UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

 

MICHAEL KITCHEN, 

 

 Plaintiff, Civil Action No. 14-12883 

 Honorable Victoria A. Roberts 

 Magistrate Judge David R. Grand 

v. 

 

DANIEL HEYNS, et al., 

 

 Defendants. 

__________________________________/ 

REPORT AND RECOMMENDATION ON DEFENDANTS’ 

MOTION FOR SUMMARY JUDGMENT [72], PLAINTIFF’S 

MOTION FOR VOLUNTARY DISMISSAL [77], PLAINTIFF’S RENEWED 

MOTION TO ENFORCE INJUNCTION OR TO CLARIFY RECORD [82], 

AND PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [83] 

and 

ORDER DENYING PLAINTIFF’S 

MOTION TO COMPEL DISCOVERY [78] 

Before the Court are five related motions: (1) Defendants’ Motion for Summary 

Judgment, filed on September 18, 2015; (2) Plaintiff’s Motion for Voluntary Dismissal, filed on 

October 5, 2015; (3) Plaintiff’s “Motion to Compel Discovery and in Opposition to Defendants’ 

Motion for Summary Judgment,” filed on October 5, 2015; (4) Plaintiff’s “Renewed Motion to 

Enforce Injunction or to Clarify Record,” filed on October 29, 2015; and (5) Plaintiff’s “Motion 

for Partial Summary Judgment and Reply to Defendants’ Response,” filed on November 2, 2015. 

(Docs. #72, 77, 78, 82, 83). 

An Order of Reference was entered on February 13, 2015, referring all pretrial matters to 

the undersigned pursuant to 28 U.S.C. §636(b). (Doc. #50). Generally, the Court will not hold a 

hearing on a motion in a civil case in which a party is in custody. See E.D. Mich. L.R. 7.1(f). 

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Here, the Court finds that the facts and legal issues are adequately presented in the briefs and on 

the record, and it declines to order a hearing at this time. 

I. REPORT 

A. Background

Plaintiff Michael Kitchen (“Kitchen”) is a State of Michigan prisoner who, at all relevant 

times, was confined at either the Macomb Correctional Facility (“MRF”) or the Alger 

Correctional Facility (“LMF”).1

 (Doc. #1 at ¶3). On July 23, 2014, and July 28, 2014, 

respectively, Kitchen filed a pro se civil rights complaint and amended complaint against 

numerous Michigan Department of Corrections (“MDOC”) officials. (Docs. #1, 6). In total, 

Kitchen named more than twenty individuals employed at various MDOC facilities as defendants 

in this action. 

On May 4, 2015, this Court recommended granting a motion to sever filed by the 

defendants. (Doc. #54). Specifically, the Court found it appropriate to sever Kitchen’s First and 

Fourteenth Amendment claims against Defendants Edward Hightower, Cindy Maciejewski, 

Janine LaCroix, George Stephenson, Frank Sgambati, Kristopher Steece, and Thomas Finco, and 

allow Kitchen to proceed with these claims against these defendants. (Id. at 9). The Court 

recommended that the remainder of Kitchen’s claims against all other defendants be dismissed 

without prejudice. (Id.). The District Court adopted this Court’s report and recommendation on 

August 11, 2015. (Doc. #63). 

B. The Relevant Allegations

Presently, then, all that remains in this action is Kitchen’s First Amendment retaliation 

claim against Defendants Hightower, Stephenson, Sgambati, Steece, and Finco (collectively 

 

1

 According to the Court’s docket, Kitchen currently is housed at the Michigan Reformatory in 

Ionia, Michigan. 

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“Defendants”).2

 Those claims are set forth in paragraphs 19-28 and 137-38 of Kitchen’s original 

complaint. (Doc. #1). 

