STEPHEN J. MURPHY, III, District Judge.
Plaintiff pro se Okechukwu Uduko ("Uduko"), formerly incarcerated by the Federal Bureau of Prisons ("BOP"), alleges violations of his First and Fifth Amendment rights and civil conspiracy by BOP employees Frank Finch ("Finch"), Brannon Grady ("Grady"), Larry Huddleston ("Huddleston"), and Cory Maynard ("Cory Maynard") (collectively, "Defendants") in their individual capacities under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
The Court referred the matter to Magistrate Judge Michael J. Hluchaniuk, and the matter was later reassigned to Magistrate Judge Stephanie Dawkins Davis. Defendants moved to dismiss Uduko's complaint, the magistrate judge issued a Report and Recommendation ("Report") suggesting the Court grant in part and deny in part Defendants' motion, and Defendants filed timely objections to the Report. After examining the record and considering Defendants' objections de novo, the Court will sustain in part and overrule in part Defendants' objections, reject in part and adopt in part the Report's findings, and grant in part and deny in part Defendants' Motion to Dismiss.
The Report properly details the events giving rise to Uduko's action against the Defendants. Report 2-9, ECF No. 58. The Court will adopt that portion of the Report.
Civil Rule 72(b) governs the review of a magistrate judge's report. A district court's standard of review depends upon whether a party files objections. The Court need not undertake any review of portions of a Report to which no party has objected. Thomas v. Arn, 474 U.S. 140, 150 (1985). De novo review is required, however, if the parties "serve and file specific written objections to the proposed findings and recommendations." Fed. R. Civ. P. 72(b)(3). In conducting a de novo review, "[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Id.
Civil Rule 12(b)(6) provides for dismissal of a complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The Court may only grant a Civil Rule 12(b)(6) motion to dismiss if the allegations are not "sufficient `to raise a right to relief above the speculative level,' and to `state a claim to relief that is plausible on its face.'" Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)). In evaluating the motion, the Court presumes the truth of all well-pled factual assertions. Bishop v. Lucent Techs., 520 F.3d 516, 519 (6th Cir. 2008). Moreover, the Court must draw every reasonable inference in favor of the non-moving party. Dubay v. Wells, 506 F.3d 422, 427 (6th Cir. 2007). But a "pleading that offers `labels and conclusions' or `a formulaic recitation of the element of a cause of action will not do.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).
Regarding Uduko's seven claims, the magistrate judge recommended that the civil conspiracy claim (Count 1) be dismissed without prejudice as to all defendants because Uduko failed to state a claim for Bivens conspiracy; the retaliation and discrimination claims against all defendants (Counts 5-7) be dismissed without prejudice as to Maynard, Huddleston, and Grady on qualified immunity grounds because Uduko failed to sufficiently allege a constitutional violation against them; and the remaining claims against Huddleston (Count 2) and Finch (Counts 3-7) remain as sufficiently pled, and not be dismissed on qualified immunity grounds. The Report did not, however, include any analysis to support the rejection of Finch and Huddleston's qualified immunity defense. Defendants argue that "[h]ad an analysis been performed . . . the [Report] would have concluded that Defendants are entitled to qualified immunity and that the complaint should be dismissed with prejudice in its entirety." Obj. 2, ECF No. 60. They also argue that the magistrate judge erred by dismissing claims without prejudice, instead of with prejudice. Defendants' objections are well-taken. The Court will analyze the issues below.
Defendants argue that the magistrate judge erred by dismissing Uduko's claims without prejudice, instead of dismissing them with prejudice. The Court agrees, and will sustain the objection. See Pratt v. Ventas, Inc., 365 F.3d 514, 522 (6th Cir. 2004) ("A dismissal for failure to state a claim . . . is a judgement on the merits, and is therefore done with prejudice." (citation and internal quotation marks omitted)). The Court will therefore adopt the Report's dismissal of Count 1 as to all defendants and Counts 5-7 against Maynard, Huddleston, and Grady, but will instead dismiss those claims with prejudice. Maynard and Grady will therefore be dismissed from the instant action with prejudice.
