UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MICHAEL CARTER,

Plaintiff, Case Number 08-14877

Honorable David M. Lawson

v. Magistrate Judge Mona M. Majzoub

D. DOLCE,

Defendant.

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ORDER ADOPTING IN PART AND REJECTING IN PART MAGISTRATE JUDGE’S

REPORT, ADOPTING RECOMMENDATION, SUSTAINING IN PART AND

OVERRULING IN PART PLAINTIFF’S OBJECTIONS, GRANTING

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, AND DISMISSING CASE

This matter is before the Court on the plaintiff’s objections to a report issued by Magistrate

Judge Mona M. Majzoub recommending that this Court grant the defendant’s motion for summary

judgment because the plaintiff has not established an element of his prima facie case for

unconstitutional retaliation and has not made out an Eighth Amendment violation. At the time of

the events described in the complaint, the plaintiff was an inmate in the custody of the Michigan

Department of Corrections. He filed a complaint alleging that the defendant retaliated against him

by charging him with major misconduct when he threatened to file a grievance after the defendant

ordered him to wash pots and pans in scalding water without protective gloves. The case was

referred to Judge Majzoub to conduct all pretrial proceedings. The defendant then filed her

summary judgment motion. On April 3, 2009 Judge Majzoub filed a report recommending that the

motion be granted. The plaintiff filed timely objections. After a de novo review of the record in

light of the plaintiff’s objections, the Court finds that the magistrate judge erred in concluding that

the plaintiff did not offer sufficient evidence of causation as part of his prima facie case. However,

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the plaintiff has not offered any evidence to rebut the defendant’s assertion that she would have

charged the plaintiff with major misconduct regardless of whether he threatened to file a grievance,

and therefore the plaintiff has not sustained his burden on summary judgment. Nor has the plaintiff

established an Eighth Amendment claim. The Court therefore will reject the magistrate judge’s

report in part, adopt the recommendation, sustain in part and overrule in part the plaintiff’s

objections, grant the defendant’s motion for summary judgment, and dismiss the case. 

I. 

Although the plaintiff is currently on parole, in June of 2007, he was incarcerated in the

Adrian Correctional Facility serving a sentence for armed robbery. On June 1, 2007, he was

working in the kitchen under the direction of the defendant, an employee of the Michigan

Department of Corrections (MDOC). The defendant’s responsibilities included assigning the prison

kitchen duties to prisoners. There is no dispute that the plaintiff was working as a relief worker in

the food service area of the correctional facility when the defendant ordered him to wash the pots

and pans. From there, however, the stories differ.

The plaintiff asserts in a declaration attached to the complaint signed under penalty of

perjury that he “attempted to do the work but was unable to find safety gloves to work in the hot

water that[’]s above one hundred degrees temper[a]ture hot.” Pl’s Decl. at ¶ 2. The plaintiff avers

that when he told the defendant he needed gloves, she told him that she would try to find him some.

She left and came back a short time later and stated “I’m giving you a direct order to go wash pots

and pans.” Ibid. The plaintiff responded, “I ain’t going to put my bare hands in that hot water.”

Ibid. The plaintiff and the defendant began to argue, and he says that he told her, “I am writing a

grievance on you if you keep trying to force me to wash pots and pans without gloves.” Ibid. The

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defendant left the kitchen and reported the plaintiff to the kitchen officer, who then entered the

kitchen and told the plaintiff to “take off his kitchen whites and leave the kitchen and that plaintiff

is laid-in pending the outcome of the misconduct Dolce is writing.” Ibid. Later that day the

defendant wrote a misconduct report charging the plaintiff with disobeying her direct order. The

plaintiff alleges that the defendant retaliated against him 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.” Ibid.

The defendant remembers it differently. She submitted an affidavit that states, “[a]t no time

did [the plaintiff] attempt to work this assignment. He became argumentative and tried to tell me

what assignments he did not have to work on.” Def.’s Mot., Ex. A, Dolce Aff. at ¶ 5. The defendant

maintains that after she again gave the plaintiff the direct order to wash the pots and pans, he

refused, they argued, and the plaintiff then left the kitchen area. The defendant acknowledges that

she issued a written charge against the plaintiff “for refusing to comply with the order and laid in

from his assignment pending the hearing on the misconduct.” Id. at ¶ 7. The defendant states, “I

would have written the ‘Disobeying a Direct Order’ misconduct against the plaintiff regardless of

whether 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. at ¶ 9. 

