United States District Court, W.D. Michigan, Northern Division
L. T. TUCKER #132271, Plaintiff,
ARRON WENER, et al., Defendants.
ROBERT J. JONKER JUDGE.
REPORT AND RECOMMENDATION
TIMOTHY P. GREELEY UNITED STATES MAGISTRATE JUDGE
a civil rights action brought by state prisoner L. T. Tucker
pursuant to 42 U.S.C. § 1983. Plaintiff alleges that,
while he was confined in the Alger Correctional Facility,
Defendants Arron Wener, Christine Newhouse, Aramark
Correctional Services, LLC, J. Nayback, and guard Knaus
retaliated against him by issuing him a class II misconduct
ticket for disobeying a direct order and finding him guilty
after a hearing in violation of his First Amendment and
Fourteenth Amendment rights.
states that he is a jailhouse lawyer and has been a civil
rights advocate for 40 years. During June of 2015, Plaintiff
tried to verbally resolve issues regarding unsafe work
conditions in the prison kitchen. Plaintiff complained to
Defendants Wener and Newhouse. Defendant Newhouse told
Plaintiff that if he kept talking about filing grievances
about unsafe work conditions, his “black ass”
would be fired for complaining so much. On June 22, 2015,
when Plaintiff told Defendant Newhouse that he would file a
grievance, Defendant Newhouse looked toward Defendant Wener
and said “make sure you get him out of here.”
Plaintiff asserts that later in the day he was trying to
perform his daily work duties, when Defendant Wener
instructed him to fill Styrofoam cups with cereal. Plaintiff
argues that this was not one of his assigned duties and that
a white prisoner with less seniority was available to perform
this job. Plaintiff told Defendant Wener “I ain't
going to be your slave, you are on some bullshit.”
Plaintiff states that Defendant Wener overreacted and ordered
him back to his unit. Plaintiff requested to speak with
Defendant Wener's supervisor. Plaintiff told Defendant
Newhouse that Defendant Wener was wrong to assign him to a
job that should be assigned to the individual with the least
seniority. Defendant Newhouse told Plaintiff to return to
then observed Defendants Wener and Newhouse speaking in a
back office. Defendant Newhouse then told an officer to take
Plaintiff to his unit. Plaintiff states that this officer
told Plaintiff to name him as a witness because Defendant
Wener's actions were questionable. Defendant Wener issued
Plaintiff a misconduct ticket for disobeying a direct order.
After the misconduct ticket was issued, Defendant Nayback
reviewed the misconduct report with Plaintiff on June 23,
2015. Plaintiff had a hearing on the misconduct ticket before
Defendant Knaus. Plaintiff admitted to making the comment
“I aint going to be your slave, you are on some
bullshit” to Defendant Wener. As a result, Defendant
Knaus found Plaintiff guilty of disobeying a direct order.
Plaintiff received ten days loss of privileges. That decision
was affirmed on appeal.
filed motions for summary judgment (ECF No. 32 and No. 59).
Plaintiff argues that due to genuine issues of fact, trial
should be scheduled. Defendants Wener and Newhouse filed
responses and requested summary judgment (ECF No. 45 and No.
72). Defendants Knaus and Nayback filed responses (ECF No. 46
and No. 71). Defendants Knaus and Nayback filed a motion for
summary judgment (ECF No. 59). Plaintiff filed a response
(ECF No. 78). This matter is fully briefed and no further
briefing is necessary.
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).
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
argue that Plaintiff was not engaged in protected conduct
when he voiced concerns about working conditions. Plaintiff
asserts that he was forced to handle hot cooking pots without
gloves and walk on floors covered with water and food items
each working day. Plaintiff states that he was told by
Defendant Newhouse that if he did not stop talking about
filing grievances, he would be fired for complaining too
much. After Plaintiff told Defendants Wener and Newhouse that
he intended to file grievances against them, Defendant
Newhouse told Defendant Wener “make sure you get him
out of here.” Defendants argue that mere workplace
gripes are not matters of public concern and are not
considered protected conduct for purposes of a retaliation
inmate has a right to file “non-frivolous”
grievances against prison officials on his own behalf,
whether written or oral. Maben v. Thelen, 887 F.3d
252, 266 (6th Cir. 2018); Mack v. Warden Loretto
FCI, 839 F.3d 286, 299 (3d Cir. 2016) (“[The
prisoner's] oral grievance to [the prison officer]
regarding the anti-Muslim harassment he endured at work
constitutes protected activity under the First
Amendment.”); Pearson v. Welborn, 471 F.3d
732, 741 (7th Cir. 2006) (“[W]e decline to hold that
legitimate complaints lose their protected status simply
because they are spoken.”); see also Pasley v.
