United States District Court, W.D. Michigan, Southern Division
QUENTIN D. BETTY, Plaintiff,
v.
DANIEL HEYNS, et al., Defendants.
ORDER ADOPTING IN PART AND REJECTING IN PART REPORT
AND RECOMMENDATION
ROBERT
J. JONKER CHIEF UNITED STATES DISTRICT JUDGE
The
Court has reviewed Magistrate Judge Kent's Report and
Recommendation in this matter (ECF No. 91) and
Plaintiff's Objection to it. (ECF No. 92). 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). The Court has reviewed de novo
the claims and evidence presented to the Magistrate Judge;
the Report and Recommendation itself; and Plaintiff's
Objections.
1.
Plaintiff's Motions
The
Magistrate Judge recommends denying Plaintiff's motions
to amend (ECF No. 78) and for relief from judgment (ECF No.
79). Plaintiff offers no meaningful objection to the
Magistrate's recommendation on these two motions, and the
Court finds the Magistrate's analysis here to be
factually sound and legally correct. The Court agrees the two
motions should be denied for the very reasons articulated by
the Magistrate Judge, and accordingly, the Court adopts the
Magistrate Judge's recommendation that Plaintiff's
motions be denied.
2.
Defendant Chaney's Motion for Summary Judgment
The
Magistrate Judge further recommends granting Defendant
Chaney's motion for summary judgment. (ECF No. 66). While
the Court agrees with the Magistrate Judge that Defendant
Chaney did not meet his initial burden with respect to a
qualified immunity defense, the Court respectfully disagrees
with the Magistrate Judge that Defendant Chaney's motion
should nonetheless be granted. Therefore Defendant
Chaney's motion will be DENIED.
All
parties agree on the relevant legal standard as laid out by
the Magistrate Judge:
To prove a First Amendment retaliation claim, plaintiff must
establish 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 conduct.” Thaddeus-X v.
Blatter, 175 F.3d 378, 394 (6th Cir. 1999).
(ECF No. 91, PageID.668). The Magistrate Judge recommends
granting the motion because Plaintiff's threat to file a
grievance against Defendant Chaney did not constitute
“protected conduct” for purposes of a retaliation
claim. The Magistrate's reasoning largely depends on an
earlier report and recommendation that was adopted by the
undersigned. Walden v. Palmer, No. 1:15-cv-766, 2017
WL 1026326 (W.D. Mich. Feb. 22, 2017), report and
recommendation adopted, 2017 WL 1020233 (March 16,
2017).
The
posture in Walden case is somewhat different than
here, however, because in Walden, the Court found
that even if a threat to file a grievance was
“protected conduct” the plaintiff failed to
exhaust the claim. Thus the Court did not decide, one way or
the other, whether a threat to file a grievance could
constitute protected conduct in a First Amendment retaliation
claim. The Sixth Circuit Court of Appeals also has not
“determined conclusively whether merely threatening to
file a grievance constitutes protected activity.”
Pasley v. Conerly, 345 F. App'x 981, 984 (6th
Cir. 2009).
Though
not dispositive, Pasley is still instructive. There
the court distinguished earlier cases that held prisoners do
not have a protected right to file frivolous grievances. But
the Court found that because the plaintiff's threatened
grievance in that case “was arguably legitimate, his
conduct was arguably protected by the First Amendment.”
Id. at 985. Consistent with that decision, other
courts have found that threats to file a grievance can be
protected conduct that would satisfy the first of the
three-prong test. See, e.g., Jones v. VandeCasteele,
No. 11-cv-13115, 2012 WL 3156990, at *7 n.6 (E.D. Mich. July
11, 2012); Pasley v. Conerly, No. 2:08-cv-13185,
2010 WL 3906120, at *9 (E.D. Mich. Sept. 20, 2010). The Court
finds this analysis persuasive and, for that reason and under
the facts of this case, the Court finds that Plaintiff's
threatened grievance is “arguably legitimate.”
The Court therefore declines to adopt the Magistrate's
recommendation that Plaintiff was not engaged in protected
conduct.
ACCORDINGLY,
IT IS ORDERED that the Report and Recommendation of
the Magistrate Judge (ECF No. 91) is ADOP ...