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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

MICHAEL LONG, 

Plaintiff, 

v. 

FRANK FINCH, ET AL., 

Defendants. 

Case No. 14-13269 

SENIOR U.S. DISTRICT JUDGE 

ARTHUR J. TARNOW

U.S. MAGISTRATE JUDGE 

PATRICIA T. MORRIS

 / 

ORDER ADOPTING REPORT AND RECOMMENDATION [22]; OVERRULING 

PLAINTIFF’S OBJECTION TO REPORT AND RECOMMENDATION [23]; AND 

GRANTING DEFENDANTS’ MOTION TO DISMISS [15] 

 Plaintiff, a federal prisoner proceeding pro se, has brought claims against 

federal corrections officers for retaliation in violation of the First Amendment and 

cruel and unusual punishment in violation of the Eighth Amendment. On July 24, 

2015, the Magistrate Judge issued a Report and Recommendation (R&R) [Dkt. #22], 

recommending that the Court grant Defendants’ Motion to Dismiss [15]. Plaintiff 

filed an Objection [23] on August 3, 2015.1

 Defendants filed a Response [24] to 

Plaintiff’s Objection on August 14, 2015. On September 3, 2015, Plaintiff filed a 

Reply [25]. 

 

1

 Plaintiff styled his Objection as both a Motion for Leave to File Sur-Reply and a 

Sur-Reply in Opposition to Defendants’ Motion to Dismiss. Defendants construed the 

filing as an Objection to the R&R. In his Reply, Plaintiff also referred to his 

Objection as an objection to the R&R. 

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 For the reasons stated below, the Court ADOPTS the R&R [22]. Plaintiff’s 

Objection [23] is OVERRULED. Defendants’ Motion to Dismiss [15] is 

GRANTED. 

FACTUAL BACKGROUND

 The R&R summarized Plaintiff’s factual allegations, which must be assumed 

true on Defendants’ Motion to Dismiss, as follows: 

 Plaintiff’s amended complaint alleges that he was working in the 

UNICOR factory located inside the Milan prison. On November 21, 

2013, a co-worker shouted a warning that a load of steel had fallen so 

Plaintiff “[f]earing that someone may have been injured by the falling 

steel . . . stopped the forklift, exited the vehicle and checked to make 

sure that no one was injured.” (Doc. 14 at ID 127.) Plaintiff then “began 

to pick up the pieces of steel that had fallen” and his supervisor, 

Defendant Finch, “upon seeing that [Plaintiff] had exited the forklift 

while the key was still in the ignition and the shift lever was in reverse, 

began shouting obscenities at [Plaintiff] and verbally assaulting 

[Plaintiff] over the incident.” (Id.) Defendant Finch then “ended by 

saying that he would be disciplining [Plaintiff] for the incident by 

reducing [his] pay grade for the next 90 days.” (Id.) 

 Plaintiff states, “between my humiliation over the treatment from 

Mr. Finch in front of my co-workers and my fear and anxiety over a 

possible future accident which could cause injury to a co-worker, I went 

to speak with my immediate supervisor, Mr. Gilsdorf, [and] informed 

him that I wanted to quit my position with UNICOR.” (Id.) Although 

Mr. Gilsdorf advised Plaintiff to “take some time to reconsider,” Plaintiff 

“insisted that [his] decision was final.” (Id.) 

 Plaintiff was then “escorted” out of the UNICOR facility, and as 

he “walked past Mr. Finch’s desk” and was “informed” that Plaintiff had 

“quit [his] job with UNICOR, . . . Mr. Finch got up from his desk and 

began to verbally assault [Plaintiff] again, this time saying that he would 

file an incident report against me and have me in the Special Housing 

Unit by the end of the day.” (Doc. 14 at ID 127-28.) Plaintiff contends 

that “[a]s Mr. Finch had already informed me that I was receiving the 

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pay grade reduction as a disciplinary action for the incident, this 

additional disciplinary action was clearly done in retaliation for my 

decision to quit my UNICOR job.” (Doc. 14 at 128.) 

 Plaintiff contends that “Defendants Maynard a[nd] Huddleston, 

both of whom are Defendant Finch’s supervisors, are liable for the 

misconduct committed by Defendant Finch” because “both Defendants 

Maynard and Huddleston are required to ‘sign off’ on any action taken 

by Defendant Finch[.]” (Id.) 

ANALYSIS

 The Court must make a de novo determination of the portions of the R&R to 

which Plaintiff has objected. 28 U.S.C. § 636(b)(1)(c). On a Rule 12(b)(6) motion to 

dismiss, the Court must “assume the veracity of [the plaintiff’s] well-pleaded factual 

allegations and determine whether the plaintiff is entitled to legal relief as a matter of 

law.” McCormick v. Miami Univ., 693 F.3d 654, 658 (6th Cir. 2012) (citing Ashcroft 

v. Iqbal, 556 U.S. 662, 679 (2009); Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 

1993)). 

