Opinion
Case No. 1:20-cv-11322
2022-01-19
D. Samuel GOODELL, Plaintiff, v. Vicki ERVIN and Michael Lewis, Defendants.
D. Samuel Goodell, Bay City, MI, Pro Se. Valerie Henning Mock, William S. Cook, Wilson Elser Moskowitz Edelman & Dicker LLP, Livonia, MI, Cara M. Swindlehurst, Gordon Rees Scully Mansukhani, Detroit, MI, for Defendant Vicki Ervin. Gregory E. Crouch, Joshua D. Marcum, Michigan Department of Attorney General, Mdoc Division, Lansing, MI, for Defendant Michael Lewis.
D. Samuel Goodell, Bay City, MI, Pro Se.
Valerie Henning Mock, William S. Cook, Wilson Elser Moskowitz Edelman & Dicker LLP, Livonia, MI, Cara M. Swindlehurst, Gordon Rees Scully Mansukhani, Detroit, MI, for Defendant Vicki Ervin.
Gregory E. Crouch, Joshua D. Marcum, Michigan Department of Attorney General, Mdoc Division, Lansing, MI, for Defendant Michael Lewis.
OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND DENYING DEFENDANT'S MOTION TO DISMISS
THOMAS L. LUDINGTON, United States District Judge
This matter is before this Court upon the Report and Recommendation of Magistrate Judge Curtis Ivy, Jr., ECF No. 35, for the undersigned to deny Defendants’ Motion to Dismiss, ECF No. 24. For the reasons explained hereafter, Judge Ivy's Report and Recommendation will be adopted, and Defendant's Motion to Dismiss will be denied.
I.
In May 2020, Plaintiff D. Samuel Goodell filed a civil-rights action pro se under 42 U.S.C. § 1983, alleging violations of the First and Fourteenth Amendments of the United States Constitution. ECF No. 1. In September 2020, among other things, this Court dismissed several defendants and two of Plaintiff's claims, leaving only his First Amendment retaliation claims against Defendants Vicki Ervin and Michael Lewis. ECF No. 9 at PageID.64.
In October 2020, this case was referred to Judge Ivy for all pretrial matters. ECF No. 11. In January 2021, Defendant Ervin answered the complaint with affirmative defenses. ECF No. 16. In May 2021, Defendant Lewis filed a motion to dismiss, ECF No. 24, which has since been fully briefed, see ECF Nos. 28; 29; 30; 33; 34. On December 6, 2021, Judge Ivy issued his Report and Recommendation. ECF No. 35.
Although the Report states that the parties could object to and seek review of the recommendations within 14 days of service, neither Plaintiff nor Defendants filed any objections. Therefore, they have waived their right to appeal Judge Morris's findings. Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ; Pfahler v. Nat'l Latex Prods. Co., 517 F.3d 816, 829 (6th Cir. 2007).
II.
A.
In May 2017, Plaintiff was released from a Michigan prison to serve his 15-month term of parole. ECF No. 1 at PageID.3–4. As a condition of his parole, Plaintiff was prohibited from entering Bay County, Michigan without his parole officer's permission. Id. at PageID.4. Because Plaintiff's pre-parole residence is in Bay County, the Michigan Department of Corrections (the "MDOC") assigned him to live at the TRI-CAP facility in Saginaw, Michigan. Id. Plaintiff was also required to wear an electronic monitoring device for the first six months of his parole. Id. Plaintiff was not permitted to leave the TRI-CAP facility without permission from his parole officer, Defendant Lewis. Id. Plaintiff was transferred to the TRI-CAP facility following his release. Id.
Upon arrival to the TRI-CAP facility, TRI-CAP staff told Plaintiff that he must submit to a strip search, provide a urine sample, allow staff to inspect his property, and "be sprayed with chemicals." Id. When Lupe Castillo approached Plaintiff with a breathalyzer, Plaintiff stated that "the conditions of his parole only required him to submit to searches by his parole officer and law enforcement." Id. at PageID.4–5. Later, Plaintiff said the same to Defendant Ervin, a residential manager at TRI-CAP. Id. at PageID.5. Defendant Ervin responded that Plaintiff could follow the staff's instructions or leave. Id.
Plaintiff told Defendant Ervin that he believed the procedures violated his rights, and he planned to bring suit. Id. Defendant Ervin exclaimed in response, " ‘You're not going to do anything,’ " then asked Plaintiff if he would comply. Id. Aware that he was unable to leave without Defendant Lewis's permission, Plaintiff complied and repeated that he planned to bring suit. Id. at PageID.5–6.
While Lupe Castillo gazed at Plaintiff's genitals, he provided a sample as directed. Id. at PageID.6. Then another staff member told Plaintiff and Lupe Castillo that Plaintiff "isn't staying." Id. Lupe Castillo directed Plaintiff to pour out his urine sample and wait in the lobby. Id.
After Plaintiff's electronic monitor began to lose signal, TRI-CAP allowed him to go outside to regain signal. Id. While outside, Plaintiff's sister, Dottie Taylor, arrived and called Defendant Lewis after Plaintiff told her what happened. Id. at PageID.7.
Approximately 50 minutes later, Defendant Lewis and Jason Furst arrived at the TRI-CAP facility. Id. Defendant Lewis and Jason Furst arrested Plaintiff and booked him on a parole-violation retainer at the Midland County Jail (MCC). Id. Defendant Lewis charged Plaintiff with violating his parole by "engaging in threatening and intimidating behavior." Id. According to Plaintiff, Defendant Lewis alleged that Plaintiff's threat to sue was threatening and intimidating behavior. Id.
Plaintiff's preliminary parole violation hearing was held at the MCC. Id. at PageID.8. Defendant Ervin testified at the hearing. Defendant Ervin testified that TRI-CAP's intake procedures include those that Plaintiff experienced. Id. After Plaintiff informed Hearing Officer Larry Elliot that threatening to sue is constitutionally protected speech, Larry Elliot replied, "We know you have rights. We just don't know what they are." Id. Ultimately, Larry Elliot recommended that the Parole Board find Plaintiff guilty of engaging in threatening and intimidating behavior for threatening to sue. Id. at PageID.8–9.
