IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

 EASTERN DIVISION

Frank C. Brown, Jr., :

 Plaintiff, : Case No. 2:10-cv-965

 v. : JUDGE EDMUND A. SARGUS, JR.

 Magistrate Judge Kemp

Captain Andre J. Johnson, :

et al.,

 Defendants. :

REPORT AND RECOMMENDATION

AND ORDER

Plaintiff, Frank C. Brown, a state prisoner confined at the

London Correctional Institution, filed this 42 U.S.C. §1983 case

claiming that his constitutional rights were violated by certain

actions which, he contends, were taken in retaliation for his

exercise of his First Amendment rights. The defendants, all

corrections officials at the London Correctional Institution,

where Mr. Brown resides, have moved to dismiss the complaint on

grounds of qualified immunity. Mr. Brown has opposed that

motion, and has also moved for leave to amend his complaint. For

the following reasons, it will be recommended that the motion to

dismiss be denied.

I. The Facts

The facts before the Court in connection with the motion to

dismiss are no different than those which the Court considered in

connection with a prior determination about whether the complaint

could withstand initial screening. Defendants have not submitted

any factual material with their motion, but simply argue, as a

matter of law, that even if what Mr. Brown claims about their

allegedly retaliatory acts is true, they are entitled to

qualified immunity from suit. Thus, the Court continues to draw

its factual basis from Mr. Brown’s complaint. The Court

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incorporates by reference its prior recitation of those facts,

and will repeat them here only as necessary to decide the

qualified immunity question. Further, only those facts relating

to the defendants’ alleged retaliatory actions are relevant here,

because defendants’ motion does not address whether Mr. Brown was

engaged in protected First Amendment activity, as he alleges, nor

whether their actions (as he describes them, which description

the Court must accept as true at this stage of the case) were

causally connected to Mr. Brown’s First Amendment activities.

II. The Legal Standard

A motion to dismiss under Fed. R. Civ. P 12(b)(6)

should not be granted if the complaint contains “enough facts to

state a claim to relief that is plausible on its face." Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). All well-pleaded

factual allegations must be taken as true and be construed most

favorably toward the non-movant. Scheuer v. Rhodes, 416 U.S. 232,

236 (1974); Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir.

2009). Rule 8(a) admonishes the Court to look only for a “short

and plain statement of the claim,” however, rather than requiring

the pleading of specific facts. Erickson v. Pardus, 551 U.S. 89

(2007). 

A 12(b)(6) motion to dismiss is directed solely to the

complaint and any exhibits attached to it. Roth Steel Products v.

Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1983). The merits

of the claims set forth in the complaint are not at issue on a

motion to dismiss for failure to state a claim. Consequently, a

complaint will be dismissed pursuant to Fed. R. Civ. P. 12(b)(6)

only if there is no law to support the claims made, or if the

facts alleged are insufficient to state a claim, or if on the

face of the complaint there is an insurmountable bar to relief. 

See Rauch v. Day & Night Mfg. Corp., 576 F.2d 697, 702 (6th Cir.

1978). Rule 12 (b)(6) must be read in conjunction with Fed. R.

Civ. P. 8(a) which provides that a pleading for relief shall

contain "a short and plain statement of the claim showing that

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the pleader is entitled to relief." 5A Wright & Miller, Federal

Practice and Procedure § 1356 (1990). The moving party is

entitled to relief only when the complaint fails to meet this

liberal standard. Id.

On the other hand, more than bare assertions of legal

conclusions is required to satisfy the notice pleading standard. 

Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th

Cir. 1988). "In practice, a complaint must contain either direct

or inferential allegations respecting all the material elements

to sustain a recovery under some viable legal theory." Id.

(emphasis in original, quotes omitted).

"[w]e are not holding the pleader to an impossibly high

standard; we recognize the policies behind rule 8 and

the concept of notice pleading. A plaintiff will not

be thrown out of court for failing to plead facts in

support of every arcane element of his claim. But when

a complaint omits facts that, if they existed, would

clearly dominate the case, it seems fair to assume that

those facts do not exist."

