1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

ROBERT TREVOR-BLAIR 

DAVIS, SR., 

 

 Plaintiff, Civil Action No. 15-CV-12076 

vs. HON. MARK A. GOLDSMITH 

CARLA A. ROBERT & 

SUZANNE T. HALL, 

 

 Defendants. 

_______________________________/ 

OPINION AND ORDER GRANTING DEFENDANT ROBERT’S MOTION TO 

DISMISS (Dkt. 36) AND DISMISSING WITH PREJUDICE CLAIMS AGAINST 

DEFENDANT ROBERT 

Plaintiff Robert Trevor-Blair Davis, Sr. sued Defendant Carla Robert, in both her 

individual and official capacities (the latter as Freedom of Information Act (“FOIA”) 

Coordinator for the Michigan Department of Treasury (“the Department”)) under 42 U.S.C. 

§ 1983, alleging that Robert violated Davis’s constitutional rights when she allegedly enforced 

against Davis an exclusion in Michigan’s FOIA that excepts incarcerated persons from invoking 

its privileges. See Second Am. Compl. ¶¶ 3-8 (Dkt. 48). Davis sought a declaration that both 

Robert’s actions and the FOIA exclusion violated his constitutional rights, as well as injunctive 

relief enjoining application of the exclusion against him. Id. Early on in the litigation, Davis 

moved for a preliminary injunction against Robert, which this Court denied. See Davis v. 

Robert, No. 15-CV-12076, 2016 WL 1084683 (E.D. Mich. Mar. 21, 2016). Thereafter, Robert 

filed a motion to dismiss (Dkt. 36), arguing that Davis failed to state a claim for relief, and, in 

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any event, Davis’s claims against Robert were barred by qualified immunity.1 The Court now 

grants the motion. 

The factual background underlying this case is adequately set forth in the Court’s 

decision denying the preliminary injunction. Davis, 2016 WL 1084683, at *1-2. For purposes of 

the instant motion, suffice it to say that, somewhere along the way the factual predicate for most, 

if not all, of Davis’s claims against Robert — his incarceration at a federal correctional 

facility — resolved itself. Specifically, Davis was released from the federal correctional facility 

and permitted to serve the remainder of his sentence confined to his home. See Pl. Resp. at 2 

(Dkt. 47). Accordingly, Davis argues that he no longer falls within the FOIA’s incarceratedpersons exclusion, depriving Robert of any such defense going forward and rendering her motion 

moot. Id. at 2, 5, 7. Robert agrees that, having completed his sentence of incarceration, Davis is 

again eligible to request and receive records under the FOIA. Def. Reply at 2 (Dkt. 52). 

However, Robert goes a step further, arguing that Davis’s changed status renders his entire 

lawsuit against Robert moot. Id. Given these arguments, the Court convened a hearing to better 

understand the parties’ positions with respect to mootness. 

At the August 4, 2016 hearing, the Court inquired as to the status of the claims against 

Robert in light of Davis’s release. In response, counsel for Davis admitted that all the counts in 

the complaint — all of which relate to prior denials of Davis’s FOIA requests — were moot, 

save for Count Five, a retaliation claim against Robert. In light of Davis’s admission, the Court 

dismisses Counts One through Four, as well as Count Six with prejudice. Turning to the sole 

remaining claim against Robert, the retaliation claim articulated in Count Five, the Court 

 

1

 Robert’s motion is titled as one for summary judgment; however, a review of the substance of 

the motion, including the standard of decision articulated therein, makes clear that it is actually a 

motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6). See Def. Mot. at 5-

6. 

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concludes that this claim must be dismissed as well, because, even taking all pleaded allegations 

as true, it fails on the merits, or, in the alternative, it is barred by qualified immunity.2

 

To make out a retaliation claim, a plaintiff must demonstrate: “(1) the plaintiff engaged in 

protected conduct; (2) an adverse action was taken against the plaintiff that would deter a person 

of ordinary firmness from continuing to engage in that conduct; and (3) there is a causal 

connection between elements one and two — that is, the adverse action was motivated at least in 

part by the plaintiff’s protected conduct.” Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 

1999) (en banc). Here, Plaintiff cannot establish the second element — that he suffered a 

cognizable adverse action. 

