UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

DEXTER ANDERSON, 

 Plaintiff, Civil Action No. 15-11703 

 Honorable Gershwin A. Drain 

 v. Magistrate Judge David R. Grand 

 

B. TRUE, ARDETTA MOODY, 

MATTHEW BURNETT, and 

ANDRE McCLATCHEY, 

 

 

 Defendants. 

__________________________________/ 

REPORT AND RECOMMENDATION TO GRANT 

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [46] 

Before the Court is a Motion for Summary Judgment filed on June 1, 2016, by 

Defendants B. True, Ardetta Moody, Matthew Burnett, and Andre McClatchey (collectively 

“Defendants”), all of whom are employed by the Federal Bureau of Prisons (“BOP”). (Doc. 

#46). Plaintiff Dexter Anderson (“Anderson”), an incarcerated person,1 filed a response to 

Defendants’ motion on July 18, 2016 (Doc. #61), and Defendants filed a reply on August 1, 2016 

(Doc. #64). 

An Order of Reference was entered on May 18, 2015, referring all pretrial matters to the 

undersigned pursuant to 28 U.S.C. §636(b). (Doc. #6). 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). 

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. 

 

1

 In 2004, Anderson was sentenced in the Eastern District of Wisconsin to 300 months’ 

incarceration for Conspiracy to Distribute Cocaine and Possession of a Firearm after a Felony 

Conviction. (Doc. #46 at Ex. A). 

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I. RECOMMENDATION 

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

Summary Judgment [46] be GRANTED. 

II. REPORT 

A. Factual Background

On May 11, 2015, Anderson filed his complaint in this case, suing Defendants in their 

individual capacities pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of 

Narcotics, 403 U.S. 388 (1971). (Doc. #1). At the time of the events in question, Defendants 

worked at the Federal Correctional Institution in Milan, Michigan (“FCI Milan”), where 

Anderson was housed. Essentially, Anderson alleges that Defendants violated his First 

Amendment rights by transferring him from FCI Milan to the Federal Correctional Institution in 

Danbury, Connecticut (“FCI Danbury”) – an institution he considers inferior to FCI Milan – in 

retaliation for filing administrative grievances. (Id.). 

1. The Relevant Administrative Grievance 

At issue in this case is a grievance2

 filed by Anderson against his then-Unit Manager, 

Defendant Ardetta Moody (“Moody”) on July 2, 2013.3

 (Doc. #7 at Ex. 9). On his Request for 

 

2

 The BOP makes available to its inmates a three-level administrative remedy process in the 

event that informal attempts to resolve issues of conditions of incarceration fail. (Doc. #46 at 

Ex. C, ¶4). Informal resolution attempts are typically submitted on forms referred to as “BP-8s.” 

(Id.). If an inmate is unable to informally resolve the issue, the administrative remedy process is 

commenced by filing a Request for Administrative Remedy (“Form BP-9”) at the institution 

where the inmate is incarcerated. (Id.). If the inmate is not satisfied with the response at that 

level, he may submit an appeal to the Regional Director (“Form BP-10”). (Id.). Finally, if 

dissatisfied with the Regional Director’s response, the inmate may appeal to the General Counsel 

in the BOP’s Central Office in Washington, D.C. (“Form BP-11”). (Id.). 

3

 Anderson filed numerous other grievances while incarcerated at FCI Milan, including 

grievances regarding cable television channels, the mailroom supervisor’s alleged failure to 

timely notify inmates of mail rejection, and a policy memo concerning the confiscation of certain 

inmate commissary photos. (Doc. #46 at Ex. C, Att. 1). Indeed, at the time of the filing of 

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Administrative Remedy (“BP-9”), Anderson alleged that, on June 7, 2013, Moody called him 

into her office and asked if he was the inmate who had asked her secretary to notarize some court 

documents. (Id.). When Anderson responded affirmatively, and said that Defendant Associate 

Warden William True (“True”) had instructed him to do so, Moody allegedly cut him off, told 

him he should not have done that, and accused him of trying to “circumvent the system.” (Id.). 

