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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

DEXTER ANDERSON, 

Plaintiff, 

v. 

B. TRUE, ARDETTA MOODY, MATTHEW 

BURNETT, and ANDRE MCCLATCHEY, 

Defendants. 

 

Case No. 15-cv-11703 

UNITED STATES DISTRICT COURT JUDGE

GERSHWIN A. DRAIN

UNITED STATES MAGISTRATE JUDGE

DAVID R. GRAND

OPINION AND ORDER ACCEPTING REPORT AND RECOMMENDATION [66] AND 

GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [46] 

I. INTRODUCTION

 Dexter Anderson (“Mr. Anderson” or “Plaintiff”), an incarcerated person, 

brought this Bivens action alleging that B. True, Ardetta Moody, Matthew Burnett, 

and Andre McClatchey (collectively “Defendants”) unlawfully retaliated against the 

Plaintiff for exercising his First Amendment rights. See Dkt. No. 1. All of the 

Defendants were employed by the Federal Bureau of Prisons (“BOP”). Id. Pending 

before the Court is Defendants’ Motion for Summary Judgment. Dkt. No. 46. This 

matter was referred to Magistrate Judge David R. Grand, who issued a Report and 

Recommendation urging the Court to grant the Defendants’ Motion for Summary 

Judgment. Dkt. No. 66. Mr. Anderson objects to the Magistrate Judge Grand’s 

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Report and Recommendation. Dkt. No. 69. For the reasons stated below, the Court 

ACCEPTS Magistrate Judge Grand’s Report and Recommendation [66] and 

GRANTS Defendant’s Motion for Summary Judgment [46]. 

II. FACTUAL BACKGROUND

The events giving rise to this claim began in June of 2013. Dkt. No. 1, p. 5 

(Pg. ID 5). At that time, Plaintiff was housed at the Federal Correctional Institute in 

Milan, Michigan (“FCI Milan”), where the Defendants worked. In early June of 

2013, Plaintiff requested his then-Unit Manager, Defendant Moody to verify his 

inmate account and to complete documentation, which would enable the Plaintiff to 

apply for informa pauperis (“IFP”) status. Id. According to the Plaintiff, Moody 

refused. Id. After consulting with Moody’s supervisory, Warden B. True, Plaintiff 

contacted the Unit Secretary to get the documents signed and notarized. Id. The Unit 

Secretary, however, informed the Plaintiff that he could not notarize the forms 

without Moody’s approval. 

On June 7, 2013, Plaintiff met with Defendant Moody. Id. Moody accused the 

Plaintiff of trying to “circumvent the system.” Id. Plaintiff alleges that Moody 

became disrespectful and hostile, then threatened to send the Plaintiff to the Special 

Housing Unit (SHU). Id. Shortly after the meeting with Defendant Moody, Plaintiff 

filed a Request for Administrative Remedy, also known as a B-9, which is a formal 

grievance. Id., p. 6 (Pg. ID 6). In the B-9, Plaintiff complained about Defendant 

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Moody’s “misconduct” and stated that, “[a]ny retaliation based on the filing of this 

Staff Misconduct complaint ... will result in the filing of a Civil Lawsuit again those 

individuals.” Dkt. No. 1, p. 36 (Pg. ID 36). On August 8, 2013, Plaintiff received a 

formal response finding “no evidence of staff misconduct.” Id., p. 37 (Pg. ID 37). 

On January 27, 2014, more than six months later, the BOP issued a memo 

soliciting inmates to be relocated to a Federal Correctional Institute located in 

Hazelton, West Virginia (“FCI Hazelton”). Id., pp. 7–8 (Pg. ID 7–8). The memo 

sought medium or low security prisoners with at least one year of clear conduct and 

a release date after March 17, 2016. Id. In response to the memo, Defendant Moody 

suggested the Plaintiff for transfer. Id., p. 40 (Pg. ID 40). However, Defendant 

Burnett, Plaintiff’s case manager, explained that Mr. Anderson was not a good fit 

because he was a low security inmate. 

