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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

MICHAEL KITCHEN, 

 

 Plaintiff, 

 Case No. 14-12883 

v. District Judge Victoria A. Roberts 

 Magistrate Judge David R. Grand 

DANIEL HEYNS, et al., 

 Defendants. 

_________________________________/ 

ORDER (1) ADOPTING MAGISTRATE JUDGE’S REPORT AND 

RECOMMENDATION (Doc. # 167); AND (2) GRANTING DEFENDANTS’ MOTION 

FOR SUMMARY JUDGMENT (Doc. #153) 

I. INTRODUCTION 

Plaintiff Michael Kitchen (“Kitchen”) brought this civil rights action under 42 

U.S.C. § 1983 against Daniel Heyns and over twenty other individuals employed at 

various Michigan Department of Corrections facilities. The only claim that remains 

from Kitchen’s original complaint is his retaliatory-transfer claim against Defendants 

Edward Hightower (“Hightower”), George Stephenson (“Stephenson”), Frank 

Sgambati (“Sgambati”), Kristopher Steece (“Steece”), and Thomas Finco (“Finco”) 

(collectively, “Defendants”). Kitchen alleges that Defendants retaliated against him 

for filing a grievance, in violation of his First Amendment rights. The case was 

referred to Magistrate Judge David R. Grand. 

II. BACKGROUND 

Kitchen was imprisoned at the Macomb Correctional Facility (“MCF”) during the 

events giving rise to this litigation. Kitchen alleges that, in December 2013, $68.87 was 

removed from his prison account to pay for two shirts that he ordered but never 

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received. Kitchen further alleges that when he had not received the shirts by January 

20, 2014, he filed a grievance against Hightower, asserting that Hightower “may have 

stolen the shirts.” Kitchen says that when he had not gotten a response to his grievance 

by January 28,, 2014, he sent a “kite” to Steece requesting an investigation into 

Hightower’s alleged theft. Kitchen says that Sgambati and Stephenson transferred him 

to the Alger Correctional Facility (“LMF”) the next day. Kitchen alleges that this transfer 

was retaliatory, because he accused Hightower of stealing the shirts. Kitchen also 

alleges that the transfer was done “with the knowledge, approval, or knowing 

acquiescence” of Finco. 

III. MOTION FOR SUMMARY JUDGMENT AND REPORT AND 

RECOMMENDATION 

In their motion for summary judgment, Defendants argue they are entitled to: (1) 

qualified immunity because Kitchen failed to allege an adverse action; (2) qualified 

immunity because Kitchen failed to demonstrate causation; and (3) judgment because 

Kitchen failed to show their personal involvement. 

Magistrate Judge Grand issued a Report and Recommendation (“R&R”) 

recommending that the Court grant Defendants’ motion for summary judgment. 

Magistrate Judge Grand concluded that: (1) Defendants are entitled to qualified 

immunity; (2) Kitchen failed to raise a material question of fact concerning causation; 

and (3) Defendants are entitled to summary judgment because Kitchen failed to raise a 

material question of fact concerning whether each had the requisite level of personal 

involvement for § 1983 liability to attach. 

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Kitchen filed five objections. He argues: (1) Magistrate Judge Grand 

impermissibly ignored the law of the case doctrine and remand order by deciding the 

issue of qualified immunity in this R&R; (2) Defendants are not entitled to qualified 

immunity; (3) a material question of fact has been raised regarding causation; (4) 

Hightower, Steece, and Finco are not entitled to summary judgment; and (5) Magistrate 

Judge Grand unfairly viewed the evidence in the light most favorable to Defendants. 

IV. STANDARD OF REVIEW 

Following proper objections, the Court engages in de novo review of a magistrate 

judge’s Report and Recommendation on a dispositive motion. 28 U.S.C. § 636(b)(1); F. 

R. Civ. P. 72(b)(3). A court may accept, reject, or modify, in whole or in part, the findings 

or recommendations made by the magistrate judge. Id. A district court need not conduct 

de novo review where the objections are “[f]rivolous, conclusive, or general.” Mira v. 

Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (citation omitted). After completing de novo 

review, there is no requirement that the district court articulate all of the reasons it 

rejects a party’s objections. Tuggle v. Seabold, 806 F.2d 87, 93 (6th Cir. 1986). 

“[W]hile the Magistrate Judge Act, 28 U.S.C. § 631 et seq., permits de novo review 

... , absent compelling reasons, it does not allow parties to raise at the district court 

stage new arguments or issues that were not presented to the magistrate.” Murr v. 

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

V. ANALYSIS 

After de novo review of the motion for summary judgment, the R&R, Kitchen’s 

objections, and the remainder of the record, the Court overrules Kitchen’s objections. 