The plaintiff was sent to his cell immediately after this incident, and the defendant wrote a

major misconduct charge the same day. 

On June 20, 2007, a hearing officer found the plaintiff not guilty of the misconduct charge.

He noted that the evidence did not plainly establish whether the water was dangerously hot. The

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hearing officer concluded that Dolce’s explanation of the events was contradictory: at one point she

stated that the plaintiff refused to work, but at another point she stated that the plaintiff had asked

for gloves so that he could work. Because he could not determine on that record whether the water

temperature was too hot for the plaintiff to work safely without gloves, he dismissed the misconduct

charge.

After exhausting his administrative remedies, the plaintiff filed his pro se complaint in this

Court. He seeks damages for violation of his First Amendment constitutional right to free speech

and his Eighth Amendment constitutional right not to be subjected to cruel and unusual punishment.

In her summary judgment motion, the defendant argues that there is no evidence that the

plaintiff engaged in protected conduct. She acknowledges that filing a grievance amounts to

protected conduct under clear Sixth Circuit precedent; however, she insists that there is no precedent

that clearly holds that threatening to file a grievance constitutes protected conduct. 

The magistrate judge evaluated the plaintiff’s retaliation claim by applying the three element

test laid out in Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). The magistrate

judge assumed that the plaintiff engaged in protected conduct when he threatened to file a

grievance, and also assumed that the major misconduct charge could deter a prisoner of ordinary

firmness from exercising his First Amendment rights. However, she recommended that the claim

be dismissed because the plaintiff “has advanced only conclusory allegations of retaliatory motive

unsupported by material facts which are not sufficient to survive summary judgment,” and that the

body of evidence available will not allow a jury to “reasonably find in [the plaintiff’s] favor on the

causation element of his retaliation claim.” Rep. & Rec. at 5. The magistrate judge reasoned that

the plaintiff “fails to cite any specific oral statement made by defendant supporting his allegation

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that she charged him due at least in part to his threat,” ibid., there was no mention of this threat in

the major misconduct hearing, and the defendant denies that he made it. However, because there

is no dispute that the plaintiff refused an order, “[t]his 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.” Ibid.

The plaintiff objected to the magistrate judge’s conclusion that proof of specific oral

statements were necessary to establish causation. The defendant has not filed objections.

II.

Objections to a report and recommendation are reviewed de novo. 28 U.S.C. § 636(b)(1).

The Sixth Circuit has stated that “[o]verly general objections do not satisfy the objection

requirement.” Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir. 2006). “The objections must be

clear enough to enable the district court to discern those issues that are dispositive and contentious.”

Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). “‘[O]bjections disput[ing] the correctness of the

magistrate’s recommendation but fail[ing] to specify the findings . . . believed [to be] in error’ are

too general.” Spencer, 449 F.3d at 725 (quoting Miller, 50 F.3d at 380).

The defendant did not object to the magistrate judge’s conclusion that the plaintiff

established the first two elements of his prima facie case. “[T]he failure to file specific objections

to a magistrate’s report constitutes a waiver of those objections.” Cowherd v. Million, 380 F.3d 909,

912 (6th Cir. 2004). Since the defendant did not challenge those conclusions, the Court need not

address those items, since those arguments are waived, see Thomas v. Arn, 474 U.S. 140, 149 (1985)

(holding that the failure to object to the magistrate judge’s report releases the Court from its duty

to independently review the motion); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370,

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1373 (6th Cir. 1987). However, the issues are sufficiently important to warrant comment by this

Court. 

The defendant moved for summary judgment. A motion for summary judgment under Fed.

R. Civ. P. 56 presumes the absence of a genuine issue of material fact for trial. The Court must view

the evidence and draw all reasonable inferences in favor of the non-moving party, and determine

“whether the evidence presents a sufficient disagreement to require submission to a jury or whether

it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 251-52 (1986). The “[s]ummary judgment procedure is properly regarded not as a

disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which

are designed to secure the just, speedy and inexpensive determination of every action.” Celotex

Corp. v. Catrett, 477 U.S. 317, 327 (1986) (internal quotes omitted). 

