United States District Court, W.D. Michigan, Northern Division
REPORT AND RECOMMENDATION
TIMOTHY P. GREELEY UNITED STATES MAGISTRATE JUDGE.
a civil rights action brought by state prisoner Anthony
Lamont Moore pursuant to 42 U.S.C. § 1983. Plaintiff is
currently confined at the Baraga Maximum Correctional
Facility. The events about which Plaintiff complains occurred
while he was confined at the Newberry Correctional Facility.
Plaintiff alleges that Defendants Johnson, Flatt, Burke,
McGinn, Hubble, and Gloud violated his rights. Defendants
filed a motion for summary judgment (ECF No. 36). Plaintiff
filed a response. (ECF No. 39).
January 13, 2015, Plaintiff's cell was searched by
corrections officer Defendant Burke and a new corrections
officer that Burke was training. Defendant Johnson accused
Plaintiff of having his foot on the dirty cell wall.
Plaintiff believed that Defendant Johnson was accusing him of
destroying state property. Defendant Johnson issued Plaintiff
a misconduct ticket for loitering. Plaintiff states that the
ticket was racially motivated because prisoner Stump, who is
white and also present in the cell, did not receive a ticket.
asserts that on January 26, 2015, Defendant Johnson told him
to report to his office at 3:00 pm because the sergeant
wanted to speak to him about a grievance that Plaintiff had
written complaining about Defendant Johnson. Defendant
Johnson accused Plaintiff of lying. Plaintiff denied lying on
the grievance. Defendant Johnson then stated that
“since you lie shake down.” Plaintiff filed a
grievance later that day.
April 2, 2015, Plaintiff got into the shower at 12:50 pm. At
1:03 pm, Defendant Johnson told Plaintiff to get his I.D.
card and report to the office. When he arrived at the office,
Defendants Burke and Johnson had the “Double OO,
unemployment status rules out.” Plaintiff asserts that
he was required to ask permission to go to showers and the
bathroom although other prisoners on “Double OO
status” did not need to ask to for permission.
Plaintiff asserts that Defendants Burke and Johnson took this
action because Plaintiff had filed grievances against them.
April 15, 2015, Defendant Johnson searched the cube and
“tore-up” Plaintiff's area of control.
Defendant Johnson told Plaintiff that he was teaching him a
lesson for writing grievances on staff. Plaintiff filed a
grievance on Defendant Johnson. On April 16, 2015, Defendant
Johnson stated “Moore you see how I lied on you by
writing the tickets, and you see how we are only applying the
double OO status rule to you and nobody else, now keep on
writing those grievances and watch what happens to
you.” Plaintiff submitted a grievance on this issue.
alleges that after he spoke with shift command, he was moved
from 11 Unit to 10 Unit. When Plaintiff arrived at 10 Unit,
Defendant Flatt told Plaintiff that he “was not going
to be on that same bullsh** that Plaintiff had submitted on
his co-worker, Defendant Johnson from January 13, 2015 all
the way up to April 16, 2015, for Defendant Johnson's
acts.” Plaintiff asserts that he later learned that he
had been moved because Defendant Johnson wanted his friends
in 10 Unit to harass Plaintiff. Defendant Johnson spoke to
Plaintiff in the chow hall and requested Plaintiff's I.D.
At that time, Defendant Johnson told Plaintiff that filing
grievances got him two false misconduct tickets and moved out
of Johnson's unit. Defendant Johnson stated “this
little act between you and me is not over. And don't be
surprise if a knife, a razor, or drugs, be found in your area
of control.” Plaintiff submitted a grievance.
12, 2015, Defendant Johnson woke Plaintiff to inform him that
he was working in Plaintiff's unit and intended to write
Plaintiff misconduct tickets. In fact, Defendant Johnson
issued two misconduct tickets, which were subsequently
dismissed. Plaintiff sent a grievance to the Office of Legal
Affairs, but was told to re-file a step I grievance at the
prison. The grievance coordinator refused to process the
alleges that on August 20, 2015, he was playing pinochle with
prisoner Ellington. Plaintiff was winning and setting-up
Ellington with the help of another prisoner to ensure the
win. Ellington threatened to harm Plaintiff and twice pointed
his finger in Plaintiff's face. Plaintiff left the game
and went to the office where Defendant Flatt was working on a
computer. After Plaintiff told Defendant Flatt that he was
having problems with prisoner “Fat Cat, AKA Mr.
Ellington, ” Defendant Flatt told Plaintiff to come
back later. Plaintiff states that Defendant Flatt was not
busy, but just “looking up stuff on the computer in Mr.
French's office.” Plaintiff persisted to tell
Defendant Flatt what had happened. Defendant Flatt responded
by stating “didn't I say I was busy.” When
Plaintiff returned to his cell, Ellington was still holding
cards in his hand. Plaintiff stated that he would not play
with Ellington anymore. Plaintiff yelled at Ellington after
Ellington put his “hands in Plaintiff's
face.” Plaintiff states that Ellington was hitting him
while pointing a finger in his face. Plaintiff states that he
was yelling loudly, but Defendant Flatt never responded.
