1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

RANDLE GRIFFIN, 

 Plaintiff, 

v. 

PAUL KLEE, et al., 

 Defendants. 

 

Case No. 2:14-cv-14290 

District Judge Matthew F. Leitman 

Magistrate Judge Anthony P. Patti 

___________________________________/ 

REPORT AND RECOMMENDATION TO DENY DEFENDANTS’ 

MOTION TO DISMISS (DE 14) 

I. RECOMMENDATION: The Court should deny Defendants Paula Klee, 

Joseph Barrett, and Michelle Parsons’ Motion to Dismiss. (DE 14.) 

II. REPORT 

 A. Background

 Plaintiff, a state prisoner proceeding without the assistance of counsel, filed 

his Complaint and Application to Proceed Without Prepayment of Fees on 

November 6, 2014, bringing claims under 42 U.S.C. § 1983. (DE 1 and 2.) The 

thrust of Plaintiff’s Complaint is that the various Defendants violated his rights 

under the First Amendment to the United States Constitution by retaliating against 

him for engaging in protected conduct. For the purposes of deciding the Motion to 

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Dismiss, the Court will accept the facts alleged in Plaintiff’s sworn Complaint as 

true. 

 Plaintiff lays out his experiences at three Michigan Department of 

Corrections (“MDOC”) correctional facilities: the Gus Harrison Correctional 

Facility (“Gus Harrison”), the Lakeland Correctional Facility (“Lakeland”), and the 

G. Robert Cotton Correctional Facility (“G. Robert”). Plaintiff was elected to the 

Warden’s Forum at the Gus Harrison facility.1

 (DE 1, ¶ 15.) In the course of his 

duties, Plaintiff saw an officer assault a fellow prisoner and gave an eye-witness 

account of the incident to the Legislative Ombudsman. After recounting the 

incident, another inmate overheard officers indicating that they would file false 

complaints against Plaintiff in retaliation for his testimony. On March 4, 2011 

Plaintiff lodged a formal complaint to Defendant Klee, the Gus Harrison Warden, 

and filed a grievance against the same for failure to address the retaliation. (Id. at ¶ 

20.) On March 10, 2011, Plaintiff was removed from the Warden’s Forum. (Id. at 

¶ 21.) Furthermore, on or around March 22, 2011, Defendant Klee submitted a 

request to permanently prohibit Plaintiff’s participation in the Warden’s Forum. 

(Id. at ¶ 32.) Plaintiff was transferred to Lakeland in April 2011. 

                                                            

1

 The Warden’s Forum is an elected group of prisoners that “advises the warden on 

prisoners’ day to day concerns at their particular facility.” Griffin v. Berghuis, No. 

11-14876, 2012 U.S. Dist. LEXIS 139405, at *1 n. 1 (E.D. Mich. Aug. 3, 2012). 

2:14-cv-14290-MFL-APP Doc # 23 Filed 04/16/15 Pg 2 of 22 Pg ID 140
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 In December 2011, Plaintiff was elected to the Warden’s Forum at Lakeland. 

Plaintiff attended one meeting of the Forum and “raised serious issues on behalf of 

uneducated prisoners whom otherwise could not seek redress without [P]laintiff’s 

assistance.” (DE 1, ¶ 23.) On January 9, 2012, Plaintiff was informed that he had 

been permanently removed from the Warden’s Forum due to a memorandum 

submitted by Defendant Klee. Plaintiff filed a grievance against Defendant Klee 

for sending the memorandum. The grievance was denied at Step III. (Id. at ¶ 29.) 

On January 10, 2012, Plaintiff was transferred from Lakeland to G. Robert. 