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A. Kitchen’s First Objection is Rejected; Magistrate Judge Grand did not 

Address the Issue of Qualified Immunity in his Earlier R&R 

Kitchen argues that Magistrate Judge Grand violated the law of the case doctrine 

and remand order by finding that Defendants are entitled to qualified immunity in his 

latest Report and Recommendation (“R&R II”). 

Kitchen says that Magistrate Judge Grand rejected Defendants’ qualified 

immunity argument in his earlier Report and Recommendation (“R&R I”) on Defendants’ 

first motion for summary judgment. Kitchen also says that the Sixth Circuit’s remand is a 

mandate that Magistrate Judge Grand impermissibly ignored when he decided the issue 

of qualified immunity in R&R II. Thus, Kitchen argues that R&R I and the Sixth Circuit’s 

remand together constitute the law of the case. 

The Sixth Circuit has held that “[u]nder the doctrine of law of the case, findings 

made at one point in the litigation become the law of the case for subsequent stages of 

that same litigation.” U.S. v. Moored, 38 F.3d 1419, 1421 (6th Cir. 1994). The mandate 

rule complements the law of the case doctrine and requires lower courts “to adhere to 

the commands of a superior court.” Id. (citing United States v. Bell, 988 F.2d 247, 251 

(1st Cir.1993)). Accordingly, “[u]pon remand of a case for further proceedings after a 

decision by the appellate court, the trial court must ‘proceed in accordance with the 

mandate and the law of the case as established on appeal.’ The trial court must 

‘implement both the letter and the spirit of the mandate, taking into account the 

appellate court's opinion and the circumstances it embraces.’” Id. (citing United States v. 

Kikumura, 947 F.2d 72, 76 (3d Cir.1991)). In determining whether a finding has been 

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made for purposes of the mandate rule, the Sixth Circuit considers both its express and 

implied decisions. Id. at 1421. 

In R&R I, Magistrate Judge Grand determined that Defendants were entitled to 

summary judgment, finding that Kitchen failed to raise a question of material fact 

regarding causation. Kitchen appealed to the Sixth Circuit. The Sixth Circuit vacated the 

grant of summary judgment and remanded the case, holding that Kitchen was entitled to 

conduct further discovery on causation. Kitchen argues that the Sixth Circuit’s narrow 

remand left the remainder of R&R I intact, and thus constitutes a mandate and 

establishes the law of the case. 

Kitchen either misrepresents or misunderstood R&R I. In that R&R, Magistrate 

Judge Grand analyzed the elements of a First Amendment retaliation claim and noted 

Kitchen’s failure to raise a material question of fact on causation. Nowhere in R&R I did 

Magistrate Judge Grand discuss qualified immunity. This reality disposes of Kitchen’s 

first objection, since there can be no law of the case or mandate with respect to an 

issue that wasn’t addressed by the Magistrate Judge. 

Magistrate Judge Grand did not err. 

B. Kitchen’s Second Objection is Rejected; Defendants are Entitled to 

Qualified Immunity 

Kitchen next argues that Magistrate Judge Grand erred in ruling that Defendants 

are entitled to qualified immunity on his First Amendment retaliation claim. 

Kitchen’s objection is based on his assertion that Magistrate Judge Grand 

mischaracterized his argument regarding the nature of the transfer. Kitchen argues that 

he has consistently stated that the prison transfer was intended to prevent visits from 

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his friends and family, but he says Magistrate Judge Grand says his argument is only 

that the transfer made it more difficult for friends and family to visit. Kitchen says that 

this distinction is significant; he says that Sixth Circuit case law conclusively establishes 

that a transfer intended to prevent friends and family from visiting constitutes adverse 

action. Kitchen’s statement of Sixth Circuit precedent is incorrect. 

The doctrine of qualified immunity protects governmental officials performing 

discretionary functions from civil liability unless their conduct violates a clearly 

established constitutional right. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A 

defendant must raise the defense of qualified immunity; once he has done so, the 

plaintiff bears the burden to show that the defendant is not entitled to immunity. See 

Untalan v. City of Lorain, 430 F.3d 312, 314 (6th Cir. 2005). 

The qualified immunity analysis requires a two-prong inquiry into “whether the 

facts, when viewed in the light most favorable to the plaintiff, would permit a reasonable 

juror to find that: (1) the defendant violated a constitutional right; and (2) the right was 

clearly established.” See Saucier v. Katz, 533 U.S. 194, 201 (2001). The Court has the 

discretion to decide which of the two prongs of the analysis to address first. See 

Pearson v. Callahan, 555 U.S. 223, 236 (2009). 

