1

 Plaintiff’s allegations that he was unable to obtain a job because of his vision

impairment is also construed as a claim under the Americans With Disabilities Act, 24 U.S.C.

§§12101 et seq. (“ADA”). 

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CORY HUDSON, No. 09-11245

Plaintiff, District Judge Denise Page Hood

v. Magistrate Judge R. Steven Whalen

CORBY DeFOREST, ET AL.,

Defendants.

 /

REPORT AND RECOMMENDATION

Before the Court is Defendant DeForest’s August 8, 2009 Motion for Summary

Judgment [Docket #22] which has been referred for a Report and Recommendation pursuant

to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, I recommend that the motion

be GRANTED, dismissing claims against this Defendant in both her individual and official

capacities. 

I. BACKGROUND FACTS

The facts of this case are drawn from a Report and Recommendation recently filed by

this Court. Docket #35. Plaintiff, a vision impaired MDOC inmate currently housed at the

G. Robert Cotton Correctional Facility (“JCF”) in Jackson, Michigan, filed suit on April 3,

2009, alleging violations of his First, Eighth and Fourteenth Amendment rights pursuant to

42 U.S.C. §§1983, 1988.1

 

Plaintiff alleges that between September 26, 2006 and January 24, 2007, he sent a total
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of seven kites requesting that Defendant DeForest, JFC’s Classification Director, place him

in the facility’s job pool. Complaint at ¶5. He alleges that in each case, DeForest denied the

request, stating that his vision impairment made him ineligible for work or school. Id. 

Plaintiff also alleges that upon receiving DeForest’s original response, he sent a medical kite

to JCF Health Care, requesting his medical status and was informed by Health Care that his

condition did not prevent him from working. Id. at ¶6. Upon presenting DeForest with the

Health Care statement, Plaintiff alleges that on December 27, 2006, DeForest merely

responded that “the computer . . . states no work or school.” Id. at ¶7. 

Plaintiff alleges that he filed a grievance on February 28, 2007 (JFC 07-03-00482-

02e) complaining that unlike other handicapped and non-handicapped prisoners, he had not

received a job assignment, noting that he held a job while previously housed at another

MDOC facility. Id. at ¶11. He alleges that the Step One response mis-characterized his

request, but nonetheless encouraged him to contact the Defendant Michigan Braille

Transcribing Fund for job consideration. Id. at ¶12. Plaintiff alleges that the Step Two

response, consistent with DeForest’s initial responses, erroneously stated that Health Care

had found him “medically unemployable.” Id. at ¶13. 

Plaintiff notes that the January 12, 2009 Step III response acknowledged that as of

January 20, 2007, his medical status had been revised to show “no school only.” Id. at ¶14.

The Step Three response indicated that “‘it has been determined that the grievant may be

eligible for certain assistance and services under the ADA.’” Id., Docket #20, Exhibit B at

1. JFC staff was advised “‘to contact the ADA/Disability Management Coordinator in the

Office of Equal Employment and Recruitment” for information regarding evaluation of the

grievant and provision of assistance and services under the ADA, as appropriate.’” Id.

Plaintiff, suing Defendants in their individual and official capacities, requests damages as
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well as injunctive relief in the form of a declaration that his rights were violated by

DeForest’s “retaliatory and deliberate indifference,” as well as receiving “the same

opportunities that other sighted and unsighted prisoners have” in “getting a job.” Complaint

at pg. 7. 

II. STANDARD OF REVIEW

Summary judgment is appropriate where “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there

is no genuine issue as to any material fact and that the moving party is entitled to a judgment

as a matter of law.” Fed. R.Civ.P. 56(c). To prevail on a motion for summary judgment, the

non-moving party must show sufficient evidence to create a genuine issue of material fact.

Klepper v. First American Bank, 916 F.2d 337, 341-42 (6th Cir. 1990). Drawing all

reasonable inferences in favor of the non-moving party, the Court must 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Entry of summary

judgment is appropriate “against a party who fails to make a showing sufficient to establish

the existence of an element essential to that party’s case, and on which that party will bear

the burden of proof at trial.” Celetox Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548,

91 L.Ed.2d 265 (1986). 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, and summary

judgment is appropriate. Simmons-Harris v. Zelman, 234 F.3d 945, 951 (6th Cir. 2000).