 When Plaintiff arrived at G. Robert, he was housed in a Level II unit. After 

an hour, however, Plaintiff was informed that his security confinement status had 

been increased to Level IV. (DE 1, ¶ 37.) Plaintiff received conflicting accounts 

as to why his security level had increased. Defendant Parsons, the Assistant 

Resident Unit Supervisor, indicated that Defendant Barrett, the Deputy Warden, 

ordered that the security level be increased to monitor Plaintiff for trying to take 

over the Warden’s Forum at his previous institutions. (Id. at ¶ 38.) Plaintiff filed a 

formal complaint and a grievance about the increase in his security level and 

resulting lack of access to his legal materials. (Id. at ¶¶ 41-42.) The grievance was 

denied at Step I, with a note that the increase in security level was caused by a lack 

of bed space. (Id. at ¶ 46.) Through some discussions with other prisoners, 

Plaintiff learned that others were improperly moved to a bed in a lower security 

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level before him. This apparently made him doubt the explanation that the security 

level increase was due to a lack of bed space and he appealed the grievance to Step 

II. At Step II, Plaintiff was moved down to his previous security level with a note 

that, while Plaintiff should have been moved before certain other prisoners, it was 

an unintentional administrative error that had been rectified. (Id. at 48.) During 

this period in time and before his security level was decreased, Plaintiff filed a 

complaint in the Eastern District of Michigan alleging he was denied access to his 

legal property. That case remains pending before the Court. See Griffin v. 

Berghuis, et al., No. 5:11-cv-14876 (E.D. Mich.).2

 

 Plaintiff asks the Court to award declaratory relief, along with compensatory 

and punitive damages. He sues the Defendants in their individual capacities. 

 Defendants Klee, Barrett, and Parsons (“MDOC Defendants”) filed the 

                                                            

2

 Case No. 5:11-cv-14876 addresses issues similar to the instant action, but is 

unrelated to the actions of the Defendants in this case. Specifically, in the previous 

case, Plaintiff brings claims against the Warden and Deputy Warden at the Earnest 

C. Brooks Correctional Facility, along with the prison guards alleged to have made 

phony misconduct charges against him in retaliation for speaking out on behalf of 

another prisoner. The Sixth Circuit recently reversed the district court’s grant of 

summary judgment to the prison guards, and affirmed its grant as to the Warden 

and Deputy Warden based on qualified immunity. Defendants in this action rely 

on the district court’s grant of summary judgment in case No. 5:11-cv-14876 as the 

authority for why the instant action should be dismissed, although the parties, 

claims, and legal issues differ in pertinent respects. 

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instant Motion on January 8, 2015.3 (DE 14.) In their Motion, Defendants assert 

that Plaintiff has failed to make a claim for First Amendment Retaliation because 

his participation in the Warden’s Forum was not protected conduct. Defendants 

note further that, because Plaintiff’s removal from the Warden’s Forum did not 

involve protected conduct, his later removal based on his prior actions is not an 

adverse action for the purposes of First Amendment retaliation. 

 Plaintiff opposes the Motion. In his Response, Plaintiff indicates that 

Defendants have misstated the facts alleged in his Complaint. Instead, according 

to Plaintiff, his actual allegation is that Defendants Parsons and Barrett increased 

his security level as retaliation for his past actions, including his eyewitness 

account of the attack on a fellow prisoner and his various grievances. Plaintiff 

asserts that such conduct is protected because he has the right to petition the 

government for the redress of grievances. In addition, he asserts that he has the 

right to aid other prisoners who are unable to seek meaningful legal relief without 

his help. He argues that Defendant Klee took an adverse action against him by 

denying him the ability to be a member of the Warden’s Forum. Plaintiff notes 

that he “never alleged that the Warden’s Forum was [p]rotected [c]onduct, but 

instead alleged that Paul Klee retaliated against [him] for filing a grievance against 

him, [a] complaint to [the] Ombudsman, and giving an eyewitness account to [the] 

                                                            

3

 To date, Defendant Vest has not appeared in the case and was not included in this 

Motion to Dismiss. 