A right is not considered clearly established under the second prong of the test 

unless it “has been authoritatively decided by the United States Supreme Court, the 

Court of Appeals, or the highest court of the state in which the alleged constitutional 

violation occurred.” Waeschle v. Dragovic, 576 F.3d 539, 544 (6th Cir. 2009) (internal 

quotations omitted). 

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Kitchen cannot meet his burden because there is no clearly established 

constitutional right not to be transferred. The Sixth Circuit has not conclusively stated 

that a transfer intended to prevent friends and family from visiting constitutes adverse 

action. Additionally, Sixth Circuit case law is conflicting on whether a transfer making it 

more difficult for friends and family to visit constitutes adverse action. The Sixth Circuit 

has held that “[t]he district court correctly noted that a prison transfer does not constitute 

an adverse action simply because it makes it more difficult for friends and family to visit 

the prisoner.” Smith v. Weers, No. 17-1504, 2018 WL 2087122, at *4 (6th Cir. 2018). 

“[W]e have held that transferring a prisoner to an ‘institution [that] was located farther 

away from those who visited him’ did not rise to the level of an adverse action.” Johnson 

v. Hoffner, No. 17-2102, 2018 U.S. App. LEXIS 10139, at *1-2 (6th Cir. Apr. 20, 2018) 

(citing Friedman v. Corr. Corp. of Am., 11 F. Appx. 467, 471 (6th Cir. 2001)). 

Kitchen cites Pasley v. Conerly, 345 F.Appx. 981 (6th Cir. 2009) in support of his 

proposition that a transfer intended to prevent visitors conclusively constitutes adverse 

action. An examination of Pasley reveals that Kitchen has misinterpreted the Sixth 

Circuit’s holding. 

First, the Pasley Court was deciding, on appeal, whether the plaintiff’s evidence 

of adverse action was sufficient to defeat a motion to dismiss. As such, the Sixth Circuit 

noted that “[r]egardless of whether Pasley can ultimately prevail on his claim, or even 

survive summary judgment, Pasley’s pleading meets the low requirements for surviving 

dismissal.” Id. at 986. Second, and most importantly, the Sixth Circuit actually held that 

“... Conerly's actions, as alleged by Pasley, could constitute ‘adverse action”’ under the 

precedent of this court . . . These threats could be ‘capable of deterring a person of 

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ordinary firmness’ from exercising protected rights, the standard for adverse action set 

forth in Thaddeus-X.” Id. at 985. A holding that the plaintiff’s allegations, if true, were 

sufficient to possibly establish adverse action, at the motion to dismiss stage no less, is 

a far cry from a holding finding that transfers intended to prevent friends and family from 

visiting constitute adverse action. Moreover, this holding is clearly insufficient to 

demonstrate that prisoners have a clearly established right to be free of retaliatory 

transfers of this ilk. Kitchen cites no other Sixth Circuit case law in support of his 

position. 

Whatever the characterization, there is no clearly established constitutional right 

to not be transferred. Given the conflicting case law, “... a reasonable official in the 

defendant’s position could have believed that his conduct was lawful, judged from the 

perspective of the reasonable official on the scene.” Cochran v. Gilliam, 656 F.3d 300, 

306 (6th Cir. 2011). 

Magistrate Judge Grand properly applied the law of qualified immunity in favor of 

Defendants. 

C. Kitchen’s Third Objection is Rejected; There is no Genuine Issue of 

Material Fact on Causation 

Kitchen next asserts that Magistrate Judge Grand erred in finding that he did not 

demonstrate a genuine issue of material fact on causation. Kitchen begins by arguing 

that Defendants’ proffered evidence amounts to no more than unsupported claims. 

Kitchen further argues that Magistrate Judge Grand failed to list and examine his 

proffered evidence. 

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In R&R II, Magistrate Judge Grand discusses Defendants’ unambiguous sworn 

affidavit testimony; that testimony was corroborated by, among other things, the transfer 

order memorializing Kitchen’s move to LCF. 

Evidence amounting to sworn testimony corroborated by documentation is far 

from being “merely unsupported claims.” Moreover, while Magistrate Judge Grand does 

not list Kitchen’s evidence, he mentions that Kitchen’s evidence failed to create a 

material question of fact; additionally, Judge Grand discusses how Kitchen’s evidence 

has informed Kitchen’s theory of the case. It is clear that Magistrate Judge Grand 

considered Kitchen’s evidence. Thus, Kitchen’s first two assertions are contradicted by 

the record. 