Id. It is with these standards in mind that the motion to dismiss

will be decided.

III. Discussion

Defendants’ motion is based upon the defense of qualified

immunity. That defense, which is available to governmental

officials who are sued for damages while engaged in the

performance of discretionary functions, is evaluated using the

following legal principles.

Public officials sued under 42 U.S.C. §1983 in their

individual capacities may raise “qualified immunity” as a defense

to the suit. That defense has been explained as follows:

“[G]overnment officials performing discretionary

functions, generally are shielded from liability for

civil damages insofar as their conduct does not violate

clearly established constitutional or statutory rights

of which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Conversely, “if

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the law was clearly established, the immunity defense should

fail, since a reasonably competent public official should know

the law governing his conduct.” Id. at 818-19.

As explained in Dominique v. Telb, 831 F.2d 673 (6th Cir.

1987), when the defense of qualified immunity is raised, a

plaintiff must include in the pleadings factual allegations

necessary to support the conclusion that the defendants violated

clearly established law. When the defense is raised by motion,

“the District Court must decide the purely legal question of

whether the law at the time of the alleged action was clearly

established in favor of the plaintiff.” Id. The Court's

decision on this issue should indicate the law as the Court

perceives it and the basis for its conclusion that the

constitutional rights at issue were clearly established.

In order for a constitutional right to be clearly

established, it is necessary that a decision of the Supreme

Court, the highest Court of the state, or a Court of Appeals

announce the constitutional principle. See Robinson v. Bibb, 840

F.2d 349 (6th Cir. 1988). A single, idiosyncratic decision from

one Court of Appeals is not sufficient to establish clearly a

constitutional right. Davis v. Holly, 835 F.2d 1175 (6th Cir.

1987).

“Although official action is not necessarily protected

by qualified immunity unless and until the very action

in question has been held unlawful...an official is not

bound to anticipate correctly possible future

extensions of the law if the question of law was open

at the time he acted.”

Garvie v. Jackson, 845 F.2d 647, 652 (6th Cir. 1988).

Ordinarily, the Court must undertake a three-step analysis

in determining whether qualified immunity applies. First, the

Court should identify the specific constitutional right that the

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defendant or defendants allegedly violated. Second, the Court

should determine whether, viewing the facts most favorably to the

plaintiff, a violation of that right has been established. 

Finally, the Court should decide whether a reasonable state

official would have known, at the time the action occurred and in

light of the “clearly established law,” that the plaintiff’s

constitutional rights had been violated. If so, qualified

immunity is unavailable. See Dickerson v. McClellan, 101 F.3d

1151, 1157 (6th Cir. 1996).

The substantive constitutional right at issue in this case

is the right not to suffer retaliation in response to the

exercise of a First Amendment right. As the Court has already

explained in this case, in Thaddeus-X v. Blatter, 175 F.3d 378,

394 (6th Cir. 1999), the Court of Appeals held that a valid claim

for retaliation can be stated if an inmate alleges three things:

the exercise of a First Amendment right, “an adverse action ...

taken against the plaintiff that would deter a person of ordinary

firmness from continuing to engage in that conduct; and ... 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.”

Here, the question raised by defendants’ motion is whether,

in September, 2010, when Mr. Brown claims to have been removed

from his job in the prison law library, reasonable officials in

the defendants’ positions should have realized that such an

action was sufficiently adverse to discourage a person of

ordinary sensibilities from pursuing protected First Amendment

activities such as filing legitimate grievances or conducting

litigation. A close examination of the case law is required in

order to answer this question. 