Once the moving party in a summary judgment motion identifies portions of the

record which demonstrate the absence of a genuine dispute over material facts, the opposing

party may not then “rely on the hope that the trier of fact will disbelieve the movant’s denial
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of a disputed fact,” but must make an affirmative evidentiary showing to defeat the motion.

Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989). The non-moving party

must identify 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 (emphasis added). If, after sufficient opportunity for discovery, the non-moving party

cannot meet that burden, summary judgment is clearly proper. Celotex Corp., 477 U.S. at

322-23.

III. ANALYSIS

A. First Amendment Retaliation Claims

 Defendant argues first that “retaliation” claims are limited to one reference to

“retaliatory” conduct in the ad damnum clause of the Complaint. Defendant’s Brief at 2

(citing Complaint at pg. 7). She notes that the Complaint is otherwise bereft of factual

allegations of First Amendment retaliation or even the word “retaliation. Id. Defendant also

contends that Plaintiff efforts to secure a job do not constitute “protected conduct.” Id. at 3

(citing Thaddeus-X v. Blatter, 175 F.3d 378, 399 (6th Cir.1999); Newsom v. Norris, 888 F.2d

371, 374 (6th Cir. 1989)). 

 To prevail on a First Amendment retaliation claim, a plaintiff must show he (1)

“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.” Id. at 394. Dean v. Byerley,

354 F.3d 540, 551 (6th Cir.2004)(citing Thaddeus-X supra, 175 F.3d at 394-95 (6th

Cir.1999)). 
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Plaintiff’s First Amendment claim is subject to dismissal. While his grievance filing

constituted “protected conduct,” the retaliation claim derails at the second prong. Plaintiff

claims for the first time in response to the present motion that “DeForest and her buddies H.

Elum and J. Cooke conspired to remove” a fellow prisoner who had been helping him

prepare pleadings in the present case. Plaintiff’s Response at 1, Docket #26. However, he

is apparently referring to events occurring after the present action was filed. The allegation

of retaliation in the Complaint could not have referred to what appears to be a post-filing

event. Further, although by the time Plaintiff’s latest submission was filed the fellow

prisoner had been “removed,” Plaintiff was able to submit a cogent response to the present

motion. Further, his claim that DeForest “conspired” with others to deprive him of the help

of another prisoner stands completely unsupported by factual allegations. “[C]ourts will not

look with favor on complaints which, trading on mere conclusory charges, fail to set out the

specifics of a tenable claim.” Culebras Enterprises Corp. v. Rivera Rios, 813 F.2d 506 (1st

Cir.1987). 

Finally, even assuming that the “conspired to remove” allegation found in the

Response satisfies the second prong of Thaddeus-X, Plaintiff has left out the “where” and

“when” from the “who, what, where, when and why” of the purported adverse action.

Because Plaintiff has not alleged a temporal connection between the protected conduct and

the removal or whether the protected conduct preceded the fellow prisoner’s removal by a

day, week, month, or year, the Court cannot discern a causal connection required for a

Thaddeus-X claim. 

B. Eighth Amendment Claims
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 Likewise, Plaintiff has failed to show or even allege that his Eighth Amendment rights

were violated. The Eighth Amendment proscribes the infliction of cruel and unusual

punishment upon prisoners. In order for a prisoner to establish an Eighth Amendment

violation under § 1983, he must allege and prove an unnecessary and wanton infliction of

pain, or the infliction of pain totally without penological justification. See Rhodes v.

Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 346 (1981). Eighth Amendment

claims must satisfy a two-prong standard. First, the alleged wrongdoing must be “objectively

harmful enough” to establish a constitutional claim (objective component). Second, the

prison official must act with the requisite state of mind (subjective component). Hudson v.

McMillian, 503 U.S. 1, 8, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992), citing Wilson v. Seiter, 501

U.S. 294, 298, 303, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). 

Plaintiff’s failure to secure a prison job, by itself, does not state a claim of

constitutional magnitude, much less an Eighth Amendment violation. See Martin v. O'Brien,

2006 WL 3488742, *2 (6 th Cir. 2006)(citing Newsom v. Norris, 888 F.2d 371, 374 (6th

Cir.1989)(“a prisoner does not have a constitutional right to prison employment or a

particular prison job”). 

