United States District Court, W.D. Michigan, Southern Division
ORDER APPROVING AND ADOPTING REPORT AND
J. JONKER CHIEF UNITED STATES DISTRICT JUDGE
Court has reviewed Magistrate Judge Carmody's Report and
Recommendation in this matter (ECF No. 32). Plaintiff has
filed an Objection (ECF No. 33) and Defendants have filed a
Response (ECF No. 37). Under the Federal Rules of Civil
Procedure, where, as here, a party has objected to portions
of a Report and Recommendation, “[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 provide that:
[t]he 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).
Magistrate Judge recommends granting Defendants S. Conarty,
J. Yoder, and Trinity Services Group, Inc.'s motion for
summary judgment. (ECF No. 24). The Magistrate Judge
recommends that this Court grant the motion as to Defendants
Conarty and Yoder because Bradley did not suffer an
“adverse action” sufficient to maintain a First
Amendment retaliation claim. (ECF No. 32, PageID.232-235).
For the same reason, the Magistrate Judge further recommends
granting the motion as to Defendant Trinity Services Group,
Inc. The Magistrate Judge also recommends granting the motion
as to Defendant Trinity Services Group because Bradley
presented no evidence that his alleged injury was caused by a
policy or custom which was enacted, adopted, or endorsed by
Trinity Food Services. (Id. at PageID.235-236).
objects to the Report and Recommendation by averring that:
(1) the Magistrate applied an incorrect analytical framework
to the matter; (2) the Magistrate erred in concluding Bradley
did not suffer an adverse action; (3) the Magistrate Judge
erred by finding that the adverse action could not deter a
prisoner of ordinary firmness for exercising his rights; and
(4) that Bradley had presented sufficient evidence showing
his injury was caused by a custom that was adopted and
endorsed by Defendant Trinity Services Group. (ECF No. 33). The
Court has reviewed de novo the claims and evidence presented
to the Magistrate Judge; the Report and Recommendation
itself; Plaintiff's Objection; and Defendants'
Response. After conducting the de novo review, the Court will
adopt the Report and Recommendation.
parties agree a First Amendment retaliation claim requires
proof that (1) the plaintiff was 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) the adverse
action was motivated at least in part by the protected
conduct. Thaddeus-X v. Blatter, 175 F.3d 378, 394
(6th Cir. 1999) (en banc). Under this framework, the
Magistrate Judge found Bradley satisfied the first and third
prongs of the retaliation framework. But the Magistrate Judge
concluded that Bradley could not meet the second prong of
showing an adverse action that would deter a person of
ordinary firmness from continuing to engage in the protected
conduct of writing grievances. (ECF No. 32). Defendants have
not objected to the Magistrate's determination regarding
the first and third prongs, and accordingly the second prong
of the First Amendment retaliation framework is the only one
first objects by claiming the Magistrate Judge applied an
incorrect analytical framework to this case and relied on an
incorrect type of case law. (ECF No. 33, PageID.240). This
objection is without merit. The Magistrate Judge correctly
laid out the well-established test for First Amendment
retaliation claims. The Magistrate Judge also correctly noted
the issue at the heart of this case: “whether
termination of Plaintiff's prison work assignment is
sufficiently adverse to maintain a First Amendment
retaliation claim.” (ECF No. 32, PageID.232).
Thereafter, the Magistrate Judge indicated there was no Sixth
Circuit authority that directly addressed this issue. But the
Magistrate Judge found persuasive the logic of other
authority that concerned adverse action in the context of
transferring a prisoner from one facility to another. This
Court agrees with the Magistrate Judge on the persuasiveness
of the authority.
second and third objections, Bradley maintains that he does
satisfy the “adverse action” of the First
Amendment retaliation framework. Bradley begins by claiming
the Magistrate Judge erred by focusing on the loss of his
prison work assignment as the adverse action, when the
Magistrate Judge should have focused on the false work
evaluations that Bradley received after filing a grievance.
But the Magistrate correctly found the two were linked for
purposes of the retaliation analysis since the adverse action
must lead to more than a de minimis sanction. See
generally Wurzelbacher v. Jones-Kelley, 675 F.3d 580,
583-84 (6th Cir. 2012). Moving to the merits, Bradley cites
to a case from this district which noted that “some
unreported Sixth Circuit opinions suggest that termination of
prison employment may constitute adverse
action.” (ECF No. 33, PageID.239) (citing Walker v.
Brewer, No. 1:13-cv-349, 2014 WL 1117835, at *2 (W.D.
Mich. Mar. 20, 2014) (emphasis added) (referencing Pasley
v. Conerly, 345 Fed.Appx. 981, 985 (6th Cir. 2009), and
Dobbins v. Craycraft, 423 Fed.Appx. 550, 553 (6th
Cir. 2011)). Bradley's objection fails to persuade the
Court that a different outcome is necessary. While the Court
acknowledges that the potential loss of a favorable prison
work assignment could weigh on a prisoner's decision to
engage in protected conduct, the Magistrate Judge struck the
right balance here by finding that, without some additional
negative consequence, a termination from a prison work
assignment does not amount to an adverse action. A prisoner
has no constitutional right to prison employment or a
particular prison job in the first place. Newsom v.
Norris, 888 F.2d 371, 374 (6th Cir. 1989).
“[P]rison work assignments are not employment in the
traditional sense, but a condition of confinement.”
Nettles v. Smoker, 2015 WL 1565429, No.
1:13-cv-1353, 2015 WL 1565429, at *5 (W.D. Mich. Apr. 8,
2015) (citing Choate v. Lockhart, 7 F.3d 1370, 1373
(8th Cir. 1993)). Accordingly, “ a prisoner does not
enjoy the benefits of a typical employer/employee
relationship. Prisoners are expected to endure more than the
average citizen.” Id. Whereas an average
citizen might have certain expectations and relies on
employment to provide for the necessities of life, these
considerations are not present here, where a prisoner is
provided with housing, food, clothing, and medical care.
Id. For this reason the loss of a prison work
assignment, standing alone, is more properly characterized as
a “routine inconvenience of prison life.”
Reynolds-Bey v. Harris, 428 Fed.Appx. 493, 503 (6th
Cir. 2011). Bradley's objections are therefore rejected.
final objection, Bradley contends that he has presented
evidence that the violation of his constitutional right was
caused by a custom that was adopted and endorsed by Defendant
Trinity Services Group. (ECF No. 33, PageID.240.) Bradley has
not shown a violation of his constitutional rights. Moreover,
the Magistrate Judge correctly held Bradley presented no
evidence that his injury was caused by a custom or policy
that had been enacted, adopted, or endorsed by Defendant
Trinity Food Services. Bradley's objections merely insist
that he can show a custom or policy without actually showing
one. This objection is overruled.
IT IS ORDERED that the Report and Recommendation of
the Magistrate Judge (ECF No. 32) is approved and adopted as
the Opinion of the Court. IT IS FURTHER
ORDERED that Defendants' Motion for Summary
Judgment (ECF No. 24) is GRANTED.
case is DISMISSED.