In some circuits, there are cases which clearly suggest,

well before 2010, that retaliatory job assignments or job

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transfers are sufficiently adverse to satisfy the second prong of

the Thaddeus-X test. See, e.g, Walker v. Pataro, 2002 WL 664040,

*18 (S.D.N.Y. April 23, 2002) (citing cases). Within the Third

Circuit, a district court denied a claim for qualified immunity

based on this exact scenario, that is, dismissing the plaintiff

inmate from his job with a concomitant loss of wages. See Floyd

v. Dugal, 2003 WL 23101802 (E.D. Pa. December 16, 2003). The

same is true in the Seventh Circuit. See Turley v. Catchings,

2004 WL 2092008 (N.D. Ill. September 15, 2004). The Court of

Appeals for the Ninth Circuit held, as early as 2001, that an

inmate’s being forced to relinquish his prison job as a result of

threats of retaliation was a violation of the First Amendment,

see Gomez v. Vernon, 255 F.3d 1118 (9th Cir. 2001), and the Court

of Appeals for the Tenth Circuit announced a similar holding ten

years before that. See Williams v. Meese, 926 F.2d 994, 998

(10th Cir. 1991)(“prison officials cannot punish plaintiff for

exercising his first amendment rights by denying him certain job

assignments or transferring him from one job to another”). 

Cases within this circuit are not quite so direct. For

example, in Coates v. Kafczynski, 2006 WL 3344900 (W.D. Mich.

November 17, 2006), the court held that the plaintiff had not

alleged more than a de minimis action when he was transferred to

another prison and given a job with less total (although the same

hourly) pay because he was not technically qualified for the

higher-paying job and would have lost it eventually. This

Court’s prior opinion in this case cited Siggers-El v. Barlow,

412 F.3d 693 (6th Cir. 2005) as some supporting authority,

although that case involved not just a job change but the

transfer of the plaintiff to another prison, the loss of the

wages associated with his job, and less access to his attorney. 

McGough v. Corrections Corp. of America, 2007 WL 3088216 (M.D.

Tenn. October 19, 2007) held that the combination of refusing to

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assign the plaintiff to a prison job, denying him copies of his

grievances, and denying him “indigent supplies” was enough to

support a retaliation claim. Taken together, these cases both

confirm that the Thaddeus-X test is well established in this

circuit, and that a variety of retaliatory actions can be

considered sufficiently adverse to pass the de minimis standard

created by the second prong of that test.

Here, it is important to remember that Mr. Brown does not

identify the loss of his library job as the only kind of

retaliation he suffered. He couples that action with other

conduct on the part of defendants, including issuing him false

conduct reports, being searched or threatened with searches due

to his First Amendment activities, and being threatened with

consequences for filing grievances. Although these latter

actions, standing alone, might be viewed as de minimis, the

combination of these actions and Mr. Brown’s loss of his prison

job would, in light of the weight of the legal authority cited

above, have alerted a reasonable prison official that a prisoner

of ordinary firmness would feel inhibited in the further exercise

of his First Amendment rights if he suffered those consequences.

Cf. Bell v. Johnson, 308 F.3d 594 (6th Cir. 2002), holding that

the search and confiscation of legal papers can form part of a

retaliation claim. Thus, while there does not appear to be a

case within this circuit dealing with the exact circumstances

present here, as the Court of Appeals has recently cautioned, “a

wide variety of sources, even those that are not authoritative,

can provide defendants with fair warning” of the unconstitutional

nature of their actions, and it is not necessary that the “‘very

action in question has previously been held unlawful’” in order

for the defendants to be on notice as to its unlawfulness. 

Barker v. Goodrich, 649 F.3d 428, 435 (6th Cir. 2011), quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987). The variety and

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timing of decisions from other courts, coupled with the decisions

within this circuit interpreting Thaddeus-X, persuade the Court

that dismissal is not appropriate on the question of whether Mr.

Brown has sufficiently alleged enough adverse action to satisfy

the second prong of the Thaddeus-X test. As he has described the

retaliatory actions directed toward him, a reasonable prison

official would have appreciated their unlawfulness, and whether

these actions actually occurred becomes “a question of fact, not

dismissible as a matter of law.” Thaddeus-X, 175 F.3d at 398. 

Thus, it will be recommended that the motion to dismiss be

denied. 