The gravamen of Kitchen’s complaint is that $68.87 was removed from his prison 

account to pay for two shirts, which he never received. Kitchen first accuses MDOC business 

office employees of confiscating his money in December 2013. (Id. at ¶¶19-22). He then alleges 

that, in January 2014, he filed a grievance against Defendant Hightower, asserting that 

Hightower “may have stolen the shirts.” (Id. at ¶¶23-25). According to Kitchen, when he did 

not receive a response to this grievance, he submitted a “kite” to Defendant Steece requesting an 

investigation into Hightower’s alleged theft of his shirts. (Id. at ¶26). Kitchen then alleges that, 

the very next day, Defendants Finco, Stephenson, and Sgambati transferred him to LMF in 

retaliation for accusing Hightower of stealing his shirts. (Id. at ¶¶27-28). It is this transfer that 

forms the basis of Kitchen’s First Amendment retaliation claim. 

C. The Pending Motions 

On September 18, 2015, Defendants moved for summary judgment on Kitchen’s First 

Amendment retaliation claim.3

 (Doc. #72). On October 5, 2015, Kitchen filed a single 

document captioned “Plaintiff’s Motion to Compel Discovery and in Opposition to Defendants’ 

Motion for Summary Judgment.” (Doc. #78). On October 20, 2015, Defendants filed a 

combined reply brief in support of their motion for summary judgment and response to Kitchen’s 

 

2

 In its prior report and recommendation, this Court also recommended permitting Kitchen to 

proceed with his Fourteenth Amendment (due process) claim against Defendants LaCroix and 

Maciejewski. (Doc. #54). However, after Defendants filed the instant motion for summary 

judgment, arguing that this claim fails as a matter of law, Kitchen moved to voluntarily dismiss 

it. (Doc. #77). Because the Court agrees that Kitchen’s Fourteenth Amendment claim lacks 

merit, it RECOMMENDS GRANTING Kitchen’s Motion for Voluntary Dismissal [77] and 

dismissing Kitchen’s due process claim against Defendants LaCroix and Maciejewski in its 

entirety and with prejudice. 

3

 At the same time, Defendants filed a Motion to Stay Discovery. (Doc. #73). This motion is 

denied as moot by separate order. (Doc. #86). 

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motion for discovery. (Doc. #81). Subsequently, Kitchen filed a “Motion for Partial Summary 

Judgment & Reply to Defendants’ Response,” on November 2, 2015, to which Defendants 

responded in part on November 12, 2015. (Docs. #83, 84). Kitchen also filed a “Renewed 

Motion to Enforce Injunction or to Clarify Record,” on October 29, 2015, to which Defendants 

responded on November 12, 2015. (Docs. #82, 84). The Court has reviewed and considered all 

of these filings and will address them in detail below. 

D. Standard of Review

Pursuant to Federal Rule of Civil Procedure 56, the Court will grant summary judgment 

if “the movant shows that there is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Pittman v. Cuyahoga 

County Dep’t of Children & Family Servs., 640 F.3d 716, 723 (6th Cir. 2011). A fact is material 

if it might affect the outcome of the case under governing law. See Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, 

the Court assumes the truth of the non-moving party’s evidence and construes all reasonable 

inferences from that evidence in the light most favorable to the non-moving party. See Ciminillo 

v. Streicher, 434 F.3d 461, 464 (6th Cir. 2006). 

The party seeking summary judgment bears the initial burden of informing the Court of 

the basis for its motion, and must identify particular portions of the record that demonstrate the 

absence of a genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 

325 (1986); Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009). “Once the moving 

party satisfies its burden, ‘the burden shifts to the nonmoving party to set forth specific facts 

showing a triable issue.’” Wrench LLC v. Taco Bell Corp., 256 F.3d 446, 453 (6th Cir. 2001) 

(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). In 

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response to a summary judgment motion, the opposing party may not rest on its pleadings, nor 

“‘rely on the hope that the trier of fact will disbelieve the movant’s denial of a disputed fact’ but 

must make an affirmative showing with proper evidence in order to defeat the motion.” 

Alexander, 576 F.3d at 558 (internal quotations omitted). 

