Brown 408842 v. Bott

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

JASON ALAN BROWN #408842,

Plaintiff,

Case No. 2:21-cv-56

v.

Hon. Paul L. Maloney

DANA BOTT, ,

Defendants.

________________________________/

OPINION AND ORDER

Plaintiff Jason Alan Brown, a prisoner under the control of the Michigan Department

of Corrections (“MDOC”), proceeding pro se, filed this civil rights suit against Corrections

Program Coordinator Dana Bott; Corrections Officers Wayne Allen and Brandon

VanAcker; Lieutenant Chet Baldini; Sergeant William Torongo; and Warden Erica Huss

under 42 U.S.C. § 1983. (ECF No. 1.) Brown claims that while he was incarcerated at the

Marquette Branch Prison (“MBP”), Defendants violated his First Amendment rights under

the federal Constitution and participated in a civil conspiracy against him. Defendants

moved for summary judgment under Federal Rule of Civil Procedure 56(a). (ECF No. 97.)

The magistrate judge issued a report and recommendation (“R&R”), recommending that the

Court grant Defendants’ motion. (ECF No. 118.) Brown filed objections. (ECF No. 119.)

Before the Court are Brown’s objections to the R&R.1

1 Under Rule 72 of the Federal Rules of Civil Procedure, the district judge must determine de novo any part of the

magistrate judge’s disposition that has been properly objected to. The district judge may accept, reject, or modify the

I. BACKGROUND

A. Factual Background

In 2019, Brown was an inmate within the MDOC at the MBP. (Compl. ¶ 1.)

Defendants were employed by the MDOC and worked at the MBP. ( ¶¶ 4, 20, 23,

37, 40.)

On June 12, 2019, around 1:00 p.m., Defendant Bott stopped by Brown’s cell on the

first floor to review a grievance Brown filed against an MBP librarian. (Bott Dec. ¶ 5, ECF

No. 98-4; Compl. ¶ 8; Video, Ex. G, ECF No. 98-8.) At 12:56 p.m., the surveillance video

shows Bott walking down a row of cells. (Video, Ex. G, 12:56:46-12:56:57.) He is holding

the grievance Brown had filed against the librarian in his left hand and has his right hand in

his jacket pocket. ( ) He then approaches Brown’s cell at 12:57 p.m. ( ) At this time,

Brown was in his cell and was allegedly washing his “white laundry” without a shirt on.

(Compl. ¶ 9.) The video shows Bott standing in front of Brown’s cell, taking his right hand

out of his jacket pocket, and squaring his body towards the front of Brown’s cell. (Video,

Ex.G, 12:56:56-12:57:00.) Bott then puts both of his hands on the grievance, tilts his head

down, and begins looking at the paper for about fifty seconds, appearing to be reading the

grievance. ( at 12:57:00-12:57:50.) Bott raises his head and looks through the bars of

Brown’s cell for a moment. ( at 12:57:50-12:58:00.) This goes on for about thirteen more

seconds, Bott tilting his head to read from the grievance and occasionally tilting his head up.

( at 12:58:00-12:58:13.)

recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions. Fed.

R. Civ. P. 72(b)(3).

At 12:58:13 p.m., the video shows Brown sticking one of his hands through the bars

of his cell. ( at 12:58:13-12:58:18.) The video shows him pointing at the grievance Bott

is holding; his finger is literally on the paper for about five seconds. ( ) From 12:58:18

p.m. to 1:00:35 p.m., the video shows the same exchange of events: Bott looking down at the

grievance, reading from the grievance, Brown sticking his hand out and pointing at the

grievance, and Bott occasionally tilting his head back up to talk to Brown. ( ) Around

thirty seconds after 1:00 p.m., Bott then leaves the area—a total encounter of three minutes

and thirty-five seconds. ( at12:57:00-1:00:35.)

Brown alleges a more nefarious encounter. He asserts that when Bott approached

his cell, Bott began staring at his chest “in a voyeuristic manner.” ( ¶ 10.) Brown alleges

this made him uncomfortable as he didn’t have a shirt on and was already self-conscious

about his body. ( ¶¶ 9-10.) According to Brown, Bott had ridiculed other heavier-set

inmates, too, making comments like “look at the boobs on that guy.” ( ¶ 11.) So when

Bott approached Brown’s cell and allegedly began staring at Brown’s exposed chest in a

“voyeuristic manner,” Brown claims he was uncomfortable. ( ¶¶ 9-11.) To the point

that Brown attempted to cover himself, told Bott to stop staring, and eventually placed a

sheet over the bars of his cell. ( ¶¶ 13-15.)