A fact is “material” if its resolution affects the outcome of the lawsuit. Lenning v.

Commercial Union Ins. Co., 260 F.3d 574, 581 (6th Cir. 2001). “Materiality” is determined by the

substantive law claim. Boyd v. Baeppler, 215 F.3d 594, 599 (6th Cir. 2000). An issue is “genuine”

if a “reasonable jury could return a verdict for the nonmoving party.” Henson v. Nat’l Aeronautics

& Space Admin., 14 F.3d 1143, 1148 (6th Cir. 1994) (quoting Anderson, 477 U.S. at 248).

Irrelevant or unnecessary factual disputes do not create genuine issues of material fact. St. Francis

Health Care Centre v. Shalala, 205 F.3d 937, 943 (6th Cir. 2000). When the “record taken as a

whole could not lead a rational trier of fact to find for the nonmoving party,” there is no genuine

issue of material fact. Michigan Paytel Joint Venture v. City of Detroit, 287 F.3d 527, 534 (6th Cir.

2002). Thus a factual dispute that “is merely colorable or is not significantly probative” will not

defeat a motion for summary judgment that is properly supported. Kraft v. United States, 991 F.2d

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292, 296 (6th Cir. 1993); see also Int’l Union, United Auto., Aerospace & Agric. Implement Workers

of Am. v. BVR Liquidating, Inc., 190 F.3d 768, 772 (6th Cir. 1999).

The party bringing the summary judgment motion has the initial burden of informing the

district court of the basis for its motion and identifying portions of the record which demonstrate the

absence of a genuine dispute over material facts. Mt. Lebanon Personal Care Home, Inc. v. Hoover

Universal, Inc., 276 F.3d 845, 848 (6th Cir. 2002). The party opposing the motion may not merely

“rely on the hope that the trier of fact will disbelieve the movant’s denial of a disputed fact,” but

must make an affirmative showing with proper evidence in order to defeat the motion. Street v. J.C.

Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989). A party opposing a motion for summary

judgment must designate specific facts in affidavits, depositions, or other factual material showing

“evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252.

If after sufficient opportunity for discovery the non-moving party is unable to meet his or her burden

of proof, summary judgment is clearly proper. Celotex Corp., 477 U.S. at 322-23. 

The party who bears the burden of proof must present a jury question as to each element of

the claim. Davis v. McCourt, 226 F.3d 506, 511 (6th Cir. 2000). Failure to prove an essential

element of a claim renders all other facts immaterial for summary judgment purposes. Elvis Presley

Enters., Inc. v. Elvisly Yours, Inc., 936 F.2d 889, 895 (6th Cir. 1991). “[T]he party opposing the

summary judgment motion must ‘do more than simply show that there is some “metaphysical doubt

as to the material facts.”’” Highland Capital, Inc. v. Franklin Nat. Bank, 350 F.3d 558, 564 (6th Cir.

2003) (quoting Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 800 (6th Cir. 1994), and

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “Thus, the mere

existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there

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must be evidence on which the jury could reasonably find for the plaintiff.” Ibid. (quoting

Anderson, 477 U.S. at 252) (internal quote marks omitted).

A.

Under Sixth Circuit law,

[a] 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 at 394. 

As noted earlier, the defendant argues that the plaintiff did not engage in protected conduct

by threatening to file a grievance, but agrees that “[a]n inmate has an undisputed First Amendment

right to file grievances against prison officials on his own behalf.” Thomas v. Eby, 481 F.3d 434,

439 (6th Cir. 2007). Nonetheless, the defendant is correct that neither the Sixth Circuit nor the

Supreme Court has addressed explicitly whether threatening to file a grievance constitutes protected

conduct. See Harbin-Bey v. Rutter, 420 F.3d 571, 579 (6th Cir. 2005) (finding against the plaintiff

who claimed his protected conduct was threatening to file a lawsuit because he had not shown that

a prisoner of ordinary firmness would be deterred); Scott v. Kilchermann, 230 F.3d 1359, 2000 WL

1434456, at *2 (6th Cir. Sep. 18, 2000) (holding that a prisoner did not engage in protected conduct

when he threatened to file a frivolous grievance). But see Bridges v. Gilbert, 557 F.3d 541, 555 (7th

Cir. 2009) (suggesting without further explanation or citation that “it seems implausible that a threat

to file a grievance would itself constitute a First Amendment-protected grievance”). 

