United States District Court, W.D. Michigan, Southern Division
OPINION AND ORDER
T. NEFF United States District Judge
a prisoner civil rights action filed pursuant to 42 U.S.C.
§ 1983, alleging a retaliation claim. Defendant Snow,
the remaining Defendant in this action, filed a motion for
summary judgment, arguing that Plaintiff did not sustain an
adverse action. The matter was referred to the Magistrate
Judge, who issued a Report and Recommendation (R & R),
recommending Defendant's motion be granted. The matter is
presently before the Court on Plaintiff's objections to
the Report and Recommendation. In accordance with 28 U.S.C.
§ 636(b)(1) and Fed.R.Civ.P. 72(b)(3), the Court has
performed de novo consideration of those portions of the
Report and Recommendation to which objections have been made.
The Court denies the objections and issues this Opinion and
argues that the Magistrate Judge is “incorrect when
[s]he allege's [sic] Dixon acknowledged in his deposition
that the insolence misconduct was immediately
re[s]cinded” (Pl. Obj., Dkt 27 at PageID.192).
argument is meritless. Plaintiff's objection fails
because the premise is inaccurate. Plaintiff stated during
his deposition that the insolence misconduct was immediately
rescinded. (Dkt 23-2 at PageID.96-97). Plaintiff stated,
“He wrote me a ticket for writing the warden and all
this, and he came back and told me, don't worry about it,
and they pulled the ticket. They had the ticket pulled”
(id.). Plaintiff also stated the ticket was pulled
“the next day” (id. at PageID.97). The
Magistrate Judge properly concluded that the insolence
misconduct was immediately rescinded.
also argues that the existence of an insolence misconduct,
even if immediately rescinded, is “capable of deterring
a person of ordinary firmness from exercising a
constitutional right” (Pl. Obj., Dkt 27 at PageID.192).
Plaintiff states that an insolence misconduct “could
arguable [sic] deter someone from filing a grievance in the
future” or “could have resulted in serious
consequences” and that “consequences can flow
from erroneous charges” (id. at PageID.193).
Plaintiff describes possible consequences as
“loss of disciplinary credit, adverse parole decision,
and increase in custody” (id.).
argument is misguided. The adverseness inquiry is determined
by an objective standard. Bell v. Johnson, 308 F.3d
594, 606 (6th Cir. 2002). Plaintiff identifies no
consequences that have befallen him as a result of the
rescinded insolence misconduct. And nothing in the record
supports the conclusion that Plaintiff is deterred from
exercising his constitutional right. Plaintiff's
objection to the Magistrate Judge's deterrence analysis
is without merit.
Plaintiff argues Defendant's “accumulative behavior
and actions . . . are in no way de minimis"
(Pl. Obj., Dkt 27 at PageID.193). Plaintiff states the 20-day
loss of privilege is connected to the insolence misconduct
and not de minimus (id. at PageID.194).
argument is meritless. Plaintiff's objection fails to
demonstrate any factual or legal error in the Magistrate
Judge's analysis or conclusion. It is well accepted that
if a disciplinary action is withdrawn before any consequence
befalls a plaintiff, the disciplinary action is de
minimus. Brightwell v. Lehman, 637 F.3d 197,
194 (3d Cir. 2011); Pope v. Bernard, 2011 WL 478055,
at *2 (1st Cir., Feb. 10, 2011); Barry v. Norris,
2008 WL 4442521, at *6 (W.D. Tenn., Sept. 25, 2008). De
minimus actions do not rise to the level of adverse
action such that a person of ordinary firmness would be
deterred from exercising a constitutional right.
Brightwell, 637 F.3d at 194. The Magistrate Judge
properly concluded that the immediately rescinded insolence
misconduct was de minimus.
this Court adopts the Magistrate Judge's Report and
Recommendation as the Opinion of this Court. A Judgment will
be entered consistent with this Opinion and Order.
See F ed. R. Civ. P. 58. Because this action was
filed in forma pauperis, this Court certifies
pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of
this decision would not be taken in good faith. See
McGore v. Wrigglesworth, 114 F.3d 601, 610 (6th Cir.
1997), overruled on other grounds by Jones v. Bock,
549 U.S. 199, 206, 211-12 (2007).
HEREBY ORDERED that the Objections (Dkt 27) are DENIED and
the Report and Recommendation of the Magistrate Judge (Dkt
26) is APPROVED and ADOPTED as the Opinion of the Court.
FURTHER ORDERED that Defendant Snow's Motion for Summary
Judgment (Dkt 22) is GRANTED.
FURTHER ORDERED that the Court certifies pursuant to 28
U.S.C. § 1915(a) that an appeal of the ...