Anderson further alleged that Moody then became “disrespectful, rude, and unprofessional,” and 

threatened to send him to the Special Housing Unit. (Id.). In his grievance, Anderson also 

complained that Moody was generally “not approachable” and called inmates “young man” even 

when she knew their names. (Id.). Anderson requested that Moody be demoted from her 

position as Unit Manager and that the Office of Internal Affairs be notified immediately so that 

he could be interviewed about Moody. (Id.). Anderson expressly stated on his BP-9: “Any 

retaliation based on the filing of this Staff Misconduct complaint whether directly or indirectly 

will result in the filing of a Civil Lawsuit against these individuals.” (Id.). 

On August 6, 2013, Associate Warden True, in his role as Acting Warden,4

 provided a 

formal response to Anderson’s BP-9 grievance, explaining that informing Anderson of the notary 

process, advising him that misconduct could result in placement in the Special Housing Unit, and 

referring to Anderson and others as “young man” did not constitute staff misconduct by Moody. 

(Id. at Ex. 10). Anderson then filed a Regional Appeal (BP-10), which was denied on September 

3, 2013. (Doc. #46 at Ex. C, Att. 1). Anderson did not complete the third and final step of the 

 

Defendants’ motion for summary judgment, Anderson had filed 34 separate grievances since 

entering federal custody. (Id. at Ex. C, ¶6 and Att. 1). In his amended complaint, however, 

Anderson asserts that “[c]ircumstances surrounding [his] retaliatory transfer began around June 

of 2013,” when he filed a grievance against Defendant Moody. (Doc. #6 at 9). Thus, the Court 

will focus its analysis on that grievance and its relation – if any – to Anderson’s subsequent 

transfer to FCI Danbury. 

4

 As the Associate Warden, True at times assumed the role of Acting Warden when Warden J.A. 

Terris was absent from the facility. (Doc. #46 at Ex. G, ¶3). 

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administrative remedy process with respect to this grievance. (Id. at Ex. C, ¶9). 

 2. The Hazleton Activation Memo 

On January 27, 2014, more than six months after Anderson filed the grievance against 

Moody, the BOP issued a memo soliciting inmates for activation of FCI Hazleton in West 

Virginia, which was scheduled to take place in March 2014. (Id. at Ex. I). The Hazelton 

Activation Memo specified that medium or low security prisoners with at least one year clear 

conduct and a release date on or after March 17, 2016, would be eligible for transfer to Hazleton. 

(Id.). The memo further provided that priority would be given to inmates with good work 

histories in food service or mechanical services and to inmates with release residences 

geographically closest to FCI Hazleton. (Id.). 

In response to this memo, on January 29, 2014, Moody sent an email to Defendant 

Matthew Burnett (“Burnett”), Anderson’s Case Manager, stating that she believed Anderson met 

the criteria for transfer to FCI Hazleton, and asking Burnett to submit Anderson for transfer. 

(Doc. #7 at Ex. 13). According to Burnett, he then consulted the SENTRY system (a 

computerized database of inmate information) to determine whether Anderson met the criteria 

for transfer to FCI Hazleton. (Doc. #46 at Ex. E, ¶5). In his affidavit, Burnett avers that 

Anderson did not appear to be a good candidate for transfer to Hazleton because even though he 

was technically eligible, FCI Hazleton is a medium security level institution and Anderson was a 

low security inmate. (Id.). Burnett then called Moody to explain that Anderson was not a good 

candidate for transfer to FCI Hazleton. (Id.). 

3. The Danbury Activation Memo

On February 25, 2014, the BOP issued another memo, this time soliciting inmates for 

activation of FCI Danbury in Connecticut, which was scheduled to take place in April 2014. 

(Doc. #7 at Ex. 14). The Danbury Activation Memo specified that low security prisoners with at 

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least one year clear conduct and a release date on or after October 15, 2015, would be eligible. 