Ellington knocked some of the cards out of Plaintiff's
hand causing the cards to hit Ellington. Plaintiff sat down
on his chair. Ellington hit Plaintiff, causing Plaintiff to
hit his head. Ellington then kicked and stomped on
Plaintiff's head. Plaintiff was yelling, but Defendant
Flatt failed to immediately respond. Plaintiff was
transported to the hospital for severe head injuries. On May
3, 2016, Ellington received a three year prison term for the
assault of Plaintiff.
returned to the prison on August 26, 2015. Plaintiff was
placed in temporary segregation while awaiting a transfer to
the Ojibway Correctional Facility. Plaintiff stated that he
could not go to the Ojibway Correctional Facility because
Ellington had friends there. Plaintiff was told to discuss
his concerns with Ojibway staff. Plaintiff states that
Defendant Hubble refused to help and was just glad that
Plaintiff was being transferred out of Newberry so that he
would no longer be a problem. Plaintiff asserts that
Defendants Gloud and McGinn would not help him. Plaintiff was
told by the transfer coordinator, Defendant Perry, and
Defendant John Doe to address his concerns with Ojibway
staff. Plaintiff asserts that he was being transferred in
retaliation for his grievance submissions. Plaintiff filed a
grievance on the issue. Plaintiff disagrees with the claim
that he was in danger if he stayed at Newberry. Plaintiff
asserts that Defendants have tried to cover-up the truth.
Plaintiff alleges that after his transfer to Ojibway, a
prisoner assaulted him on November 2, 2015.
Opinion and Order dated December 28, 2016, the Court stated
that Plaintiff's remaining claims were for retaliation
against Defendants Johnson, Burke, Flatt, McGinn, Hubble, and
Gloud and for failure to protect against Defendant Flatt.
(ECF Nos. 4 and 5). In an order dated January 26, 2017, the
court clarified that Plaintiff's equal protection claims
against Defendants Johnson and Burke remain in the case. (ECF
No. 8). Defendants move for summary judgment.
judgment is appropriate only if the moving party establishes
that there is no genuine issue of material fact for trial and
that he is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477
U.S. 317, 322-323 (1986). If the movant carries the burden of
showing there is an absence of evidence to support a claim or
defense, then the party opposing the motion must demonstrate
by affidavits, depositions, answers to interrogatories, and
admissions on file, that there is a genuine issue of material
fact for trial. Id. at 324-25. The nonmoving party
cannot rest on its pleadings but must present “specific
facts showing that there is a genuine issue for trial.”
Id. at 324 (quoting Fed.R.Civ.P. 56(e)). The
evidence must be viewed in the light most favorable to the
nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251-52 (1986). Thus, any direct evidence
offered by the plaintiff in response to a summary judgment
motion must be accepted as true. Muhammad v.
Close, 379 F.3d 413, 416 (6th Cir.
2004) (citing Adams v. Metiva, 31 F.3d 375, 382 (6th
Cir. 1994)). However, a mere scintilla of evidence in support
of the nonmovant's position will be insufficient.
Anderson, 477 U.S. at 251-52. Ultimately, the court
must determine whether there is sufficient “evidence on
which the jury could reasonably find for the
plaintiff.” Id. at 252. See also Leahy v.
Trans Jones, Inc., 996 F.2d 136, 139 (6th Cir. 1993)
(single affidavit, in presence of other evidence to the
contrary, failed to present genuine issue of fact); cf.
Moore, Owen, Thomas & Co. v. Coffey, 992 F.2d 1439,
1448 (6th Cir. 1993) (single affidavit concerning state of
mind created factual issue).
Johnson argues that Plaintiff's retaliation claim based
on the loitering misconduct ticket must be dismissed because
Plaintiff cannot establish the elements of adverse action or
causation. Retaliation based upon a prisoner's exercise
of his or her constitutional rights violates the
Constitution. See Thaddeus-X v. Blatter, 175 F.3d
378, 394 (6th Cir. 1999) (en banc). In order to set forth a
First Amendment retaliation claim, a plaintiff must establish
that: (1) he was engaged in protected conduct; (2) an adverse
action was taken against him that would deter a person of
ordinary firmness from engaging in that conduct; and (3) the
adverse action was motivated, at least in part, by the
protected conduct. Id. Moreover, a plaintiff must be
able to prove that the exercise of the protected right was a
substantial or motivating factor in the defendant's
alleged retaliatory conduct. See Smith v. Campbell,
250 F.3d 1032, 1037 (6th Cir. 2001) (citing Mount Healthy
City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287
(1977)). Plaintiff asserts that he is not bringing a
retaliation claim against Defendant Johnson based upon the
issuance of the loitering misconduct ticket. (See ECF No. 19,
PageID.192). Plaintiff states that the loitering misconduct
supports his equal protection claim, because a white prisoner
did not receive a loitering misconduct ticket at the time
Plaintiff did. Plaintiff explains that his retaliation claims
are based upon his receipt of two misconduct tickets; one for
being out of place and the second for violating a posted
rule. Both of those tickets were dismissed.
addition, Defendant Johnson argues that the checkmate
doctrine bars Plaintiff's retaliation claim, because he
was found guilty of loitering at the hearing on the
misconduct charge. However, the Sixth Circuit expressly
rejected the “checkmate doctrine” in Maben v.
Thelen, 887 F.3d 252 (6th Cir. 2018) concluding that
“[a] finding of guilt at a prison misconduct ...