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Ombudsman against Klee’s staff for assaulting prisoner Bryant.” (DE 18 at 3.) He 

indicates that, while his participation on the Warden’s Forum was a privilege, 

prison administrators are not free to grant or withhold privileges for impermissible 

reasons such as retaliation. According to Plaintiff, Defendant Klee’s memorandum 

was intended to “chill Plaintiff from engaging in future protected conduct. . . .” 

(DE 18 at 6.) 

 B. Standard 

When deciding a motion to dismiss under Federal Rule of Civil Procedure 

12(b)(6), the Court must “construe the complaint in the light most favorable to 

plaintiff and accept all allegations as true.” Keys v. Humana, Inc., 684 F.3d 605, 

608 (6th Cir. 2012). “To survive a motion to dismiss, a complaint must contain 

sufficient factual matter, accepted as true, to state a claim to relief that is plausible 

on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Bell Atl. Corp. 

v. Twombly, 550 U.S. 544, 555 (2007) (concluding that a plausible claim need not 

contain “detailed factual allegations,” but it must contain more than “labels and 

conclusions” or “a formulaic recitation of the elements of a cause of action”). 

Facial plausibility is established “when the plaintiff pleads factual content that 

allows the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility of an inference 

depends on a host of considerations, including common sense and the strength of 

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competing explanations for the defendant’s conduct.” 16630 Southfield Ltd., 

P’Ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 503 (6th Cir. 2013). 

Furthermore, the Court holds pro se complaints to “less stringent standards 

than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 

(1972). However, even in pleadings drafted by pro se parties, ‘“courts should not 

have to guess at the nature of the claim asserted.”’ Frengler v. Gen. Motors, 482 

F. App’x 975, 976-77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591, 594 

(6th Cir. 1989)). 

 C. Preliminary Comment on the Quality and Substance of 

 Defendants’ Motion 

 Defendants’ motion asserts that: the Court lacks subject matter jurisdiction; 

Plaintiff’s claims are barred by qualified immunity; and that, Plaintiff fails to state 

a claim upon which relief can be granted. (DE 14 at 1-2.) The Court gets the 

distinct impression, however, that this is simply a “canned motion” which gets 

repeatedly filed in prisoner civil rights cases, because (notwithstanding the 

language in the actual motion) the only issue actually identified for adjudication or 

briefed – and barely so at that – is the question of whether Plaintiff’s participation 

in the Warden’s Forum constitutes protected activity.4

 Defendants’ argument, in 

its substantive entirety, simply states that: 

                                                            

4

 The “Concise Statement of Issues Presented” in Defendants’ brief is 

incomprehensible, concluding with a single and obviously unedited question 

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“It is well established [] that participation in the Warden’s Forum is 

not protected conduct.” [Citation to Griffin v.Berghuis omitted] Since 

it has already been determined that Griffin’s removal from the 

Warden’s Forum at LRF did not involve protected conduct, then it 

would stand to reason that Warden Klee’s removal of Griffin from the 

Warden’s Forum at ARF based upon that prior removal and Griffin’s 

related actions are not protected conduct. Absent protected conduct, 

Griffin again fails to set forth a proper retaliation claim. 

(DE 14 at 4)(emphasis added). Relying on a prior case by the same Plaintiff 

against different parties, Defendants are essentially trying to fit a square peg into a 

round hole, using a “one size fits all” approach, turning a blind eye to substantial 

differences between what was at issue there and what has been pleaded here. 

Defendants ignore – and apparently wish for the Court to ignore – the three 

other bases for finding protected activity which are pleaded in Plaintiff’s 

Complaint. (See DE 1, ¶¶ 13, 19, 20, 41, 42, 47, 49, 55.) The Undersigned will 

simply not do this. Instead, in the context of a motion to dismiss under Rule 12, 

the Court has the right to expect a candid identification and discussion of what was 

actually pleaded. That did not occur here. 