Brown allegedly informed Bott that he was going to file a PREA grievance against him

if he didn’t stop staring. ( ¶¶ 15-16.) Brown claims he yelled for facility staff and said,

“PREA, PREA, please get away from me.” ( ¶ 16.) Bott allegedly told Brown if he filed

a PREA against him, Bott would “write so many tickets” that Brown would be sure to stay in

Level V. ( ¶ 17.) Bott then walked away from Brown’s cell. ( )

The next day, Bott issued Brown an insolence misconduct ticket. ( ¶ 19.) The

basis for the ticket was that Brown threatened to file a PREA grievance “to harass and

degrade me.” ( ; Misconduct Tickets, Ex. 5, ECF No. 46-6, PageID.300.) Brown,

about a week later, filed a PREA grievance against Bott regarding this encounter (Grievance

MBP 190629466). ( Compl. ¶ 18; Farley Aff., Ex. 4, ECF No. 46-5, PageID.297.)

Brown was later subject to a hearing concerning Bott’s insolence misconduct ticket

before Defendant Baldini. ( Compl. ¶ 19; Misconduct Tickets, PageID.299.) Brown

“pled not guilty.” ( Compl. ¶ 19.) During the hearing, Brown alleges that Baldini told

him that Warden Huss had instructed all staff to write insolence tickets on prisoners who

threatened staff with PREA grievances. ( ¶ 21.) Baldini found Brown guilty of misconduct

because Brown purportedly “admitted to threatening P.C. Bott with a PREA grievance.”

(Misconduct Tickets, PageID.299.) Baldini sanctioned Brown with the loss of privileges for

a week. (Compl. ¶ 20.)

Brown claims that Defendant Allen also retaliated against him for threatening and

actually filing Grievance MBP 190629466. ( ¶ 22-30.) According to Brown, his cell was

on the first floor because of a pre-existing knee injury. ( ) But around June 30, 2019,

Allen forced Brown to a second-floor cell. ( ¶ 23.) Brown alleges that Allen knew he had

a knee injury, which made it difficult for him to travel up and down the stairs of the unit.

( ¶ 24.) Brown avers that he was not given any help in moving his property to the new

cell. ( ¶ 24-28.) Allen allegedly laughed at Brown throughout the move. ( ) What’s

more, alleges Brown, his new second-floor cell was covered with “feces,” it was on “on the

walls, bars and mattress.” ( ¶ 28.) Brown alleges that he requested cleaning supplies, but

Allen denied his request. ( ¶ 29.) Brown filed a grievance regarding the move, which he

labeled as a PREA grievance (Grievance MBP 19090136527B). ( ¶ 30.) The grievance,

however, was construed as a regular grievance and rejected. ( )

Around July 5, 2019, Allen “shook down” Brown’s cell. ( ¶ 35.) Brown alleges

that Allen put his eyeglass cleaning cloth and fingernail clippers in the toilet. ( ) He also

placed Brown’s footlocker on his bed and his sheets, blanket, and toothbrush on the floor.

( ) Additionally, Allen knocked over Brown’s television and poured water on Brown’s

legal work and typewriter. ( ) Allen allegedly told Brown, “keep filing PREAs bitch.” (

¶ 36.)

A day later, Brown claims that Defendant VanAcker issued him an insolence

misconduct ticket for threatening to file a PREA grievance against Allen for retaliation. (

¶ 38.) Brown alleges that after Allen “shook down” this cell, he asked VanAcker for a PREA

grievance form to file against Allen; VanAcker refused to give Brown a PREA grievance and

told him a regular grievance would do. ( ¶¶ 38-39.) VanAcker issued Brown an insolence

misconduct ticket because Brown told VanAcker that he “was planning on filing a PREA

against his buddy and coworker and that he felt that [Brown] meant it to degrade his

coworker.” ( ¶ 40.) Defendant Torongo reviewed the insolence misconduct ticket issued

by VanAcker and found Brown guilty of misconduct. ( ) Torongo sanctioned Brown with

the loss of privileges for seven days. ( ) Brown alleges that VanAcker later approached

him and said he hoped Brown would be dissuaded from filing future PREAs. ( ¶ 41.)