Qualified immunity shields federal officials from liability for civil damages unless a plaintiff can show that (1) the defendant violated a constitutional right (2) that was clearly established to the extent that a reasonable person in the defendant's position would know that the conduct complained of was unlawful. Saucier v. Katz, 533 U.S. 194, 201-02 (2001).
The Court construes the discrimination aspect of Counts 2 through 7 as alleging a Fifth Amendment equal protection violation.
Id. Throughout his Complaint, Uduko alleges variations of the following statement:
Compl. 30, 32-33, 35-36, 38-39, 42-43, 46-47, 49, 51, ECF No. 1. Because Uduko alleges that he is being discriminated against based on his race, the Court would employ strict scrutiny.
Compl. 91, ECF No. 1. That reference alone is insufficient to show that Uduko and Kedzierski were similarly situated.
"[B]road and conclusory allegations of discrimination cannot be the basis of a complaint and a plaintiff must state allegations that plausibly give rise to the inference that a defendant acted as the plaintiff claims," and "a legal conclusion couched as a factual allegation need not be accepted as true on a motion to dismiss." HDC, LLC v. City of Ann Arbor, 675 F.3d 608, 614 (6th Cir. 2012) (citation and internal quotation marks omitted). The Court finds that Uduko's claims are the kind of "bare assertions" and "formulaic recitation[s] of the elements" that the heightened pleading standard is meant to disallow. See Ashcroft, 556 U.S. at 681 (2009). Because Uduko fails to show that Defendants violated his equal protection rights, Defendants are entitled to qualified immunity from the discrimination aspect of Counts 2-7.
The Court construes the retaliation aspect of claims 2 through 7 as alleging a First Amendment violation. To establish a First Amendment retaliation claim, Uduko must show that (1) he engaged in protected conduct; (2) Defendants took an adverse action against him "that would deter a person of ordinary firmness from continuing to engage in that conduct"; and (3) Defendants' adverse action was motived at least in part by his protected conduct. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999).
"[A]n inmate's pursuit of grievances against prison officials can constitute protected conduct for purposes of a retaliation claim, but only to the extent that the underlying claims have merit." Clark v. Johnston, 413 F. App'x 804, 812 (6th Cir. 2011) (citation and internal quotation marks omitted). Uduko bases his retaliation claims at least in part on his filing of administrative grievances against Defendants, which Defendants concede constituted protected conduct. Mot. Dism. 20, ECF No. 47. The Court therefore finds that Uduko properly alleges the first element of his retaliation claims to the extent that Defendants retaliated against him for filing administrative grievances.
Courts consider the context of the allegation when determining whether the second element is met:
LaFountain v. Harry, 716 F.3d 944, 948 (6th Cir. 2013) (internal citations and quotation marks omitted). Put simply, "this threshold is intended to weed out only inconsequential actions." Thaddeus-X, 175 F.3d at 398. Because the adverseness inquiry is an objective inquiry, it neither depends upon how the particular plaintiff reacted, nor requires a showing of actual deterrence. Bell v. Johnson, 308 F.3d 594, 606 (6th Cir. 2002).
Although "[a] prisoner has no constitutional right to prison employment or a particular prison job," Jewell v. Leroux, 20 F. App'x 375, 377 (6th Cir. 2001) (citation omitted), the Sixth Circuit has suggested that termination of prison employment may constitute adverse action in the context of a retaliation claim. Walker v. Brewer, No. 1:13-cv-349, 2014 WL 1117835, at *2 (W.D. Mich. Mar. 20, 2014) (citing Pasley v. Conerly, 345 F. App'x 981 (6th Cir. 2009) and Dobbins v. Craycraft, 423 F. App'x 550 (6th Cir. 2011)). Accordingly, the Court finds that Uduko has sufficiently pled the second element of a retaliation claim to the extent that he alleges that Defendants' retaliation led to the termination of his employment.