Nor will the Undersigned consider issues which have not been briefed. See, 

e.g., Ordos v. City of Hawtai Autobody Co. v. Diamond Rigging Co., No. 13-

14909, 2014 WL 1400118, at *5 (E.D. Mich. Apr. 10, 2014) (confining the court’s 

consideration of the issue to what was defined by the parties in the “extensive[], 

                                                                                                                                                                                               

presented, which reads, verbatim, as follows: “Is Plaintiff’s retaliation claim, 

premised upon his participation in the Warden’s Forum, subject to dismissal 

retaliation claim?” 

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yet inadequate[] briefing.”). In an adversarial legal system, the Court should not 

have to unilaterally devote precious time and resources to researching issues which 

Defendants made no effort to address. United States v. Williams, 877 F.2d 516, 

518-19 (7th Cir. 1989) (“It is not the obligation of this court to research and 

construct the legal arguments open to the parties, especially when they are 

represented by counsel.”). Moreover, even the one argument which Defendants 

did make a minimal effort to brief is largely unsupported by legal authority, 

leaving it for the Court to dig through the case law and connect the dots as to why 

it should or should not “stand to reason” that “Warden Klee’s removal of Griffin 

from the Warden’s Forum at ARF based upon [a] prior removal and Griffin’s 

related actions are not protected conduct.” Fortunately, the incarcerated Plaintiff 

rose to the occasion, taking the time to thoroughly brief this and other issues. 

Between that and the Court’s own efforts, I am able to recommend that the motion 

be DENIED for the reasons appearing below. 

 D. Analysis 

 To assert a claim of retaliation under the First Amendment, Plaintiff must 

show 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 continuing to 

engage in the conduct; and 3) there is a causal connection between the elements 

such that the adverse action was “motivated at least in part by the plaintiff’s 

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protected conduct.” Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999). 

The Undersigned will consider each element in turn. 

 1. Protected Conduct 

Plaintiff contends that he was engaged in several different types of protected 

conduct. 

 a. Plaintiff’s Activities on the Warden’s Forum 

 As best as the Court can discern, Plaintiff seems to plead that his activities 

on the Warden’s Forum were protected conduct under the First Amendment. 

Defendants dispute this assertion, arguing that participation on the Warden’s 

Forum is not protected conduct. Defendants rely on Griffin v. Berghuis, No. 11-

14876, 2012 U.S. Dist. LEXIS 139405 (E.D. Mich. Aug. 3, 2012) for the 

proposition that “[i]t is well established that participation in the Warden’s Forum is 

not protected conduct.” Id. at * 9. Although that case, and most of the others cited 

to within Griffin were decided at the summary judgment stage, it is nevertheless 

true that the federal courts in both districts of this state have consistently held that 

participation on the Warden’s Forum is not activity protected under the First 

Amendment. Reeves v. Chapman, No. 2:11-cv-11830, 2011 WL 2518843, at *2 

(E.D. Mich. June 23, 2011) (concluding that the plaintiff’s retaliation claim based 

on his participation in the Warden’s Forum should be dismissed because a 

“prisoner is not engaged in protected First Amendment activity when appearing as 

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a representative to a warden’s forum.”); Cromer v. Dominguez, 103 F. App’x 570, 

573 (6th Cir. 2004) (concluding that the Eastern District of Michigan’s grant of 

summary judgment was appropriate because the plaintiff had no liberty or property 

interest in his position on the warden’s forum); see also Moore v. Mich. Dep’t of 

Corr., 2009 WL 2170369, at *3 (W.D. Mich. July 21, 2009) (concluding that the 

defendants were entitled to a grant of summary judgment where the plaintiff 

alleged that “retaliation arose from unspecified issues raised at the warden’s 

forum”); Davis v. Straub, No. 1:07-cv-156, 2009 WL 4908433, at *3 (W.D. Mich. 

Dec. 11, 2009) (concluding that summary judgment was warranted because the 

plaintiff’s removal from Warden’s Forum was not an adverse action). 