B. Procedural Background

Brown, proceeding pro se, filed his verified complaint on March 24, 2021, against

Defendants. On May 6, 2021, this Court dismissed Brown’s complaint for failure to state a

retaliation claim because Brown failed to allege that he engaged in protected conduct.

(ECF No. 6.) This Court found that the threatened grievance Brown allegedly made against

Bott for staring at his chest was frivolous, and raising frivolous grievances does not count as

protected conduct. Brown appealed that decision to the Sixth Circuit Court of Appeals.

(ECF No. 11.) The Sixth Circuit reversed this Court’s decision, finding that Brown did allege

a plausible retaliation claim since the threatened grievance against Bott and other grievances

were not frivolous. (ECF No. 23.) The Sixth Circuit further held that this Court “failed to

recognize” Brown’s Eighth Amendment claim and conspiracy claim. ( )

On December 19, 2023, Defendants filed a motion for summary judgment, arguing

that Brown failed to exhaust his administrative remedies for his First Amendment retaliation

claims and Eighth Amendment claim. (ECF No. 45.) This Court dismissed Brown’s Eighth

Amendment claim for failure to exhaust but denied Defendants’ motion for failure to

exhaust the First Amendment retaliation claims. (ECF No. 57.)

On January 27, 2025, Defendants filed another motion for summary judgment,

arguing the merits of Brown’s First Amendment retaliation claims and civil conspiracy claim.

(ECF No. 97.) Then, on March 5, 2025, Brown filed a motion for leave to file a proposed

witness list. (ECF No. 109.) The magistrate judge issued the R&R, recommending that the

Court grant summary judgment on all claims and deny Brown leave to file a proposed witness

list. Brown filed objections.

II. LEGAL STANDARDS

A. Summary Judgment

Summary judgment is appropriate “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). The party moving for summary judgment bears the burden of

demonstrating that there is no genuine dispute of material facts. ,

477 U.S. 317, 323 (1986). A fact is material if it “might affect the outcome of the

suit.” , 477 U.S. 242, 248 (1986). A material fact is

genuinely disputed when there is “sufficient evidence favoring the nonmoving party for a jury

to return a verdict for that party.” at 249 (citing ,

391 U.S. 253, 288-89 (1961)).

Summary judgment is generally not an opportunity for the Court to resolve factual

disputes. , 477 U.S. at 249. The Court “must shy away from weighing the evidence

and instead view all the facts in the light most favorable to the nonmoving party and draw all

justifiable inferences in their favor.” , 999 F.3d 400, 410 (6th

Cir. 2021). That said, in , the Supreme Court recognized that “[w]hen

opposing parties tell two different stories, one of which is blatantly contradicted by the record,

so that no reasonable jury could believe it, a court should not adopt that version of the facts

for purposes of ruling on a motion for summary judgment.” 550 U.S. 372, 380 (2007).

B. Qualified Immunity

“Qualified immunity spares officers from ‘the time, expense and risk of money-

damages actions’ unless they violate clearly established constitutional rights.”

, 126 F.4th 1163, 1167 (6th Cir. 2025) (quoting

, 695 F.3d 505, 508 (6th Cir. 2012)). To overcome the defense, the claimant

must show that “(1) the officers violated a ‘constitutional right’ and (2) the right was ‘clearly

established.’” (quoting , 533 U.S. 194, 201 (2001)). When multiple

officers are involved, the Court must assess each officer’s entitlement to qualified

immunity separately. , 874 F.3d 938, 944 (6th Cir. 2017) (per curiam).

So Brown bears the burden of demonstrating both that Defendants’ conduct violated one of

his constitutional rights, and that the right was so clearly established at the time that “every

reasonable official would have understood that what he [was] doing violate[d] that right.”

, 563 U.S. 731, 741 (2011).