IV. The Motion for Leave to Amend

In his motion for leave to amend his complaint, Mr. Brown

asserts that he is still being harassed for exercising his First

Amendment rights, and he seeks to add claims against two

additional defendants, corrections officers Andrew M. Skinner and

Jeffrey D. Jones. Defendants have opposed the motion on grounds

that these claims are futile and that Mr. Brown has not exhausted

administrative remedies with respect to these claims. They have

attached an affidavit to their response which states that Mr.

Brown has never filed a grievance concerning Officer Skinner and

has not exhausted the grievance process with respect to Officer

Jones. Mr. Brown states in his reply that he has either properly

grieved all of the actions which he wishes to allege in his

amended complaint or that prison officials have refused to supply

him with the proper forms to do so.

The Supreme Court has made it clear that “failure to exhaust

is an affirmative defense under the PLRA, and that inmates are

not required to specially plead or demonstrate exhaustion in

their complaints.” Jones v. Bock, 549 U.S. 199, 216 (2007). 

Thus, the objection which defendants raise concerning exhaustion

does not go to the sufficiency of the proposed amended complaint,

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but rather to an affirmative defense. It would be particularly

inappropriate to resolve the merits of that defense on the basis

of an affidavit submitted before the amended complaint is even

filed. To do so would be tantamount to granting summary judgment

on a claim not yet asserted. The better procedure would be to

allow the complaint to be filed, and to permit defendants to file

a motion for summary judgment if they believe that the exhaustion

requirement has not been satisfied.

The defendants’ other argument is similar to the one which

they advance in their motion to dismiss. It questions the

sufficiency of Mr. Brown’s claim that he was adversely affected

by the alleged actions of Officers Skinner and Jones. Again, the

better exercise of the Court’s discretion is to permit the

complaint to be filed, so that the Court and defendants may see

exactly what actions Mr. Brown attributes to these new

defendants. If that complaint is subject to dismissal,

defendants may, of course, file such a motion. In the meantime,

given the policy underlying Rule 15(a), which liberally favors

amendments if no prejudice results, the Court will permit Mr.

Brown to amend his complaint to add these new defendants and

allegations.

 V. Other Motions

There are two other motions pending in this case which fall

within the jurisdiction of the Magistrate Judge to determine in

the first instance. They are Mr. Brown’s motion for leave to

supplement and to strike (#43) and defendants’ motion for an

extension of time (#48). The former motion does not appear to be

specific to this case and requests no relief that would affect

the recommendation being made on the motion for judgment on the

pleadings. The latter motion is moot. Both motions will be

denied. 

The other pending motions are all motions which must be

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finally ruled on by the District Judge because they ask, in one

form or another, for some type of interim injunctive relief. 

Since this recommendation leaves this case pending, if that

recommendation is adopted, those motions will require a ruling. 

That should be done by way of a separate order, since they

pertain not just to this case but to Mr. Brown’s other pending

cases, some of which may be subject to a recommendation that they

be dismissed in whole or in part.

 VI. Recommendation and Order

Based on the above discussion, it is recommended that the

defendants’ motion for judgment on the pleadings (#17) be denied. 

It is further ordered that Mr. Brown’s motion for leave to

supplement and to strike (#43) and defendants’ motion for an

extension of time (#48) are denied. His motion for leave to

amend his complaint (#26) is granted. He shall file an amended

complaint setting forth his new claims against the proposed new

defendants within twenty-one days. He is reminded that because

these defendants are not currently part of this case, he will

need to complete the required service forms so that the Marshal

may make service on them. 

VII. Procedure on Objections

 If any party objects to this Report and Recommendation, that

party may, within fourteen days of the date of this Report, file

and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made,

together with supporting authority for the objection(s). A judge

of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made. Upon proper

objections, a judge of this Court may accept, reject, or modify,

in whole or in part, the findings or recommendations made herein,

may receive further evidence or may recommit this matter to the

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magistrate judge with instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to object

to the Report and Recommendation will result in a waiver of the

right to have the district judge review the Report and

Recommendation de novo, and also operates as a waiver of the

right to appeal the decision of the District Court adopting the

Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

 /s/ Terence P. Kemp 

United States Magistrate Judge

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