Count Five is premised on a theory that Robert took adverse action against Davis by 

intentionally delaying the Department’s response to Davis’s February 9, 2015 FOIA request until 

shortly before Davis was required to report for his sentence of imprisonment, the idea being that 

the exclusion for incarcerated persons would then take effect and Davis would not be permitted 

to receive the documents he requested. See Second Am. Compl. ¶¶ 97-99. The complaint 

specifically alleges that the Department’s response was due on March 4, 2015, but that Davis did 

not receive that response until March 11, 2015 — just two days before his report date. Id. ¶¶ 30-

34. However, the Department’s response is dated March 4, 2015. See 3/4/2015 FOIA Response, 

 

2

 The standard for adjudicating a motion under Rule 12(b)(6) is well-known: Courts are obliged 

to construe the complaint in the light most favorable to the plaintiff and accept all well-pled 

factual allegations as true in determining whether the complaint states a plausible claim for 

relief. Albrecht v. Treon, 617 F.3d 890, 893 (6th Cir. 2010). Plausibility, in turn, requires a 

“reasonable inference that the defendant is liable for the misconduct alleged”; “facts that are 

‘merely consistent with’ a defendant’s liability” are insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 

678 (2009). Courts may look to the complaint, documents incorporated by reference into the 

complaint and integral to the plaintiff’s claims, documents attached as exhibits to the complaint, 

and matters of public record. Commercial Money Ctr., Inc. v. Ill. Union Ins. Co., 508 F.3d 327, 

335-336 (6th Cir. 2007). 

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Ex. E to Compl., at 13 of 26 (cm/ecf page) (Dkt. 4). Thus, Robert responded to Davis’s request 

within the allotted statutory period. 

Conceding that the response may have been issued within the required window, counsel 

for Davis maintained at the hearing that taking the full amount of time allotted under the statute 

to respond could still constitute a deliberative act of retaliation. However, Davis has provided 

the Court with no authority to refute Robert’s argument that a timely response simply cannot be 

an adverse action, Def. Mot. at 15-16; in fact, Davis failed entirely to respond to Robert’s 

argument on this point. The Court declines to adopt Davis’s view. 

Not every “adverse” action is constitutionally cognizable; rather, “the defendant’s 

adverse action [must have] caused the plaintiff to suffer an injury that would likely chill a person 

of ordinary firmness from continuing to engage in [protected] activity.” Thaddeus X, 175 F.3d at 

396-397. Here, receiving a response within the time allotted by law would not “chill a person of 

ordinary firmness” from engaging in protected First Amendment activity. Indeed, the purpose of 

a statutory window, at least in part, is to provide some expectation for when a requestor can 

anticipate a response. Having those expectations met would not deter any citizen from any 

particular activity. 

It would be a strange outcome to hold that a party has been deprived of a constitutional 

right by a state official whose actions were fully compliant with the law. Citizens may 

reasonably expect that government employees will comply with the letter of the law; while they 

might hope for a government response well before the end date allowed by law, they are not 

entitled to one. In short, compliance with the law cannot be viewed as an unlawful deterrent.3

 

3

 Counsel for Davis argued at the hearing that Robert’s failure to return Davis’s March 5, 2015 

phone call and an email of the same day is evidence that Robert deliberately delayed responding 

to the request. See Second Am. Compl. ¶¶ 31-34. The Court disagrees that this failure is 

evidence of anything; Davis has provided no authority that Robert was required to respond to his 

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And even if Davis could somehow establish an adverse action so as to support a plausible 

violation, the doctrine of qualified immunity would bar the claim. Qualified immunity is 

designed to “protect public officials from undue interference with their duties and from 

potentially disabling threats of liability.” Perez v. Oakland Cnty., 466 F.3d 416, 426 (6th Cir. 

2006) (quoting Vakilian v. Shaw, 335 F.3d 509, 516 (6th Cir. 2003)). It protects officials who 

reasonably thought that their actions comported with the rights that are alleged to have been 

violated. Id. Accordingly, a constitutional violation cannot be maintained against a public 

official unless the right at stake was “clearly established” at the time of the violation. Id. at 427. 

Moreover, a “right [must be] clearly established ‘in light of the specific context of the case, not 

as a broad general proposition.’” Id. (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). Davis 

has not presented the Court with any controlling authority that would have alerted Robert that, in 

taking the full amount of time allowed under the statute to respond to Davis’s request, she was 

behaving unlawfully. See id. (“In order to determine if the law is clearly established such that a 

reasonable official could determine that her actions were unlawful, we look principally to the law 

of this circuit and to the Supreme Court.”). The failure dooms Davis’s claim. See id. (“The 

burden of showing that the right was clearly established ‘rests squarely with the plaintiff.’” 

(quoting Key v. Grayson, 179 F.3d 996, 1000 (6th Cir. 1999))). 

Accordingly, and for the reasons stated above, Robert’s motion (Dkt. 36) is granted, and 

all of Davis’s claims against Robert are dismissed with prejudice. 

SO ORDERED. 

Dated: August 15, 2016 s/Mark A. Goldsmith 

Detroit, Michigan MARK A. GOLDSMITH 

 United States District Judge 

 

communications, and Davis’s follow-up attempts were made after Robert issued the 

Department’s response to his FOIA request. 

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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 August 15, 2016. 

 s/Karri Sandusky 

 Case Manager 

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