Filed: Mar. 22, 2016
Latest Update: Mar. 22, 2016
Summary: ORDER ON REPORT AND RECOMMENDATION MARK E. WALKER , District Judge . This Court has considered, without hearing, the Magistrate Judge's Second Report & Recommendation ("R&R"), ECF No. 56, the objections thereto filed by Defendants, ECF No. 59, and Plain-tiff's response to those objections, ECF No. 60. The R&R is largely adopted as this Court's opinion, with the following exception. The Magistrate recommends that summary judgment be de-nied as to Plaintiff's claims of First Amendment retali
Summary: ORDER ON REPORT AND RECOMMENDATION MARK E. WALKER , District Judge . This Court has considered, without hearing, the Magistrate Judge's Second Report & Recommendation ("R&R"), ECF No. 56, the objections thereto filed by Defendants, ECF No. 59, and Plain-tiff's response to those objections, ECF No. 60. The R&R is largely adopted as this Court's opinion, with the following exception. The Magistrate recommends that summary judgment be de-nied as to Plaintiff's claims of First Amendment retalia..
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ORDER ON REPORT AND RECOMMENDATION
MARK E. WALKER, District Judge.
This Court has considered, without hearing, the Magistrate Judge's Second Report & Recommendation ("R&R"), ECF No. 56, the objections thereto filed by Defendants, ECF No. 59, and Plain-tiff's response to those objections, ECF No. 60. The R&R is largely adopted as this Court's opinion, with the following exception.
The Magistrate recommends that summary judgment be de-nied as to Plaintiff's claims of First Amendment retaliation brought against Defendants Clark, Holbrook, and Phillips. ECF No. 56, at 39. Defendants object that Plaintiff's retaliation claims must fail because he did not engage in speech protected by the First Amendment. ECF No. 59, at 4. The gist of Defendants' argu-ment is that Plaintiff's grievance—which concerned a correctional officer groping Plaintiff during a pat search—was false, frivolous, and made in bad faith, and therefore unprotected speech. Id.
In support of their contention that Plaintiff's grievance was false and made in bad faith, Defendants note that Plaintiff stated at his deposition that he didn't "think [the genital touching] was intentional" and that the officer had "inadvertently brushed" his genitals. Id.; ECF No. 36-6, at 6. In the grievance itself, Plaintiff claimed that the officer "sexually groped" him and "caressed" him. ECF No. 36-8, at 1. According to Defendants, Plaintiff's later dep-osition testimony shows that his grievance contained unprotected false speech.1
Defendants' argument ignores something important about what it means to make an allegation in "bad faith." The grievance represents Plaintiff's impression of the pat search incident as of January 24, 2014—one day after the incident—whereas his depo-sition testimony represents his impression of the incident as of May 12, 2015. It is entirely reasonable to think that Plaintiff truly believed that the officer's touching of his genitals during the pat search was "sexual groping" in the immediate aftermath of the in-cident, but that he changed his mind in time. It doesn't really mat-ter for purposes of the First Amendment retaliation analysis whether it's objectively true that the officer sexually groped Plain-tiff; what matters is whether Plaintiff thought that's what hap-pened when he filed his grievance. Viewing the evidence in the light most favorable to Plaintiff, it's impossible to say that he knowingly made a false statement in his grievance, and so Defend-ants are not entitled to summary judgment. The R&R therefore reached the right conclusion.
Accordingly,
IT IS ORDERED:
1. The Report & Recommendation, ECF No. 56, is ACCEPTED and ADOPTED as this Court's opinion, with the exception discussed above. Defendants' Objection ECF No. 59, is OVERRULED.
2. Defendants' Motion for Summary Judgment, ECF No. 36, is GRANTED in part and DENIED in part. Plaintiff's First Amendment retaliation claims are DENIED as to Defendants Clark, Holbrook, and Phillips, but otherwise GRANTED. Plaintiff's Motion for a Temporary Restrain-ing Order, ECF No. 54, is DENIED. This case is REMANDED to the Magistrate Judge for additional pro-ceedings prior to setting the case for trial. Insofar as this Court grants summary judgment as to some claims, this Court does not enter judgment pursuant to Federal Rule of Civil Procedure 54(b).
SO ORDERED.
