UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CARLTON MIXON,

Plaintiff,

Case No. 08-13963

v. HONORABLE PATRICK J. DUGGAN

MILLICENT WARREN, KATHERINE

CORRIGAN, DENNIS SERGENT,

Defendants.

________________________________/

OPINION AND ORDER GRANTING DEFENDANT MILLICENT WARREN’S

MOTION FOR SUMMARY JUDGMENT

At a session of said Court, held in the

U.S. District Courthouse, Eastern District

of Michigan on September 21, 2009.

PRESENT: HONORABLE PATRICK J. DUGGAN

U.S. DISTRICT COURT JUDGE

On September 15, 2008, Plaintiff, a Michigan Department of Corrections

(“MDOC”) prisoner, commenced this civil rights action against Defendants in their

official and individual capacities pursuant to 42 U.S.C. § 1983. In his pro se complaint,

Plaintiff alleges deprivations of his constitutional rights based on his transfer from the

Thumb Correctional Facility (“TCF”) to the Saginaw Regional Facility (“SRF”), which

he claims was in retaliation for complaints he made against TCF Assistant Deputy

Warden Katherine Corrigan. Defendant Millicent Warren is the Warden at TCF and

Defendant Dennis Sergent was a Grievance Coordinator and Transfer Coordinator at the

2:08-cv-13963-PJD-MJH Doc # 29 Filed 09/21/09 Pg 1 of 5 Pg ID 143
2

facility. At this time, only Defendant Warren has been served in this matter. On January

23, 2009, Defendant Warren filed a motion for summary judgment which this Court

referred to Magistrate Judge Michael Hluchaniuk pursuant to 28 U.S.C. § 636(b)(1)(B). 

On August 6, 2009, Magistrate Judge Hluchaniuk issued a Report and

Recommendation (“R&R”) in which he recommends that this Court grant Defendant

Warren’s motion for summary judgment. Magistrate Judge Hluchaniuk concludes that

Defendant Warren is entitled to Eleventh Amendment immunity to the extent she is sued

in her official capacity. Magistrate Judge Hluchaniuk further concludes that Plaintiff’s

claim fails against Defendant Warren fails because she was not directly involved in the

alleged constitutional violation and because Plaintiff “has not alleged the existence of a

sufficiently adverse action that was taken against him” to support a First Amendment

retaliation claim. (R&R at 18.)

At the conclusion of his R&R, Magistrate Judge Hluchaniuk informs the parties

that they must file any objections to the R&R within ten days. (R&R at 17-18.) On

August 14, 2009, Plaintiff filed a motion seeking a sixty-day extension of time to file his

objections. This Court granted Plaintiff’s request and, on September 10, 2009, he filed

his objections. The parts of the R&R to which objections are made will be reviewed by

the Court de novo. See Fed. R. Civ. P. 72(b); Thomas v. Halter, 131 F. Supp. 2d 942,

944 (E.D. Mich. 2001).

2:08-cv-13963-PJD-MJH Doc # 29 Filed 09/21/09 Pg 2 of 5 Pg ID 144
3

Objection 1:

In his first objection, Plaintiff seeks to correct Magistrate Judge Hluchaniuk’s

finding that Plaintiff filed a grievance based on the denial of internet access. Plaintiff

acknowledges that, because of security concerns, Michigan Department of Corrections

prisoners are prohibited access to the internet or any computer connection outside a

prison facility. (Obj. at 1.) This objection has no bearing on Plaintiff’s claim against

Defendant Warren, however.

Objections 2-4:

In his remaining “objections,” Plaintiff disputes Magistrate Judge Hluchaniuk’s

finding that no evidence establishes Defendant Warren’s direct involvement in Plaintiff’s

transfer. Therefore, in his second “objection,” Plaintiff indicates that he is not asserting

§ 1983 liability based on respondeat superior liability and he acknowledges that he must

show that Defendant Warren somehow encouraged or condoned the decision to transfer

him.

In his third objection, Plaintiff takes issue with Magistrate Judge Hluchaniuk’s

finding that “there is no allegation of involvement in these events by [D]efendant Warren

other than that she had the authority to stop the transfer [in response to Plaintiff’s

grievance] and did not do so.” (R&R at 12.) Plaintiff indicates that prisoners lack access

to the type of evidence that would demonstrate Defendant Warren’s involvement in his

transfer and that, based on his “30 plus years of incarceration,” he believes Defendant

Warren signed the order transferring him to SRF. Relatedly, in his fourth objection,

2:08-cv-13963-PJD-MJH Doc # 29 Filed 09/21/09 Pg 3 of 5 Pg ID 145
4

Plaintiff sets forth the following facts to demonstrate Defendant Warren’s “direct”

involvement in the alleged constitutional violation: (1) she was aware of Plaintiff’s

complaints against Defendant Corrigan, (2) she reviewed and ruled on Plaintiff’s

grievance against Defendant Corrigan, and (3) she “directly signed and/or approved the

transfer order.”

Defendant Warren’s alleged awareness of Plaintiff’s complaints and her review

and ruling on his grievances are insufficient to establish her liability under § 1983. See,

e.g., Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). Even if one reached the

conclusion that Defendant Warren authorized or approved the retaliatory transfer by

signing the transfer order, this Court agrees with Magistrate Judge Hluchaniuk that

Defendant Warren is entitled to summary judgment. As the magistrate judge indicated, to

establish a First Amendment retaliation claim, a plaintiff must prove inter alia that “an

adverse action was taken against the plaintiff that would deter a person of ordinary

firmness from continuing to engage in that conduct.” Thaddeus-X v. Blatter, 175 F.3d

378, 394 (6th Cir. 1999). Based on Sixth Circuit precedent, Plaintiff’s transfer between

prisons at the same security level, without more, does not constitute a sufficiently adverse

action to support a First Amendment retaliation claim. See Smith v. Yarrow, 78 Fed.

App’x 529, 543 (6th Cir 2003) (collecting cases).

For these reasons, the Court concurs in Magistrate Judge Hluchaniuk’s conclusion

with respect to Plaintiff’s claim against Defendant Warren.

 Accordingly,

2:08-cv-13963-PJD-MJH Doc # 29 Filed 09/21/09 Pg 4 of 5 Pg ID 146
5

IT IS ORDERED, that Defendant Warren’s motion for summary judgment is

GRANTED.

s/PATRICK J. DUGGAN

UNITED STATES DISTRICT JUDGE

Copies to:

Carlton Mixon, #132473

Michigan Reformatory

1342 W. Main St.

Ionia, MI 48846

Scott Rothermell, Esq.

Magistrate Judge Michael Hluchaniuk

2:08-cv-13963-PJD-MJH Doc # 29 Filed 09/21/09 Pg 5 of 5 Pg ID 147