E. Analysis 

Kitchen’s sole remaining claim4

 is that Defendants transferred him (or caused him to be 

transferred) from MRF to LMF in retaliation for the complaints he made about the “stolen” shirts 

– complaints which later turned out to be unfounded.5 In their motion, Defendants argue that 

summary judgment is warranted on Kitchen’s First Amendment retaliation claim because there is 

no evidence Defendants took any adverse action against him due to his alleged protected 

activity.6

 (Doc. #72 at 15-17). As discussed below, the Court finds merit to this argument. 

Under Sixth Circuit law, to establish a claim for First Amendment retaliation, the plaintiff 

must show that: (1) he engaged in constitutionally protected conduct; (2) an adverse action was 

taken against him that would deter a person of ordinary firmness from continuing to engage in 

that conduct; and (3) there is a causal connection between the protected conduct and the adverse 

 

4

 In his response to Defendants’ motion for summary judgment, Kitchen – for the first time – 

indicates that he “now pursues claims of retaliation and state law claims of abuse of process 

against the remaining Defendants.” (Doc. #78 at 6). Kitchen did not plead a claim for “abuse of 

process” in either his complaint or amended complaint, however. Because Kitchen did not give 

Defendants fair notice that he was pursuing a state law abuse of process claim, the Court will not 

consider the merits of such a claim. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). 

5

 Kitchen’s complaint was ambiguous on this matter, as he wrote, “The atmosphere and 

environment at MRF can easily lead someone into believing that type of conduct on behalf of 

Hightower, even though it may indeed be a mistake.” (Doc. #1 at ¶25). Although Kitchen never 

goes so far as to explicitly concede that he was wrong in accusing Defendant Hightower of 

stealing his shirts, he argues in response to Defendants’ motion only that this belief was 

reasonable “at the time” he first made the accusation. (Doc. #78 at 12). 

6

 Defendants also assert that Kitchen’s claim is barred by the doctrine of qualified immunity. 

(Doc. #72 at 18-21). Because the Court is recommending granting summary judgment in favor 

of Defendants on other grounds, it need not address the merits of this argument. 

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action – that is, the adverse action was motivated at least in part by the plaintiff’s protected 

conduct. See Kennedy v. City of Villa Hills, Ky., 635 F.3d 210, 217 (6th Cir. 2011) (citing 

Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc)). 

In this case, the Court will assume for purposes of the instant motion – as do Defendants 

– that Kitchen’s complaints about the “stolen” shirts constitute protected activity under the First 

Amendment.7

 Defendants argue that Kitchen’s retaliation claims nevertheless fail because: (1) 

he was not subject to an adverse action; and (2) even if he was, he has not established a causal 

link between the protected activity and the adverse action. (Doc. #72 at 15-17). 

As an initial matter, Defendants argue that Kitchen’s transfer from MRF to LMF does not 

constitute an adverse action for purposes of a First Amendment retaliation claim. (Id. at 15-16). 

Indeed, courts have held that, “As a general matter, a prison official’s decision to transfer a 

prisoner from the general population of one prison to the general population of another is not 

considered adverse.” LaFountain v. Harry, 716 F.3d 944, 948 (6th Cir. 2013). In other words, 

“Since prisoners are expected to endure more than the average citizen, and since transfers are 

common among prisons, ordinarily a transfer would not deter a person of ordinary firmness from 

continuing to engage in protected conduct.” Siggers-El v. Barlow, 412 F.3d 693, 701 (6th Cir. 

2005). Only when a transfer results in more restrictions – such as an increased security level or 

 

7

 After Defendants filed their reply brief (Doc. #81), in which they clearly indicated that they 

were assuming for purposes of their motion that Kitchen engaged in protected conduct, Kitchen 

filed a “Motion for Partial Summary Judgment,” asking that the Court “enter an order granting 

partial summary judgment on Plaintiff’s claims of being involved in protected conduct at the 

time of this incident.” (Doc. #83 at 5). The Court finds such a request, which would invite 

summary judgment practice on an element-by-element basis, inappropriate and, in any event, 

unnecessary in this instance, because the Court is assuming for purposes of resolving 

Defendants’ dispositive motion that Kitchen did, in fact, engage in protected activity, thus 

satisfying the first element of his First Amendment retaliation claim. IT IS THEREFORE 

RECOMMENDED that Kitchen’s motion for partial summary judgment [83] be DENIED AS 

MOOT. 

