United States District Court, W.D. Michigan, Northern Division
ORDER ADOPTING, WITH MODIFICATION, REPORT AND
J. QUIST UNITED STATES DISTRICT JUDGE
a civil rights action brought by state prisoner, Earl Lee
Sullivan, under 42 U.S.C. § 1983. Sullivan's
remaining claims are for deliberate indifference in violation
of the Eight Amendment against Defendants Hatfield, Therrian,
and Amble, and for First Amendment retaliation against Amble.
Defendants filed a motion for summary judgment. (ECF No. 77.)
After the matter was fully briefed, Magistrate Judge Timothy
Greeley issued a Report and Recommendation (R & R),
recommending that the Court grant Defendants' motion and
dismiss the case in its entirety. (ECF No. 85.) The R & R
noted that dismissal would render Sullivan's motion for a
bench trial (ECF No. 76) moot. Sullivan filed an Objection.
(ECF No. 86.)
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, Sullivan's objections, and the
pertinent portions of the record, the Court concludes that
the R & R should be adopted with modification
& R adequately recounted the facts and applicable legal
standards. Its conclusions are, in summary:
• The record establishes that Defendants did not
completely deny Sullivan any medical treatment or any
• The record shows that Sullivan's claims amount to
a delay in medical treatment.
• Sullivan has not presented evidence of a detrimental
effect due to the delay.
• Sullivan cannot show that Amble was motivated by
protected conduct for the first misconduct ticket at issue.
• Sullivan was found guilty of the second misconduct
ticket at issue, and therefore cannot establish a First
the third point, Sullivan alleges that he did present
verifiable medical evidence of a detrimental effect due to
the delay in treatment-he cites an exhibit to show that his
blood pressure was elevated. (ECF No. 79-3 at PageID.1151.)
The chart shows that his blood pressure was high in the
months leading up to the delay in getting his medication on
July 17, 2013, and continuing through August 13, 2013. Given
the surrounding context-as described in the R & R-this
does not support his Eighth Amendment claim. Sullivan had run
out of his medication approximately 60 days before the July
17 incident but had not told anyone to request a refill.
Sullivan was given one dose on July 17, and a 30-day supply
arrived the following morning. On August 8, Sullivan told a
healthcare provider that he had stopped taking the medication
three weeks prior because he thought the medication was
causing side effects. The minor delay in obtaining his
medication on July 17 cannot plausibly support Sullivan's
argument given these circumstances.
recounts the facts underlying his claims at length but fails
to distinguish the controlling law that the R & R applied
to his case. Sullivan conclusively states that he has proven
his claim. He has not, and the Court does not find any error
in the R & R's recommendations, save one.
& R applied a legal standard-which Defendants first cited
in their brief-that is no longer good law in the Sixth
Circuit. The change in the law occurred after the R & R
was issued. The R & R found that because Sullivan was
found guilty of the second misconduct ticket at issue, his
retaliation claim was “essentially checkmate[d],
” in the words of Jackson v. Madery, 158
Fed.Appx. 656, 662 (6th Cir. 2005). (ECF No. 85 at
PageID.1250.) On April 3, 2018, the Sixth Circuit explicitly
rejected the “checkmate doctrine, ” and held that
“[a] finding of guilt at a prison misconduct hearing
does not act as an absolute bar to a prisoner's First
Amendment retaliation claim.” Maben v. Thelen,
-- F.3d --, No. 17-1289, 2018 WL 1599335, at *5 (6th Cir.
Apr. 3, 2018).
event, this does not save Sullivan's retaliation claim.
As the Maben court recognized, “if a prisoner
violates a legitimate prison regulation, he is not engaged in
‘protected conduct, ' and cannot proceed beyond
step one.” Id. (quoting Thaddeus-X v.
Blatter, 175 F.3d 378, 395 (6th Cir. 1999)). The Court
must consider the evidence in the light most favorable to
report for Sullivan's misconduct hearing, the MDOC noted
that Sullivan “had a callout for [1:15 p.m.]” and
that the reporting officer's statement was credible that
Sullivan left for “chow at [12:34 p.m.] which is more
than the 30 minutes prior to prisoner Sullivan's callout
as stated on his itinerary.” (ECF No. 79-14 at
PageID.1199.) Because Sullivan violated this 30 minute
policy, the MDOC upheld his misconduct. (Id.)
Sullivan submitted the itinerary at issue, and asserts that
the “the defendant” crossed out the 1:15 p.m.
time and replaced it with 1:05 p.m. (ECF No. 79-13 at
PageID.1192-93.) Sullivan asserts that because he had 30
minutes to go to chow under prison policy, and because Amble
signed the misconduct ticket at 12:34 p.m., he did not do
anything wrong and the misconduct ticket is ...