NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0326n.06 No. 10-1886 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

KEI TH DOB BI

NS, Plaintiff-Appellant,

v. GEORGE CRAYCRAFT, e t al. Def endant- Appellee

. ) ) ) ) ) ) ) ) ) ) ON AP P E AL FROM THE UNI TED STATES DI STRI CT COURT FOR THE WES TERN DI STRI CT OF MI CHI GAN

BEF ORE: MARTI

N, SI L ER and ROGERS, Circuit J udg es. ROGERS, Circuit J udg e. I n this § 1983 suit, Michig an prisoner Keith Dobbins appea ls the dismiss al of his First Amendment and due proce ss claims ag ainst Geor g e Cray cra ft, his former supervisor, and Doug Be steman, the prison’s classifica tion direc tor. The district court should have
g iven Dobbins a chanc e to “pre sent fac ts essential to justify [hi s] opposition” to summary judgme nt, Fe d. R. Civ. P . 56(d), a

nd dismiss al was the ref

ore pr emature

. Dobbins is an inmate in the Kinross Correc tional Fa cility (KCF) , and former ly worke d in the prison’s kitchen. After a series of promotions, he held the lead position on his shift. On September 7, 2006, Dobbins filed a g rieva nce ag ainst Cray cra ft, the prison’s food service supervisor, alleg ing verba l abuse and failure to observe food safe ty protocols. Dobbins cla i m s t h at C ray cra ft beca me irate when he lear

ned of the g rieva

nce and that he beg an hara ssing Dobb ins by adding to his workload, acc using him of working t o o slowly , and deleg ating authority to those Dobbins hadNo. 10-1886

Dobbins v. Craycraft
previously overse en. Dobbins filed another grieva nce on Oc t o b er 5 and was suspended five day s later. On October 24, Dobbins met with Be steman, the prison’s classifica tion direc tor , w h o in f ormed Dobbins that he had been terminated for poor perf ormanc e. Be steman showed Dobbins a final work

ev al u at i o n for the month of October 2006, which detailed a series of perf ormanc e incidents, including one in which Dobbins alleg edly fell aslee p in the dining r oom during his shift.
Procee ding pro se, Dobbi n s fi l ed this § 1983 suit ag ainst Cray cra ft and Be stemen in
Dec ember 2008, claiming that Cray cra ft reta liated ag ainst him for exercising his First Amendment rig ht to petition the g overnme nt, and that Be steman violated his due proce ss rig hts by failing to g ive him a thirty -day probationar y period befor e approving the termination. At the scre ening stag e, the district c ourt dismiss ed Dobbins’ due proce ss c laim a g ainst Be steman beca use Dobbins had failed
to alleg e a l i b er t y or property interest in his position. See 28 U.S.C. §§ 1915(e) (2), 1915A(b); 42 U.S.C. § 1997e(c ). The case was ref err ed to a mag istrate judge , and Dobbins submitt ed a series of discovery reque sts on J anuar y 28, 2009. After Craycra ft was serve d with the complaint on Marc h

1 31, the district court stay ed all discove ry two wee ks later on Apr il 15. Cray cra ft then moved for summary judgme nt. Thoug h he did not dispute that Dobbins had
eng ag ed i n p ro tected activity and that his termination qualified as an adver se action, Cray cra ft
presen t ed ev i d ence that the termination was cause d by Dobbins’ poor perf ormanc e, not beca

use Dobbins eng ag ed in protec ted activity

. See Thaddeus-X v. Blatter , 175 F.3d 378, 399 (6th Cir. 1999)

Fe dera l Rule of Civil Procedur e 26(a) (1)( B) exem p t s p risoner suits from the discovery 1 confe renc e require d by Rule 26, which under Rule 26(d) must pre cede any discovery

reque st. See Fe d. R. Civ. P . 26(f)

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Dobbins v. Craycraft
(desc ribing the s hifting burdens of proof)

. Craycra ft submitt ed a series of work e v al u at i o n s from
Marc h 2006 to October 2006, indicating that Dobbins had a history of arr iving late, failing to follow instructions, arg uing w ith coworke rs, working too slowly , and assig ning himself le ss work. Dobbins filed an aff

idavit in opposition to summary judgme nt, in which he identified three witnesses who alleg edly could contra dict Cray cra ft’s acc usation that Dobbins fell aslee p on the job, and who could verify that Cray cra ft was upset about the g rieva nces and wanted t o fi re Dobbi ns. Dobbins arg ued that he would submit evidenc e to support his opposition to summary judgme nt once Cray cra ft had fully responde d to the reque st for discovery , which contained a series of twenty
reque sts f or documents, admissions, and answe rs to interrog atories. Wit hout r eopening discovery

or providing D o b b in s a

n o p portunity to develop his own evidenc e, the district court g rante d summary judgme nt in favor of Cray cra ft, concluding that Dobbins’ poor perf ormanc e was the sole rea son for his termination. Dobbins now appea ls. Dobbins’ proce dural due proce ss claim ag ainst Be stemen was proper ly dismiss ed for failure
to alleg e a liberty or proper ty interest. Dobbins has no constit u t i o n al ri g ht to prison employ ment beca use the loss of his position does not impose an “aty pical and signific ant hardship

. . . in rela tion
to the ordinary incidents of prison life.” Sandin v. Conner , 515 U.S

. 4 72, 484 (1995); see Picke lhaupt v. Jack

son , 364 F. App’x 221, 226 (6th Cir. 2010). Nor does Dobbins have such a rig ht under Michig an law, which g ives prison administrators complete discretion reg arding prisoner work assig nments. See Mich. Dep’ t of Corr. Policy Direc tive (PD) 05.02.100 (ef fec tive Fe b. 25, 2008); Stewart v. Mintzes , 815 F.2d 80, No. 86-1120, 1987 WL 35931, at *1 (6t h C i r. 1 9 8 7 ). Be cause