III. ANALYSIS

The magistrate judge recommends that this Court grant Defendants’ motion for

summary judgment on each of Brown’s claims. (R&R 42.) Those claims being (1) First

Amendment retaliation claim against Bott; (2) First Amendment retaliation claim against

Baldini; (3) First Amendment retaliation claim against Allen; (4) First Amendment retaliation

claim against VanAcker; (5) First Amendment retaliation claim against Torongo; and (6)

42 U.S.C. § 1983 civil conspiracy claim against Warden Huss. ( ) The magistrate judge

recommends that this Court grant summary judgment to Defendants on each claim because

Brown either failed to prove a prima facie claim or failed to overcome qualified immunity.

( at 9-42.) The magistrate judge also recommends that the Court deny Brown’s motion

to file a proposed witness list. ( at 36-37.)

Brown objects to the R&R. The Court will start with Brown’s objections to the

magistrate judge’s recommendation on the civil conspiracy claim and First Amendment

retaliation claims, then turn to Brown’s objection regarding the motion to file a proposed

witness list.

A. Section 1983 Civil Conspiracy: Warden Huss

Brown asserts a § 1983 civil conspiracy claim against Defendant Huss. He alleges

that she and Defendants Bott, Allen, VanAcker, Baldini, and Torongo coordinated an effort

to issue more misconduct tickets against inmates who threaten to file PREA grievances.

(Compl., PageID.13.) The magistrate judge recommends that Defendants be granted

summary judgment on this claim because Brown fails to prove that two or more persons

conspired to injure him. (R&R 9-12.)

A civil conspiracy is “an agreement between two or more persons to injure another

by unlawful action.” , 693 F.3d 681, 695 (6th Cir. 2012). Naturally, an

unlawful conspiracy requires two or more persons. , 582 U.S. 120, 153

(2017). The Sixth Circuit has “adopted the general rule in civil conspiracy cases that a

corporation cannot conspire with its own agents or employees.”

, 926 F.2d 505, 509 (6th Cir. 1991). “[I]t is the

general rule that the acts of the agent are the acts of the corporation.” This rule is known

as the “intracorporate conspiracy doctrine” and applies to § 1983 civil conspiracy claims.

, 925 F.3d 793, 817-19 (6th Cir. 2019). So as MDOC employees,

Defendants are agents of the State of Michigan; as a result, they are all the same person

under the intracorporate conspiracy doctrine. Therefore, Brown’s civil conspiracy claim fails

to create a genuine issue of triable fact unless he can show that an exception applies.

Brown argues that Defendants cannot take advantage of the intracorporate conspiracy

doctrine because they acted outside their scope of employment when they issued him the

misconduct tickets. , 40 F.3d 837, 839-41 (6th Cir.

1994) (recognizing that there is an exception to the intracorporate conspiracy doctrine where

employees of the corporate entity act outside the scope of their employment in participating

in the conspiracy). But to take advantage of this exception, Brown must show that

Defendants “acted other than in the normal course of their corporate duties.” at 839-40.

“The mere ‘fact that two or more agents participated in the decision or in the act itself will

normally not’ suffice. . . .” (quoting , 459 F.2d 190, 196 (7th Cir.

1972)).

Brown contends that Defendants acted outside their scope of employment when they

issued misconduct tickets to inmates who threatened PREA grievances because such conduct

is against MDOC policy. Not so. The fact that Defendants used their authority as MDOC

employees to cause harm to Brown—even in disregard or violation of MDOC policies—“does

not establish the exception to the intracorporate conspiracy doctrine for actions taken outside

the scope of employment.” , No. 2:22-cv-223, 2022 WL 17687998, at *8

(W.D. Mich. Dec. 15, 2022); , No. 11-10103, 2012 WL

72244, at *3 (E.D. Mich. Jan. 10, 2012) (“Even improper actions fall within the scope of

employment where they are connected with the employer’s business.”);

, 775 F. App’x 801, 807 (6th Cir. 2019) (holding that even if plaintiff’s

allegations of bias were true, complaints by defendants were within scope of employment

because they “were made during the course of their working hours, the remarks were

connected to the business of the hospital, and they were forwarded to the proper managerial

authorities”). Accordingly, Brown’s objection is overruled.

The Court will adopt the magistrate judge’s recommendation that no genuine issue of

material fact exists as to Brown’s civil conspiracy claim under section 1983.