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limited access to the courts – does it potentially rise to the level of an adverse action. See, e.g., 

Siggers-El, 412 F.3d at 702 (finding that transfer could constitute adverse action where plaintiff 

“also suffered a number of foreseeable consequences that inhibited [his] ability to access the 

courts”); Hill v. Lappin, 630 F.3d 468, 474 (6th Cir. 2010) (transfers that “result in more 

restrictions and fewer privileges for prisoners are considered adverse”); King v. Zamiara, 680 

F.3d 686 (6th Cir. 2012) (adverse action where prison officials increased the plaintiff’s security 

level from II to III by transferring between prisons). Where a prisoner alleges no such 

“foreseeable consequences,” the retaliation claim fails as a matter of law. See Siggers-El, 412 

F.3d at 704.

Nowhere in Kitchen’s complaint or amended complaint does he allege – let alone provide 

evidence – that his transfer to LMF resulted in a security-level increase or otherwise resulted in 

foreseeable negative consequences. In response to Defendants’ motion for summary judgment, 

however, Kitchen asserts for the first time that the “transfer separated, and was intended to 

separate, Plaintiff from and prevented visits with his family and friends, as well as was intended 

to punish and intimidate Plaintiff given [LMF’s] well known significant level of violence.” 

(Doc. #78 at 13). Courts have recognized that, under certain circumstances, a transfer to a 

facility “far away from [a plaintiff’s] relatives[] arguably may amount to adverse action.” Moses 

v. Braman, 2015 WL 1737062, at *3 (W.D. Mich. Apr. 16, 2015) (citing Pasley v. Conerly, 345 

F. App’x 981 (6th Cir. 2009) (holding that a threat to transfer a prisoner to another institution far 

from his family was sufficiently adverse to be actionable)). Thus, if Kitchen could establish that 

Defendants transferred him to LMF in order to prevent visits with his family and friends, as he 

now alleges, he would arguably have suffered a cognizable adverse action. 

Defendants cry foul in their reply brief, claiming that Kitchen never raised these 

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allegations in his complaint, and arguing that it is “improper to raise this new theory” in response 

to their motion for summary judgment. (Doc. #81). The Court agrees with Defendants that 

nowhere in Kitchen’s complaint does he allege that he was subjected to these “foreseeable 

negative consequences” when he was transferred. However, in a grievance appeal he submitted 

in connection with his transfer, Kitchen did allege that the transfer was “intended to disrupt [his] 

bonds or ties with [his] family.” (Doc. #78-1 at 5). Because Kitchen is proceeding pro se, and 

because Defendants were at least arguably on notice from the content of this grievance appeal 

that he was alleging he suffered foreseeable negative consequences as a result of his transfer to 

LMF, the Court will assume for purposes of resolving Defendants’ motion for summary 

judgment that Kitchen has at least raised a material question of fact as to whether his transfer 

constituted an adverse action for purposes of his First Amendment retaliation claim. 

Nevertheless, Kitchen’s First Amendment retaliation claim fails because he has not 

established a genuine issue of material fact regarding causation. In order to satisfy the causation 

element of a prima facie case for retaliation, the plaintiff “must show that the decision was 

motivated, at least in part, by the plaintiff’s protected activity.” Neal v. Nowack, 2010 WL 

3277863, at *4 (E.D. Mich. July 9, 2010) (citing Thaddeus-X, 175 F.3d at 399). However, “Bare 

allegations by the plaintiff of malice on the part of a defendant are not enough to establish 

retaliation claims.” Id. (citing Crawford-El v. Britton, 523 U.S. 574, 588 (1998)). And, once the 

plaintiff has satisfied his burden, if the defendant can show that the same action would have been 

taken in the absence of protected activity, the defendant is entitled to prevail on summary 

judgment. See Neal, 2010 WL 3277863, at *4 (citing Smith v. Campbell, 250 F.3d 1032, 1038 

(6th Cir. 2001)). 

