United States District Court, W.D. Michigan, Southern Division
OPINION AND ORDER
T. NEFF United States District Judge.
a prisoner civil rights action filed pursuant to 42 U.S.C.
§ 1983. Plaintiff and Defendant Greg Torrey filed
cross-motions for summary judgment. The matter was referred
to the Magistrate Judge, who issued a Report and
Recommendation (R&R), recommending Plaintiff's motion
be denied and Defendant's motion be granted in part and
denied in part. The matter is presently before the Court on
Defendant's objections to the denial of summary judgment
as to Plaintiff's retaliation claim. In accordance with
28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(3), the
Court has performed de novo consideration of those portions
of the Report and Recommendation to which objections have
been made. The Court denies the objections and issues this
Opinion and Order.
argues that the Magistrate Judge erred in finding the
following facts “undisputed or beyond genuine
(1) “[o]n November 2, 2017, Food Service Director Greg
Torrey stated to another prisoner that, ‘I don't
know who Banks thinks he is, that grievance he wrote just got
his ass fired'” and (2) that “[o]n March 11,
2018, an MDOC officer searched Plaintiff's cell at
Torrey's behest on the ground that Plaintiff had stolen a
time card…[and] stated to Plaintiff, ‘you are
making things easy for Greg, Greg is going to love this, you
are done in food service.'”
(Pl. Obj., ECF No. 48 at PageID.484-485, citing R&R, ECF
No. 47 at PageID.470-471). However, this objection
mischaracterizes the Report and Recommendation as the
Magistrate Judge did not find the facts undisputed. The
Magistrate Judge merely identified the evidence before the
court from both Plaintiff and Defendant and ultimately
concluded, “[t]his evidence reveals there exists a
genuine factual dispute …” (R&R, ECF No. 47
at PageID.480). Defendant's objection is without merit.
second objection, Defendant apparently disagrees with the
Magistrate Judge's determination that a reasonable trier
of fact could find causation (Pl. Obj., ECF No. 48 at
PageID.484-487; R&R, ECF No. 47 at PageID.478-480).
Defendant asserts that he presented developed arguments
establishing that Plaintiff failed to meet the causation
element of his First Amendment retaliation claim. Defendant
also challenges the “findings” in the Report and
Recommendation that Defendant terminated Plaintiff from his
food service assignment, and asserts that he had no control
over Plaintiff's work assignment or Plaintiff's
termination (ECF No. 48 at PageID.487).
objection essentially reiterates the governing legal
principles, which were acknowledged by the Magistrate Judge
in the Report and Recommendation, and restates his contention
that no evidence supports the requisite causation (ECF No. 48
at PageID.485-487). However, the Magistrate Judge
appropriately considered whether Plaintiff could satisfy the
“but- for” causation standard based on the
evidence presented and properly concluded that there were
genuine factual disputes precluding summary judgment.
Defendant's objection to the contrary is denied.
also argues that the Magistrate Judge erred in disregarding
Defendant's respondeat superior argument (Pl. Obj., ECF
No. 48 at PageID.487-489; R&R, ECF No. 47 at PageID.476).
The Magistrate Judge considered Defendant's argument and
noted that it reflected a “profound misunderstanding of
applicable law” (ECF No. 47 at PageID.476). In his
objection, Defendant restates his legal theory of respondeat
superior in the context of the general legal principles, but
again provides no valid basis for application of these
principles under the circumstances presented (ECF No. 48 at
PageID.488). As the Magistrate Judge observed, respondeat
superior in inapplicable because “Plaintiff has not
asserted a claim against Defendant's employer or any
other entity (ECF No. 47 at PageID.476). This objection is
this Court adopts the Magistrate Judge's Report and
Recommendation as the Opinion of this Court. Because this
action was filed in forma pauperis, this Court
certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an
appeal of this decision would not be taken in good faith.
See McGore v. Wrigglesworth, 114 F.3d 601, 610 (6th
Cir. 1997), overruled on other grounds by Jones v.
Bock, 549 U.S. 199, 206, 211-12 (2007). Therefore:
IS HEREBY ORDERED that the Objections (ECF No. 48)
are DENIED and the Report and Recommendation of the
Magistrate Judge (ECF No. 47) is APPROVED and ADOPTED as the
Opinion of the Court.
IS FURTHER ORDERED that Plaintiff's Motion for
Summary Judgment (ECF No. 33) is DENIED, and Defendant's
Motion for Summary Judgment (EFC No. 35) is GRANTED in part
and DENIED in part. Plaintiff's intentional infliction of
emotional distress and equal ...