UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MICHAEL CARTER,

Plaintiff, CIVIL ACTION NO. 08-CV-14877-DT

vs.

 DISTRICT JUDGE DAVID M. LAWSON

D. DOLCE, MAGISTRATE JUDGE MONA K. MAJZOUB

Defendant.

________________________/

REPORT AND RECOMMENDATION

I. RECOMMENDATION: Defendant Dolce’s Motion for Summary Judgment filed on

February 3, 2009 (docket no. 9) should be GRANTED, and this action should be dismissed.

II. REPORT:

This matter comes before the Court on Defendant Dolce’s Motion for Summary Judgment. 

(Docket no. 9). Plaintiff has responded to the motion. (Docket no. 11). Defendant filed a Reply

brief. (Docket no. 12). Plaintiff filed a motion for leave to file a sur-reply brief, and that motion

will be granted. (Docket no. 13). Plaintiff attached a copy of his sur-reply brief, and the Court has

reviewed it in connection with this motion. The case was referred to the undersigned for all pretrial

proceedings. (Docket no. 6). Defendant Dolce’s Motion for Summary Judgment is now ready for

ruling. The Court dispenses with oral argument pursuant to E.D. Mich. LR 7.1(e). 

A. Factual Background and Claims

Plaintiff filed a prisoner civil rights Complaint pursuant to 42 U.S.C. § 1983. (Docket no.

1). The sole Defendant is food service stewardess D. Dolce. (Id.). Plaintiff seeks damages for

violation of his “first amendment constitutional right to free speech, by retaliating against Plaintiff

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by falsifying a state document i.e., a major misconduct when Plaintiff informed Defendant that he

will file a grievance complaint on her if she continue [sic] to try to make him wash pots and pans

without gloves.” (Id. at 3).

Plaintiff explains in the declaration attached to his Complaint that on June 1, 2007 he was

working in the food service area at the correctional center. Defendant told him to “work in pots and

pans.” (Id. at 5). Plaintiff states that he “attempted to do the work but was unable to find safety

gloves to work in the hot water thats [sic] above one hundred degrees temperature hot.” (Id). 

Plaintiff further states that he informed Defendant that he needed gloves to do the work, and she

replied that she was giving him a “direct order to go wash pots and pans.” (Id. at 6). Plaintiff

responded that he was not going “to put [his] bare hands in that hot water.” (Id.). Defendant told

him that she did not like his attitude. Plaintiff responded that he did not care, “I am writing a

grievance on you if you keep trying to force me to wash pots and pans without gloves.” (Id.). 

Defendant then left and talked to the “kitchen officer” who then told Plaintiff to leave the kitchen

because Defendant was charging him with misconduct. (Id. at 6-7). Later that day Plaintiff received

a major misconduct charge from Defendant for disobeying a direct order. (Id. at 7).

Plaintiff further alleges that he was found not guilty of the misconduct charge on June 20,

2007. (Id.). Plaintiff attached a copy of the misconduct report which states that Defendant gave

Plaintiff a direct order to “work in pots and pans,” and Plaintiff “became argumentative and said that

he wasn’t going to do it.” (Id. at 9). Plaintiff “never complied with this direct order.” (Id.). The

hearing report, which is also attached to Plaintiff’s Complaint, shows that the hearing officer found

that there was an issue about whether Plaintiff could safely work in the hot water without gloves. 

(Id. at 10). The misconduct charge was not upheld.

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B. Standard of Review

Summary judgment is appropriate where “the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The moving party

has the burden of showing an absence of evidence to support the non-moving party’s case. 

Covington v. Knox County Sch. Sys., 205 F.3d 912, 915 (6th Cir. 2000). Once the moving party has

met its burden of production, the non-moving party must come forward with significant probative

evidence showing that a genuine issue exists for trial. (Id.). A mere scintilla of evidence is

insufficient to defeat a supported motion for summary judgment; rather, “there must be evidence on

which the jury could reasonably find for the [non-moving party].” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 252 (1986). While the evidence itself need not be the sort admissible at trial, the

evidence must be more than the non-movant’s own pleadings. Ashbrook v. Block, 917 F.2d 918, 921

(6th Cir. 1990); see also Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989)

(explaining that the non-moving party may not rely on the hope that the trier of fact will disbelieve

the movant’s denial of a disputed fact).

C. Analysis

Plaintiff’s only ground for relief stated in his Complaint is that Defendant violated his First

Amendment right to free speech by retaliating against him by filing a false misconduct report

because he told Defendant that he was going to file a grievance against her if she continued to try

to make him wash pots and pans without gloves. (Docket no. 1 at 3).