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

inmates to be relocated to a Federal Correctional Institute located in Danbury, 

Connecticut (“FCI Danbury”). Id., p. 41 (Pg. ID 41). The memo sought low security 

prisoners with at least one year of clear conduct and a release date after October 15, 

2015. Id. Again, Defendant Moody suggested the Plaintiff for transfer. Four months 

later, Mr. Anderson learned that he would be transferred to FCI Danbury. Dkt. No. 

1-1, p. 6 (Pg. ID 56). 

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Mr. Anderson filed the present lawsuit on May 11, 2015, alleging that the 

Defendants violated his First Amendment rights by transferring him from FCI Milan 

to FCI Danbury. According to Mr. Anderson, placement in FCI Danbury is less 

desirable because: (1) it is farther from his release residence of Wisconsin and too 

far for his family to visit; (2) the transfer has caused him great emotional and mental 

distress for fear of being retaliated against again; (3) FCI Danbury does not offer 

ceramics and other classes that Mr. Anderson needs to “cope with the stress of being 

incarcerated;” and (4) because Mr. Anderson lost his job, which allowed him to help 

suicidal and mentally challenged inmates. Dkt. No. 69, pp. 5–6 (Pg. ID 837–38). Mr. 

Anderson seeks compensatory and punitive damages from each Defendant. Pending 

before the Court is Defendants’ Motion for Summary Judgment and Magistrate 

Judge Grand’s Report and Recommendation, which Mr. Anderson objects to. 

III. LEGAL STANDARD

A district court performs de novo review of timely and specific objections to 

a magistrate judge’s report and recommendation. See FED. R. CIV. P. 72(b)(2)–(3). 

Additionally, a district court may adopt, reject, or amend the portions of the report 

and recommendation to which no party properly objects. See FED. R. CIV. P.

72(b)(3); Thomas v. Arn, 474 U.S. 140, 150 (1985). 

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IV. FIRST AMENDMENT RETALIATION AND QUALIFIED IMMUNITY 

 “A [First Amendment] retaliation claim essentially entails three elements: (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) 

(emphasis added). However, “government officials performing discretionary 

functions generally are shielded from liability for civil damages insofar as their 

conduct does not violate clearly established statutory or constitutional rights of 

which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 

818 (1982) (emphasis added). 

V. DISCUSSION OF PLAINTIFF’S OBJECTIONS TO THE REPORT AND 

RECOMMENDATION 

 Defendants argue that Summary Judgment is proper on qualified immunity 

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

established” that Anderson’s transfer was unlawful. In his November 30, 2016 

Report and Recommendation, Magistrate Judge Grand recommended the Court to 

grant Defendants’ Motion for Summary Judge because it was not clearly established

that transferring Anderson was an adverse action within the meaning of relevant 

First Amendment jurisprudence. Dkt. No. 66, p. 8 (Pg. ID 815) (emphasis added). 

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As best as the Court can tell, Plaintiff objects to the Report and Recommendation on 

five grounds. 

First, Anderson seems to argue that he engaged in protected conduct pursuant 

to the First Amendment. See Dkt. No. 69, pp. 2–4 (Pg. ID 834–36). That objection, 

however, is immaterial because Magistrate Judge Grand assumed for the purposes 

of his analysis that the Plaintiff engaged in protected conduct. Dkt. No. 66, p. 8 (Pg. 

ID 815) (“Thus, for purposes of the analysis that follows, the Court will assume that 

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

Second, the Plaintiff argues that a retaliatory transfer constitutes adverse 

action. This argument, however, misses the critical issue in Mr. Anderson’s case. 

The Defendants moved for summary judgment on qualified immunity grounds. 

Under qualified immunity, government officials—such as BOP employees—are 

immune from civil liability unless their conduct violates a clearly established 

constitutional right. See Harlow, 457 U.S. 800, 818 (1982) (emphasis added). A 

clearly established constitutional right exists when a reasonable officer would know 

that his/her conduct was unlawful. Id. Where binding case law is inconsistent on an 

issue, the constitutional right is not clearly established and officers can be entitled 

qualified immunity. Barrett v. Steubenville City Sch., 388 F.3d 967, 972 (6th Cir. 