The Court believes that when it comes to protecting First Amendment rights, including the

right to petition the government for redress, there is little difference between retaliating against a

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person for filing a grievance, and retaliating for threatening to file one. The right to file a grievance

stems from the First Amendment right to free speech and to petition the state for redress of

grievances. See Noble v. Schmitt, 87 F.3d 157, 162 (6th Cir. 1996). Once a prisoner makes clear

his intention to resort to official channels to seek a remedy for ill treatment by a prison employee,

retaliation against the prisoner by that employee implicates all the policies intended to protect the

exercise of a constitutional right. It appears that the Sixth Circuit treats filing and threatening to file

as categorically identical outside the prison context. See Jackson v. City of Columbus, 194 F.3d 737,

756-57 (6th Cir. 1999) (holding that an employee engages in protected activity under the First

Amendment when he threatens to file a lawsuit on a matter of public concern), abrogated on other

grounds by Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002); Polk v. Yellow Freight System, Inc.,

801 F.2d 190, 200 (6th Cir. 1986) (noting that there is “‘no legal distinction . . . between the filing

of a charge which is clearly protected . . . and threatening to file a charge’” under Title VII’s antiretaliation provisions (quoting Gifford v. Atchison, Topeka & Santa Fe Ry. Co., 685 F.2d 1149, 1156

n. 3 (9th Cir. 1982)).

Moreover, the MDOC policy directive applicable to prisoner grievances requires that a

prisoner inform the person with whom he has a dispute about his complaint before filing a formal

grievance. See MDOC PD 03.02.130, available at http://www.michigan.gov/documents/corrections/

03_02_130_200872_7.pdf. So in a sense, threatening to resort to the formal grievance process is

itself the first step in that process. But even if the threat to file a grievance is not viewed as part of

the process, a clearly stated intention to file a grievance amounts to protected conduct within the

meaning of Thaddeus-X. The plaintiff made out this element of his prima facie case through the

sworn statements in his declaration.

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The magistrate judge also assumed that the plaintiff had met the second prong. This

conclusion is unavoidable. “Retaliation against a prisoner is actionable if it is capable of deterring

a person of ordinary firmness from exercising his or her right to access the courts.” Thaddeus-X,

175 F.3d at 398. Not every action is an adverse action; de minimus slights and inconveniences do

not qualify. Id. at 396. “Prisoners may be required to tolerate more than public employees, who

may be required to tolerate more than average citizens, before an action taken against them is

adverse.” Id. at 398. But the Sixth Circuit has held that charging an inmate with a major

misconduct violation is sufficiently adverse to “deter a person of ordinary firmness’ from the

exercise of the right at stake,” id. at 396, because conviction of such a violation could result in the

prisoner’s segregation or loss of good time credits. Brown v. Crowley, 312 F.3d 782, 789 (6th Cir.

2002). In this case, the Court is satisfied that a jury could find for the plaintiff on the second

element.

The magistrate judge’s conclusion that the plaintiff failed to meet the third element is the

target of the plaintiff’s objections. This argument was not advanced in the defendant’s motion for

summary judgment. It is true that “the third element – a causal connection between the protected

activity and the adverse action – needs to be established by the plaintiffs to complete their

affirmative case.” Thaddeus-X, 175 F.3d at 399. However, “retaliation ‘rarely can be supported

with direct evidence of intent.’” Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6th Cir. 2005) (quoting

Murphy v. Lane, 833 F.2d 106, 108 (7th Cir. 1987)). That is why “[c]ircumstantial evidence, like

the timing of events or the disparate treatment of similarly situated individuals, is appropriate” to

consider when determining whether a genuine issue of fact on the third prong has been established.

Thaddeus-X, 175 F.3d at 399. The magistrate judge appears to have insisted upon direct evidence

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of an improper motive, and she did not consider whether the plaintiff had come forward with other

types of evidence. 

