United States District Court, W.D. Michigan, Northern Division
ORDER ADOPTING IN PART AND REJECTING IN PART REPORT
J. QUIST UNITED STATES DISTRICT JUDGE
a civil rights action filed by a state prisoner, Deontae
Gordon, under 42 U.S.C. § 1983. Gordon asserts claims of
retaliation in violation of the First Amendment, cruel and
unusual punishment in violation of the Eighth Amendment, and
conspiracy to make false statements in violation of the
Fourteenth Amendment. Defendants filed a motion for summary
judgment. (ECF No. 49.) Gordon responded (ECF No. 53) and
filed a supplemental brief. (ECF No. 56.) Magistrate Judge
Timothy Greeley issued a Report and Recommendation (R &
R), recommending that the Court grant Defendants' motion
and dismiss the case. (ECF No. 62.) Gordon filed objections
to the R & R. (ECF No. 63.)
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, Gordon'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 erred in finding that
Rondeau's adverse action was not motivated by
Gordon's protected conduct. According to Gordon, Rondeau
threatened him and told him if he kept filing grievances,
Rondeau would "pull the fucking pin himself." In
response, Gordon allegedly told Rondeau he did not deserve to
wear sergeant stripes. Rondeau in turn "pull[ed] up a
deep drag of mucus and sp[i]t into Plaintiffs face, "
according to Gordon. (ECF No. 63 at PageID.450.) The R &
R concluded that Rondeau's alleged spit was in response
to Gordon personally insulting him regarding his sergeant
stripes-not Gordon's grievances.
has asserted a credible causal chain that the alleged
spitting may have been motivated "at least in part"
in response to him filing grievances. See Thaddeus-X v.
Blatter, 175 F.3d 378, 386-87 (6th Cir. 1999). "A
defendant's motivation for taking action against the
plaintiff is usually a matter best suited for the jury."
Paige v. Coyner, 614 F.3d 273, 282 (6th Cir. 2010).
Gordon asserts that Rondeau was angry for the entirety of the
conversation, and "[t]he whole basis of the conversation
was the grievance." Therefore, he argues, the grievances
and the spitting "cannot be separated."
(Id.) Gordon also provided an affidavit from his
cellmate, Devante Smith. Smith states that Corrections
Officer Mattson stated, "Hey Gordon, how did you like
the spit shower? That's what happens when you file
grievances against me." (ECF No. 53-4 at PageID.397.)
Whether Gordon's stripes comment was the independent
cause of Rondeau's alleged spit, or simply the straw that
broke the camel's back in a conversation about
grievances, is a genuine issue of material fact ill-suited
for summary judgment. Therefore, the Court will sustain
Gordon's objection and reject the R & R as to the
retaliation claim against Rondeau.
objects that the prison disciplinary hearing should not be
given preclusive effect in connection with his retaliation
claim against Hubble. The R & R noted that Gordon did not
appeal his misconduct hearing to the Michigan state courts
within the sixty-day time frame set by M.C.L. §
791.255(2). The statute requires that "[w]ithin 60 days
after the date of delivery or mailing of notice of the
decision ... a prisoner aggrieved by a final decision or
order may file an application for direct review in the
circuit court." Gordon admits the listed mailing date of
the decision was April 17, 2015. He claims that he did not
receive it until he sent a letter to the Hearings
Administrator in November 2015, asking for the decision
because he had never received a copy. (ECF No. 53-3.) Gordon
received the decision in November or December 2015. Gordon
never filed an appeal to the state court. He argues there is
no exception to the 60-day rule and, therefore, was time
barred from appealing to the state court. The plain language
of the statute indicates that Gordon's appeal would not
have been time barred. The 60-day period begins "after
the date of delivery or mailing of notice of the
decision." M.C.L. § 791.255(2) (emphasis added).
The statute would have permitted Gordon to file an appeal
within 60 days of the delivery in November or December
objects that he was prevented from presenting a defense at
the same misconduct hearing. The R & R found that Gordon
failed to sign a form to request a question for a witness,
his cellmate Devante Smith. Gordon correctly points out in
his objection that the form appears to require the
witness, not Gordon, to sign the form. (ECF No. 50-3
at PageID.355.) Gordon's proposed question was, "Did
you hear Sgt. Hubble or any other staff talking about setting
Gordon up? If so, what did you hear?" (Id.)
Although this question was not asked, Smith was asked other
pertinent questions. Smith was asked whether he had any
knowledge that the razor blade was there; he answered,
"No, they set [Gordon] up." Smith was asked if he
had other information regarding the "razor on how it got
placed under the lip of the bottom bunk;" he answered,
"It did not come from Gordon they set [him] up because
they keep sayin[g] he writing all these grievance's but
it was not there at first." (Id. at
PageID.354.) The MDOC notes that Smith was asked who
"they" were, and Smith clarified that he meant
Corrections Officer Mattson. Smith made no mention of Hubble.
Accordingly, the Court agrees with the R & R that Gordon
had a full and fair opportunity to litigate the issue.
objects that Rondeau's alleged spitting does amount to an
Eighth Amendment violation. He fails to distinguish the case
law cited by the R & R. Accordingly, the Court will
overrule his objection and adopt the R & R as to
Gordon's Eighth Amendment claim.
objects that Defendants are not entitled to qualified
immunity. The R & R found that because Gordon could not
establish that his constitutional rights were violated,
Defendants are entitled to qualified immunity. Because the
Court will not be adopting the R & R's recommendation
regarding Gordon's First Amendment retaliation claim
against Rondeau, qualified immunity will not apply to Rondeau
for that claim. Because the Court will be adopting the R
& R in all other respects, Defendants are entitled to
in accordance with this Order, IT IS HEREBY
ORDERED that the Magistrate Judge's Report and
Recommendation (ECF No 62) is APPROVED AND ADOPTED IN
PART and REJECTED IN PART and
Plaintiffs Objections (ECF No. 63) are SUSTAINED IN
PART and OVERRULED IN PART.
IS FURTHER ORDERED that Defendants' Motion for
Summary Judgment (ECF No. 49) is DENIED IN
PART as to the First Amendment retaliation claim
against Rondeau and GRANTED IN PART as to
all other claims.
 A disagreement regarding this reading
of the statute would properly be raised in the state court
and would not be ...