2004). Therefore, in this case, the critical issue is not whether the retaliatory transfer 

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was an adverse action, but rather, whether it was clearly established that such a 

transfer was unlawful. 

 Here, case law is inconsistent about whether a retaliatory inmate transfer 

resulting in loss of visitation and prison programs, amounts to adverse action. Mr. 

Anderson admits this fact. See Dkt. No. 69, p. 6 (Pg. ID 838). According to Mr. 

Anderson, “it is true that the many cases in the Sixth Circuit can sway either way in 

the finding of an adverse action.” Id. Mr. Anderson continues and admits that the 

Sixth Circuit has not decided whether transferring a federal prisoner over 500 miles 

from his release residence, resulting in the loss of visitation and other foreseeable 

negative consequences, amounts to adverse action. Id. This admission is fatal to Mr. 

Anderson because it demonstrates that it was not clearly established that Mr. 

Anderson’s transfer was unlawful. Therefore, because a reasonable officer would 

not know that Mr. Anderson’s transfer was unlawful, the Defendants are entitled 

qualified immunity. 

 Mr. Anderson relies on two cases: Siggers-El v. Barlow, 412 F. 3d 693 (6th 

Cir. 2004), and Pasley v. Conerly, 345 F. App’x 981 (6th Cir. 2009). However, the 

facts in Siggers-El are distinguishable and the holding in Pasley is contradicted by 

another Sixth Circuit case. 

Siggers-El involved an inmate who was transferred for exercising his First 

Amendment rights. Siggers-El was transferred over seventy miles, to a remote 

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prison. Siggers-El, 412 F. 3d at 698–99. As a result of the transfer, Siggers-El lost 

his high-paying job that he needed to pay his attorney and the transfer made it more 

difficult for his attorney to visit and represent him. Id. The Sixth Circuit found that 

Siggers-El’s transfer constituted adverse action for the purposes of his retaliation 

claim. Id. at 702. Importantly, the Sixth Circuit based its holding on Siggers-El’s 

access to court. The Court explained: 

In this case, however, the transfer would deter a person of ordinary 

firmness from engaging in protected conduct, since here, the Defendant 

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. 

Id. (emphasis added). 

 Mr. Anderson admits that his case is distinguishable from Siggers-El on the 

basis of access to courts, because Mr. Anderson “does not claim to have lost a high 

paying job that he used to pay his attorney nor does [Mr. Anderson] claim to now 

have ‘limited access’ to his attorney[.]” Dkt. No. 61, p. 14 (Pg. ID 639). Despite 

those distinguishing facts, Mr. Anderson argues that his case is similar to Siggers-El

because he suffered “foreseeable negative consequences.” Id. See also Dkt. No. 69, 

p. 5 (Pg. ID 837). That argument, however, fails because it misstates the holding of 

Siggers-El. Siggers-El did not hold that any foreseeable negative consequences give 

rise to an adverse action. Rather, Siggers-El focused on the “foreseeable 

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consequences that inhibited access to courts.” Siggers-El, 412 F.3d at 702. 

Therefore, because Mr. Anderson’s transfer did not limit his access to courts, and 

because the Siggers-El holding was limited to foreseeable consequences that 

inhibited access to court, Mr. Anderson’s reliance on Siggers-El is misplaced. 

 Next, Mr. Anderson cites Pasley v. Conerly, 345 F. App’x 981 (6th Cir. 2009). 

Pasley alleged that a prison employee threatened to transfer him such that he would 

lose his job and be too far for his family to visit him. Id. at 983. Before serving 

Pasley’s complaint on the defendant, the district court dismissed the prisoner’s First 

Amendment retaliation claim. Id. at 986. The Sixth Circuit vacated the district 

court’s decision, holding that because of the low requirement for surviving 

dismissal, Pasley’s allegations could state a plausible retaliation claim. The Pasley

court explained that, “[a]lthough Pasley has not made an effective argument for First 

Amendment retaliation either in his original complaint or his brief to this court, the 

facts alleged in Pasley’s complaint arguably contain the elements of such a claim.” 