(Id.). The memo further provided that priority would be given to inmates with work experience 

in mechanical services and to inmates with release residences geographically close to FCI 

Danbury. (Id.). 

In her affidavit, Moody asserts that, in response to this memo, she directed Case Manager 

Burnett to determine whether Anderson was an appropriate candidate for transfer to FCI 

Danbury. (Doc. #46 at Ex. D, ¶8). At the same time, Moody directed another Case Manager, K. 

Henley, to determine whether three other inmates (who were part of Henley’s caseload) were 

eligible for transfer to Danbury. (Id.). Subsequently, on April 25, 2014, Moody received a 

follow-up email from the Associate Warden’s secretary, Cynthia Suydam, directing Moody to 

examine her caseload to see if she had “appropriate inmates to transfer to Danbury” as “Danbury 

needs inmates and we [FCI Milan] need to free up beds.” (Id. at Ex. D, Att. 3). As a result, 

Moody again asked Burnett to see if Anderson was eligible for transfer. (Id. at Ex. D, ¶10). 

Shortly thereafter, Burnett drafted a Request for Transfer form (“BP-409”) to apply for 

Anderson’s transfer to FCI Danbury. (Id. at Ex. E, ¶7 and Att. 1). The BP-409 indicated that it 

was generated to effect a population increase at FCI Danbury, as denoted by Code 318.5

 (Id. at 

Ex. D, ¶12, Ex. E, ¶12, Ex. F). According to Moody, she reviewed and signed BP-409 forms 

requesting the transfer of Anderson and three other inmates to Danbury. (Id. at Ex. D, ¶13). In 

his affidavit, Associate Warden True avers that he signed off on Anderson’s Request for Transfer 

form because Warden Terris was absent from the facility on the day in question (May 27, 2014). 

(Id. at Ex. F, Ex. G, ¶4). Around the same time, True signed forms requesting the transfer of 

 

5

 Code 318 is defined in BOP Program Statement 5100.08 (Inmate Security Designation and 

Custody Classification) as a “transfer to build a population, usually upon activation of a new 

facility.” (Doc. #46 at Ex. D, ¶12). 

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seven other inmates to FCI Danbury. (Doc. #46 at Ex. G, ¶4). The forms were then transmitted 

to the Designation and Sentence Computation Center in Grand Prairie, Texas. (Id. at Ex. G, ¶7). 

According to Anderson, he learned of his impending transfer to FCI Danbury on June 19, 2014. 

(Doc. #7 at 14). 

4. Anderson Files the Instant Lawsuit

On May 11, 2015, Anderson filed his complaint in this case. (Doc. #1). On June 3, 

2015, he filed an amended complaint.6

 (Doc. #7). In his amended complaint, Anderson alleges 

that he “suffered a retaliatory transfer at the hands of the defendants for exercising his protected 

rights under the First Amendment to file administrative remedies against prison officials.” (Id. at 

3). Specifically, Anderson alleges that: 

On or before January 2014, the defendants Moody, Burnett, and 

McClatchey conspired to retaliate against the plaintiff which resulted in a 

retaliatory transfer. Defendant Moody is personally involved since she 

requested and initiated the transfer. Defendant Burnett is personally 

involved because he drafted and falsified the transfer request form. 

Defendant McClatchey is personally involved because he made many 

comments to the plaintiff about his displeasure with the plaintiff filing 

administrative remedies against him and Moody. Defendant True is 

personally involved since he signed and approved the retaliatory transfer 

and was aware of the retaliation. 

(Id.). 

Elsewhere in his complaint, Anderson alleges that he would not have been transferred to 

FCI Danbury but for the fact that he filed grievances against prison staff. (Id. at 6). He claims 

that he did not meet the criteria for transfer to FCI Danbury because he lacked experience in 

mechanical services and did not have a release residence close to that institution, and that Burnett 

 

6

 Anderson has since made clear that he did not intend to submit an amended complaint, but 

rather merely to submit additional service copies of his original complaint. (Doc. #8). In any 

case, the numbered “Complaint” sections of Anderson’s filings, which set forth the substance of 

his allegations, are identical in the complaint (Doc. #1) and amended complaint (Doc. #7). For 

convenience, the Court will refer to the amended complaint (Doc. #7). 