Accordingly, Plaintiff fails to sufficiently plead that his participation in the 

Warden’s Forum qualified as protected conduct; however, this is not dispositive, 

for the reasons given below 

 b. Plaintiff’s Other Protected Activities

 Notwithstanding the lack of protected activity associated with Plaintiff’s 

participation in the Warden’s Forum, Plaintiff posits that he engaged in protected 

conduct in three other ways. First, he alleges that Defendants retaliated against 

him for providing assistance to a specific inmate who would not have been 

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otherwise able to pursue legal redress.5 (DE 1, ¶ 49.) Such activity is protected 

under the First Amendment as a derivative of the other inmate’s right of access to 

the courts. Thaddeus-X, 175 F.3d at 395; see also Herron v. Harrison, 203 F.3d 

410, 415-16 (2000) (concluding that an inmate alleging that prison officials 

retaliated against him for providing legal assistance to other inmates survived a 

motion to dismiss); King v. Zamiara, 150 F. App’x 485, 491 (6th Cir. 2005) 

(holding that the plaintiff’s provision of legal assistance to other inmates was a 

protected activity). Plaintiff has sufficiently pleaded that the other inmate 

“otherwise could not seek meaningful redress without [P]laintiff’s assistance.” 

(DE 1, ¶ 49.) See Herron, 203 F.3d at 415 (Noting that, while an inmate does not 

have an independent right to help other prisoners, “[s]uch assistance is protected . . 

. when the inmate receiving the assistance would otherwise be unable to seek legal 

redress.”).6

 

 Second, Plaintiff alleges that Defendants retaliated against him for filing 

grievances against them. (DE 1, ¶¶ 31, 42, 55.) “An inmate has an undisputed 

First Amendment right to file grievances against prison officials on his own 

                                                            

5

 He also attaches a declaration from the prisoner he is alleged to have assisted. 

(DE 18 at 29) (“Without Griffin’s assistance, I would not have been able to have 

my issues addressed, due to my [lack of] knowledge in the area of administrative 

law.”). 

6

 Although the claim is derivative, it may be pursued independently from whatever 

claims the aided prisoner may have. See King, 150 F. App’x at 491-92; Herron, 

203 F.3d at 415.   

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behalf” so long as the grievances are not frivolous. Herron, 203 F.3d at 415. 

Here, there is no indication that Plaintiff’s grievances were frivolous. Nor do 

Defendants, at least at this stage of the litigation, assert that the grievances were 

frivolous. In fact, the Step II grievance appeal related to his security clearance 

resulted in the prison official’s admission of error and his transfer to a lower 

security level. 

 Finally, Plaintiff alleges that Defendant Parsons’ actions in increasing and 

improperly maintaining his security level were taken in retaliation for the 

complaint he filed in No. 5:11-cv-14876. (DE 1, ¶ 55.) “It is well established that 

prisoners have a constitutional right of access to the courts.” Thaddeus-X, 175 

F.3d at 391; see also King, 150 F. App’x at 491 (concluding that the plaintiff’s 

participation in a lawsuit was protected activity for First Amendment retaliation 

purposes). Plaintiff was therefore engaging in protected activity by filing his prior 

complaint. 

 Construing his present Complaint in the light most favorable to Plaintiff, and 

accepting his factual allegations as true, Plaintiff has therefore alleged that he 

engaged in protected activity. Accordingly, Plaintiff has sufficiently pleaded the 

first element of the test for retaliation under the First Amendment. 

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 2. Adverse Action 

 Plaintiff alleges that Defendants took two adverse actions against him in 

retaliation for engaging in the above-described protected activities. First, he 

indicates that Defendant Klee’s memorandum caused him to be removed from the 

Warden’s Forum permanently and at every institution in which he has been or will 

be incarcerated. Second, he asserts that Defendants Barrett and Parsons increased 

his security level and maintained that increase for longer than necessary in 

retaliation for his past activity of speaking out on behalf of other prisoners, for 

filing grievances related to his increased security level, and for filing a complaint 

in federal court. (DE 1, ¶¶ 32, 42, 49, 55.) Defendants argue that Plaintiff’s 

permanent removal from the Warden’s Forum did not involve protected conduct. 