B. First Amendment Retaliation: Program Coordinator Bott

It is generally the case that at the summary judgment stage, the Court must take the

plaintiff’s version of the facts as true. , 85 F.4th 416, 422 (6th Cir. 2023).

But where, as here, the record contains “a videotape capturing the events in question,” the

Court “must adopt a version of the facts that a reasonable jury could accept consistent with

the video evidence.” , 550 U.S. at 378-80; , 85 F.4th at 422.

The magistrate judge accepted Brown’s version of events regarding his encounter with

Bott on June 12, 2019, as true. The R&R adopts the fact that Bott “was staring at [Brown’s]

chest in a voyeuristic manner.” (R&R 16.) And that Brown was allegedly “sitting sideways at

the bars on top of his two footlockers and was unable to escape Bott’s glare.” ( ) Plus

Brown’s allegation that he “grabbed a sheet from his bed to start to cover the bars across the

front of his cell” to break Bott’s glare. (Compl. ¶ 15.)

This Court, when reviewing the videotape footage that captured this encounter, finds,

however, that a reasonable jury could not accept these allegations as they are not consistent

with the video. Indeed, the video has no sound, so the Court cannot establish what was said.

But the video contradicts any notion that Bott at Brown in a voyeuristicmanner. (

Video, Ex. G, 12:56:46-1:00:35.) The video does not show that Brown grabbed a sheet from

his bed to cover the bars of his cell, either. ( ) The video further shows standing in

front of Brown’s cell, keeping his head down, reading from the grievance, looking up from

the grievance—occasionally—to talk to Brown, not to at him. ( ) What’s more,

the video shows Brown sticking his hand through the bars of his cell numerous times,

pointing at the grievance Bott held in his hands. ( ) Consequently, the Court

determines Brown’s version of the encounter is discredited by the video so that no

reasonable jury could believe the version that Bott stared or glared at him. , 550

U.S. at 381-82.

Judging the matter on that basis, Bott did not violate the First Amendment. To state

a claim for First Amendment retaliation, Brown must show: “(1) that he was engaged in

protected conduct; (2) that [Bott] took an adverse action against him that would deter a

person of ordinary firmness from continuing to engage in that conduct; and (3) that the

protected conduct caused the adverse action, at least in part.”

, 109 F.4th 864, 871 (6th Cir. 2024). As to the first element of a First

Amendment retaliation claim—protected conduct—“[a]n inmate has an undisputed First

Amendment right to file grievances against prison officials on his own behalf.”

, 203 F.3d 410, 415 (6th Cir. 2000). But “the right to file grievances is protected

only insofar as the grievances are not ‘frivolous.’” , 887 F.3d 252, 264 (6th

Cir. 2018) (quoting , 203 F.3d at 415).

A grievance is frivolous if it abuses or manipulates the grievance system. (citing

, 680 F.3d 686, 699 (6th Cir. 2012)). An “inmate cannot immunize himself

from adverse administrative action by prison officials merely by filing a grievance or a lawsuit

and then claim[] that everything that happens to him is retaliatory.” , 48

F. App’x 520, 525 (6th Cir. 2002). So an “obviously meritless prisoner grievance[]” like one

that protests a “non-invasive pat down, , 90 F. App’x 808, 810 (6th Cir.

2004)” would be deemed frivolous. , No. 21-2834, 2022 WL 3449219, at *3

(6th Cir. June 22, 2022).

Here, Brown accuses Bott of “staring at him in a voyeuristic manner.” (Compl. ¶ 10.)

According to 28 C.F.R. § 115.6, voyeurism is defined as an invasion of privacy for reasons

unrelated to official duties, “such as peering at an inmate who is using a toilet in his or her

cell to perform bodily functions; requiring an inmate to expose his or her buttocks, genitals,

or breasts; or taking images of all or part of an inmate’s naked body or of an inmate

performing bodily functions.” Considering the video evidence, Bott was clearly not staring

or “peering” at Brown unrelated to his official duties. And when viewing all remaining

allegations in a light most favorable to Brown: (1) Brown was washing his white laundry with

no shirt on; (2) Brown was uncomfortable with his body; (3) Brown was uncomfortable with

Bott being outside his cell in light of him having no shirt on; and (4) Bott had made comments

like “Man, look at the Boobs on that guy” to other inmates, the Court finds Brown’s

grievance against Bott frivolous. ( Compl. ¶¶ 8-15.) Brown fails to show a genuine issue

of material fact that Bott invaded Brown’s privacy to the extent of peering at him when he

was performing bodily functions or required Brown to show his buttocks or genitals. Thus,

Brown engaged in no protected conduct when he threatened to file and filed a PREA

grievance against Bott for this encounter.