The Court believes that he did. Here, there is a factual dispute whether the plaintiff

threatened to file a grievance. He asserts – in the form of a declaration, which is competent evidence

for summary judgment purposes – that he told the defendant of his intent to file, and he immediately

was “laid in” pending a major misconduct charge. The major misconduct charge was filed later that

day. “[T]emporal proximity alone may be significant enough to constitute indirect evidence of a

causal connection so as to create an inference of retaliatory motive.” Muhammad v. Close, 379 F.3d

413, 417-18 (6th Cir. 2004) (internal quotations omitted). Dealing with an analogous requirement

in the Title VII context, see, e.g., Strouss v. Michigan Department of Corrections, 250 F.3d 336 (6th

Cir. 2001) (citing a Title VII retaliation case in a First Amendment retaliation claim); Johnson v.

University of Cincinatti, 215 F.3d 561 (6th Cir. 2000) (citing a Title VII retaliation case in a First

Amendment retaliation claim), the Sixth Circuit has held that temporal proximity may be sufficient

in some cases to establish causation, noting the anomalous outcome if the contrary were true:

[I]f an employer immediately retaliates against an employee upon learning of his

protected activity, the employee would be unable to couple temporal proximity with

any such other evidence of retaliation because the two actions happened

consecutively, and little other than the protected activity could motivate the

retaliation. Thus, employers who retaliate swiftly and immediately upon learning of

protected activity would ironically have a stronger defense than those who delay in

taking adverse retaliatory action

Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008). Here, the protected conduct

and the defendant’s response occurred in the very same day, which is sufficient to give rise to an

inference of retaliation. See ibid.

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“Once the plaintiff has met his burden of establishing that his protected conduct was a

motivating factor behind any harm, the burden of production shifts to the defendant. If the defendant

can show that he would have taken the same action in the absence of the protected activity, he is

entitled to prevail on summary judgment.” Thaddeus-X, 175 F.3d at 399 (citing Mt. Healthy City

School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977)). This issue was not addressed by the

magistrate judge. 

The evidence in this case shows that the plaintiff refused the defendant’s direct order and that

he would have been subjected to a misconduct charge regardless of his protected conduct. The

plaintiff admits that the defendant gave him a direct order to wash the pots and pans, and he refused

by responding “I ain’t going to put my bare hands in that hot water.” Pl.’s Decl. at ¶ 2. The plaintiff

also admits that he “did in fact refuse Defendant’s continuing reckless disregard, callous order to

harm himself by the putting his bare hands in scalding hot water without safety gloves on.” Pl.’s

Resp. at 3. The defendant states in her affidavit that she would have “written the ‘Disobeying a

Direct Order’ misconduct charge 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.” Dolce Aff. ¶ 5. The plaintiff has pointed to no evidence contradicting the defendant’s claim

that she would have filed the charge regardless of the plaintiff’s threatened grievance. Nor has the

plaintiff requested an opportunity for discovery to present his claim, or otherwise suggested that he

could somehow establish a contrary fact. See Fed. R. Civ. P. 56(f). Because there is no genuine

dispute as to whether the defendant would have issued a major misconduct violation even in the

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absence of the protected activity, the plaintiff has failed to produce evidence sufficient to defeat the

motion for summary judgment on the First Amendment retaliation claim.

B.

The plaintiff claimed that the defendant violated his Eighth Amendment right by subjecting

him to cruel and unusual punishment when she ordered him to wash the pots and pans without

gloves. This claim was referenced in the body of the plaintiff’s response to the defendant’s motion

for summary judgment, but the magistrate judge did not address it in the report and recommendation.

The plaintiff’s sole argument on this claim is that the “violation of ‘disobeying a direct order’ was

no more than him exercising his eighth amendment constitutional right not to be subjected to cruel

and unusual punishment, i.e., scalding himself with hot water.” Pl.’s Obj. at ¶ 1. 

The Eighth Amendment imposes a constitutional limitation on the power of the states to

punish those convicted of crimes. Punishment may not be “barbarous” nor may it contravene

society’s evolving standards of decency. Rhodes v. Chapman, 452 U.S. 337, 345-46 (1981).

