United States District Court, W.D. Michigan, Southern Division
ORDER ADOPTING, IN PART, REPORT AND
J. QUIST UNITED STATES DISTRICT JUDGE.
a civil rights action bought by Archie Evans, a state
prisoner, under 42 U.S.C. § 1983, against Defendants Dan
Palmer and B. Davis. Palmer and Davis filed a motion for
summary judgment. (ECF No. 15.) Evans filed an affidavit,
presumably in response, nearly six months later. (ECF No.
20.) Magistrate Judge Phillip Green issued a Report and
Recommendation (R & R), recommending that the Court deny
the motion as to Evans' First Amendment retaliation claim
against Palmer, and grant the motion as to all other claims.
(ECF No. 22.) Palmer (ECF No. 24) and Evans (ECF No. 25)
filed objections and responses to each other's
objections. (ECF Nos. 26 &27.)
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, the parties' objections, and the pertinent portions of
the record, the Court concludes that the R & R should be
adopted in part and rejected in part.
made four objections: 1) Evans failed to file a timely
response to the motion for summary judgment; 2) the R & R
inappropriately considered inadmissible hearsay; 3) Palmer
was entitled to qualified immunity; 4) Evans did not
establish a prima facie case. (ECF No. 24.) The Court need
only address the last two objections.
is correct in asserting that he is entitled to qualified
immunity in his third objection, and that Evans did not
establish a viable claim in his fourth objection. The Sixth
Circuit "appears not to have determined conclusively
whether merely threatening to file a grievance constitutes
protected activity." Pasley v. Conerly, 345
Fed.Appx. 981, 984 (6th Cir. 2009); see alsoMcKinney v.
Rutenbar, No. 2:14-CV-220, 2016 WL 4144253, at *2 (W.D.
Mich. Aug. 4, 2016). Defendants correctly cited
Pasley and other cases in their brief to show that
the threat to file a grievance is not established protected
conduct under Thaddeus-X v. Blatter, 175 F.3d 378,
394 (6th Cir. 1999). Accordingly, Evans failed to allege a
viable retaliation claim. Evans also failed to show that
Palmer had personal knowledge of Evans' grievance.
See O'Brien v. Michigan Dep't o/Corr., 592
Fed.Appx. 338, 341 (6th Cir. 2014). Palmer is entitled to
qualified immunity because Evans did not allege a viable
constitutional violation. Evans' response rehashes his
earlier arguments against summary judgment and does not
address qualified immunity in particular. (ECF No. 27.)
Accordingly, the Court will sustain Palmer's third and
fourth objections and grant his motion for summary judgment.
failed to object to specific portions of the R & R as
required by Federal Rule of Civil Procedure 72(b) and Local
Rule 72.3(b). Evans broadly recounts legal standards from
other cases but does not apply them directly and specifically
to his case and against the R & R. He asserts that he
"seeks vindication of the core concern of the due
process clause, namely, process that is due, " and that
"once a prisoner is assigned a prison job the doors of
the United States Constitution are cracked open enough for a
liberty interest and due process." (ECF No. 25 at
PageID.318-19.) Issues addressed in a "perfunctory
manner, unaccompanied by some effort at developed
argumentation are deemed waived." United States v.
Layne, 192 F.3d 556, 567 (6th Cir. 1999) (internal
quotation marks and citation omitted). Even viewing
Evans' objections liberally, the law he cites does not
distinguish or overcome the law the R & R used.
Accordingly, the Court will overrule Evans' objections.
IT IS HEREBY ORDERED that the Magistrate
Judge's Report and Recommendation (ECF No 22) is
APPROVED AND ADOPTED in part and
REJECTED in part in accordance with this
Order, and Defendants' Motion for Summary Judgment (ECF
No. 15) is GRANTED.
IS FURTHER ORDERED that Defendant Palmer's
Objections (ECF No. 24) are SUSTAINED as to
his qualified immunity and prima facie case arguments, and
Plaintiffs Objections (ECF No. 25) are
case is concluded.
separate judgment will issue.
 The first objection is without merit
because the R & R did not rely upon Evans' untimely
affidavit/response in reaching its legal conclusions. The
second objection is without merit because the statements are
not hearsay. The statements were used to show the effect on