The Undersigned will discuss each of these in turn. 

 a. Plaintiff’s Permanent Removal from the Warden’s 

 Forum 

 The United States Court of Appeals for the Sixth Circuit has addressed the 

requirements for an action to be considered adverse in the prison context as 

follows: 

An adverse action is one that would deter a person of ordinary 

firmness from the exercise of the right at stake—here, the filing of 

grievances or lawsuits against prison officials. Whether an act is 

sufficiently adverse varies based on context. The context here is a 

prison; and prisoners may be required to tolerate more than average 

citizens before an action taken against them is considered adverse. 

Even so, however, an act need not be egregious to be adverse. 

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LaFountain v. Harry, 716 F.3d 944, 948 (6th Cir. 2013) (internal citations and 

quotations omitted). This threshold is “not intended to foreclose relief to all but 

the superfirm plaintiffs,” but instead the standard is intended to “avoid trivializing 

the First Amendment by eliminating suits based upon insignificant acts of 

retaliation.” Bell v. Johnson, 308 F.3d 594, 607 (6th Cir. 2002); see also 

Thaddeus-X, 175 F.3d at 398 (noting that the standard “is intended to weed out 

only inconsequential actions, and is not a means whereby solely egregious 

retaliatory acts are allowed to proceed past summary judgment.”). “The factual 

question is whether the injury inflicted is so slight that it could not reasonably be 

expected to deter protected conduct.” Bell, 308 F.3d at 606. 

Furthermore, the “adverseness inquiry is an objective one and does not 

depend upon how the particular plaintiff reacted.” Bell, 308 F.3d at 606 . Instead, 

the “relevant question is whether the defendants’ actions are ‘capable of deterring 

a person of ordinary firmness;’ there is no requirement that the plaintiff show 

actual deterrence.” Id. (quoting Thaddeus-X, 175 F.3d at 398). 

 For the purposes of this Motion to Dismiss, Plaintiff has sufficiently pleaded 

an adverse action. It is unsettled in the Sixth Circuit as to whether removal from 

the Warden’s Forum is sufficiently adverse to support a retaliation claim. Griffin 

v. Berghuis, 563 F. App’x 411, 420 (6th Cir. 2014). Because the case law is clear 

that participation in the Warden’s Forum is not protected conduct, much of the 

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jurisprudence involves defense motions for summary judgment that are granted on 

the first element alone, or on other grounds such as qualified immunity.7

 See Id. 

(concluding that “even if removal from the Forum could be deemed sufficiently 

adverse,” it was not clearly established for the purposes of qualified immunity); 

Vandiver v. Martin, 48 F. App’x 517, 520 (6th Cir. 2002) (“Because Vandiver has 

not established that he was engaging in protected First Amendment activity as a 

warden’s forum representative, his retaliation claim . . . fails.”).8

 

 In addition, the Sixth Circuit has explained that “government actions, which 

standing alone do not violate the Constitution, may nonetheless be constitutional 

torts if motivated in substantial part by a desire to punish an individual for exercise 

of a constitutional right.” Thaddeus-X, 175 F.3d at 386. Here, Plaintiff asserts 

that he was permanently removed from the Warden’s Forum in retaliation for filing 

a grievance against Defendant Klee, and that his removal was sufficiently adverse 

as to deter a person of ordinary firmness from continuing to engage in protected 

conduct. Such an injury is not so slight as to trivialize the First Amendment. See, 

                                                            

7

 Defendants do not make a qualified immunity argument in the brief in support of 

their Motion to Dismiss. 