Id. Mr. Anderson cites Pasley, then argues that, “[i]f a reasonable trier of fact could 

conclude that a retaliatory act would deter a person from exercising his rights, then 

the act may not be dismissed at the summary judgment stage.” Bell v. Johnson, 308 

F.3d 594, 603 (6th Cir. 2002).” Dkt. Bo. 69, p. 7 (Pg. ID 839). Mr. Anderson’s 

conclusion is flawed because it misstates the holding of Pasley and confuses the 

critical issue in this case. 

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 Turning back to Pasley, it is important for Mr. Anderson to realize that Pasley

involved judicial dismissal of a complaint and not a motion for summary judgment. 

The distinction between the two is vital. The requirements to survive dismissal are 

relatively low. See 28 U.S.C. §1915A (stating that courts shall dismiss prisoner 

complaints against the government that are frivolous, malicious or that fail to state a 

claim upon which relief may be granted). On the other hand, the standard to survive 

summary judgment is more burdensome. See Fed. R. Civ. Pro. 56(c) (directing that 

summary judgment shall be granted if there is no genuine issue of material fact). 

Surviving dismissal merely requires proper pleading. Surviving summary judgment 

requires a substantive factual inquiry. With those principles in mind, surviving 

dismissal does not mean a party will survive summary judgment. The Pasley Court 

makes this explicit. See Pasley, 345 F. App’x 981, 986 (6th Cir. 2009) (“Regardless 

of whether Pasley can ultimately prevail on his claim, or even survive summary 

judgment, Pasley’s pleading meets the low requirements for surviving dismissal.”). 

Therefore, when Mr. Anderson cites Pasley, but argues summary judgment, he 

erroneously conflates dismissal with summary judgment. 

 Next, even assuming that the Mr. Anderson could establish a constitutional 

violation—that is not the dispositive issue in this case. The dispositive issue is 

whether the Defendants are shielded from liability because their alleged violation 

was not clearly established by case law. See Harlow, 457 U.S. 800, 818 (1982). In 

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this case, it is true that Pasley, an unpublished case, suggests that under certain 

conditions, a retaliatory transfer resulting in the loss of visitation could be considered 

adverse action. Nevertheless, Friedmann v. Corrections Corp. of America, 11 Fed. 

App’x 467 (2001), another unpublished Sixth Circuit case, contradicts Pasley. 

Friedmann held that a retaliatory transfer to a location “farther away from those who 

visited [the plaintiff]” and to an institution that “did not offer the programs in which 

[the plaintiff] had previously participated ... are not sufficient to support a showing 

of adverse action for the purposes of a retaliation claim.” Friedmann v. Corr. Corp. 

of Am., 11 F. App’x 467, 471 (6th Cir. 2001). Friedmann is thus at odds with Pasley. 

Therefore, because the case law is inconsistent, it cannot be said that it was clearly 

established that Mr. Anderson’s transfer was unlawful. See 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.”).

Third, Mr. Anderson argues that, the Defendants were on notice that their 

conduct was unconstitutional. Mr. Anderson cites Hope v. Pelzer, 536 U.S. 730, 731 

(2002), which states “officials can be on notice that their conduct violates established 

law even in novel factual situations.” Mr. Anderson argues that the Defendants were 

put on notice because, “Anderson informed Burnett that his transfer was based on 

retaliation and would be a violation of his Constitutional rights if the transfer 

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proceeded.” Dkt. No. 69, p. 8 (Pg. ID 840). Although novel, Anderson’s argument 

falls short of the standard articulated in Hope. Hope continued to explain that 

previous cases must not be “fundamentally similar”, but in “light of pre-existing law 

the unlawfulness must be apparent”. Hope, 536 U.S. 730, 739 (2002). Again, in this 

case, two different Sixth Circuit panels have come out differently on the issue 

presented. Therefore, because jurists within the circuit disagree on the same issue 

the pre-existing law is inconsistent and the unlawfulness is no apparent. Thus, 

despite Mr. Anderson’s warning, there was not sufficient notice to the officers that 

their conduct violated the law. Mr. Anderson’s second and third objections are 

insufficient to deny the Defendants qualified immunity. 

Fourth, Mr. Anderson briefly argues that the Magistrate Judge defined Mr. 