Plaintiff did not return to prison for a formal parole-violation hearing. Instead, the Parole Board found Plaintiff guilty and sentenced him to 45 days in county jail for threatening to bring a claim to protect his constitutional rights. Id. at PageID.9. Plaintiff alleges that he learned of the Board's decision from his sister. Id. Plaintiff claims that he requested a copy of the Board's decision so he could prepare an appeal while in custody, but the Board did not respond. Id. at PageID.9–10. After Plaintiff's release, he served the remainder of his parole under the Saginaw County Parole Office. Id. at PageID.10. Plaintiff was released from parole on August 6, 2018. Id.
III.
Defendants filed a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6). See generally ECF No. 24. Specifically, Defendants make two arguments for dismissal: (1) Plaintiff's retaliation claims are barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) ; and (2) Plaintiff cannot prove the "but for" causation element of his retaliation claim. Id. Plaintiff responds (1) that his claims fall within an exception to Heck established in the Powers v. Hamilton County Public Defender Commission, 501 F.3d 592 (6th Cir. 2007) ; and (2) that he would not have served jail time "but for" Defendants’ retaliation for his intent to file suit. ECF No. 28. The parties reiterated these arguments in additional briefing. See ECF Nos. 29, 30, 33.
A.
Under Rule 12(b)(6), a pleading fails to state a claim if it does not contain allegations that support recovery under any recognizable theory. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In considering a Rule 12(b)(6) motion, the court construes the pleading in the nonmovant's favor and accepts the motion's factual allegations as true. See Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir. 2008). The movant need not provide "detailed factual allegations" to survive dismissal, but the "obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In essence, the pleading "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face," and the court must not accept as true the complaint's legal conclusions. Iqbal, 556 U.S. at 679–79, 129 S.Ct. 1937 (quotations and citation omitted). Facial plausibility is established "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678, 129 S.Ct. 1937 ; see also 16630 Southfield Ltd. v. Flagstar Bank, F.S.B., 727 F.3d 502, 503 (6th Cir. 2013) ("The plausibility of an inference depends on a host of considerations, including common sense and the strength of competing explanations for the defendant's conduct.").
123 Courts must hold pro-se complaints to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam). Yet even when considering pro-se pleadings, " ‘courts should not have to guess at the nature of the claim asserted.’ " Frengler v. Gen. Motors, 482 F. App'x 975, 976–77 (6th Cir. 2012) (unpublished) (quoting Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989) ). Indeed, "courts may not rewrite a complaint to include claims that were never presented, nor may courts construct the plaintiff's legal arguments for him. Neither may the court ‘conjure up unpled allegations,’ nor create a claim for Plaintiff." Rogers v. Detroit Police Dep't, 595 F. Supp. 2d 757, 766 (E.D. Mich. 2009) (quoting McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979) ) (other citations omitted); see also Evans v. Mercedes Benz Fin. Servs., LLC, 2011 WL 2936198, at *2 (E.D. Mich. July 21, 2011) ("Even excusing plaintiff's failure to follow Rules 8(a)(2) and 10(b), a pro se plaintiff must comply with basic pleading requirements, including Rule 12(b)(6).").
B.
The first question is whether Heck v. Humphrey bars Plaintiff's retaliation claims.
4 In Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), the Supreme Court held that 42 U.S.C. § 1983 plaintiffs cannot challenge a conviction or sentence that has not "been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254." Heck, 512 U.S. at 487, 114 S.Ct. 2364. This principle includes challenges to parole revocation proceedings, like Plaintiff's claim here. See Noel v. Grzesiak, 96 F. App'x 353, 354 (6th Cir. 2004) ; Norwood v. Michigan Dep't of Corr., 67 F. App'x 286, 287 (6th Cir. 2003). Plaintiff challenges his conviction, alleging that it was based on retaliation. ECF No. 1 at PageID.17–18, 20–21. Plaintiff neither requests habeas relief nor alleges that his conviction was invalidated. Even so, there are a couple of exceptions to Heck in the Sixth Circuit.
5 The Sixth Circuit carved out two exceptions to Heck ’s favorable-termination requirement in Powers v. Hamilton County Public Defender Commission, 501 F.3d 592 (6th Cir. 2007). A plaintiff may challenge a conviction under § 1983 if: (1) she was precluded from filing a habeas petition while in custody "as a matter of law," or (2) she challenges procedure and not the conviction itself. Id. at 601–03.
i.
6 Plaintiff challenges the procedures that led to his incarceration. Plaintiff challenges TRI-CAP's in-processing procedure. See ECF No. 1 at PageID.8. Plaintiff also challenges the procedure of his parole-violation hearing. See id. at PageID.9. And Plaintiff challenges the Board's post-hearing notification procedure. See id. Indeed, challenges to the procedures of a parole-board hearing exemplify the procedural exceptions to Heck . See Powers at 603–05 ("A conclusion that the procedures, or rather the lack of procedures, that culminated in Powers's incarceration violated his constitutional rights has nothing to do with the propriety of his underlying conviction.").
For this reason, Heck does not bar Plaintiff's Complaint. The remainder of Judge Ivy's analyses and findings are sound, and as explain hereafter, there is no reason to depart from them.
ii.
7 As Judge Ivy correctly analyzed, Plaintiff's claims may also survive if he was precluded from habeas redress while in custody. ECF No. 35 at PageID.335. This exception does not apply if Plaintiff could have filed a habeas petition in custody but failed to do so. Id. For example, if a plaintiff was fined and imprisoned for only one day, then habeas would be impossible, so Plaintiff could file a § 1983 claim. Powers, at 603. Thus, the remaining question is whether 45 days was enough time for Plaintiff to challenge his parole revocation. Judge Ivy found that 45 days is insufficient. ECF No. 35 at PageID.335. This Court agrees with Judge Ivy.