In this case, Defendants have come forward with evidence – in the form of sworn 

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affidavits – that Kitchen’s complaints about the “stolen” shirts were not a motivating factor in 

the decision to transfer him to LMF. Specifically, Defendant Hightower affirmed that he was not 

aware of any “investigation” into his alleged theft of Kitchen’s shirts; that he is not involved in 

the decision-making process with respect to prisoner transfers; and that he played “no role 

whatsoever” in Kitchen’s transfer to LMF. (Doc. #72-2 at ¶¶4-5). Similarly, Defendant Steece 

affirmed that he is not involved in the transfer of prisoners, did not request Kitchen’s transfer, 

and “took no action for the purpose of retaliating against prisoner Kitchen.” (Doc. #72-7 at ¶4). 

And, Defendant Finco – who is employed as Deputy Director of the Correctional Facilities 

Administration – affirmed that he did not recommend Kitchen’s transfer to LMF, nor was he 

consulted regarding this transfer. (Doc. #72-8 at ¶8). 

Kitchen has come forward with no evidence rebutting this unambiguous affidavit 

testimony. Courts have recognized that, “There can be no causation where the defendant is not 

the decision-maker.” Richards v. Sheltrown, 2015 WL 1810254, at *6 (E.D. Mich. Apr. 17, 

2015) (citing Smith, 260 F.3d at 1038); see also McCaskill v. Dettloff, 2014 WL 7403857, at *4 

(E.D. Mich. Dec. 30, 2014) (generally speaking, a causal connection cannot be established when 

the accused prison official was not the decision-maker with regard to the alleged act of 

retaliation). For these reasons, Kitchen has failed to establish a genuine issue of material fact as 

to the causation element of his First Amendment retaliation claim against Defendants Hightower, 

Steece, or Finco, and those defendants are entitled to summary judgment. 

With respect to Defendants Stephenson and Sgambati, Defendants offered their affidavit 

testimony indicating that Kitchen was transferred out of MRF for a legitimate, non-retaliatory 

reason – namely, to create bed space for an incoming prisoner requiring “VPP programming.” 

(Doc. #72-5 at ¶3). This testimony is supported by the transfer order memorializing Kitchen’s 

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move from MRF to LMF. (Doc. #72-5 at 4 (“Transfer to accommodate bedspace for incoming 

VPP prisoner. This will be a spon for spon trade, Overnight at KCF.”)). Defendants Stephenson 

and Sgambati both affirmed that Kitchen’s transfer to LMF was not retaliatory, had nothing to do 

with his complaints that Defendant Hightower “stole” his shirts, and would have occurred 

regardless of Kitchen’s complaints about the shirts. (Doc. #72-5 at ¶3; Doc. #72-6 at ¶3). 

In the face of this evidence, Kitchen first asserts that he has “come forward with 

significant evidence satisfying the temporal proximity between the filing of the complaints and 

the transfer to LMF ....” (Doc. #78 at 14). Specifically, Kitchen asserts that it was only nine 

days after he filed the grievance regarding Defendant Hightower’s alleged theft of his shirts – 

and only one day after he wrote a follow-up letter to Defendant Steece – that his transfer to LMF 

was ordered. (Id. at 15). Courts have recognized that temporal proximity between the adverse 

action and the protected conduct can provide indirect evidence of a retaliatory motive. See King, 

680 F.3d at 695. However, the law is equally clear 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); see also Pasley v. Maderi, 2014 WL 5386914, at *3 (E.D. 

Mich. Sept. 15, 2014). Thus, the fact that Kitchen was transferred to LMF less than two weeks 

after complaining of the alleged theft of his shirts is insufficient in and of itself to establish 

causation. 