Conerly, 345 Fed.Appx. 981, 985 (6th Cir. 2009) (finding
that a prisoner engaged in protected conduct by
threatening to file a grievance). “Nothing in
the First Amendment itself suggests that the right to
petition for redress of grievances only attaches when the
petitioning takes a specific form.” Holzemer v.
City of Memphis, 621 F.3d 512, 521 (6th Cir. 2010)
(finding that a conversation constituted protected
petitioning activity) (quoting Pearson, 471 F.3d at
a prisoner's act of calling the hearing officer a
“foul and corrupt bitch” was not protected
conduct because such behavior fell within the definition of
“insolence” under the MDOC Policy Directive
governing prisoner misconduct. See Lockett v.
Suardini, 526 F.3d 866, 874 (6th Cir. 2008). See
also Caffey v. Maue, 679 Fed.Appx. 487 (7th Cir. Feb.
15, 2017) (holding that an inmate's name-calling of
guards (calling them unprofessional) was a challenge to the
guards' authority that was not protected by the First
Amendment); Felton v. Huibregtse, 525 Fed.Appx. 484,
487 (7th Cir. 2013) (holding that the use of disrespectful
language was not protected conduct) (citing cases);
Freeman v. Tex. Dep't of Crim. Justice, 369 F.3d
854, 858, 864 (5th Cir. 2004) (concluding that an inmate who
accused a chaplain of theological errors during a religious
service had engaged in an unprotected challenge to
institutional authority). Plaintiff has alleged that he
engaged in protected conduct by threatening to file
grievances against Defendant Newhouse and Wener for
subjecting him to unsafe working conditions and for refusing
to address his verbal complaints. In the opinion of the
undersigned, Plaintiff engaged in protected conduct by
threatening to file a grievance.
next argue that the issuance of a class II misconduct and
subsequent guilty finding is not adverse action. Defendants
state that the most severe restriction imposed for a class II
violation is confinement to quarters, loss or privileges,
extra duty, and restitution. After the hearing, Plaintiff
received ten days loss of privileges. Defendants argue that
loss of privileges is not considered adverse conduct citing
Ingram v. Jewell, 94 Fed.Appx. 271, 273 (6th Cir.
2004). However, the Sixth Circuit has held that even seven
days' loss of privileges -- which includes loss of the
rights to use the exercise facilities, to attend group
meetings, to use the telephone, to have visitors, to access
the general library, and to access the activity room -
amounts to adverse action. Maben, 887 F.3d 252
(quoting Hill v. Lapin, 630 F.3d 468, 474 (6th Cir.
2010) (holding that “actions that result in more
restrictions and fewer privileges for prisoners are
considered adverse”)). The Maben court noted
the contrary holding in Ingram, 94 Fed.Appx. at 273
(citing Thaddeus-X, 175 F.3d at 396-97) (14 days
loss of privileges does not constitute an adverse action),
and, because Maben was a published opinion, it
effectively overruled Ingram.
Wener and Newhouse argue that the misconduct ticket was
issued due to Plaintiff's admitted conduct and as a
simple ordinary disciplinary action that arose from
Plaintiff's response to a routine order from his work
supervisor. Defendants Nayback and Knaus argue that their
actions were not retaliatory but based upon the written
Under the third element, “[u]sually, the question of
causation is a factual issue to be resolved by a jury, and
may be satisfied by circumstantial evidence.”
Harris v. Bornhorst, 513 F.3d 503, 519- 20 (6th Cir.
2008) (citing Hartsel v. Keys, 87 F.3d 795, 803 (6th
Cir. 1996)). “Nonetheless, a court may grant summary
judgment even in a causation inquiry, where it is
warranted.” Hartsel, 87 F.3d at 803 (citing
Langford v. Lane, 921 F.2d 677, 683-84 (6th Cir.
1991)). “Once the plaintiff has met his burden of
establishing that his protected conduct was a motivating
factor behind any harm, the burden of production shifts to
the defendant.” Thaddeus-X, 175 F.3d at 399
(citing Mount Healthy, 429 U.S. 274, 97 S.Ct. 568,