Plaintiff alleges that while in custody, the Parole Board ignored his requests for documents to appeal its decision. ECF No. 1 at PageID.9–10. Even if Plaintiff filed a habeas petition while in custody, it is not clear whether the review would be complete before his release. See Soldan v. Robinson, No. 19-11334, 2020 WL 5997309, at *6 (E.D. Mich. July 9, 2020), report and recommendation adopted, No. 19-11334, 2020 WL 5993224 (E.D. Mich. Oct. 9, 2020) (extending Powers’s exception to a plaintiff incarcerated for 43 days after parole revocation); cf. Williams v. Caruso, No. 08-10044, 2009 WL 960198, at *11 (E.D. Mich. Apr. 6, 2009) (refusing to extend Powers’s exception to a parolee challenging a decision to extend his parole by several years). Indeed, according to Westlaw's litigation analytics, in the Eastern District of Michigan, more than 74% of motions to dismiss on § 1983 claims take longer than 90 days to be resolved. Notably, that timeframe excludes any later stages of litigation. In other words, it would be nigh impossible for Plaintiff to sufficiently challenge his parole-revocation hearing within 45 days.
Defendants rely on Williams v. Caruso to support their position that Powers does not apply because Plaintiff was still "in custody" for the remaining 15 months of his parole and failed to exploit habeas redress. ECF No. 24 at PageID.143. But this case is distinct from Williams . After the Williams plaintiff's parole was extended for failure to pay restitution, he challenged the extension while serving his extended parole sentence. The court found that he was habeas eligible because he was still "in custody" for the parole extension; thus, Heck barred his suit. Williams, 2009 WL 960198, at *11. By contrast, Plaintiff served 45 days for his parole violation, and his parole was not extended for the violation. For that reason, Plaintiff was "in custody" and habeas eligible only during his 45-day sentence. Given Plaintiff's significantly shorter sentence, Plaintiff would not have had the same opportunity to appeal as the Williams plaintiff.
Plaintiff's case is more like Soldan v. Robinson, in which the plaintiff challenged his parole revocation as retaliatory, and he was in custody for only 45 days. His claim could proceed despite Heck, because it was unclear whether the plaintiff, who already had issues preparing his appeal, had enough time to challenge his conviction during his short sentence. Soldan, 2020 WL 5997309, at *6. Like the Soldan plaintiff, Plaintiff was in custody for less than two months and had issues preparing his appeal. So he likely could not have received full review before release. Even if Plaintiff appealed while in custody, the appeal might have been dismissed upon his release absent serious collateral consequences. Spencer v. Kemna, 523 U.S. 1, 14–18, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). Because Plaintiff likely could not have sought habeas relief while in custody, Heck does not bar his complaint.
IV.
89 To establish a First Amendment retaliation claim, a plaintiff must show that (1) he engaged in protected conduct; (2) an adverse action was taken against him 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; in other words, that the adverse action was motivated at least in part by the plaintiff's protected conduct. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc) (per curiam). "Under the third element, ‘the subjective motivation of the defendants is at issue.’ " Maben v. Thelen, 887 F.3d 252, 262 (6th Cir. 2018) (quoting Thaddeus-X, 175 F.3d at 399 ).
Defendants do not address whether Plaintiff's arrest and conviction are adverse actions. As a result, Judge Ivy assumed the parole revocation is an adverse action that would deter a person of ordinary firmness from engaging in protected conduct. See ECF No. 35 at PageID.337 n.2.
A.
Plaintiff alleges that he threatened to file suit twice while at TRI-CAP. ECF No. 1, PageID.5–6.
101112 As Judge Ivy indicated, Plaintiff was engaged in protected conduct when he threatened to file suit. ECF No. 35 at PageID.338. Indeed, a prisoner who threatens to sue is engaged in protected activity. See Pasley v. Conerly, 345 F. App'x 981, 985 (6th Cir. 2009) (unpublished) (reiterating that a threat to sue is protected conduct); Dean v. Conley, 1999 WL 1045166, at *2 (6th Cir. Nov. 9, 1999) (unpublished table decision) (holding that a threat to sue is protected conduct). Prisoners have a First Amendment right of access to the courts, which includes the right to file civil-rights claims. Thaddeus-X, 175 F.3d at 391. Plaintiff threatened to file suit, as was his First Amendment right. Therefore, Plaintiff was engaged in protected conduct when he threated to sue Defendants.
13 Defendants cite Thaddeus-X to argue that Plaintiff was not engaged in protected conduct because his conduct was a parole violation. ECF. No. 29 at PageID.268. Indeed, "protected conduct" is not protected if it "violates a legitimate prison regulation." Thaddeus-X, 175 F.3d at 395. Still, such a regulation must be "rationally related to a legitimate penological concern." Id. (citing Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) ). Moreover, it is unclear whether TRI-CAP's in-processing procedures are "prison regulations," as TRI-CAP is a private organization.
According to Plaintiff's complaint, he did not abuse the grievance system like the plaintiff in Ward v. Dyke, in which Ward was transferred for interfering with prison administration by filing many grievances and appeals. Ward v. Dyke, 58 F.3d 271, 274–75 (6th Cir. 1995) (holding Ward's transfer related to valid penological concerns). Plaintiff alleges that he did not inundate staff with threats to sue, as he only threatened suit twice before his arrest.
Plaintiff's case is like Dean v. Conley, in which plaintiff threatened to sue and was then convicted of "threatening and intimidating an employee." 1999 WL 1045166, at *2. The Dean court found that Dean's threat was protected conduct. Id. at *2. Indeed, Plaintiff was similarly charged with intimidating behavior soon after he threatened to sue. Therefore, at this stage, Plaintiff has sufficiently pleaded protected conduct.
B.
Defendants argue that Plaintiff has not pleaded necessary "but for" causation. According to Defendants, Plaintiff cannot prove that "but for" Defendants’ retaliatory animus, Plaintiff would have escaped conviction since the Parole Board confirmed Plaintiff's guilt. ECF No. 24 at PageID.145.
Plaintiff argues that his conviction is direct evidence of causation, as he would not have been arrested but for Defendants’ retaliation for his threats to sue. ECF No. 28 at PageID.196–98.