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provided false information on the Request for Transfer form in order to effectuate the transfer. 

(Id. at 12-13). Anderson considers the placement at Danbury less favorable than Milan because 

it is farther from his release residence of Wisconsin and allegedly too far away for family to visit. 

(Id. at 6). Anderson also views Danbury as inferior to Milan because it does not offer ceramics 

and other classes that enable him “to cope with the stress of being incarcerated.” (Id.). He seeks 

$250,000 in compensatory damages from each defendant for mental and emotional distress, 

punitive damages in the amount of $500,000 from each defendant, and attorney’s fees and costs. 

(Id. at 3-4). Defendants now move for summary judgment as to all of Anderson’s claims. 

B. Standard of Review

Federal Rule of Civil Procedure 56 provides: “The Court shall 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 

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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 

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 (quoting Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 

1989)). Indeed, “‘[t]he failure to present any evidence to counter a well-supported motion for 

summary judgment alone is grounds for granting the motion.’” Id. (quoting Everson v. Leis, 556 

F.3d 484, 496 (6th Cir. 2009)). “Conclusory statements unadorned with supporting facts are 

insufficient to establish a factual dispute that will defeat summary judgment.” Id. at 560 (citing

Lewis v. Philip Morris, Inc., 355 F.3d 515, 533 (6th Cir. 2004)). 

C. Analysis

Defendants argue that summary judgment in their favor is warranted on qualified 

immunity grounds.7

 (Doc. #46 at 28-32). Specifically, Defendants argue that they are entitled to 

qualified immunity because at the time of the allegedly unlawful conduct, it was not “clearly 

established” that a transfer such as Anderson’s was an “adverse action” within the meaning of 

the relevant First Amendment jurisprudence. (Id.). As set forth in greater detail below, the 

Court finds merit to this argument. 

 1. General Legal Standards 

Under the doctrine of qualified immunity, governmental officials performing 

 

7

 Defendants also argue that summary judgment is appropriate for several other reasons, 

including, inter alia, that Anderson did not engage in activity protected by the First Amendment 

and that Defendants would have taken the same action even in the absence of Anderson’s filing 

of administrative grievances. Because the Court finds that qualified immunity shields 

Defendants from liability, however, it need not address the merits of these other arguments. 

Thus, for purposes of the analysis that follows, the Court will assume that Anderson’s grievance 

with respect to Moody constitutes protected speech. 

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discretionary functions are shielded from civil liability unless their conduct violates a clearly 

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

qualified immunity are analyzed on a “fact-specific, case-by-case basis to determine whether 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). Once the defense of qualified immunity is raised, the plaintiff 

bears the burden of showing that the defendants are not entitled to immunity. See Untalan v. 

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

Determining the applicability of qualified immunity requires a two-step 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). See also Beaton v. City 

of Allen Park, 2015 WL 3604951, at *10 (E.D. Mich. Jun. 8, 2015) (“Thus, to defeat 

[defendant’s] assertion of qualified immunity, ‘Plaintiff must show both that, viewing the 

evidence in the light most favorable to [him], a constitutional right was violated and that the right 

was clearly established at the time of the violation.’”) (quoting Chappell v. City of Cleveland, 

585 F.3d 901, 907 (6th Cir. 2009)). In conducting this inquiry, the court is “permitted to exercise 

[its] sound discretion in deciding which of the two prongs of the qualified immunity analysis 

should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. 