In order to show a First Amendment retaliation claim, Plaintiff must establish that: (1) he

engaged in protected conduct; (2) an adverse action was taken against him that would deter a person

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of ordinary firmness from engaging in that conduct; and (3) the adverse action was motivated at least

in part by the protected conduct. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999). If

Defendant can show that she would have taken the same action in the absence of the protected

activity, she is entitled to prevail on summary judgment. (Id. at 399). Conclusory allegations of

retaliatory motive unsupported by material facts are not sufficient to state a claim under section

1983. Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6th Cir. 2005); Cox v. Jackson, 579 F. Supp. 2d 831,

848 (E.D. Mich. Sept. 29, 2008).

Defendant has submitted an affidavit consistent with the statements in her misconduct charge

against Plaintiff. (Docket no. 10). Defendant states that Plaintiff did not state that he was not going

to put his hands in hot water or that he was going to write a grievance if Defendant continued trying

to force him to wash pots and pans without gloves. (Id.) Plaintiff states that she “would have

written the ‘Disobeying a Direct Order’ misconduct against the plaintiff regardless of whether he

stated he was going to write a grievance because it is my belief that it is not an inmate relief

worker’s prerogative to refuse to work an assigned task and walk off the assignment after being

given a direct order to do so.” (Id.).

Defendant argues that summary judgment is appropriate because her motivation in charging

Plaintiff with misconduct was his refusal to comply with her order, and because no clearly

established federal law supports a conclusion that a threat to file a grievance constitutes protected

conduct under the First Amendment. (Docket no. 9 at 4).

For purposes of this discussion, the Court will assume that Plaintiff engaged in protected

conduct when he stated to Defendant, and that he did actually state to Defendant, that he was going

to file a grievance against her if she continued to insist that he work without gloves. The Court will

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also assume that writing up a major misconduct charge against an inmate satisfies the second

element of a retaliation claim. However, Plaintiff still must establish that Defendant’s charging him

with major misconduct was motivated at least in part by his threat to file a grievance against

Defendant. See Thaddeus-X, 175 F.3d at 394.

Plaintiff fails to cite any specific oral statement made by Defendant supporting his allegation

that she charged him due at least in part to his threat. The written major misconduct report attached

to Plaintiff’s Complaint fails to even mention Plaintiff’s threat. The major misconduct hearing

report attached to Plaintiff’s Complaint fails to mention Plaintiff’s threat. Defendant denies in her

affidavit that Plaintiff made the threat. Defendant also states that regardless of whether Plaintiff

made the threat she would have charged Plaintiff with major misconduct because he refused her

direct order. Defendant admits that he refused “Defendant’s continuing reckless disregard, callous

order to harm himself by the [sic] putting his bare hands in scalding hot water without safety gloves

on.” (Docket no. 11 at 6). The major disagreements over this event are whether Plaintiff’s refusal

to comply with the order was justified and, if so, whether this was a valid defense to the misconduct

charge. There is no disagreement, however, that Plaintiff refused the order. This refusal provides

a logical basis for the misconduct charge and supports Defendant’s assertion that the charge was

motivated solely by this refusal and in no part by Plaintiff’s alleged threat. 

In sum, Plaintiff has advanced only conclusory allegations of retaliatory motive unsupported

by material facts which are not sufficient to survive summary judgment. See Harbin-Bey, 420 F.3d

at 580; Cox, 579 F. Supp. 2d at 848. Plaintiff has failed to show that there is sufficient evidence on

which a jury could reasonably find in his favor on the causation element of his retaliation claim. See

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Anderson, 477 U.S. at 252. Summary judgment should therefore be granted to Defendant, and this

action should be dismissed. 

III. NOTICE TO PARTIES REGARDING OBJECTIONS:

The parties to this action may object to and seek review of this Report and Recommendation,

but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C.

§ 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver

of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health &

Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

Filing of objections which raise some issues but fail to raise others with specificity, will not preserve

all the objections a party might have to this Report and Recommendation. Willis v. Sec’y of Health

& Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n Of Teachers Local 231,

829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections

is to be served upon this Magistrate Judge.

Any objections must be labeled as “Objection #1,” “Objection #2,” etc. Any objection must

recite precisely the provision of this Report and Recommendation to which it pertains. Not later

than ten days after service of an objection, the opposing party must file a concise response

proportionate to the objections in length and complexity. The response must specifically address

each issue raised in the objections, in the same order and labeled as “Response to Objection #1,”

“Response to Objection #2,” etc.

Dated: April 03, 2009 s/ Mona K. Majzoub 

MONA K. MAJZOUB

UNITED STATES MAGISTRATE JUDGE

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PROOF OF SERVICE

I hereby certify that a copy of this Report and Recommendation was served upon Michael

Carter and Counsel of Record on this date.

Dated: April 03, 2009 s/ Lisa C. Bartlett 

Courtroom Deputy

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