C. Fourteenth Amendment Claims 

 Plaintiff’s implied claim of due process violations arising from Defendant’s failure

to find him a job is defeated by the absence of a constitutionally protected interest in

receiving or holding a job. Newsom, 888 F.2d at 374. Even to the extent that Plaintiff

alleges that DeForest failed to comply with MDOC policy in refusing to place him in the job

pool, “such violations are not, in themselves, sufficient to state a § 1983 claim.”Bradford v.

Gerth, 2009 WL 1406675, *2 (W.D.Mich.2009)(citing Pyles v. Raisor, 60 F.3d 1211, 1215
2

The Complaint does not allege ADA violations. An ADA claim, i.e, Plaintiff

experienced discrimination because of his vision impairment, would be unavailing. “[T]o

establish a prima facie case of discrimination under the ADA” in the prison setting, “a

plaintiff must prove that ‘(1) she has a disability; (2) she is otherwise qualified; and (3) she

is being excluded from participation in, being denied the benefits of, or being subjected to

discrimination under the program solely because of her disability.’” Tucker v. Tennessee,

539 F.3d 526, 532 -533 (6th Cir. 2008)(citing Dillery v. City of Sandusky, 398 F.3d 562, 567

(6th Cir.2005)). First, Step One and Two grievance responses indicate that Plaintiff was

deemed unable to perform an outdoor job at RCF (similar to a position at a former facility)

without assistance. Docket #20, Exhibit B, Complaint at ¶11. Thus, Plaintiff cannot show

that he was “otherwise qualified” for the position. 

More fundamentally, even assuming that Plaintiff was otherwise qualified, his claim

would be defeated by his failure to show that DeForest intentionally discriminated against

him. DeForest, stating that in October, 2006, Plaintiff was medically barred from either work

or school, notes that at the time Plaintiff was medically cleared for work on January 10, 2007,

“JCF did not have a job assignment that [he] could perform due to his blindness.”

Defendant’s Brief, Exhibit A at ¶¶4-6. Despite JCF’s institutional shortcomings, Plaintiff

“cannot show that the discrimination was intentionally directed toward him . . . in particular.”

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(6th Cir.1995); Sweeton v. Brown, 27 F.3d 1162, 1166 (6th Cir.1994))(“[E]ven if Defendants

violated MDOC policies, Section 1983 does not provide redress for violations of a state law

or prison policies”). 

Likewise, Plaintiff’s implied Equal Protection claims are subject to dismissal. While

he makes a generalized allegation that his Fourteenth Amendment rights were violated, he

has failed to include any factual allegation showing that prison officials discriminated against

him because of race, religion, or gender. In order to survive summary judgment, a claimant

must present evidence that he was “denied equal protection of the law based upon an

unjustifiable standard such as race, religion, or other arbitrary classification.” Bass v.

Robinson, 167 F.3d 1041, 1050 (6th Cir.1999). See also Radvansky v. City of Olmsted Falls,

395 F.3d 291, 312 (6th Cir.2005); Vacco v. Quill, 521 U.S. 793, 799, 117 S.Ct. 2293, 138

L.Ed.2d 834 (1997). Further, “a person bringing an action under the Equal Protection Clause

must show intentional discrimination against him because of his membership in a particular

class, not merely that he was treated unfairly as an individual.” Id.2
Dillery at 568. DeForest also notes that since the lawsuit’s inception, Plaintiff refused a

newly created work assignment program for blind prisoners and declined a job assignment

washing walls. Id. at ¶¶8-10. 

3

More recently, the Supreme Court held that the two-step sequential analysis set forth

in Saucier (first, determine whether there was a constitutional violation, and second,

determine whether the constitutional right was clearly established) is no longer mandatory.

Pearson v. Callahan, — U.S. — , 129 S.Ct. 808, 172 L.Ed.2d 565 (2009); See also,

Moldowan v. City of Warren 578 F.3d 351, 375 (6th Cir. 2009). Nevertheless, Pearson

observed that the Saucier protocol, while not required, remains useful in particular cases.