Anderson’s rights too narrowly and defined qualified immunity too broadly. Dkt. 

No. 69, p. 8 (Pg. ID 840). The Court disagrees. In determining whether a right was 

clearly established, courts are instructed not to define the right at a high level of 

generality, thereby narrowly tailoring the facts to invariably confer qualified 

immunity. See Myers v. Potter, 422 F.3d 347, 356 (6th Cir. 2005). In this case the 

Magistrate Judge discussed that, “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 conduct.” Dkt. No. 66, p. 11 (Pg. ID 818). The Magistrate Judge then 

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considered whether being transferred far away from visitors to a facility that did not 

offer the same programs was considered adverse action. Id., p. 14 (Pg. ID 821). 

Accordingly, the Magistrate Judge defined Mr. Anderson’s rights at the appropriate 

level of generality. Furthermore, the Magistrate Judge recited the law of qualified 

immunity correctly. Therefore, Mr. Anderson’s fourth objection fails. 

Fifth, Mr. Anderson argues that this Court “has decided previously that a 

factual dispute does exist and summary judgment should fail.” Dkt. No. 69, p. 10 

(Pg. ID 842). Mr. Anderson is incorrect and again confuses the standard required for 

summary judgment. 

 Mr. Anderson refers to a May 5, 2016 order issued by the Court. See Dkt. No. 

40. On May 5, 2016, the Court accepted Magistrate Judge Grand’s Report and 

Recommendation to deny Mr. Anderson’s Motion for Judgment on the Pleadings, 

pursuant to Fed. R. Civ. P. 12(c). “For purposes of a motion for judgment on the 

pleadings, all well-pleaded material allegations of the pleadings of the opposing 

party must be taken as true, and the motion may be granted only if the moving party 

is nevertheless clearly entitled to judgment.” JPMorgan Chase Bank, N.A. v. Winget, 

510 F.3d 577, 582 (6th Cir. 2007) (internal citations omitted). “A Rule 12(c) motion 

is granted when no material issue of fact exists and the party making the motion is 

entitled to judgment as a matter of law.” Id. 

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 In Mr. Anderson’s Motion for Judgment on the Pleadings, he argued that the 

Defendants’ denials in their Answer were insufficient to create a genuine issue of 

material fact under Fed. R. Civ. P. 56. On that basis, Mr. Anderson argued that he 

was entitled to judgment on the pleadings. Dkt. No. 33, p. 3–4 (Pg. ID No. 264–65). 

The Court rejected that argument and explained that “Plaintiff has not brought a 

motion for summary judgment under Fed. R. Civ. P. 56. Plaintiff moved for 

judgment on the pleadings under Fed. R. Civ. P. 12(c).” Dkt. No. 40, p. 4 (Pg. ID 

423). The Court continued to explain that, “[w]hile a Rule 56 motion for summary 

judgment requires more than a mere denial of the adverse party’s pleading, a Rule 

12 motion for judgment on the pleadings require the Court to accept the non-moving 

party’s denials as truth.” Id. Therefore, the Defendants’ denials of Plaintiff’s 

allegation were sufficient, at that stage, to create issues of fact to survive a motion 

for judgment on the pleading. The Court did not hold that summary judgment, in 

either party’s favor, should fail. Mr. Anderson’s fifth objection, therefore, 

incorrectly characterized the Court’s prior order. 

V. CONCLUSION

Mr. Anderson’s objections confuse issues or misstate the law. For the 

preceeding reasons the Court ACCEPTS Magistrate Judge Grand’s November 30, 

2016 Report and Recommendation over Mr. Anderson’s objections [66]. 

Defendants’ Motion for Summary Judgment is GRANTED [46]. 

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SO ORDERED. 

Dated: March 20, 2017 

 /s/Gershwin A Drain 

Detroit, MI HON. GERSHWIN A. DRAIN 

 United States District Court Judge 

I hereby certify that a copy of the foregoing document was mailed to the attorneys 

of record on this date, March 20, 2017, by electronic and/or ordinary mail. 

/s/Tanya Bankston 

 Case Manager, (313) 234-5213 

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