141516 To establish causation, Plaintiff must prove that his conviction was motivated at least in part by his threats to sue. There is causation "if the [protected] speech motivates an individual actor to take acts that then proximately cause an adverse action." King v. Zamiara, 680 F.3d 686, 695 (6th Cir. 2012). The defendants’ subjective motivation is central, as the "concern is with actions by public officials taken with the intent to deter the rights to free expression guaranteed under the First Amendment." Id. Thus, conduct in retaliation for the exercise of a constitutionally protected right is actionable under § 1983, even if the conduct would have been proper in a different context. Id. (quoting Bloch v. Ribar, 156 F.3d 673, 681–82 (6th Cir. 1998) ).
17181920 In this way, causation becomes a two-part inquiry in which plaintiff must prove not only "(1) that the adverse action was proximately caused by an individual defendant's acts, ... but also (2) that the individual taking those acts was ‘motivated in substantial part by a desire to punish an individual for exercise of a constitutional right.’ " Id. (citations omitted). A defendant that only triggers the ultimate harm may still be proximately liable if the third party's actions were foreseeable. Id. (quoting Powers, 501 F.3d at 609 ). Because motive can be hard to prove with direct evidence, plaintiffs may rely on circumstantial evidence. Id. For example, temporal proximity between the protected conduct and the adverse action can create an inference of motive. See id.; Paige v. Coyner, 614 F.3d 273, 282–83 (6th Cir. 2010) ; Muhammad v. Close, 379 F.3d 413, 417–18 (6th Cir. 2004).
i.
Judge Ivy found that Plaintiff sufficiently pleaded plausible causation for Defendant Ervin. ECF No. 35 at PageID.341.
2122 Plaintiff sufficiently alleges that Defendant Ervin caused his arrest. Plaintiff alleges that after threatening suit, Defendant Ervin replied, "You're not going to do anything," then complained to Defendant Lewis, resulting in Plaintiff's arrest an hour later. ECF No. 1 at PageID.16–17. A defendant's report on a prisoner's behavior may be the "but for" and proximate cause of an increase in a prisoner's security if the report was the primary source for a reasonably foreseeable punishment. Zamiara, 680 F.3d at 697–98. Defendant Ervin's complaint to Defendant Lewis was the "but for" cause of Plaintiff's arrest. Defendant Ervin's complaint was the primary source for Plaintiff's arrest. Defendant Ervin's conduct also proximately caused Plaintiff's arrest. Indeed, arrest is a foreseeable result of reporting a possible parole violation to a parole officer.
232425 Plaintiff also sufficiently alleges that his threats to sue motivated Defendant Ervin. First, Defendant Ervin exclaimed a negative response to Plaintiff's threats to sue, ECF No. 1 at PageID.5, which is evidence of retaliatory motive, see Paige, 614 F.3d at 282 (holding that defendant's visibly negative response to protected conduct was evidence of retaliatory motive). Second, Judge Ivy inferred retaliatory motive from the timeline outlined in Plaintiff's Complaint. ECF No. 35 at PageID.341. According to Plaintiff, Defendant Lewis arrested Plaintiff less than one hour after Defendant Ervin told Defendant Lewis about Plaintiff's threats to sue. ECF. No. 1 at PageID.17. Temporal proximity of less than six months may be evidence of motive. See Parnell v. West, 114 F.3d 1188 (6th Cir. May 21, 1997) (per curiam) (unpublished table decision) (holding seven-month time lag does not support causal link). Temporal proximity of only one hour between the complaint and Plaintiff's arrest is short enough to infer motive.
For these reasons, Plaintiff has sufficiently pled that Defendant Ervin's conduct proximately caused his arrest and that her conduct was motivated by his threat to sue.
ii.
26 Judge Ivy found that Plaintiff sufficiently pleaded plausible causation for Defendant Lewis. ECF No. 35 at PageID.342.
Plaintiff sufficiently alleges that Defendant Lewis caused his arrest. Plaintiff alleges that after Defendant Ervin complained to Defendant Lewis, Defendant Lewis filed charges against Plaintiff and arrested him. ECF No. 1 at PageID.20. Defendant Lewis charging Plaintiff with the parole violation was the "but for" cause of Plaintiff's arrest because the charge was the primary source for Plaintiff's arrest and conviction. Defendant Lewis's conduct also proximately caused Plaintiff's arrest. Indeed, arrest is a reasonably foreseeable result of being charged for a parole violation.
Plaintiff also sufficiently alleges that his threats to sue motivated Defendant Lewis. As with Defendant Ervin, the temporal proximity is small enough to infer Defendant Lewis's motive. See discussion supra Section IV.B.i. Defendant Lewis filed charges about one hour after Defendant Ervin's complaint.
For these reasons, Plaintiff has sufficiently pled that Defendant Lewis's conduct proximately caused his arrest and that his conduct was motivated by Plaintiff's threats to sue.
iii.
27 One final matter is worth addressing. Defendants point to Nieves v. Bartlett to argue that Plaintiff has insufficiently pled "but for" causation because his allegations were proven false by his conviction. ––– U.S. ––––, 139 S. Ct. 1715, 1722, 204 L.Ed.2d 1 (2019) (holding that plaintiffs must prove the adverse action would not have been taken without retaliatory motive). According to Defendants, Plaintiff cannot prove that Defendants were motivated by retaliatory animus because the Parole Board agreed with them that Plaintiff's conduct violated his parole. ECF. No. 24, PageID.144-45. In this way, Defendants argue the "checkmate doctrine"—that Plaintiff's conviction "checkmates" a finding of retaliation. See Hartsfield v. Nichols, 511 F.3d 826, 829 (8th Cir. 2008) ; Henderson v. Baird, 29 F.3d 464, 469 (8th Cir. 1994) ; see also O'Bryant v. Finch, 637 F.3d 1207, 1215 (11th Cir. 2011) (per curiam). But Defendants have backed the wrong horse.