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

“The relevant, dispositive inquiry in determining whether a right is clearly established is 

whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he 

confronted.” Saucier, 533 U.S. at 202. In determining whether a clearly established 

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constitutional right was violated, courts “do not assess the right violated at a high level of 

generality, but, instead, [courts] must determine whether the right was clearly established in a 

more particularized ... sense ....” Myers v. Potter, 422 F.3d 347, 356 (6th Cir. 2005) (internal 

citations omitted). The Court must carefully define the right allegedly violated because: 

[i]f the right is defined too narrowly based on the exact factual scenario 

presented, government actors will invariably receive qualified immunity. 

If ... the right is defined too broadly, the entire second prong of qualified 

immunity analysis will be subsumed by the first and immunity will be 

available rarely, if ever...Our definition must be “particularized” in the 

sense that the contours of the right must be sufficiently clear that a 

reasonable official would understand that what he is doing violates that 

right. This is not to say that an official action is protected by qualified 

immunity unless the very action in question has previously been held 

unlawful, but it is to say that in light of preexisting law the unlawfulness 

must be apparent. 

Beaton, 2015 WL 3604951, at *11 (quoting Golodner v. Berliner, 770 F.3d 196, 206 (2d Cir. 

2014) (internal citations, quotation marks, brackets, and explanatory parentheticals omitted)). 

“Therefore, in a First Amendment retaliation case like this one, ‘the right in question is not the 

general right to be free from retaliation for one’s speech.’” Beaton, 2015 WL 3604951, at *11 

(citation omitted). “Rather, the right in question is whether [the defendants] had ‘fair warning’ 

that the actions [they] took against Plaintiff in the present case were unlawful under the First 

Amendment, or, phrased differently, whether the purported unlawfulness of [defendants’] actions 

was ‘apparent’ to [them] at the time [they] took them.” Id. (quoting Golodner, 770 F.3d at 206 

(internal citations omitted)). 

2. Anderson’s Retaliation Claim is Barred by Qualified Immunity 

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

must show that: (1) he 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 that conduct; 

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

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is, the adverse action was motivated at least in part by the plaintiff’s protected conduct. See 

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

Taking the above principles into account, the salient question is whether it was clearly 

established at the time of Anderson’s transfer that it was unlawful to transfer him between two 

prisons of the same security classification for having engaged in protected speech.8 Defendants 

argue that they are entitled to qualified immunity “because at the time of the allegedly unlawful 

conduct it was not ‘clearly established’ that a transfer such as [Anderson’s] was an ‘adverse 

action’ within the meaning of the relevant First Amendment jurisprudence.” (Doc. #46 at 28). 

Specifically, Defendants assert that there are a “litany of cases” standing for the proposition that 

a transfer to another prison of the same security level is not an “adverse action.” (Id. at 30 

(citing cases)). Based on a review of the relevant case law, the Court agrees. 

In general, a prisoner has no protected right to remain incarcerated at a particular 

institution. See, e.g., Hix v. Tenn. Dep’t of Corr., 196 F. App’x 350, 358 (6th Cir. 2006); Ward 

v. Dyke, 58 F.3d 271, 274 (6th Cir. 1995). And, 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). “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). Numerous other cases in this Circuit have reached the same 

conclusion: generally speaking, a transfer from one prison to another of the same security level 

is not an adverse action. See e.g., Hill v. Lappin, 630 F.3d 468, 474 (6th Cir. 2010) (barring 

 

8

 As noted above, supra n. 7, the Court assumes, for purposes of this analysis only, that 

Anderson’s grievance with respect to Moody constitutes protected speech. 

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certain “aggravating factors,” transferring a prisoner from one prison to another of the same 

security level is not an adverse action); Smith v. Yarrow, 78 F. App’x 529, 542 (6th Cir. 2003) 

(“transfer from one prison to another prison cannot rise to the level of an adverse action because 

it would not deter a person of ordinary firmness from the exercise of his First Amendment 

rights”) (internal quotation marks omitted); Friedmann v. Corr. Corp. of Am., 2001 WL 467990, 

at *4 (6th Cir. Apr. 26, 2001) (“[A] mere transfer to another institution of the same security 

level, with no other aggravating factors, is not sufficiently adverse to deter a person of ordinary 

firmness from engaging in the exercise of protected First Amendment activity.”); Dye v. 

