United States District Court, W.D. Michigan, Southern Division
Jerry W. Lashuay, Jr., # 176424, Plaintiff,
James Fornwalt, et al., Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
L. Maloney, United States District Judge
Lashuay filed this prisoner civil rights lawsuit under 42
U.S.C. § 1983, alleging retaliation in violation of the
First Amendment. Specifically, Lashuay asserts he was
transferred from one facility to another facility after he
filed a grievance. The named defendants, James Fornwalt and
James Schiebner, filed a motion for summary judgment. (ECF
No. 18.) The magistrate judge issued a report recommending
the motion be granted and Lashuay's claims be dismissed.
(ECF No. 41.) Lashuay filed objections. (ECF No. 42.)
being served with a report and recommendation (R&R)
issued by a magistrate judge, a party has fourteen days to
file written objections to the proposed findings and
recommendations. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b). A district court judge reviews de novo the portions of
the R&R to which objections have been filed. 28 U.S.C.
§ 636(b)(1); Fed.R.Civ.P. 72(b). Only those objections
that are specific are entitled to a de novo review under the
statute. Mira v. Marshall, 806 F.2d 636, 637 (6th
Cir. 1986) (per curiam) (holding the district court need not
provide de novo review where the objections are frivolous,
conclusive or too general because the burden is on the
parties to “pinpoint those portions of the
magistrate's report that the district court must
has filed specific objections to a number of the proposed
findings of fact and conclusions of law. This Court need not
resolve all of the objections. The Court has reviewed de novo
the objections identified below. By resolving those matters,
the motion for summary judgment may be resolved.
Plaintiff was found to be a good candidate for an exchange
for the prisoner coming to ICF. (R&R at 10 PageID.322.)
make this argument to support their assertion that they would
have transferred Lashuay even if he had not filed a
grievance. If true, this fact would undermine the causal
element necessary for Lashuay's retaliation claim.
(See ECF No. 41 R&R at 19- 20 PageID.331-32.)
objects. (ECF No. 42 at 5-6 PageID.343-44.) Lashuay asserts
that, as a Prisoner Observation Aide (POA), he should not
have been subject to an institutional transfer, absent a
prisoner request, a change in his security classification, or
a disciplinary concern. As evidence of this fact, Lashuay
relies entirely on statements made in his complaint and in
affidavits or declarations made by other prisoners. Assuming,
for the sake of argument only, that these statements are made
under penalty of perjury and may be considered by the Court
as evidence, all of the statements are hearsay and none of
the statements would be admissible at trial. In his complaint,
Lashuay asserts that he heard Resident Unit Manager Gilke
(Paragraph 35 PageID.12-13) and Regular Unit Officer Stine
(Paragraph 36 PageID.13) both state that POA workers would
not be transferred for routine purposes. In Exhibit 22 (ECF
No. 26-1 PageID.277), prisoner Paul Blanton states that Gilke
and C/O Greene both told him that POAs are essentially on
hold for transfers unless there were disciplinary concerns or
personal requests. Blanton also says this no-transfer policy
is common knowledge. Finally, in Exhibit 23 (ECF No. 37-1
PageID.305), prisoner John Wolfenbarger states that he read a
memorandum authored by Resident Unit Manager Smith in which
it stated that POAs were not supposed to be transferred
unless there were disciplinary reasons. Wolfenbarger also
states that, after Lashuay was transferred, on behalf of
POAs, he spoke with RUM Smith and Fornwalt, who both stated
that generally POAs were not supposed to be transferred, but
that Lashuay had upset someone by writing grievances.
relies on hearsay testimony. Laushuay relies on these
statements to prove the existence of a no-transfer policy for
POAs. In each chase, the declarant of the statement about the
policy is not the individual providing the testimony to this
Court. Lashuay has not established that the statements might
fall under an exception to the hearsay rule. The Court cannot
consider hearsay evidence on a motion for summary judgment.
Carter v. Univ. of Toledo, 349 F.3d 269, 274 (6th
objection is overruled. He does not have admissible evidence
to undermine Defendants' factual assertion that Lashuay
was a good candidate for the transfer.
Fornwalt was not aware of the grievance filed by Lashuay.
(R&R at 10 PageID.322.)
their motion, Defendants argue that Fornwalt was not aware
that Lashuay had filed a grievance naming Fornwalt. If true,
this fact would undermine the causation element necessary for
Lashuay's retaliation claim.
objects. (ECF No. 42 at 6 PageID.344.) Lashuay contends he
has presented evidence showing that Fornwalt was aware that a
grievance was “forthcoming.” In his complaint,
Lashuay alleged that at the hearing he “stated his
intention to challenge [Fornwalt's] hearing
decision.” (ECF No. 1 Compl. ¶ 50 PageID.16.)
Lashuay has also submitted a declaration from a prisoner,
Josh Puckett. (ECF No. 16-3 PageID.163.) Puckett claims to
have overheard the hearing. Puckett interpreted
Fornwalt's response to Lashuay “to mean that if
Lashuay were to file a grievance against Fornwalt, that
Fornwalt would transfer him to another facility.”
(Id.) The exchange allegedly occurred on April 9,
2015. The grievance was allegedly filed on April 14, 2015.
Fornwalt completed his portion of the transfer form on April
22, 2015. Assuming, for the sake of argument only, that the
complaint and Puckett's declaration could be considered
as evidence, neither establish that Fornwalt knew Lashuay
filed a grievance. Both Lashuay and Puckett are explaining an
exchange that occurred before the grievance was
allegedly filed. Evidence of awareness that Lashuay intended
to file a grievance is not the same as evidence of knowledge
that a grievance was filed.
Eleventh Amendment Immunity.
magistrate judge recommends dismissing the official capacity
claims for monetary ...