The Sixth Circuit has en passant taken the "checkmate doctrine" off the board at the motion-to-dismiss stage. See Maben v. Thelen, 887 F.3d 252, 262–63 (6th Cir. 2018) ("Furthermore, in the motion to dismiss context, we have explicitly rejected the argument that an ‘administrative determination that [the prisoner] actually committed the ... misconduct precludes him from being able to establish retaliation.’ " (quoting Thomas v. Eby, 481 F.3d 434, 440 (6th Cir. 2007) ) (brackets in original)). Even so, some district judges in the Sixth Circuit have found that defendants can call "checkmate" if the plaintiff's complaint does not contain plausible factual allegations of retaliation without the conviction. See, e.g., Annabel v. Frost, No. 14-10244, 2015 WL 1322306, at *7 (E.D. Mich. Feb. 17, 2015), report and recommendation adopted, No. 14-10244, 2015 WL 1510680 (E.D. Mich. Mar. 30, 2015), and report and recommendation adopted, No. 14-10244, 2016 WL 270294 (E.D. Mich. Jan. 22, 2016). However, as indicated, Plaintiff has sufficiently pled plausible retaliation without his conviction.
For these reasons, this Court agrees with Judge Ivy that the "checkmate doctrine" does not apply here, and that Plaintiff has sufficiently pleaded a plausible retaliation claim. Consequently, Judge Ivy's Report and Recommendation will be adopted, and Defendants’ Motion to Dismiss will be denied.
V.
Accordingly, it is ORDERED that the Magistrate Judge's Report and Recommendation, ECF No. 35, is ADOPTED.
Further, it is ORDERED that Defendants’ Motion to Dismiss, ECF No. 24, is DENIED.
REPORT AND RECOMMENDATION ON DEFENDANTS’ MOTION TO DISMISS (ECF No. 24)
Curtis Ivy, Jr., United States Magistrate Judge
I. PROCEDURAL HISTORY
Plaintiff D. Samuel Goodell filed this prisoner civil rights action on May 4, 2020, without the assistance of counsel. (ECF No. 1). On July 16, 2020, the Court granted plaintiff's in forma pauperis application. (ECF No. 7). On September 17, 2020, the Court issued the Order of Partial Dismissal, Directing Service and Denying as Moot Plaintiff's Motion to Hold in Abeyance. (ECF No. 9). In the Order, the Court dismissed Jason Furst, Heidi Washington, Lupe Castillo, and SMB Probation Center, Inc. (d/b/a TRI-CAP, Inc.) as defendants. (Id. at PageID.64). The Court also dismissed Plaintiff's First Amendment right to privacy claim and his Fourth Amendment search and seizure claim. (Id. ). Plaintiff's First Amendment retaliation claims against defendant Vicki Ervin and defendant Michael Lewis remain. (Id. ).
The case was then referred to the undersigned for all pretrial matters pursuant to 28 U.S.C. § 636. (ECF No. 11). Ervin answered the complaint with affirmative defenses. (ECF No. 16). On May 18, 2021, Lewis filed a motion to dismiss (ECF No. 24), to which Plaintiff responded (ECF No. 28), and Lewis replied (ECF No. 29). Ervin then moved for leave to allow concurrence in co-defendant's motion to dismiss (ECF No. 30) and Plaintiff responded. (ECF No. 33). The undersigned granted Ervin's motion and allowed her concurrence with Lewis’ motion to dismiss. (ECF No. 34). Thus, the Court will view the arguments within the motion to dismiss (ECF No. 24) as shared arguments of the co-defendants.
For the reasons discussed below, the undersigned RECOMMENDS that the motion to dismiss (ECF No. 24) be DENIED .
II. COMPLAINT ALLEGATIONS
Plaintiff brought this action pursuant to 42 U.S.C. § 1983 alleging violations of the First and Fourth Amendments to the United States Constitution. (ECF No. 1, PageID.10-30). On May 5, 2017, Plaintiff was released from a Michigan state prison to serve his fifteen-month term of parole. (Id. at PageID.3-4, ¶ 10). As a condition of his parole, Plaintiff was prohibited from entering Bay County, Michigan without the permission of his parole officer. (Id. at PageID.4, ¶ 11). As Plaintiff's resided in that county, he was assigned by the Michigan Department of Corrections ("MDOC") to live at the TRI-CAP facility in Saginaw, Michigan. (Id. at PageID.4, ¶ 13). Plaintiff was also required to wear an electronic monitoring device for the first six months of his parole term. (Id. at PageID.4, ¶ 14). Plaintiff was not permitted to leave the TRI-CAP facility without permission from his parole officer, defendant Michael Lewis. (Id. at PageID.4, ¶ 15).
Plaintiff was transferred to the TRI-CAP facility following his release. (Id. at PageID.4, ¶ 16.). Upon arrival, Plaintiff learned that he must submit to a strip search, submit a urine sample, allow staff to inspect his property, and "be sprayed with chemicals." (Id. at PageID.4, ¶ 17). When Lupe Castillo approached Plaintiff with a breathalyzer, Plaintiff asserted that "the conditions of his parole only required him to submit to searches by his parole officer and law enforcement." (Id. at PageID.4-5, ¶¶ 18-21).
Later, Plaintiff informed defendant Vicki Ervin, a residential manager at TRI-CAP, that the conditions of his parole only required him to submit to searches by his parole officer and law enforcement. (Id. at PageID.5, ¶ 23). Ervin responded he could follow their program or leave. (Id. at PageID.5, ¶ 24). Plaintiff informed Ervin that the procedures violated his rights, and he would bring suit. (Id. at PageID.5, ¶ 25). In response, Ervin stated " ‘you're not going to do anything’ " and asked if he would comply. (Id. at PageID.5, ¶ 26). Aware he was unable to leave without Lewis’ permission, Plaintiff complied and reiterated he would bring suit. (Id. at PageID.5-6, ¶¶ 27-28). Plaintiff then provided his urine sample to Castillo. (Id. at PageID.6, ¶¶ 32-34).
Following Plaintiff's submission, another staff member told Plaintiff and Castillo that Plaintiff would not be staying at the facility. Plaintiff was then directed to dispose of the sample and wait in the lobby. After Plaintiff's electronic monitor began to lose signal, he was allowed outside to regain signal. (Id. at PageID.6, ¶¶ 35-38). While outside, Plaintiff's sister Dottie Taylor arrived and reached out to Lewis after Plaintiff told her what happened. (Id. at PageID.7, ¶ 39).