DeAngelo, 2010 WL 4982925, at *5 (E.D. Mich. Nov. 4, 2010) (no violation of clearly 

established right even if defendants did have retaliatory motive because transfer to prison of 

same security level not adverse action). 

In the face of this case law, Anderson points to cases in the Sixth Circuit finding that a 

transfer between prisons could, under some circumstances, deter a person of ordinary firmness 

from engaging in protected conduct and, therefore, be considered an adverse action. (Doc. #61 

at 14-18). For example, Anderson first cites Siggers-El, supra, in which the Sixth Circuit found 

that there were circumstances in which a transfer could constitute an adverse action for purposes 

of a First Amendment retaliation claim. In that case, however, the Court specifically reached this 

conclusion because the plaintiff: 

... was not only transferred, but also suffered a number of foreseeable 

consequences that inhibited the Plaintiff’s ability to access the courts. As 

a result of the transfer, the Plaintiff not only lost his high paying job that 

he needed in order to pay his attorney, but the transfer also made it more 

difficult for his attorney to visit with or represent him because he was 

moved further away from her. 

Siggers-El, 412 F.3d at 702. In this case, however, Anderson concedes that he “does not claim to 

have lost a high paying job that he used to pay his attorney nor does [he] claim to now have 

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‘limited access’ to his attorney ....” (Doc. #61 at 14). As such, Anderson’s reliance on SiggersEl is misplaced. 

In Pasley v. Conley, 345 F. App’x 981, 985 (6th Cir. 2009), an unpublished case cited by 

Anderson,9

 the Sixth Circuit held that a transfer to another prison of the same security level 

could constitute an adverse action where it was done “to have [the plaintiff] moved out of the 

unit so that he would lose his job” and “to have him moved to a location where his family would 

not be able to visit him.” Anderson asserts that, as in Pasley, there were certain “foreseeable 

negative consequences” in his case that resulted from his transfer to FCI Danbury. (Doc. #61 at 

14). Specifically Anderson asserts that (1) FCI Danbury is “less desirable” than FCI Milan 

because “it was converted from a female prison and offers no meaniful [sic] programs”; (2) he 

was transferred “well beyond the traveling distance of family and no longer receive[s] visits”; (3) 

FCI Danbury does not offer the ceramics course that allowed him to “cope with stress”; and (4) 

he lost his job in the psychology department, which allowed him to help suicidal and mentally 

challenged inmates. (Id. at 15).10

It is true that Pasley – an unpublished case – holds that, under certain circumstances, a 

transfer resulting in the loss of visitation can be considered an adverse action. At the time of the 

events in question in this case, however, there was at least one other unpublished Sixth Circuit 

case holding just the opposite. Specifically, in Friedmann, the Court stated: 

 

9

 Anderson also relies on Hunter v. Rapelje, 2015 WL 2124750 (E.D. Mich. Mar. 23, 2015), 

report and recommendation adopted in part and rejected in part, 2015 WL 2124754 (E.D. Mich. 

May 6, 2015). (Doc. #61 at 15). That case, which was decided in 2015, does not inform the 

analysis of what was “clearly established” at the time of Anderson’s transfer to FCI Danbury in 

2014. 

10 Anderson also asserts that he now “suffers anxiety for fear of being retaliated against again by 

BOP officials.” (Doc. #61 at 15). Such an assertion, however, goes more toward the injury 

allegedly suffered by Anderson as a result of the transfer, not to the issue of whether the transfer 

itself constituted an adverse action under the law. 

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In this case, Friedmann makes no allegation of any aggravating 

circumstances in connection with his transfer to the NCC. He simply 

claims that the institution was located farther away from those who 

visited him and that the institution did not offer the programs in 

which he had previously participated. This Court concludes that such 

circumstances are not sufficient to support a showing of “adverse 

action” for purposes of a retaliation claim. In other words, this Court 

concludes that, in the absence of any aggravating circumstances, the Court 

cannot conclude that Friedmann’s transfer to NCC would deter a person of 

ordinary firmness from the exercise of his First Amendment rights. 

