United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER (1) OVERRULING PLAINTIFF'S
OBJECTIONS (DKT. 13), (2) ACCEPTING THE
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
(DKT. 12), AND (3) GRANTING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT (DKT. 10)
A. GOLDSMITH UNITED STATES DISTRICT JUDGE.
Devonte Goens, an inmate at the Lakeland Correctional
Facility, proceeding pro se, filed this civil rights case
against Defendant Captain John Holcomb pursuant to 42 U.S.C.
§ 1983. See Compl. (Dkt. 1). The matter was
referred to Magistrate Judge Mona K. Majzoub for all pretrial
proceedings. See Order of Referral (Dkt. 7). On
February 2, 2018, the Magistrate Judge issued a Report and
Recommendation (“R&R”) (Dkt. 12),
recommending that Holcomb's motion for summary judgment
(Dkt. 10) be granted. Goens filed objections to the R&R
(Dkt. 13); Holcomb subsequently filed a response (Dkt. 14).
The Court reviews de novo any portion of the R&R to which
specific objections are timely filed. Fed.R.Civ.P. 72(b)(3).
For the reasons discussed below, the Court overrules
Goens's objections, accepts the recommendation contained
in the R&R and grants Holcomb's motion for summary
first objects to the Magistrate Judge's findings
regarding his First Amendment retaliation claim.
Specifically, Goens objects to the conclusion that Holcomb
met his burden of production to show that he would have filed
a misconduct report against Goens regardless of his protected
First Amendment activity. Goens argues that, even if Holcomb
heard him discussing point spreads for professional sports
games on the phone, he never heard a discussion of betting or
any other communication that violates prison guidelines.
Goens also argues that the transfer of money into his prison
account did not violate any policy, and that Holcomb
incorrectly concluded that he used another prisoner's
prisoner identification number (“PIN”) to make
phone calls. See Obj. at 1-5.
also objects to the Magistrate Judge's findings regarding
his Fourteenth Amendment due process claim. He argues that he
was denied due process when Holcomb filed falsified
misconduct reports against him. He contends that the notice
and hearing afforded to him by prison officials was
insufficient to satisfy his due process rights. See
id. at 6.
First Amendment Retaliation
Amendment retaliation claim consists of three elements:
(1) the plaintiff 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) there is a causal connection between
elements one and two - that is, the adverse action was
motivated at least in part by the plaintiff's protected
Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir.
1999). “Once the plaintiff has met his burden of
establishing that his protected conduct was a motivating
factor behind any harm, the burden of production shifts to
the defendant. If the defendant can show that he would have
taken the same action in the absence of the protected
activity, he is entitled to prevail on summary
judgment.” Id. at 399.
objects to the Magistrate Judge's finding that Holcomb
established that he would have filed the December 2016
misconduct report against Goens in the absence of the
protected activity. The Magistrate Judge noted Holcomb's
affidavit, which states that he filed the misconduct report
after learning that Goens had placed multiple phone calls to
a phone number, during which he discussed point spreads for
professional basketball and football games. R&R at 11-12
(citing Holcomb Aff., Ex. 1 to Def. Mot., ¶ 7 (Dkt.
10-2). He also noted that a total of $1, 600 was deposited
into Goens's prison account from April 2016 through
November 2016; according to Holcomb, several of these
transactions were made by unapproved individuals.
See Holcomb Aff. ¶ 7. Holcomb also stated that
Goens made a phone call using the prisoner identification
number (“PIN”) of another prisoner; Holcomb
stated he was able to determine that it was actually Goens
who made the call because the caller identified himself as
Goens. Id. ¶ 8.
now argues that these reasons for the misconduct report are a
pretext. He argues that merely discussing point spreads is
not a violation of prison policy, money transferred into his
prison account was transferred permissibly, and that Holcomb
incorrectly accused him of using another prisoner's PIN
to make phone calls. This argument is not persuasive. It is
not clear what exactly Holcomb would have been retaliating
against when he filed his misconduct report. Goens alleges
that the report was filed because Goens had previously
reported Holcomb to his superiors for misconduct. Goens
alleges that this retaliation began on November 29, 2016, and
continued through the December 2016 misconduct report.
However, as noted by the Magistrate Judge, Holcomb produced
unrebutted evidence that he was on leave from September 16,
2016, through December 12, 2016. Id. ¶ 4. From
December 12, 2016, through January 27, 2017, Holcomb was
placed on “light duty, ” meaning he was not
permitted inside the prison gates. Id. ¶ 5.
This means that from at least September 16, 2016, through
January 27, 2017, Goens and Holcomb had no contact
whatsoever. Goens has not identified in his complaint, before
the Magistrate Judge, or before the undersigned, any
grievance he filed against Holcomb prior to September 16,
2016, that would have led Holcomb to retaliate by filing a
misconduct report in December 2016. As a result, a reasonable
jury could not conclude that the report was an act of