Approximately fifty minutes later, Lewis and Jason Furst arrived at the facility. (Id. at PageID.7, ¶ 40). Furst and Lewis arrested Plaintiff and booked him on a parole violation retainer at the Midland County Jail ("MCC"). (Id. at PageID.7, ¶ 43). Lewis charged Plaintiff with violating his parole by "engaging in threatening and intimidating behavior." (Id. at PageID.7, ¶ 44). According to Plaintiff, Lewis alleged that Plaintiff's threat to sue was threatening and intimidating behavior. (Id. at PageID.7, ¶ 45).
Plaintiff's preliminary parole violation hearing was held at the MCC. (Id. at PageID.8, ¶ 47). Ervin testified at the hearing. During her testimony, Ervin discussed TRI-CAP's intake procedures which include those that Plaintiff experienced. (Id. at PageID.8, ¶¶ 48-50). The hearing officer later recommended to the Parole Board that Plaintiff be found guilty of engaging in threatening and intimidating behavior. (Id. at PageID.8-9, ¶¶ 53). Plaintiff did not return to prison for a formal parole violation hearing. The Parole Board found Plaintiff guilty and sentenced him to forty-five days in county jail. (Id. at PageID.9, ¶ 55). Plaintiff alleges he learned of the Board's decision from his sister. (Id. at PageID.9, ¶ 56).
Plaintiff claims he asked for a copy of the Parole Board's decision to prepare an appeal while in custody, but the Parole Board did not respond. (Id. at PageID.9-10, ¶ 59). Upon Plaintiff's release, he served the remainder of his parole under the Saginaw Parole Office. Plaintiff was released from parole on August 6, 2018. (Id. at PageID.10, ¶¶ 60-61).
III. ANALYSIS AND RECOMMENDATIONS
A. Standard of Review
Defendant Lewis moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). (ECF No. 24, PageID.132). When deciding a motion to dismiss under Rule 12(b)(6), the Court must "construe the complaint in the light most favorable to plaintiff and accept all allegations as true." Keys v. Humana, Inc. , 684 F.3d 605, 608 (6th Cir. 2012). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation omitted); see also Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (concluding that a plausible claim need not contain "detailed factual allegations," but it must contain more than "labels and conclusions" or "a formulaic recitation of the elements of a cause of action"). Facial plausibility is established "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. "The plausibility of an inference depends on a host of considerations, including common sense and the strength of competing explanations for the defendant's conduct." 16630 Southfield Ltd., P'Ship v. Flagstar Bank, F.S.B. , 727 F.3d 502, 503 (6th Cir. 2013).
Furthermore, the Court holds pro se complaints to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner , 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Still even in pleadings drafted by pro se parties, " ‘courts should not have to guess at the nature of the claim asserted.’ " Frengler v. Gen. Motors , 482 F. App'x 975, 976-77 (6th Cir. 2012) (quoting Wells v. Brown , 891 F.2d 591, 594 (6th Cir. 1989) ). "[C]ourts may not rewrite a complaint to include claims that were never presented ... nor may courts construct the Plaintiff's legal arguments for him. Neither may the Court ‘conjure up unpled allegations[.]’ " Rogers v. Detroit Police Dept. , 595 F. Supp. 2d 757, 766 (E.D. Mich. 2009) (Ludington, J., adopting report and recommendation of Binder, M.J.); see also, Evans v. Mercedes Benz Fin. Servs., LLC , 2011 WL 2936198, at *2 (E.D. Mich. July 21, 2011) ("Even excusing plaintiff's failure to follow Rules 8(a)(2) and 10(b), a pro se plaintiff must comply with basic pleading requirements, including Rule 12(b)(6).").
B. Discussion
Defendants make two arguments for their dismissal: (1) Plaintiff's retaliation claims are barred by Heck v. Humphrey , 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and (2) Plaintiff cannot prove the "but for" causation element of retaliation. (ECF No. 24). Plaintiff responds: (1) his claims fall within the Powers v. Hamilton Cty. Public Defender Comm'n , 501 F.3d 592 (6th Cir. 2007) exception to Heck , and (2) that he would not have served jail time "but for" defendants’ retaliation for his threat to file suit. (ECF No. 28). The parties reiterated these arguments in further response and reply. (See ECF Nos. 29, 30, 33).
1. Heck v. Humphrey
In Heck v. Humphrey , 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), the Supreme Court held that 42 U.S.C. § 1983 plaintiffs cannot proceed with claims challenging a conviction or sentence, unless "the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254." Heck , 512 U.S. at 487, 114 S.Ct. 2364. This principle extends to cases that challenge parole revocation proceedings. See Noel v. Grzesiak , 96 F. App'x 353, 354 (6th Cir. 2004) ; Norwood v. Michigan Dep't of Corr. , 67 F. App'x 286, 287 (6th Cir. 2003). Plaintiff challenges his conviction, alleging it was based on retaliation. (ECF No. 1, PageID.17-18; 20-21). Plaintiff did not file a habeas petition, nor does he suggest that his conviction was invalidated. That said, there are a couple of exceptions to Heck in this Circuit.
The Sixth Circuit carved out two exceptions to Heck ’s favorable termination requirement in Powers v. Hamilton Cty. Public Defender Comm'n , 501 F.3d 592 (6th Cir. 2007). Plaintiffs can assert § 1983 claims that challenge convictions when: (1) they were precluded from filing a habeas petition while in custody " ‘as a matter of law,’ " or (2) when they challenge procedure and not the conviction itself. Id. at 601-03. Plaintiff does not challenge procedure, so his claims can only survive if he was precluded from habeas redress in custody. This exception does not apply if plaintiff could have filed a habeas petition in custody but failed to do so. Id. For example, if a plaintiff was fined and imprisoned for only one day, then habeas was impossible, and Plaintiff can file a § 1983 claim. Id. at 603.