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Dobbins v. Craycraft

Dobbins did not have a cog nizable liberty or proper ty interest in his position at KCF, his termination did not violate due proc ess. Howeve r, the district court should have g iven Dobbins a chanc e to conduct some discovery befor e g ranting summary judgme nt in favor of Cray cra ft on Dobbins’ First Amendment reta liation claim. A non-movant who loses at the summary judgme nt s t age can challeng e the dismiss al as
prema ture if the district court did not aff ord him an opportunity to “pre sent fac ts essential to justify [hi s] oppos ition.” Fed. R. Civ. P. 56(d) (for merly Rule 56(f)) ; see Plott v. Ge neral Motors Corp., Pack ard Elec. Div. , 71 F.3d 1190, 1195-97 (6th Cir. 1995). Dobbins’ aff idavi t in opposition to
summary judgme nt was sufficie nt to prese rve this challeng e for appellate revie w. Given that “[w]e
construe filings by pro se litigants liberally ,” Owens v. Keeling , 461 F.3d 763, 776 (6th Cir. 2006) , the aff idavit’s descr iption of the ev idence Dobbins wished to develop, toge ther with his specific invocation of Rule 56(f) , was enoug h to put the lower court on notice of the need for some discovery

. See Plott , 71 F.3d a t 1196. These ty pes of challeng es are revie wed for abuse of discretion. Vance v. United States , 90 F.3d 1145, 1149 ( 6th Cir. 1996).
A number of differ ent fac t o rs are applicable to such claims, such as (1) when the appellant lear

ned of the issue that is the subject of the desired discovery ; (2) whether the desired discovery would have chang ed the rulin g below; (3) how long the discovery period ha d lasted; (4) whether the appellant was dilatory in its discovery eff orts; and (5) w hether

the appe llee wa s responsive to discove ry reque sts. Plott , 71 F.3d at 1196-97 (interna l citations omitted). Take n toge ther, these fac tors weig h in favor of re versa l.

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Dobbins v. Craycraft
First, the timing of the discovery reque st and the district court’s initial stay , toge ther with the fac t tha t no oppor

tunity for discove ry

was e ver g iven bef

ore the court enter ed summary judgme nt, favor Dobbins. I n W

hite’s Landing Fisheries, Inc. v. Buchholzer , 29 F.3d 229, 232 (6th Cir. 1994), this court reve rsed a g rant of summary judgme nt wher e the district court stay ed all discovery just six day s afte r the plain t i ff

s s u bmitted their first discovery reque st. We held that a g rant of summary judgme nt, “abse nt any opportunity for discovery ,” was an abuse of discretion. Id. at 231 (empha sis in orig inal). He re too, Dobbins submitted his request for discovery

very ear ly in this case, a w eek befor e Cray cra ft was serve d with the complaint on Marc h 31, 2009. Cray cra ft never responde d to the reque st beca

use the dis t ri ct co u rt stay ed discovery two wee ks later on April 15, 2009. And discovery was ne ver r eopene d, despite Dobbins’ a ffidavit in opposition to sum mary judgme nt. Second, Dobbins was prejudice d by the inability to conduct discovery beca use the evidenc e he wished to develop would have undermined the district court’s conc l u s i o n that Dobbins’ poor perf ormanc e was the sole rea son for his termination. Dobbins offe red t o p re sent evidenc e that Cray cra ft made up the incident in t he dining room and then fabr icated or backdated the other incidents of poor perf

ormanc e afte r lear

ning about the g rieva

nces. This evidenc e might have made

a differ ence in the district court’s perc eption of a g enuine issue of materia l fac t as to whether Cray cra ft ac ted with a re taliatory motive. That is particula

rly true wher e Cray cra ft’s evidenc e of a non-re t al i atory explanation was equivoca l. Prior to his filing of the g rieva nce, Dobbins had a pretty g ood empl o y m en t h i s t ory at KCF, achie ving perf

ect score s on six of nine work evalua tions, and near ly perf ect score s (thirty -eig ht

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Dobbins v. Craycraft

out of a possible thirty -nine points) on the rema ining three

. These evalua tions indicate that Dobbins

was “doing very well,” was “a g ood worke r,” and showed “daily improvement in work attitude and skills.” Consist ent with this seeming ly positive fee dback, Dobbins was promoted sever al times until he held the lead position on his shift. Of course , the rec ord also supports the long list of perf ormanc e incidents used to justify summary judgme nt. But only four of these incidents preda te the g rieva nce Dobbins filed on September 7, 2006. And even the work evalua tions that descr ibe n eg ative perf ormanc e incidents prior

to September 7 re flec t near ly perf ect sc ores in other

are as. This c ase there fore differ s from ca ses in which fur ther discove ry

would not have aided the plaintiff i n p ro v i n g h er claim, e.g. , Cochrane v. United Parcel Serv., Inc. , 137 F. App’x 768, 772 (6th Cir. 2005), or those in which the reque sted discovery would have been duplicative of evidenc e alre ady in the rec ord, e.g. , Abercrom bie & Fitch Stores, Inc. v. American Eagle Outfitters, Inc. , 280 F.3d 619, 628 (6th Cir. 2002). Her e, Dobbins was prejudice d by the inability t o co n d u ct at least

some discovery beca

use the evidenc e he wished to develop was not cumulative of the exis ting rec ord and mig ht have influe nced the district court’s pe rce ption of a g enuine f actua l dispute.
For these re asons, we r ever se the district cour t’s g rant of summar

y judgme nt.

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