However, “[n]ot every unpleasant experience a prisoner might endure while incarcerated constitutes

cruel and unusual punishment within the meaning of the Eighth Amendment.” Ivey v. Wilson, 832

F.2d 950, 954 (6th Cir. 1987). “The Eighth Amendment does not outlaw cruel and unusual

‘conditions’; it outlaws cruel and unusual ‘punishments.’ An act or omission unaccompanied by

knowledge of a significant risk of harm might well be something society wishes to discourage, and

if harm does result society might well wish to assure compensation.” Farmer v. Brennan, 511 U.S.

825, 837-838 (1994).

There are two general categories of Eighth Amendment claims in a prison setting: “excessive

use of government force,” and unlawful “conditions of confinement.” Thaddeus-X v. Blatter, 175

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F.3d 378, 400-01 (6th Cir. 1999) (en banc). A conditions-of-confinement claim is one that involves

the denial of basic human needs or unsafe conditions in prison, such as exposure to open electrical

connections, unsafe drinking water, prolonged exposure to tobacco smoke, exposure to toxic

substances, and denial of medical care. See Helling v. McKinney, 509 U.S. 25, 32-34 (1993). An

excessive-use-of-government-force claim is one that involves “unnecessary and wanton pain and

suffering.” Whitley v. Albers, 475 U.S. 312, 320 (1986). Although both categories involve a

“wantonness” component, a key difference in the applicable legal standards is the state-of-mind

element the plaintiff must allege and prove. Thaddeus-X, 175 F.3d at 401. A conditions-ofconfinement claim requires proof that the defendant acted with deliberate indifference to an inmate’s

serious needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976). An excessive-use-of-force claim

requires proof that the defendant acted with a malicious and sadistic intent. Thaddeus-X, 175 F.3d

at 401. “In other words, the state-of-mind showing that a plaintiff must allege and meet in cases of

excessive force is much higher than in conditions-of-confinement cases.” Ibid. 

According to the plaintiff, he was ordered by the defendant to stick his hands in scalding

water. Surely, such a claim implicates the Eighth Amendment’s prohibition on excessive force

against an inmate. However, the plaintiff has failed to produce any evidence that the defendant had

the requisite state of mind when she issued that command. For instance, as the hearing officer

observed, there is no evidence that the water in fact was hot, and there certainly is no evidence that

the defendant knew that the water temperature was dangerously hot. 

The plaintiff has provided evidence that he informed the defendant that “he need[ed] gloves

to do the work.” Pl.’s Decl. ¶ 2. However, the expressed desire for gloves does not communicate

a risk of injury. The plaintiff also suggests that the Court could infer the defendant’s knowledge

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from her statements. In the first statement “she told Plaintiff she would try to find him some gloves

to wear while on the assignment” and in the second she stated that “he does not need gloves to ware

[sic] in the dish tank.” Obj. at 3. Neither of the defendant’s conflicting statements in the record

indicates that she realized there was a substantial risk of harm to the plaintiff. 

The plaintiff contends that the water temperature was over one hundred degrees; however

he does not provide any evidence that the defendant knew that. The Court finds that there is no

evidence in the record from which a fact finder could infer that the defendant’s state of mind was

malicious and sadistic when she instructed the plaintiff to wash the pots and pans. His Eighth

Amendment claim, therefore, must fail.

III. 

After conducting a de novo review of the record in light of the parties’ objections, the Court

is satisfied that the defendant’s motion for summary judgment should be granted. Although the

magistrate judge did not correctly apply the law and one of the plaintiff’s objections has merit, the

Court believes the plaintiff’s case ultimately must fail.

Accordingly, it is ORDERED that the magistrate judge’s report is REJECTED IN PART,

and the recommendation [dkt #15] is ADOPTED; and the plaintiff’s objections [dkt #18] are

SUSTAINED IN PART AND OVERRULED IN PART.

It is further ORDERED that the defendant’s motion for summary judgment [dkt #9] is

GRANTED.

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It is further ORDERED that the complaint is DISMISSED WITH PREJUDICE.

s/David M. Lawson 

DAVID M. LAWSON

United States District Judge

Dated: August 19, 2009

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on August 19, 2009.

s/Susan K. Pinkowski 

SUSAN K. PINKOWSKI

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