Thus, the question remaining is whether forty-five days was enough time for Plaintiff to challenge his parole revocation. The undersigned does not believe so. Plaintiff alleges that while in custody, his requests for documents for appeal1 were ignored by the Parole Board. (ECF No. 1, PageID.9-10, ¶59). Even if Plaintiff filed a habeas petition while in custody, it is not clear that the review would be complete before his release. See Soldan v. Robinson , No. 19-11334, 2020 WL 5997309, at *6 (E.D. Mich. July 9, 2020), report and recommendation adopted , No. 19-11334, 2020 WL 5993224 (E.D. Mich. Oct. 9, 2020) (extending Powers exception to plaintiff incarcerated only forty-three days after parole revocation); cf. Williams v. Caruso , No. 08-10044, 2009 WL 960198, at *11 (E.D. Mich. Apr. 6, 2009) (refusing to extend Powers exception to parolee challenging decision to extend parole several years).
Defendants rely on Williams v. Caruso to support their position that Plaintiff was still "in custody" for the remaining fifteen months of his parole and failed to exploit habeas redress, thus the Powers exception does not apply. (ECF No. 24, PageID.143). This case is distinct from Williams . In Williams , after plaintiff's parole was extended for failure to pay restitution, plaintiff challenged the extension while still serving his extended parole sentence. The court found that he was habeas eligible because he was still in custody for the parole extension, and thus Heck barred his suit. Williams , 2009 WL 960198, at *11. Unlike Williams , Plaintiff here served only forty-five days for his parole violation. His parole was not extended for the violation. Thus, Plaintiff was only "in custody" and habeas eligible during his forty-five-day sentence. Given Plaintiff's short sentence, it is unclear if Plaintiff had the same opportunity to appeal.
Plaintiff's case is more like Soldan v. Robinson , where plaintiff challenged his parole revocation as retaliatory, and plaintiff was in custody for only forty-three days. His claim could proceed despite Heck because it was unclear that plaintiff, who already had issues preparing his appeal, had enough time to challenge his conviction during his short sentence. Soldan , 2020 WL 5997309, at *6. Like the plaintiff in Soldan , Plaintiff here was in custody for less than two months and had issues preparing an appeal. So it is unclear if he could have received full review before his release. Even if Plaintiff appealed while in custody, the appeal may have been dismissed upon his release absent serious collateral consequences. Spencer v. Kemna , 523 U.S. 1, 14-18, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). Since it is unclear if Plaintiff could have sought habeas relief in custody, his complaint should not be barred by Heck .
2. Protected Conduct and Causation
To establish a claim of First Amendment retaliation, a plaintiff must show (1) he engaged in protected conduct; (2) an adverse action was taken against him 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; in other words, the adverse action was motivated at least in part by the plaintiff's protected conduct. Thaddeus-X v. Blatter , 175 F.3d 378, 394 (6th Cir. 1999). "Under the third element, ‘the subjective motivation of the defendants is at issue.’ " Maben v. Thelen , 887 F.3d 252, 262 (6th Cir. 2018) (quoting Thaddeus-X , 175 F.3d at 399 ).
Defendants do not address whether Plaintiff's arrest and conviction are adverse actions. As a result, the undersigned assumes the parole revocation is an adverse action that would deter a person of ordinary firmness from engaging in protected conduct.
a) Protected Conduct
Plaintiff was engaged in protected conduct when he threatened to file suit. Plaintiff alleges that he threatened to file suit twice while at TRI-CAP. (ECF No. 1, PageID.5-6). A prisoner who threatens to sue is engaged in protected activity. See Pasley v. Conerly , 345 F. App'x 981, 985 (6th Cir. 2009) (reiterating that a threat to sue is protected conduct); Dean v. Conley , 1999 WL 1045166, at *2, 198 F.3d 244 (6th Cir. Nov. 9, 1999) (holding threat to sue is protected conduct). Prisoners have a First Amendment right of access to the courts, which includes the right to file civil rights claims. Thaddeus-X , 175 F.3d at 391. Plaintiff threatened to file suit, as was his right under the First Amendment. Plaintiff was engaged in protected conduct.
Defendants cite Thaddeus-X v. Blatter to argue that Plaintiff was not engaged in protected conduct because his conduct was a parole violation. (ECF. No. 29, PageID.268). Prisoners engaged in otherwise " ‘protected conduct’ " may not be protected if they violate prison rules. At the same time, this principle applies only when the prison rule is "rationally related to a legitimate penological concern." Thaddeus-X , 175 F.3d at 395. According to Plaintiff's complaint, he did not abuse the grievance system like in Ward v. Dyke , where Ward interfered with prison administration by filing many grievances and appeals. Ward v. Dyke , 58 F.3d 271, 274-75 (6th Cir. 1995) (holding Ward's transfer related to valid penological concerns). Plaintiff alleges he did not inundate staff with threats to sue, as he only threatened suit twice before his arrest. Rather, Plaintiff's case is like Dean v. Conley , where plaintiff threatened to sue and was convicted of "threatening and intimidating an employee" soon after, yet the court found that Dean's threat was protected conduct. Dean , 1999 WL 1045166, at *2, 198 F.3d 244. Plaintiff here was also charged with intimidating behavior soon after his threats to sue. So, at this stage, Plaintiff has sufficiently pleaded protected conduct.
b) Causal Connection
Defendants argue that Plaintiff has not pleaded necessary "but for" causation. To defendants, Plaintiff cannot prove that "but for" defendants’ retaliatory animus, Plaintiff would have escaped conviction since the Parole Board confirmed Plaintiff's guilt. (ECF No. 24, PageID.145). Plaintiff argues that his conviction is direct evidence of causation because Plaintiff would not have been arrested but for defendants’ retaliation for his threats to sue. (ECF No. 28, PageID.196-98).