Friedmann, 2001 WL 467990, at *4 (emphasis added).11

Courts have recognized that the burden of establishing that the law was “clearly 

established” rests squarely with the plaintiff. See Perez v. Oakland County, 466 F.3d 416, 427 

(6th Cir. 2006). “A right is not considered clearly established 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). Applying these principles, in this case, it 

would not have been apparent to a diligent officer consulting relevant case law that a lateral 

transfer motivated by the filing of grievances – even one that resulted in the loss of visitors – 

would necessarily be unlawful. Consulting the published case law, the officer would find 

Siggers-El, which does not address the visitation question, focusing instead on an inmate’s 

 

11 At the time of the events in question, several District Courts in Michigan had also reached the 

same conclusion under similar circumstances. See, e.g., Dye, 2010 WL 4982925, at *5; 

Thompson v. Mich. Dep’t of Corr., 2012 WL 6096575, at *6 (W.D. Mich. Dec. 7, 2012) (transfer 

to a different prison, which resulted in being placed in a lower paying job, not an adverse action); 

Porter v. Howard, 2012 WL 3263789, at *4-5 (E.D. Mich. Jan. 6, 2012) (rejecting plaintiff’s 

argument that transfer from prison in Detroit to facility in Kincheloe, Michigan, constituted an 

adverse action “because Kincheloe is ‘up north’ in Michigan’s upper peninsula and is ‘away 

from [his] family’” and holding that plaintiff had “only alleged negatives that are ordinarily 

associated with a transfer, i.e., moving to a different location that may be more inconvenient for 

visitors”); Catanzaro v. Mich. Dept. of Corrections, 2009 WL 735073, at *17 (W.D. Mich. Mar. 

12, 2009) (“Plaintiff’s transfer was from one level I facility to another level I facility. Plaintiff 

has no constitutional right to remain at a specific facility or to prevent a transfer to another level I 

facility.”) (citing Ward, 58 F.3d at 274). 

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access to the courts (which Anderson concedes was not an issue for him here). Moving to 

unpublished case law, the officer would find cases going both ways. As Defendants point out, in 

such situations – where there is at least arguably case law going both ways – the officers are 

entitled to qualified immunity because mixed case law indicates that the right was not 

sufficiently “clearly established” for the plaintiff to sustain his burden of overcoming the 

defense. (Doc. #64 at 3 (citing Wilson v. Layne, 526 U.S. 603, 618 (1999) (“If judges thus 

disagree on a constitutional question, it is unfair to subject police to money damages for picking 

the losing side of the controversy.”)). 

For all of these reasons, the Court finds that it would not have been clear to a reasonable 

officer, at the time of the events in question, that transferring Anderson to FCI Danbury – an 

institution of the same security level as FCI Milan – was an adverse action. As such, Defendants 

are entitled to qualified immunity on Anderson’s claim of retaliatory transfer, and their summary 

judgment motion should be granted. See Griffin v. Berghuis, 563 F. App’x 411, 420 (6th Cir. 

2014) (granting summary judgment in favor of defendants on qualified immunity grounds where 

“the indeterminacy of pertinent authority on the issue means that neither [defendant] reasonably 

could be expected to know that [the plaintiff’s] transfer was sufficiently adverse to support a 

First Amendment retaliation claim”). 

III. CONCLUSION 

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

Summary Judgment [46] be GRANTED. 

Dated: November 30, 2016 s/ David R. Grand 

 DAVID R. GRAND 

 UNITED STATES MAGISTRATE JUDGE 

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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 and the order 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. See 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 will 

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

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, 2016. 

 s/Eddrey O. Butts 

 EDDREY O. BUTTS 

 Case Manager 

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