8

 The Court was able to find one unpublished opinion holding that summary 

judgment was appropriate on the basis that the plaintiff’s removal from the 

Warden’s Forum did not constitute an adverse action because the plaintiff adduced 

no evidence to show that the removal impeded his ability to exercise his First 

Amendment Rights. Davis, 2009 WL 4908433 at *3. Here, however, the matter is 

before the Court on a Motion to Dismiss under Rule 12(b)(6), in which the Plaintiff 

need only offer a claim to relief that is plausible on its face. 

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e.g., Bart v. Telford, 677 F.2d 622, 625 (4th Cir. 1982) (noting that it would 

trivialize the First Amendment to hold that “if the Mayor of Springfield had 

frowned at Miss Bart . . . he would be liable for damages.”). For the purposes of 

deciding this Motion to Dismiss, Plaintiff has sufficiently pleaded an adverse 

action related to his permanent removal from the Warden’s Forum. 

 b. Increased Security Level 

 In addition to his removal from the Warden’s Forum, Plaintiff asserts that 

Defendants Barrett and Parsons increased his security level and maintained that 

increase for longer than necessary in retaliation for his conduct at his previous 

institutions (DE 1, ¶ 43), specifically for filing grievances related to his increased 

security level (Id. at ¶ 44), and for filing a complaint in federal court (Id.). 

Defendants do not address Plaintiff’s allegations related to the increase in his 

security level. Although it is a close case, Plaintiff has sufficiently pleaded that his 

security level was increased in retaliation for engaging in protected conduct. 

 An increase in security level constitutes a sufficient adverse action. King v. 

Zamiara, 680 F.3d 485, 487 (6th Cir. 2005) (finding a genuine dispute of material 

fact regarding a retaliation claim where plaintiff alleged that defendants increased 

his security level in retaliation for his protected conduct); Thaddeus-X, 175 F.3d at 

396 (“In the prison context, an action comparable to transfer to administrative 

segregation would certainly be adverse.”). Here, Plaintiff indicates that 

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Defendants Barrett and Parsons increased his security level as a result of 

Defendant Klee’s memorandum and maintained that increase for longer than 

necessary in retaliation for his filing of grievances and a complaint in federal court. 

(DE 1, ¶¶ 38 and 44.) Specifically, he indicates that Defendants initially told him 

his security level was increased from II to IV as a result of his conduct at his 

previous institutions. (DE 43.) Plaintiff filed a Step I grievance about the custody 

level increase and was informed that it was merely due to a lack of bed space. (DE 

46.) When Plaintiff appealed his grievance to Step II, however, he was informed 

that he should have been moved before other inmates, but was not due to a rare 

administrative error. (DE 48.) While it is unclear in Plaintiff’s complaint what 

“conduct” motivated Defendants Parsons and Barrett to initially increase his 

security level, to the extent the conduct was related to his participation in the 

Warden’s Forum, it was not protected as summarized above. Plaintiff does, 

however, plead that the security level increase was maintained for longer than 

necessary due to his engaging in the protected conduct of filing grievances and 

filing a complaint in federal court. (DE 1, ¶ 44.) Construing the complaint in the 

light most favorable to Plaintiff and accepting all of his allegations as true, he has 

sufficiently pleaded that Defendants took adverse action against him and therefore 

has met the second element of the test. 

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 3. Causal Connection 

 Plaintiff asserts that Defendant Klee removed him permanently from the 

Warden’s Forum fifteen days after Plaintiff filed a grievance against him. (DE 1, 

¶¶ 20 and 21.) He also pleads that Defendants Barrett and Parsons increased his 

security level because of his activities on the Warden’s Forum at his previous 

institutions. He indicates that Defendants Barrett and Parsons maintained his 

increased security level after Plaintiff filed prison grievances and a federal 

complaint. (Id. at ¶ 55.) He was not moved until his April 2, 2012 Step II 

grievance, in which the prison official indicated that he had been placed in a higher 

security level because of administrative error. (Id. at ¶ 48.) Defendants do not 

address the causation element in their Motion. 