To establish causation, Plaintiff must prove that his conviction was motivated at least in part by his threats to sue. There is causation "if the [protected] speech motivates an individual actor to take acts that then proximately cause an adverse action." King v. Zamiara , 680 F.3d 686, 695 (6th Cir. 2012). The subjective motivation of defendants is central as the "concern is with actions by public officials taken with the intent to deter the rights to free expression guaranteed under the First Amendment." Id. Thus, conduct in retaliation for the exercise of a constitutionally protected right is actionable under § 1983, even if the conduct would have been proper in a different context. Id. (quoting Bloch v. Ribar , 156 F.3d 673, 681–82 (6th Cir. 1998) ). So, causation becomes a two-part inquiry in which plaintiff must prove "(1) that the adverse action was proximately caused by an individual defendant's acts, ... but also (2) that the individual taking those acts was ‘motivated in substantial part by a desire to punish an individual for exercise of a constitutional right.’ " Id. (citations omitted). Defendant may only trigger the ultimate harm, but still may be proximately liable if the third party's actions were foreseeable. Id. (quoting Powers , 501 F.3d at 609 ). Since motive can be hard to prove with direct evidence, plaintiffs may rely on circumstantial evidence. Id. For example, temporal proximity between the protected conduct and the adverse action can create an inference of motive. See id. ; Paige v. Coyner , 614 F.3d 273, 282–83 (6th Cir. 2010) ; Muhammad v. Close , 379 F.3d 413, 417–18 (6th Cir. 2004).
(1) Defendant Vicki Ervin
Plaintiff has sufficiently pleaded plausible causation for defendant Ervin. Plaintiff alleges that after threatening suit, Ervin replied " ‘you're not going to do anything,’ " then complained to Lewis, resulting in Plaintiff's arrest an hour later. (ECF No. 1, PageID.16-17). In King , a defendant's report on a prisoner's behavior was the "but for" and proximate cause of an increase in a prisoner's security when the report was the primary source for Plaintiff's punishment and the punishment was a reasonably foreseeable result of the report. King , 680 F.3d at 697-98. Ervin's complaint to Lewis was the "but for" cause of Plaintiff's arrest because her complaint to Lewis was the primary source for Plaintiff's arrest. Ervin's conduct proximately caused Plaintiff's arrest, as an arrest for conduct in violation of parole is a reasonably foreseeable result of staff complaints to a parole officer.
Plaintiff alleges facts that show Ervin was motivated by his threats to sue. First, Ervin responding negatively to plaintiff's threat to sue can be evidence of retaliatory motive. See Paige , 614 F.3d at 282 (holding defendant's visibly negative response to protected conduct was evidence of retaliatory motive). Second, the undersigned can and will infer retaliatory motive from the timeline outlined in Plaintiff's Complaint. According to Plaintiff, defendant Lewis arrested Plaintiff only an hour after Ervin's complaint to Lewis about Plaintiff's threats to sue. (ECF. No. 1, PageID.17, ¶125). Temporal proximity of less than six months may be evidence of motive. See Parnell v. West , 1997 WL 271751, at *3 (6th Cir. May 21, 1997) (holding seven-month time lag does not support causal link). Temporal proximity of only an hour between the complaint and Plaintiff's arrest is short enough to infer motive. Plaintiff has sufficiently pleaded facts that show Ervin's conduct proximately caused his arrest and that her conduct was motivated by his threat to sue.
(2) Defendant Michael Lewis
Plaintiff has sufficiently pleaded plausible causation for defendant Lewis. Plaintiff alleges that after Ervin complained to Lewis, Lewis filed charges against Plaintiff and arrested him. (ECF No. 1, PageID.20, ¶¶142-43). Lewis charging Plaintiff with the parole violation was the "but for" cause of Plaintiff's arrest because the charge was the primary source for Plaintiff's arrest and conviction. Lewis’ conduct proximately caused Plaintiff's arrest because Plaintiff's arrest is a reasonably foreseeable result of Lewis charging Plaintiff for his threats to sue. Like with Ervin, there is close enough temporal proximity to infer Lewis’ motive. Lewis filed charges about an hour after Ervin's complaint. Plaintiff has sufficiently pleaded facts that show Lewis’ conduct proximately caused his arrest and that his conduct was motivated by Plaintiff's threats to sue.
Defendants point to Nieves v. Bartlett to argue that Plaintiff has insufficiently pleaded "but for" causation because his allegations were proven false by his conviction. Nieves v. Bartlett , ––– U.S. ––––, 139 S. Ct. 1715, 1722, 204 L.Ed.2d 1 (2019) (holding plaintiffs must prove the adverse action would not have been taken without retaliatory motive). Because the Parole Board agreed that Plaintiff's conduct violated his parole, he cannot prove that defendants were motivated by retaliatory animus. (ECF. No. 24, PageID.144-45). Defendants’ argument is seemingly that of the checkmate doctrine—that Plaintiff's conviction "checkmates" a finding of retaliation. See Henderson v. Baird , 29 F.3d 464, 469 (8th Cir. 1994) ; Hartsfield v. Nichols , 511 F.3d 826, 829 (8th Cir. 2008) ; see also O'Bryant v. Finch , 637 F.3d 1207, 1215 (11th Cir. 2011). That said, the Sixth Circuit has curbed use of the checkmate doctrine at the motion to dismiss stage. See Maben , 887 F.3d at 262-63. ("we have explicitly rejected the argument that an "administrative determination that [the prisoner] actually committed the ... misconduct precludes him from being able to establish retaliation.") (citations omitted). Some courts in this Circuit have found that defendants can call "checkmate" when the plaintiff's complaint does not contain plausible factual allegations of retaliation notwithstanding the conviction. See Annabel v. Frost , No. 14-10244, 2015 WL 1322306, at *7 (E.D. Mich. Feb. 17, 2015), report and recommendation adopted , No. 14-10244, 2015 WL 1510680 (E.D. Mich. Mar. 30, 2015), and report and recommendation adopted , No. 14-10244, 2016 WL 270294 (E.D. Mich. Jan. 22, 2016). However, as discussed above, Plaintiff has sufficiently pleaded plausible factual allegations that support a finding of retaliation, notwithstanding his conviction. Therefore, the undersigned finds that defendants’ "checkmate" argument lacks merit and Plaintiff has sufficiently pleaded a plausible retaliation claim.
IV. RECOMMENDATION
For the reasons set forth above, the undersigned RECOMMENDS that Defendant Lewis’ and Defendant Ervin's motion to dismiss (ECF No. 24) be DENIED .
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 72.1(d). 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. Sec'y of Health and Human Servs. , 932 F.2d 505 (6th Cir. 1991). 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 Loc. 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: December 6, 2021