United States District Court, W.D. Michigan, Southern Division
HONORABLE PAUL L. MALONEY JUDGE.
REPORT AND RECOMMENDATION
PHILLIP J. GREEN UNITED STATES MAGISTRATE JUDGE
a civil rights action brought pro se by a state
prisoner under 42 U.S.C. § 1983. Plaintiff is an inmate
at the Kinross Correctional Facility. His complaint arises
out of conditions of his confinement at the Muskegon
Correctional Facility. The defendant is Corrections Officer
(unknown) Del-Tour. Plaintiff alleges that defendant
retaliated against him in violation of his First Amendment
rights by filing four minor misconduct charges against him.
Plaintiff sues defendant in his individual capacity and seeks
an award of damages.
matter is before the Court on defendant's Rule 12(b)(6)
motion seeking dismissal of plaintiff's claims on the
basis of qualified immunity. (ECF No. 31). Defendant's
motion is the re-filing of an earlier motion that was
dismissed without prejudice on March 1, 2017, for failure to
comply with the requirements of W.D. Mich. LCivR 7.1(d). On
March 9, 2017, the Court entered an order advising plaintiff
that his response to defendant's earlier motion (ECF No.
22) would be considered as his response to this motion. (ECF
No. 34, PageID.488). The order established March 24, 2017, as
the deadline for plaintiff to file any supplement to his
response to defendant's motion. (Id.). On March
23, 2017, plaintiff filed his supplemental brief. (ECF No.
43). For the reasons set forth herein, I recommend that
defendant's Rule 12(b)(6) motion be granted and that a
judgment be entered dismissing all plaintiff's claims
against defendant with prejudice.
12(b)(6) authorizes the dismissal of a complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). Under Rule 8(a)(2) of
the Federal Rules of Civil Procedure, a complaint must
provide “ ‘a short and plain statement of the
claim showing that the pleader is entitled to relief' in
order to ‘give the defendant fair notice of what the
... claim is and the grounds upon which it rests.'
” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957), and Fed.R.Civ.P. 8(a)(2)). While this notice
pleading standard does not require detailed” factual
allegations, it does require more than labels and the bare
assertion of legal conclusions. See Twombly, 550
U.S. at 555. Pro se pleadings are held to a less
stringent standard than formal pleadings drafted by licensed
attorneys. See Erickson v. Pardus, 551 U.S. 89, 94
(2007); Haines v. Kerner, 404 U.S. 519, 520 (1972).
argues that he is entitled to dismissal of plaintiff's
claims for damages against him in his individual capacity on
the basis of qualified immunity. “Once [an] official[ ]
raise[s] the qualified immunity defense, the plaintiff bears
the burden to ‘demonstrate that the official [is] not
entitled to qualified immunity.' ” LeFever v.
Ferguson, 645 Fed.Appx. 438, 442 (6th Cir. 2016)
(quoting Silberstein v. City of Dayton, 440 F.3d
306, 311 (6th Cir. 2006)); see Estate of Hill v.
Miracle, 853 F.3d 306, 312 (6th Cir. 2017).
government official sued under section 1983 is entitled to
qualified immunity unless the official violated a statutory
or constitutional right that was clearly established at the
time of the challenged conduct.” Carroll v.
Carman, 135 S.Ct. 348, 350 (2014); see Taylor v.
Barkes, 135 S.Ct. 2042, 2044 (2015); Lane v.
Franks, 134 S.Ct. 2369, 2381 (2014). The first prong of
qualified immunity analysis is whether the plaintiff has
alleged facts showing that each defendant's conduct
violated a constitutional or statutory right. See Saucier
v. Katz, 533 U.S. 194, 201 (2001). The second prong is
whether the right was “clearly established” at
the time of the defendant's alleged misconduct.
Id. Trial courts are permitted to exercise their
sound discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first.
See Pearson v. Callahan, 555 U.S. 223, 236 (2009).
qualified immunity defense can be asserted at various stages
of the litigation, including the summary judgment stage.
See English v. Dyke, 23 F.3d 1086, 1089 (6th Cir.
1994). Here, defendant seeks dismissal under Rule 12(b)(6).
Brosseau v. Haugen, the Supreme Court examined the
underlying purpose of the requirement that the law be clearly
Qualified immunity shields an officer from suit when she
makes a decision that, even if constitutionally deficient,
misapprehends the law governing the circumstances she
confronted. . . . Because the focus is on whether the officer
had fair notice that her conduct was unlawful, reasonableness
is judged against the backdrop of the law at the time of the
conduct. If the law at the time did not clearly establish
that the officer's conduct would violate the
Constitution, the officer should not be subject to liability
or, indeed, even the burdens of litigation.
543 U.S. 194, 198 (2004); see also Mullenix v. Luna,
136 S.Ct. 305, 308 (2015) (“The dispositive question is
whether the violative nature of the particular conduct is
clearly established.”) (citation and quotation
omitted); City & County of San Francisco, Calif. v.
Sheehan, 135 S.Ct. 1765, 1774 (2015) (“An officer
cannot be said to have violated a clearly established right
unless the right's contours were sufficiently definite
that any reasonable official in his shoes would have
understood that he was violating it, meaning that existing
precedent placed the statutory or constitutional question
beyond debate.”) (citations and quotations omitted);
Mitchell v. Schlabach, 864 F.3d 416, 424 (6th Cir.
2017). Qualified immunity is an immunity from suit rather
than a mere defense to liability. Plumhoff v.
Rickard, 134 S.Ct. 2012, 2019 (2014).
Supreme Court has repeatedly held that the second prong of
the qualified immunity analysis “ ‘must be
undertaken in light of the specific context of the case, not
as a broad general proposition.' ” Brosseau v.
Haugen, 543 U.S. at 198 (quoting Saucier v.
Katz, 533 U.S. at 201); see White v. Pauly, 137
S.Ct. 548, 552 (2017). Moreover, courts are “not to
define clearly established law at a high level of generality,
since doing so avoids the crucial question whether the
official acted reasonably in the particular ...