In his “motion to compel,” (Doc. #78), Kitchen attempts to overcome these shortcomings 

by asserting that further discovery will provide the additional evidence of causation necessary to 

defeat summary judgment. Although phrased as a “motion to compel,” because Kitchen does not 

specify any particular discovery request which he is seeking to compel a response to, his request 

is more properly construed as a Rule 56(d) motion to obtain discovery for purposes of 

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responding to Defendants’ motion for summary judgment. (Doc. #78). A party requesting such 

additional discovery must demonstrate, via affidavit, “its need for discovery, what material facts 

it hopes to uncover, and why it has not previously discovered the information.” Cacevic v. City 

of Hazel Park, 226 F.3d 483, 488 (6th Cir. 2000); see also Plott v. General Motors Corp., 71 

F.3d 1190, 1196 (6th Cir. 1995). Bare allegations or vague assertions of need without supporting 

proof are insufficient. See Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 409-10 (6th Cir. 1998). 

In this case, Kitchen has submitted an affidavit, broadly asserting that “discovery will 

reveal that MRF officials have a pattern or practice of transferring prisoners who[] file 

grievances out of MRF in order to punish them by preventing their visits with family and friends, 

and into less desirable and violent conditions of confinement.” (Doc. #78 at 20). Kitchen further 

asserts that, through discovery, he believes he will “uncover evidence showing that [] these 

transfers were intended to discourage and suppress the filing of grievances and other written 

complaints against MRF staff,” and that he will “obtain affidavits from other prisoners whom 

have been subjected to these types of transfers.” (Id.). And, with respect to his own specific 

First Amendment retaliation claim, Kitchen asserts that, if permitted to conduct additional 

discovery, he will: 

... uncover documents, records, affidavits from prisoners and other 

materials demonstrating that, motivated at least in part by a desire to 

suppress, discourage, and/or punish me because of my complaints, MRF 

officials transferred me into the LMF facility well aware of its 

environment and conditions of violence and the high rate of misconduct 

charges being filed against prisoners and their placement in solitary 

confinement, in the hopes that such an environment would have a negative 

impact on me, such as me being subjected to numerous misconduct 

charges, confined to solitary confinement, and caught up in the violence at 

LMF either by being attacked, defending myself against attacks, or 

absorbing the culture and attacking other prisoners myself. 

(Id. at 21). 

These vague and conclusory assertions are inadequate to entitle Kitchen to the relief he 

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seeks. Kitchen fails to identify with particularity any evidence he has been prevented from 

obtaining, and while Defendants have apparently not responded to his discovery requests, 

Kitchen does not explain why, more than one year after filing his complaint, he still has not had 

adequate time to obtain the third-party evidence which he claims will support his arguments. 

Finally, despite his stated belief that discovery will allow him to uncover evidence that his 

transfer to LMF was “motivated at least in part” by a desire to punish him or to suppress his 

complaints, the evidence discussed above establishes just the opposite. Specifically, Defendants 

Hightower, Steece, and Finco clearly and unequivocally affirmed that they had no involvement 

in the decision to transfer Kitchen to LMF. (Doc. #72-2 at ¶¶4-5; Doc. #72-7 at ¶4; Doc. #72-8 

at ¶8). And, Defendants Stephenson and Sgambati affirmed that Kitchen’s transfer to LMF 

would have occurred regardless of his complaints about the “stolen” shirts. (Doc. #72-5 at ¶3; 

Doc. #72-6 at ¶3). Kitchen has not explained how any evidence he seeks to obtain would 

undermine those averments. Given these facts, Kitchen has not established his entitlement to the 

relief he seeks. Lewis, 135 F.3d at 409-10. Thus, IT IS ORDERED that Kitchen’s motion to 

obtain additional discovery [78] is DENIED. 