Kitchen continues to a more in-depth discussion of his proffered evidence, 

including the deposition testimony of prisoner Leroy Hoskins and email evidence about 

his transfer. It is clear from Kitchen’s brief that he misinterprets this so-called evidence. 

Finally, Kitchen asserts that his email evidence shows that the transfer was 

initiated immediately after he filed his grievance. Even if this were true, it would be 

insufficient, on its own, to raise a genuine issue of material fact on causation. The Sixth 

Circuit held that, standing alone, “conclusory allegations of temporal proximity are not 

sufficient to show a retaliatory motive.” Skinner v. Bolden, 89 F.App’x 579, 579-80 (6th 

Cir. 2004). However, Defendants presented unrebutted testimony, discussed by 

Magistrate Judge Grand, that shows that the transfer process began on January 7, 

2014, weeks before Kitchen filed his grievance. 

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Defendants presented testimony establishing that there is no genuine issue of 

material fact on the issue of causation. As such, Magistrate Judge Grand did not err in 

his finding concerning causation. 

D. Kitchen’s Fourth Objection is Rejected; Kitchen Failed to Present 

Evidence of Personal Involvement 

Kitchen next argues that Defendants Steece, Finco, and Hightower are not 

entitled to summary judgment on the issue of personal involvement. Kitchen says that 

he presented evidence sufficient to create a material question of fact. Additionally, 

Kitchen asserts that he would have gotten more evidence had his discovery not been 

unfairly denied. 

For the reasons discussed above, Kitchen’s evidence is insufficient to create a 

material question of fact on the issue of Defendants’ personal involvement. Defendants’ 

personal involvement is a prerequisite to a showing of causation. “There can be no 

causation where the defendant is not the decision-maker.” Smith v. Campbell, 260 F.3d 

1032, 1038 (6th Cir. 2001). Kitchen produced no evidence demonstrating the requisite 

level of personal involvement to demonstrate § 1983 liability. 

Kitchen’s objections to Magistrate Judge Grand’s rulings on his discovery 

requests are not properly before the Court. Under Federal Rule of Civil Procedure 72(b), 

the filing of timely objections requires the court to “make a de novo determination of 

those portions of the report or specified findings or recommendations to which objection 

is made.” 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see also United States v. 

Raddatz, 447 U.S. 667 (1980). Judge Grand denied Kitchen’s discovery requests at an 

earlier point in this litigation, and did not address it in R&R II. 

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Kitchen’s arguments would be insufficient to allow this court to review his 

discovery requests even if Magistrate Judge Grand had discussed them. Kitchen failed 

to identify how Judge Grand erred in denying his discovery. General objections, or 

those that merely challenge the magistrate judge’s ultimate determinations, have “the 

same effects as would a failure to object.” Howard v. Sec’y of Health and Human 

Servs., 932 F.2d 505, 509 (6th Cir. 1991). That is, such objections are invalid, and the 

Court must treat them as if they are waived. See Bellmore-Byrne v. Comm’r of Soc. 

Sec., 2016 WL 5219541, at *1 (E.D. Mich. Sept. 22, 2016). 

Judge Grand did not err in finding that Hightower, Steece, and Finco are entitled 

to summary judgment because they lacked personal involvement in the transfer. 

E. Kitchen’s Fifth Objection is Rejected; Magistrate Judge Grand did not 

err in Failing to List Kitchen’s Proffered Evidence 

Finally, Kitchen argues that Magistrate Judge Grand did not view the evidence in 

the light most favorable to him, as is required by law at the summary judgment stage. 

Kitchen says that Judge Grand failed to list and examine his proffered evidence in R&R 

II, and that this failure demonstrates that Judge Grand could not have possibly viewed 

the evidence in the light most favorable to him. 

Kitchen is simply wrong. Magistrate Judge Grand noted that Kitchen failed to 

produce evidence sufficient to raise a genuine issue of material fact about any issue. 

Judge Grand then discusses some of Kitchen’s evidence and theories. Moreover, Judge 

Grand examines Defendants’ evidence and discusses Kitchen’s failure to provide 

evidence sufficient to rebut it. 

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VI. CONCLUSION 

The Court ADOPTS Magistrate Judge Grand’s Report and Recommendation: 

Defendants’ Motion for Summary Judgment is GRANTED. Kitchen’s claims against 

Defendants are dismissed with prejudice. 

IT IS ORDERED.

 S/ Victoria A. Roberts 

 Victoria A. Roberts 

 United States District Judge 

Dated: September 24, 2018 

The undersigned certifies that a copy of this 

document was served on the attorneys of record 

and Michael Kitchen by electronic means or U.S. 

Mail on September 24, 2018. 

s/Linda Vertriest 

Deputy Clerk 

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