Report and Recommendation

Motion for Summary Judgment

1 Mixon v. Warren; 08-13963

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CARLTON MIXON, Case No. 08-13963

 

Plaintiff, Patrick J. Duggan

vs. United States District Judge

MILLICENT WARREN, Michael Hluchaniuk

United States Magistrate Judge

Defendant.

 /

REPORT AND RECOMMENDATION

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (Dkt. 40)

I. PROCEDURAL HISTORY

Plaintiff filed his complaint in this matter on September 15, 2008. (Dkt. 1). 

Rather than file an answer to the complaint, defendant Millicent Warren filed a

motion for summary judgment on January 23, 2009. (Dkt. 10). That motion was

referred to the undersigned on January 26, 2009, pursuant to 28 U.S.C.

§ 636(b)(1)(B). (Dkt. 11). The undersigned recommended granting Warren’s

motion for summary judgment, which was adopted District Judge Patrick J.

Duggan on September 29, 2009. (Dkt. 18, 29). 

Judge Duggan then referred this case to the undersigned for all pretrial

proceedings. (Dkt. 16). Subsequently, two additional defendants (Katherine

Corrigan and Dennis Sergent) were served with the summons and complaint and
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Motion for Summary Judgment

2 Mixon v. Warren; 08-13963

filed a motion to dismiss or for summary judgment, on similar grounds as those

asserted by defendant Warren. (Dkt. 40). On December 16, 2009, plaintiff filed a

response to the motion for summary judgment. (Dkt. 44). This matter is now

ready for report and recommendation.

For the reasons set forth below, the undersigned RECOMMENDS that the

Court GRANT defendants’ motion for summary judgment.

II. RELEVANT FACTS

Plaintiff is a prisoner of the Michigan Department of Corrections (MDOC)

and, according to his complaint, in February of 2008, while being housed at the

Thumb Correctional Facility (TCF), he was allegedly denied internet access by

prison officials. Plaintiff filed a grievance relating to that denial on February 14,

2008, which was denied on February 19, 2008. (Dkt. 1, p. 4). No documents were

attached to the complaint relating to this grievance. Plaintiff attempted to

informally contact Assistant Deputy Warden Katherine Corrigan regarding the

issue and he did not receive a response. (Dkt. 1, p. 6). On March 6, 2008, plaintiff

filed a grievance (TCF 08-03-0114-02D), “which is the basis of this action,”

pursuant to normal MDOC procedure, objecting to this denial and complaining

about Assistant Deputy Warden Corrigan, who had denied him the internet access. 

Id. The grievance was “received” by the grievance coordinator on March 10, 2008,
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Motion for Summary Judgment

3 Mixon v. Warren; 08-13963

and was denied at the first step of the standard grievance process on March 17,

2008. Id.

Plaintiff further alleges that on March 12, 2008, the process to transfer him

to the Saginaw Regional Facility (SRF) was initiated by Assistant Deputy Warden

Corrigan and the transfer actually took place on March 14, 2008. (Dkt. 1, p. 6). 

Plaintiff filed another grievance (TCF 08-03-001670-21C) on March 21, 2008,

which was “received” at the Step I level on March 26, 2008. (Dkt. 1, p. 10). This

grievance related to the transfer and claimed that the transfer was in retaliation for

filing the grievance relating to the internet access denial and to the conduct of

Assistant Deputy Corrigan in ordering the denial and subsequent transfer. Id. The

Step I grievance was denied on April 3, 2008. The denial claimed that the transfer

was made pursuant to a “trade” for a security Level II prisoner with SRF and that

plaintiff was chosen at random from those Level II prisoners that had requested a

transfer from TCF. (Dkt. 1, p. 11). Plaintiff appealed the decision to the next level

and the Step II appeal was denied on May 2, 2008. The Step II denial was signed

by defendant Warren and indicated the transfer was “routine” and not in retaliation

for plaintiff filing the grievance. The denial further indicated that Assistant Deputy

Corrigan signed all “CSJ-481 Security Classification Screens” and had not

“instigated” plaintiff’s transfer. (Dkt. 1, p. 14). Plaintiff appealed the denial to the
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4 Mixon v. Warren; 08-13963

Step III level and that was denied on June 13, 2008, based on similar reasoning. 

(Dkt. 1, p. 17).

In his complaint, plaintiff claims that he was transferred from TCF to SRF in

retaliation for filing the grievance against Assistant Deputy Corrigan and contends

that the transfer violated his constitutional rights. Plaintiff seeks a determination

that his rights were violated and an award of monetary damages. (Dkt. 1, p. 5). 

