United States District Court, E.D. Michigan, Southern Division
MEMORANDUM AND ORDER REJECTING IN PART AND ADOPTING
IN PART REPORT AND RECOMMENDATION (DOC. 47) AND GRANTING
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DOC. 43) AND
DISMISSING THE CASE
COHN UNITED STATES DISTRICT JUDGE.
a prisoner civil rights case under 42 U.S.C. § 1983. It
was referred to the magistrate judge for pretrial
proceedings. Plaintiff Bishop Perry (Perry), represented by
counsel,  has sued defendant Brittany Cousins
(Cousins), a corrections officer, claiming she violated his
civil rights. Cousins issued two misconduct tickets against
Perry after he failed to obey her order to remove a cover
over his cell (which is prohibited) and exposed himself to
her when Cousins entered Perry's cell. The misconduct
tickets - for sexual misconduct and disobeying a direct order
- were dismissed by a hearing officer.
says Cousins issued the ticket in retaliation for Perry
helping another prisoner pursue a grievance against Cousins.
filed a motion for summary judgment on the grounds that (1)
Perry cannot show a causal connection between the misconduct
tickets and any protected activity, and (2) Cousins is
entitled to qualified immunity.
magistrate judge issued a report and recommendation (MJRR),
recommending that the motion be granted because Perry did not
engage in protected conduct as a matter of law. (Doc. 47).
The magistrate judge did not address Cousin's arguments
regarding causation or qualified immunity.
the Court are Perry's objections to the MJRR (Doc. 48),
Cousin's objections to the MJRR (Doc. 50),  and Cousin's
response to Perry's objections (Doc. 49). For the reasons
that follow, the MJRR will be rejected in part and adopted in
part. As will be explained, the Court finds that Perry
engaged in protected conduct. However, because there is no
genuine issue of material fact that Cousins would have issued
the misconduct ticket regardless of Perry's protected
conduct, Cousins is entitled to summary judgment. Thus, the
Court disagrees with the magistrate judge's analysis but
agrees with the ultimate conclusion. The reasons follow.
retaliation claim essentially entails 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. See, e.g.,
Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998);
Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 406
(6th Cir. 1998); Penny v. United Parcel Serv., 128
F.3d 408, 417 (6th Cir.1997); Yellow Freight
Sys., Inc. v. Reich, 27 F.3d 1133, 1138 (6th Cir.1994).
as the magistrate judge noted, plaintiff is claiming he
engaged in protected conduct by assisting another inmate in
filing a grievance. The Court of Appeals for the Sixth
Circuit has made clear that an inmate does not have an
independent right to help other prisoners with their legal
claims. See Gibbs v. Hopkins, 10 F.3d 373, 378 (6th
Cir.1993). However, it has also said:
While there must be a showing that the “individual
prisoner's right to access the courts has been impaired,
” Thaddeus-X, 175 F.3d at 396 n. 11 (citing
Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606
(1996)), we have not held, nor can it be true, that the
prisoner must need assistance from the particular plaintiff
at issue. Cf. Gibbs, 10 F.3d at 378-80. If a prisoner needs
assistance in filing his legal documents, and any legal aide
would be retaliated against for providing assistance and is
therefore deterred from doing so, it matters not whether
there is one qualified aide or ten; retaliation against the
aide who chooses to help still prevents the prisoner from
accessing the courts, and the aide thus has a derivative
claim for retaliation. Cf. Thaddeus-X, 175 F.3d at
395 (stating that “a ‘jailhouse lawyer's'
right to assist another prisoner is wholly derivative of that
prisoner's right of access to the courts”).
Evans v. Vinson, 427 Fed.Appx. 437, 445-46 (6th Cir.
Perry has alleged, which Cousins has not seriously disputed,
that another prisoner needed Perry's assistance in
navigating the grievance process. This is sufficient to
establish that Perry engaged in protected conduct. Thus, the
Court declines to follow the magistrate judge's
recommendation regarding protected conduct.
the Court finds that summary judgment is still appropriate
because there is no evidence of a causal connection between
Perry's protected conduct and the misconduct tickets.
Rather, the record undisputedly shows that Cousins would have
given Perry the misconduct tickets. If the defendant can show
that he would have taken the same action in the absence of
the protected activity, he is ...