Cir. 1981). The Court has reviewed
de novo the claims and evidence presented to the Magistrate
Judge; the Report and Recommendation itself; Defendant's
objections; and Plaintiff's objections. After its review,
the Court adopts the Magistrate Judge's recommendations
and overrules the parties' objections.
Hawkins and Hoffner moved for summary judgment on
Plaintiff's claim that he was retaliatorily transferred
in violation of a settlement agreement. The Magistrate Judge
recommends granting summary judgment to Hawkins because he
was not personally involved in any transfer decision.
Plaintiff objects, but does not assert any personal
involvement by Hawkins. Instead, Plaintiff relies on a theory
already rejected by this Court and the Court of Appeals. The
Magistrate Judge recommends denying summary judgment as to
Defendant Hoffner because Defendant has done nothing to
develop the factual record to undercut Plaintiff's basic
claim of a retaliatory transfer in violation of the
settlement agreement. Instead, Defendant relies on the
general theory that a prison transfer is not ordinarily
enough to amount to adverse action, which is true enough but
beside the point given the record of this case, including the
Court's ruling. Accordingly, the Court overrules both
Plaintiff and Defendant's objections.
Harry also moved for summary judgment based on lack of
personal involvement in Plaintiff's allegedly retaliatory
cell assignment. The Magistrate Judge recommends denying the
motion because sufficient evidence of personal involvement
exists. Defendant objects, but the Court agrees there is
sufficient factual support to permit a finding of personal
involvement. The Magistrate Judge relied only on
Plaintiff's written communications to Defendant Harry.
The Court would not rest on this alone since it would allow
any prisoner to create a fact issue simply by writing the
warden. But here Plaintiff also swears that a guard told him
Defendant Harry made the cell assignment decision. A fact
finder could accept this as non-hearsay party admission.
Rule 801(d)(2)(D), a “sufficient foundation to support
introduction of vicarious admissions . . . requires only that
a party establish (1) the existence of an agency
relationship, (2) that the statement was made during the
course of the relationship, and (3) that it relates to a
matter within the scope of the agency.”Pappas v.
Middle Earth Condo. Ass'n, 963 F.2d 534, 537 (2d
Cir. 1992). In Lipton v. County of Orange, NY, the
Southern District of New York held that correctional
officers' statements that a jail administrator had
expressed improper motive for transferring a pretrial
detainee were admissible against the jail administrator to
establish retaliatory intent on motion for summary judgment
on the plaintiff's First Amendment retaliation claim. 449
F.Supp.2d 434, 449 (S.D.N.Y. 2004). The court held that the
statements were admissions made by agents of the defendant
prison officer, because they related to the agents'
duties in executing the transfer order notwithstanding the
fact that the agents were low-level employees. Id.
Similarly, here Plaintiff's allegations that Officer Wood
told him that Defendant Harry would not allow Plaintiff to
come out of segregation unless he was celled with a mentally
ill prisoner are admissible against Defendant Harry.
Plaintiff has alleged that these statements were made by
Officer Wood, an agent of Defendant Harry, while he was
acting under her orders, and that the statements related to
Wood's duties in executing a transfer order.
IT IS ORDERED that the Report and Recommendation of the
Magistrate Judge (ECF No. 94) is adopted as modified by this
Order, and the objections of both Plaintiff and Defendants
FURTHER ORDERED that Defendants Harry and Hoffner's
Motions for Summary Judgment (ECF No. 77) are DENIED; and
that Defendant Hawkins' Motion for Summary Judgment is
FURTHER ORDERED that Defendant Cooley's Motion for
Summary Judgment (ECF No. 77) is GRANTED as the Magistrate
Judge recommended with no objections from any party.
case will proceed with the First Amendment retaliation claims
against Defendants ...