III. ANALYSIS AND CONCLUSIONS

A. Standard of Review

Summary judgment is appropriate under Rule 56(b) “if 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). In Copeland v. Machulis, 57 F.3d 476, 478-

79 (6th Cir. 1995), the court stated the standard for deciding a motion for summary

judgment:

The moving party bears the initial burden of establishing

an absence of evidence to support the nonmoving party’s

case. Once the moving party has met its burden of

production, the nonmoving party cannot rest on its

pleadings, but must present significant probative

evidence in support of the complaint to defeat the motion

for summary judgment. The mere existence of a scintilla

of evidence to support plaintiff’s position will be

insufficient; there must be evidence on which the jury

could reasonably find for the plaintiff.
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“In deciding a motion for summary judgment, [the] court views the factual

evidence and draws all reasonable inferences in favor of the nonmoving party.”

McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). A genuine

issue of material fact exists only when, assuming the truth of the non-moving

party’s evidence and construing all inferences from that evidence in the light most

favorable to the nonmoving party, there is sufficient evidence for a trier of fact to

find for the nonmoving party. Ciminillo v. Streicher, 434 F.3d 461, 464 (6th Cir.

2006). 

Rule 56 limits the materials the Court may consider in deciding a motion

under the rule: “pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits.” Copeland v. Machulis, 57 F.3d 476, 478 (6th

Cir. 1995) (citation omitted). In accordance with Rule 56(e), the Sixth Circuit has

held “that documents submitted in support of a motion for summary judgment must

satisfy the requirements of Rule 56(e); otherwise, they must be disregarded.”

Moore v. Holbrook, 2 F.3d 697, 699 (6th Cir. 1993). Thus, in resolving a Rule 56

motion, the Court should not consider unsworn or uncertified documents, Id.,

unsworn statements, Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 968-969

(6th Cir. 1991), inadmissible expert testimony, North American Specialty Ins. Co.

v. Myers, 111 F.3d 1273, 1280 (6th Cir. 1997), or hearsay evidence, Hartsel v.

Keys, 87 F.3d 795, 799 (6th Cir. 1996); Wiley v. United States, 20 F.3d 222,
1

 Plaintiff does not allege that he was transferred to an institution that was

more restrictive than the one he was in. The documents associated with the

transfer indicate he went from one Level II institution to another Level II

institution. (Dkt. 40, Ex. 1). 

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225-226 (6th Cir. 1994). See Tolliver v. Federal Republic of Nigeria, 265

F.Supp.2d 873, 879 (W.D. Mich. 2003). Thus, “[a] party opposing a motion for

summary judgment cannot use hearsay or other inadmissible evidence to create a

genuine issue of material fact.” Id., quoting, Sperle v. Michigan Dept. of

Corrections, 297 F.3d 483, 495 (6th Cir. 2002) (citation and quotation marks

omitted).

B. Retaliation

Plaintiff’s complaint contends that he was transferred from one institution to

another in retaliation for his grievance that was filed alleging improper conduct on

the part of Assistant Deputy Warden Corrigan in denying him internet access.1

Plaintiff claims this violated his First Amendment rights. A prisoner retains First

Amendment rights that are not inconsistent with his status as a prisoner or with the

legitimate penological objectives of the corrections system. See Pell v. Procunier,

417 U.S. 817, 822 (1974). Retaliation based on a prisoner’s exercise of his or her

constitutional rights violates the Constitution. See Thaddeus-X v. Blatter, 175 F.3d

378, 394 (6th Cir. 1999). 
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7 Mixon v. Warren; 08-13963

To establish a First Amendment retaliation claim, the plaintiff must prove

that: (1) the plaintiff engaged in activities protected by the Constitution or statute;

(2) the defendant took an adverse action that would deter a person of ordinary

firmness from continuing to engage in that conduct; and (3) that this adverse action

was taken at least in part because of the exercise of the protected conduct. Id. 

Conclusory allegations are insufficient to show that a defendant was motivated by

the exercise of a plaintiff’s First Amendment rights. Kensu v. Haigh, 87 F.3d 172,

175 (6th Cir. 1996). Bare allegations by the plaintiff of malice on the part of a

defendant are not enough to establish retaliation claims. Crawford-El v. Britton,

523 U.S. 574, 588 (1998). Moreover, “temporal nexus” is a factor in determining a

causal connection in a First Amendment retaliation claim. Mulazim v. Corrigan, 7

Fed.Appx. 427 (6th Cir. 2001). The plaintiff must be able to prove that the

exercise of the protected right was a substantial or motivating factor in the

defendant’s alleged retaliatory conduct. See Mount Healthy City Sch. Dist. Bd. of

Educ. v. Doyle, 429 U.S. 274, 287 (1977). If the plaintiff is able to make such a

showing, the defendant then has the burden of showing that the same action would

have been taken even absent the plaintiff’s protected conduct. Id.; Thaddeus-X,

175 F.3d at 399. 

With respect to proving plaintiff was subject to an adverse action resulting

from the exercise of a protected Constitutional right, plaintiff asserts that the
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Motion for Summary Judgment

8 Mixon v. Warren; 08-13963

transfer to SRF from TCF was the adverse action. A transfer to another prison at

the same security level is not generally considered sufficiently adverse to deter a

person of ordinary firmness from exercising his First Amendment rights. Smith v.

