United States District Court, W.D. Michigan, Northern Division
ORDER ADOPTING, IN PART, REPORT AND
J. QUIST UNITED STATES DISTRICT JUDGE
D'Andre Alexander, brought a civil rights action under 42
U.S.C. § 1983 against Defendants. Alexander's
surviving claims are for deliberate indifference under the
Eighth Amendment, retaliation, and state law claims.
Defendants filed a motion for summary judgment (ECF No. 128),
which Magistrate Judge Timothy Greeley recommended granting
in his Report and Recommendation (R & R). (ECF No. 163.)
Alexander filed objections to the R & R. (ECF No. 165.)
Federal Rule of Civil Procedure 72(b), a party “may
serve and file specific written objections” to the R
& R, and the Court is to consider any proper objection.
Local Rule 72.3(b) likewise requires that written objections
“shall specifically identify the portions” of the
R & R to which a party objects. Under 28 U.S.C. §
636(b), upon receiving objections to a report and
recommendation, the district judge “shall make a de
novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made.” After conducting a de novo review
of the R & R, Alexander's Objections, and the
pertinent portions of the record, the Court concludes that
the R & R should be adopted in part and rejected in part.
first objects that the R & R was wrong in recommending
that his deliberate indifference claim be dismissed.
Alexander argues that because “non-Defendants provided
some treatment to Plaintiff does not warrant the entire case
to be dismissed as to the current Defendants.” As the R
& R quoted, “[w]here the claimant received
treatment for his condition, as here, he must show that his
treatment was ‘so woefully inadequate as to amount to
no treatment at all.'” Mitchell v.
Hininger, 553 F. App'x 602, 605 (6th Cir. 2013)
(quoting Alspaugh v. McConnell, 643 F.3d 162, 169
(6th Cir. 2011)). Alexander may have alleged negligence by
some of the Defendants, but the facts show that “as
[Alexander's] condition worsened, [Alexander] received
more mental health treatment.” (ECF No. 163 at
asks the Court to either follow or distinguish his case from
Finley v. Huss, No. 17-1566, 2018 WL 557837 (6th
Cir. Jan. 25, 2018), in which the Sixth Circuit vacated
dismissal and remanded the case because it concluded that the
district court erred in finding that Finley failed to state
an Eighth Amendment claim. Finley dealt with
dismissal under the Prison Litigation Reform Act upon initial
screening prior to service; Alexander's claim is at the
summary judgment stage. Finley also had a more extreme
medical history-Finley was hospitalized multiple times, had
at least twenty-five self-inflicted lacerations on his arm,
swallowed nine razors, and had four stomach surgeries.
Id. at *1. The Sixth Circuit reversed the district
court, in part because the defendants “[could not]
escape a deliberate-indifference claim by fetching a band-aid
if an inmate is hemorrhaging.” Id. at *3.
Alexander's mental health condition and the treatment he
received does not rise to the figurative level used in
Finley and, therefore, Finley does not save
Alexander from summary judgment.
alleged that he told Defendant Lombard, with supporting
documentation, about his prior suicide attempt and that
Lombard responded “that was six years ago.” The R
& R found that this allegation was “blatantly
contradicted by the record.” Alexander stated in his
deposition that he attempted to commit suicide in 2011. His
conversation with Lombard occurred in 2015, so the six-year
statement does not fit the facts. Alexander also failed to
offer the purported documentation he showed Lombard.
Alexander objects, and states that he attempted to commit
suicide both in 2009 and in 2011. The Court disagrees with
the R & R's characterization of Alexander's
allegations. However, because Alexander's deliberate
indifference claim fails on other grounds, his conversation
with Lombard is not dispositive.
the Court will adopt the R & R as to the deliberate
plaintiff must meet three elements to establish a First
Amendment Retaliation claim.
• First, that they were engaged in protected conduct.
• Second, that an adverse action was taken against them
that would deter a person of ordinary firmness from engaging
in that conduct.
• Third, that the adverse action was motivated, at least
in part, by the protected conduct. Thaddeus-X v.
Blatter, 17 F.3d 378, 394 (6th Cir. 1999).
& R concluded that Alexander met the first two elements
but failed to meet the third, i.e., that Salmi's
actions were motivated by Alexander filing grievances. In his
response to Defendants' motion for summary judgment,
Alexander alleged that Salmi commented, “[y]ou still
doing legal stuff? That's why you ‘rotted' in
the ‘hole.'” (ECF No. 149 at PageID.1023.)
This statement in particular, and when considered along with
Salmi's other alleged statements- “I'm making
sure you go back to segregation” and “you weak
minded fuck”-offer evidence from which a reasonable
jury could conclude that there was a causal ...