C. First Amendment Retaliation: Corrections Officer Allen

Brown alleges that Allen retaliated against him in violation of the First Amendment

twice. First, when Allen required Brown to move from his first-floor cell to the second floor

because Brown filed and threatened to file a PREA grievance against Bott. ( Compl. ¶

23.) Second, when Allen “shook down” Brown’s cell and destroyed his belongings because

he filed a PREA grievance against Allen for moving him to another cell. ( Compl. ¶ 35.)

The magistrate judge recommends that the Court find that Brown’s first alleged instance of

retaliation lacks merit since being moved to a different cell does not constitute adverse action.

(R&R 27-29.) The magistrate judge finds, however, that Brown’s second alleged instance

makes out a prima facie case of retaliation. ( )

This Court agrees with the magistrate judge’s regarding Brown’s first

alleged instance of retaliation by Allen. As noted, to establish a claim of First Amendment

retaliation, Brown must show that he engaged in protected conduct. , 680 F.3d at 694.

The protected conduct Brown relies on is his grievance against Bott arising from the June 19

encounter. But the Court found that grievance was frivolous. And threatening to file or filing

frivolous grievances does not constitute protected conduct under the First Amendment.

, 345 F. App’x 981, 985 (6th Cir. 2009). Brown, therefore, did not engage

in protected conduct when he threatened and filed his grievance against Bott. So he fails to

establish a prima facie First Amendment retaliation claim against Allen regarding the cell

move.2

2 The magistrate judge recommends summary judgment be granted on this claim because a cell-move does not

constitute adverse action for First Amendment retaliation purposes. The Court rejects that line of reasoning.

Generally, an adverse action does not arise from being moved to a different cell. See Lewis v. Stoddard, No. 1:17-cv-

The same cannot be said for Brown’s second assertion of retaliation. Brown alleges

that he filed a grievance against Allen resulting from the cell assignment. (Compl. ¶¶ 30, 34-

35.) On July 5, 2019, after Brown filed his grievance relating to the cell move, Allen allegedly

“shook down [Brown]’s cell,” throwing Brown’s eyeglass cleaning cloth and fingernail

clippers in the toilet, placing his “rusty bottomed footlocker” on his bed, putting his sheets

and blankets on the floor and around his toilet, leaving footprints on them, tossing his

toothbrush on the floor, knocking his TV off its stand, and spilling a cup of water on top of

his legal paperwork and typewriter. ( ¶ 35.) Afterward, Allen allegedly stopped by

Brown’s cell and said, “keep filing PREAs bitch.” ( ¶ 36.)

The magistrate judge correctly determined that Brown alleged a prima facie First

Amendment retaliation claim regarding this incident. Brown engaged in protected conduct

when he filed the grievance against Allen for moving him to a second-floor cell, which was

covered in fecal matter. Allen also denied Brown cleaning supplies to clean the cell. Allen

took adverse action against Brown when he allegedly destroyed Brown’s belongings. Further,

a causal connection exists between the protected conduct and adverse action because Allen

allegedly told Brown shortly after he damaged Brown’s property: “keep filing PREAs bitch.”

100, 2017 WL 942156, at *12 (W.D. Mich. Mar. 10, 2017); LaFountain v. Harry, 716 F.3d 944, 949 (6th Cir. 2013)

(“Cell assignments are a normal part of prison life, and thus typically do not amount to an adverse action,” absent

extraordinary circumstances.). That said, in LaFountain, the Sixth Circuit found that forcing a prisoner to cell with a

mentally ill prisoner who presented foreseeable risks constituted an adverse action. 716 F.3d at 949. Accordingly,

the Court finds that Brown’s assertion that he was reassigned to a cell which was on the second floor in light of his

known knee injury, and a cell that was covered with feces, while being handed no cleaning supplies, could constitute

adverse action. See, e.g., Aaron v. Dyer, No. 15-CV-11014, 2016 WL 1259098, at *7 (E.D. Mich. Mar. 31, 2016)