I. First Amendment Retaliation 

 Plaintiff has made no objection to the R&R’s conclusion that his First 

Amendment retaliation claim should be dismissed. In fact, he has explicitly consented 

to dismissal of the claim. The Court adopts the R&R’s conclusion that the First 

Amendment retaliation claim must be dismissed for failure to sufficiently plead an 

adverse action motivated by his protected conduct. The Court emphasizes that 

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Plaintiff has not alleged that Defendant Finch acted on his threat to place Plaintiff in 

isolation. 

II. Cruel and Unusual Punishment 

 Liberally construed, Plaintiff’s amended complaint raises an Eighth 

Amendment claim premised on the argument that Defendant Finch’s yelling of 

obscenities and threats at Plaintiff constituted cruel and unusual punishment. Plaintiff 

objects to the R&R’s conclusion that his Eighth Amendment claim should be 

dismissed for failure to allege physical injury. 

 Plaintiff’s amended complaint includes no allegations of physical injury. Thus, 

the allegations in his complaint cannot sustain an Eighth Amendment claim for cruel 

and unusual punishment. Harden-Bey v. Rutter, 524 F.3d 789, 795 (6th Cir. 2008) 

(citing 42 U.S.C. § 1997e(e)). 

 Plaintiff now seeks to expand the allegations in his complaint. In his 

Objection, he alleges for the first time that when he suffered emotional distress from 

Defendant Finch’s verbal harassment, he “contemporaneously suffered stomach and 

lower intestinal problems, headaches and cold sweats.” He cites a district court case 

in which the plaintiff similarly alleged “stomach and lower intestinal problems, 

headaches, [and] cold sweats,” along with rashes, nightmares, vomiting, and teeth 

grinding. Gilmore v. Bostic, 636 F. Supp. 2d 496, 515 (S.D.W.V. 2009). The 

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Gilmore court found these allegations sufficient to state a claim meeting the physical 

injury requirement of 42 U.S.C. § 1997e(e). Id. at 514–15. 

 Generally, a plaintiff may amend his complaint only with the defendants’ 

consent or with leave of the court. FED. R. CIV. P. 15(a)(2). “The court should freely 

give leave when justice so requires.” Id. However, “the party requesting leave to 

amend must act with due diligence if it wants to take advantage of Rule 15(a)(2)’s 

liberality.” Lessl v. CitiMortgage, Inc., 515 F. App’x 467, 470 (6th Cir. 2013) 

(quoting Parry v. Mohawk Motors of Mich., 236 F.3d 299, 306 (6th Cir. 2000)) 

(internal brackets omitted). “[A] court may deny leave on the basis of delay, bad 

faith, dilatory motive or futility.” Crestwood Farm Bloodstock v. Everest Stables, 

Inc., 751 F.3d 434, 444 (6th Cir. 2014) (citing Foman v. Davis, 371 U.S. 178, 182 

(1962)). 

 Plaintiff did not act with due diligence in raising his request to amend his 

complaint, which in fact appears based on a dilatory motive or bad faith. Plaintiff did 

not mention his alleged stomach and lower intestinal problems, headaches, or cold 

sweats in his prison grievance, his original or amended complaint, or in his opposition 

to Defendants’ motion to dismiss. This is true even though Defendants argued in their 

motion to dismiss that Plaintiff’s claim could not proceed due to his failure to allege 

physical injury. Rather than respond with his current allegations of physical injury, 

Plaintiff argued that the physical injury requirement should be disregarded in part 

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because emotional distress like his own almost never manifests in physical injury. 

The latter argument, especially, suggests that Plaintiff did not experience the physical 

suffering he now seeks to describe in his complaint, which he has instead 

manufactured in a last-ditch effort to save the claim.2

 The Court concludes that 

justice does not require granting Plaintiff leave to amend his complaint, particularly 

due to his failure to raise the new allegations before the Magistrate Judge.3

CONCLUSION

 For the reasons stated above, the R&R [22] is ADOPTED and entered as the 

findings and conclusions of the Court. Plaintiff’s Objection [23] is OVERRULED. 

Accordingly, 

IT IS ORDERED that Defendants’ Motion to Dismiss [15] is GRANTED. 

SO ORDERED. 

s/Arthur J. Tarnow 

 Arthur J. Tarnow 

Dated: December 11, 2015 Senior United States District Judge 

 

2

 The Court acknowledges that it must “assume the veracity of [Plaintiff’s] wellpleaded factual allegations.” McCormick, 693 F.3d at 658. However, Plaintiff did 

not plead his allegations of physical suffering. 

3

 The Sixth Circuit “has not squarely addressed whether a party may raise new 

arguments before a district judge that were not presented to the magistrate judge.” 

The Glidden Co. v. Kinsella, 386 F. App’x 535, 544 n.2 (6th Cir. 2010). The Sixth 

Circuit has touched on the issue, however, and “indicated that a party’s failure to 

raise an argument before the magistrate judge constitutes a waiver.” Id. (citing 

Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000)). 

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