In this case, it is sufficient to say that under the first prong of Saucier, Plaintiff has not shown

a constitutional violation as to this Defendant.

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D. Immunity

1. Qualified Immunity

Defendant also argues that she is entitled to qualified immunity. Defendant’s Brief

at 7. Because Plaintiff’s constitutional and statutory rights were not violated, it follows that

she is also entitled to qualified immunity. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct.

2151, 150 L.Ed.2d 272 (2001). Under Saucier, the threshold question is whether a

constitutional violation occurred. If it did not, a state officer or agent acting in the course of

his or her official duties is protected by qualified immunity. See also Dunigan v. Noble, 390

F.3d 486, 495 (6th Cir. 2004).3

2. Eleventh Amendment Immunity 
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Defendant, noting that she was sued in his official as well as personal capacity,

contends that she is also entitled to Eleventh Amendment Immunity. Defendant’s Brief at

6. 

Claims against defendants in their official capacities, i.e, in their capacity as agents

of the state under 42 U.S.C. §1983, are generally subject to dismissal on the basis of the

immunity granted by the Eleventh Amendment. Will v. Michigan Dept. of State Police, 491

U.S. 58, 66, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). As such, claims for monetary damages

against Defendants in their official capacities are barred. 

However, “[Eleventh Amendment] immunity does not apply if the lawsuit is filed

against a state official for purely injunctive relief enjoining the official from violating federal

law.” Ernst v. Rising, 427 F.3d 351, 358 -359 (6th Cir. 2005); Ex parte Young, 209 U.S. 123,

155-56, 28 S.Ct. 441, 452, 52 L.Ed. 714 (1908). As such, Plaintiff’s requests for injunctive

relief are not per se barred by Eleventh Amendment Immunity. 

However, Plaintiff’s request for equitable relief in the form of “the same opportunities

that other sighted and unsighted prisoners have” in “getting a job” should be denied.

Defendant DeForest has stated that “[o]n April 6, 2009, a pilot work assignment program for

blind prisoners was begun at JCF, noting that on May 27, 2009, Plaintiff was “reclassified

. . . for participation in the pilot . . . program but refused to participate.” Defendant’s Brief,

Exhibit A at ¶¶8-9. Further, on July 21, 2009, Plaintiff refused a job assignment washing

walls. Id. at 10. Plaintiff’s response to the present motion, acknowledging that he refused

the job offers, apparently contending that he is entitled to a job working for Defendant

Michigan Braille Transcribing Fund (“MBTF”). 

I recommend that the District Court deny this request. Whether to allow Plaintiff to
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work for the MBTF is a decision best left to the MDOC. “Because the realities of running

a penal institution are complex and difficult, we have also recognized the wide-ranging

deference to be accorded the decisions of prison administrators.” See also Fuller v. Burnett,

2008 WL 793744, *8 (W.D.Mich. 2008), citing Kendrick v. Bland, 740 F.2d 432 at 438, n.

3, (6th Cir.1984)(“[W]here a prison inmate seeks an order enjoining state prison officials,

this Court is required to proceed with the utmost care and must recognize the unique nature

of the prison setting”). Because courts are “ill-equipped” to unilaterally micro-manage

prison administration, this injunctive request should be denied. Bruce v. Ylst, 351 F.3d 1283,

1290 (9th Cir.2003).

IV. CONCLUSION

For the reasons set forth below, I recommend that Defendant DeForest’s

Motion for Summary Judgment [Docket #22] be GRANTED, dismissing claims against

this Defendant with prejudice.

Any objections to this Report and Recommendation must be filed within fourteen

(14) 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, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985);

Howard v. Secretary of HHS, 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. Secretary of HHS, 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
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upon this Magistrate Judge.

Within fourteen (14) days of service of any objecting party’s timely filed

objections, the opposing party may file a response. The response shall be not more than

twenty (20) pages in length unless by motion and order such page limit is extended by the

court. The response shall address specifically, and in the same order raised, each issue

contained within the objections. 

S/R. Steven Whalen 

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

Dated: March 2, 2010

CERTIFICATE OF SERVICE

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

and/or parties of record by electronic means or U.S. Mail on March 2, 2010.

S/G. Wilson 

Judicial Assistant