For all of these reasons, Kitchen has failed to raise a material question of fact as to his 

allegation that Defendants transferred him to LMF in retaliation for his complaints about the 

“stolen” shirts. Consequently, Defendants are entitled to summary judgment on Kitchen’s First 

Amendment retaliation claim.8

 

8

 As set forth above, on October 29, 2015, Kitchen filed a “Renewed Motion to Enforce 

Injunction or to Clarify Record.” (Doc. #82). In that motion, Kitchen asks the Court to “clarify 

the record as to whether the injunction issued on December 2, 2014 (Doc. #37) is still in place, 

and, if so, enforce the injunction against the Michigan Department of Corrections (MDOC), the 

Department of Attorney General (DAG), the remaining Defendants, and/or their counsel, 

Assistant Attorney General Kevin Himebaugh, and require the immediate return of Plaintiff’s 

legal materials.” (Id. at 1). The Court notes, however, that Defendants previously represented to 

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II. RECOMMENDATION

For the reasons set forth above, IT IS RECOMMENDED that Defendants’ Motion for 

Summary Judgment [72] be GRANTED. IT IS FURTHER RECOMMENDED that 

Plaintiff’s Motion for Voluntary Dismissal [77] be GRANTED. And, finally, IT IS 

RECOMMENDED that Plaintiff’s “Renewed Motion to Enforce Injunction or to Clarify 

Record” [82] and Plaintiff’s “Motion for Partial Summary Judgment” [83] be DENIED AS 

MOOT. 

Dated: November 30, 2015 s/David R. Grand 

Ann Arbor, Michigan DAVID R. GRAND 

 United States Magistrate Judge 

NOTICE TO THE PARTIES REGARDING OBJECTIONS 

Within 14 days after being served with a copy of this Report and Recommendation and 

Order, any party may serve and file specific written objections to the proposed findings and 

recommendations set forth above. See 28 U.S.C. §636(b)(1); Fed. R. Civ. P. 72(b)(2); E.D. 

Mich. LR 72.1(d)(1). Failure to timely file objections constitutes a waiver of any further right of 

appeal. Thomas v. Arn, 474 U.S. 140, (1985); United States v. Sullivan, 431 F.3d 976, 984 (6th 

Cir. 2005). Only specific objections to this Report and Recommendation and Order will be 

preserved for the Court’s appellate review; raising some objections but not others will not 

 

this Court, via a notice and sworn affidavit, that a search had been conducted for Kitchen’s legal 

materials, and no record or evidence could be found indicating that Kitchen’s legal materials had 

in fact been confiscated. (Doc. #45). Moreover, as Defendants persuasively argue, Kitchen’s 

request for continued injunctive relief is moot, because his claim regarding the confiscation of 

his legal materials was severed and is no longer before this Court. (Doc. #84 (citing Saha v. 

Ohio State Univ., 259 F. App’x 779, 780 (6th Cir. 2008)). Thus, where the underlying claim was 

dismissed without prejudice, and where this Court is recommending granting summary judgment 

in Defendants’ favor on Kitchen’s remaining claim for retaliatory transfer, IT IS 

RECOMMENDED that Kitchen’s “Renewed Motion to Enforce Injunction or to Clarify 

Record” [82] be DENIED. 

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preserve all objections a party may have. See Smith v. Detroit Fed’n of Teachers Local 231, 829 

F.2d 1370, 1373 (6th Cir. 1987); see also Frontier Ins. Co. v. Blaty, 454 F.3d 590, 596-97 (6th 

Cir. 2006). Copies of any objections must be served upon the Magistrate Judge. See E.D. Mich. 

LR 72.1(d)(2). 

A party may respond to another party’s objections within 14 days after being served with 

a copy. See Fed. R. Civ. P. 72(b)(2); 28 U.S.C. §636(b)(1). Any such response should be 

concise, and should address specifically, and in the same order raised, each issue presented in the 

objections. 

CERTIFICATE OF SERVICE

 The undersigned certifies that the foregoing document was served upon counsel of record 

and any unrepresented parties via the Court’s ECF System to their respective email or First Class 

U.S. mail addresses disclosed on the Notice of Electronic Filing on November 30, 2015. 

 s/Eddrey O. Butts 

 EDDREY O. BUTTS 

 Case Manager 

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