Yarrow, 78 Fed.Appx. 529, 543 (6th Cir. 2003); Mandela v. Campbell, 1999 WL

357825, at *3 (6th Cir. 1999). However, where there are aggravating factors, the

courts have been willing to find that a prison transfer would deter a person of

ordinary firmness. See Siggers-El v. Barlow, 412 F.3d 693, 704 (6th Cir. 2005). 

In Siggers-El, the aggravating factors accompanying the transfer included the loss

of a high paying job needed to pay for the plaintiff’s attorney and increased

difficulties for the plaintiff’s attorney in visiting with or representing the plaintiff

because he was moved further away from her. Id.

Here, plaintiff asserts that the purportedly adverse action of being transferred

caused the disintegration of his marriage because his wife was too sickly to visit

him at the facility to which he was transferred and because he lost his prison work

assignment. Id. Plaintiff argues that the “timeline between the complaints lodged,

grievances filed on the Defendants and his transfer at the direct hands of

Defendants shows the motivation for, and the causal connection between the

protected conduct and the adverse actions.” (Dkt. 44, p. 3). Mere temporal

proximity is, however, insufficient to establish a retaliatory motive. See Smith v.

Campbell, 250 F.3d 1032, 1038 (6th Cir. 2001) (while temporal proximity between
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Motion for Summary Judgment

9 Mixon v. Warren; 08-13963

inmate’s grievances and decision to transfer him provided some circumstantial

support for a causal connection, this evidence alone was not sufficient to meet

inmate’s burden showing that the filing of grievances was a substantial or

motivating factor for his transfer). Moreover, the mere conclusory allegation that

plaintiff believes the transfer was in retaliation for the filing of a grievance is

insufficient to establish a retaliatory motive in this case. See e.g., Harbin-Bey v.

Rutter, 420 F.3d 571, 580 (6th Cir. 2005). And, where a plaintiff fails to produce

evidence from which a jury could reasonably determine that the transfer and

resulting losses were in retaliation for his grievance, summary judgment in favor of

the defendant is proper. Scuba v. Wilkinson, 2010 WL 99348 (S.D. Ohio 2010),

citing, Morris v. Oldham County Fiscal Court, 201 F.3d 784, 788 (6th Cir. 2000). 

In this case, where plaintiff does not offer any admissible evidence to support this

claim that the transfer was the result of a retaliatory motive, summary judgment in

defendants’ favor is appropriate.

IV. RECOMMENDATION

Based on the foregoing, it is RECOMMENDED that defendants’ motion

for summary judgment be GRANTED.

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

Recommendation, but are required to file any objections within 14 days of service,

as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule
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Motion for Summary Judgment

10 Mixon v. Warren; 08-13963

72.1(d). 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 and

Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that 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

and 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 Local Rule

72.1(d)(2), any objections must be served on this Magistrate Judge.

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,”

etc. Any objection must recite precisely the provision of this Report and

Recommendation to which it pertains. Not later than 14 days after service of an

objection, the opposing party may file a concise response proportionate to the

objections in length and complexity. Fed.R.Civ.P. 72(b)(2), Local Rule 72.1(d). 

The response must specifically address each issue raised in the objections, in the

same order, and labeled as “Response to Objection No. 1,” “Response to Objection

No. 2,” etc. If the Court determines that any objections are without merit, it may

rule without awaiting the response.

Date: June 29, 2010 s/Michael Hluchaniuk 

Michael Hluchaniuk

United States Magistrate Judge

CERTIFICATE OF SERVICE
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Motion for Summary Judgment

11 Mixon v. Warren; 08-13963

I certify that on June 29, 2010, I electronically filed the foregoing pleading

with the Clerk of the Court using the ECF system, which will send notification of

such filing to the following: Scott R. Rothermel, and I certify that I have mailed by

United States Postal Service the foregoing pleading to the plaintiff, a non-ECF

participant, at the following addresses Carlton Mixon, # 132473, MICHIGAN

REFORMATORY, 1342 W. Main, Ionia, MI 48846.

s/Tammy Hallwood 

Case Manager

(810) 341-7850

tammy_hallwood@mied.uscourts.gov