 The causation inquiry centers on the “subjective motivation of the 

defendants.” Thaddeus-X, 175 F.3d at 399. The adverse action must have been 

motivated “at least in part by the prisoner’s conduct.” Hill v. Lappin, 630 F.3d 

468, 475 (6th Cir. 2010.) “Because direct evidence of retaliatory intent is rare, 

circumstantial evidence may be ‘the only means of establishing the connection 

between a defendant’s actions and the plaintiff’s protected conduct.’” Griffin, 563 

F. App’x at 420 (quoting King, 680 F.3d at 695). Close “temporal proximity 

between protected conduct and retaliatory acts . . . creat[es] an inference of 

retaliatory motive.” King, 680 F.3d at 695. Here, Plaintiff has sufficiently 

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20 

pleaded a close temporal proximity between his protected conduct of providing 

legal redress to another prisoner, filing grievances, and filing a federal complaint 

and Defendants’ actions in removing him from the Warden’s Forum, increasing his 

security level, and maintaining that security level increase.9

 A reasonable 

inference could be drawn that these actions were motivated, at least in part, by 

retaliatory animus. 

 Plaintiff has therefore sufficiently pleaded a prima facie case for retaliation 

under the First Amendment. Accordingly, I recommend that Defendants’ Motion 

to Dismiss be DENIED. 

III. PROCEDURE ON OBJECTIONS 

 The parties to this action may object to and seek review of this Report and 

Recommendation, but are required to file any objections within 14 days of service, 

as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 

72.1(d). Failure to file specific objections constitutes a waiver of any further right 

of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health & 

                                                            

9

 To be sure, temporal proximity between the protected conduct and the alleged 

retaliatory act is not, in and of itself, sufficient to make a retaliation claim. Tuttle 

v. Metro. Gov’t of Nashville, 474 F.3d 307, 321 (6th Cir. 2007). Here, however, 

Plaintiff alleges other evidence of retaliatory conduct, such as the inconsistent 

information he learned about the reasons for his security level increase (DE 1, ¶¶ 

40, 47) and the prison guards’ conversations about taking action against him to 

retaliate for his testimony to the Legislative Ombudsman (Id. at ¶ 17). Because 

Plaintiff has pleaded temporal proximity in addition to other allegedly retaliatory 

conduct, he has sufficiently pleaded a causal connection for the purpose of this 

Motion to Dismiss. See Id. 

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21 

Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some 

issues but fail to raise others with specificity will not preserve all the objections a 

party might have to this Report and Recommendation. Willis v. Sec’y of Health & 

Human Servs., 932 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of 

Teachers Local 231, 829 F.2d 1370, 1273 (6th Cir. 1987). Pursuant to Local Rule 

72.1(d)(2), any objections must be served on this Magistrate Judge. 

 Any objections must be labeled as “Objection No. 1,” and “Objection No. 

2,” etc. Any objection must recite precisely the provision of this Report and 

Recommendation to which it pertains. Not later than 14 days after service of an 

objection, the opposing party may file a concise response proportionate to the 

objections in length and complexity. Fed. R. Civ. P. 72(b)(2); E.D. Mich. LR 

72.1(d). The response must specifically address each issue raised in the objections, 

in the same order, and labeled as “Response to Objection No. 1,” “Response to 

Objection No. 2,” etc. If the Court determines that any objections are without 

merit, it may rule without awaiting the response. 

Dated: April 16, 2015 s/Anthony P. Patti 

 Anthony P. Patti 

 UNITED STATES MAGISTRATE JUDGE 

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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was sent to parties of record 

on April 16, 2015, electronically and/or by U.S. Mail. 

 s/Michael Williams 

 Case Manager for the 

Honorable Anthony P. Patti 

(313) 234-5200 

 

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