The third element's causation inquiry "centers on the defendant's motive. Because direct evidence of retaliatory intent is rare, circumstantial evidence may be the only means of establishing the connection between a defendant's actions and the plaintiff's protected conduct." Griffin v. Berghuis, 563 F. App'x 411, 420 (6th Cir. 2014) (citations and internal quotations marks omitted). Such evidence can include "the temporal proximity between the prisoner's protected conduct and the official's adverse action," but the Sixth Circuit "has been reluctant to find that such evidence alone establishes retaliatory motive." Hill v. Lappin, 630 F.3d 468, 476 (6th Cir. 2010). Generally, courts should look at the totality of the circumstances to determine whether an inference of retaliatory motive could be drawn. Vereecke v. Huron Valley Sch. Dist., 609 F.3d 392, 401 (6th Cir. 2010). Nevertheless, Uduko must point to "specific, nonconclusory allegations reasonably linking [his] speech" to Defendants' actions. Id. at 400.
In Count 2, Uduko claims Huddleston retaliated by writing a false disciplinary warning report against him on March 16, 2011. Compl. 32-34, ECF No. 1. Uduko claims that three days after filing a grievance against Huddleston and Finch, Huddleston brought him into the General Foreman's Office and said, "I see you like to push paperwork, we will see you and I who can push more than the other," and then gave Uduko the disciplinary warning. Id. at 8. Huddleston later told Uduko, "if you insist in filing a grievance which I will be asked to give a response, I will have you in the compound before the time to respond to your grievance." Id. at 9. When paired with the temporal proximity between the disciplinary warning and Uduko's protected conduct of filing an administrative grievance three days earlier, these statements are sufficient to state a claim of retaliation.
In Count 3, Uduko claims Finch retaliated by writing an average evaluation report on March 21, 2011, and a false disciplinary report the next day. Compl. 34-37, ECF No. 1. Uduko specifically mentions the following comments from Finch after he reviewed Uduko's performance of an assigned task:
Id. at 11 (emphasis added). Finch then gave Uduko the disciplinary warning. When paired with the temporal proximity between the average evaluation report, the disciplinary warning, and Uduko's protected conduct of filing an administrative grievance nine days earlier, that statement is sufficient to state a claim of retaliation.
Uduko alleges that Counts 4-7 are sufficiently pled because he presents, as circumstantial evidence, "the fact that defendant Finch used the false disciplinary warning report by [Huddleston] on March 16, 2011, the average evaluation report by [Finch] on March 21, 2011, [and] the false disciplinary warning report by [Finch] on March 22, 2011 to justify" the actions alleged in Counts 4-7.
Finally, Defendants argue that they are entitled to qualified immunity because it would not be clear to a reasonable BOP employee that his or her conduct was unlawful," and as a result, "Defendants did not violate a clearly established constitutional right." Mot. Dism. 25, ECF No. 47. The Court disagrees. It is clearly established that prisoners have a First Amendment right to file administrative grievances in prison, and to be free from retaliation. Sims v. Rewerts, No. 07-12646, 2008 WL 2224132, at *10 (E.D. Mich. May 29, 2008) (citing Herron v. Harrison, 203 F.3d 410 (6th Cir. 2000) and Thaddeus-X, 175 F.3d at 394).
As a result of the instant order, the Court will dismiss with prejudice defendants Grady and Maynard, and only allow the following claims to proceed against Huddleston and Finch:
For the reasons stated above, and in the manner described below, the Court will sustain in part and overrule in part Defendants' objections, reject in part and adopt in part the Report's findings, and grant in part and deny in part Defendants' Motion to Dismiss.
As Defendants argue in their motion to dismiss, the Supreme Court has found that prisoner classification and eligibility for correctional programs within the prison setting are not subject to due process protections. Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976).