(being reassigned to a cellmate, who had a well-known history of mental illness that “manifested in extremely

unhygienic practices, constitutes an extraordinary circumstances especially if it is true that he was denied supplies to

clean his cell”); Holleman v. Zatecky, 951 F.3d 873, 878 (7th Cir. 2020) (“[T]he fact that a prisoner does not have a

constitutional right to a particular prison placement does not doom [the plaintiff]’s case. If the transfer was indeed

retaliatory, then [that is a] violation of [his] First Amendment right[s.]”); Donelson v. Atchison, No. 14-cv-1311, 2017

WL 5999096, at *5 (S.D. Ill. Dec. 4, 2017).

Accordingly, Brown establishes a prima facie First Amendment retaliation claim against

Allen.

D. First Amendment Retaliation: Lieutenant Baldini

Brown’s retaliation claim against Baldini arises out of Brown’s grievance against Bott

and Bott’s related misconduct ticket. The R&R recommends that this Court grant Baldini

summary judgment.

Baldini prompted a misconduct hearing to review Bott’s insolence misconduct ticket

against Brown for threatening to file a PREA grievance to harass and degrade him.

(Misconduct Tickets, Ex. 5, PageID.299-300.) During the hearing, Baldini found that Brown

presented no “contrary evidence,” and the report and grievance supported the misconduct

charge. ( ) Thus, Baldini found Brown guilty of insolence. ( ) And if a prisoner is

found guilty of insolence, the hearing officer must determine the appropriate sanction under

MDOC Policy Directive 03.03.105 ¶ EE. (MDOC PD 03.03.105, ECF No. 46-7,

PageID.308-09.) Baldini deemed seven days of loss of privileges an appropriate sanction.

(Compl. ¶ 20.)

Brown claims that Baldini’s sanction constituted First Amendment retaliation. The

magistrate judge finds otherwise. The magistrate judge reasons that Brown fails to establish

a retaliation claim against Baldini because Baldini sanctioned Brown based on the evidence

presented before the misconduct hearing. (R&R 25-27.) In other words, the sanction Baldini

issued was not related to Brown’s threat to file a PREA grievance against Bott. ( ) The

sanction was instead issued because Brown did not present any proof that showed his threat

directed towards Bott concerning the PREA grievance was meant to harass or degrade

him. ( ) The magistrate judge, thus, concludes Brown cannot make a prima facie

retaliation claim against Baldini because the adverse action was not motivated by Brown’s

protected speech. ( )

The Court agrees with that reasoning and conclusion. Baldini sanctioned Brown not

because he threatened to file a PREA, but because Brown did not submit any evidence to

prove otherwise. Moreover, the grievance that Brown relies on for the protected speech

prong was frivolous, so it cannot form the basis for his retaliation claim against Baldini.

Brown objects, arguing that Baldini did not abide by MDOC policy when he issued

sanctions. Brown first contends that Baldini failed to follow Policy Directive ¶ NN, which

states, “[t]he reviewing officer . . . pull a misconduct report which s/he determines to be

inappropriate but shall first discuss it with the reporting staff person.” (MDOC PD

03.03.105, PageID.310) (emphasis added). The “may” in ¶¶ NN permits reviewing officers

like Baldini to pull a misconduct report. But nowhere does ¶ NN reviewing officers

to pull a misconduct report. So Baldini was not required to discuss the report with Bott

before issuing sanctions.

Brown also argues that Baldini did not find Brown guilty by “a preponderance of the

evidence.” (MDOC PD 03.03.105, PageID.310.) Not quite. Baldini made his finding of

guilt based on what was provided to him during the hearing. And the evidence that was

provided supports his finding of guilt by a preponderance of the evidence. The misconduct

report does not contain the allegations that Brown raises before the Court; it instead merely

provides that Bott discussed with Brown a grievance Brown had filed against an MBP

librarian. (Misconduct Tickets, Ex. 5, PageID.299-300.) There is no mention of staring,

voyeurism, or any sexual conduct. Nor does Brown allege or provide evidence that the

report has any mention of impermissible conduct.

The Court will adopt the magistrate judge’s recommendation that no genuine issue of

material fact exists as to whether Baldini retaliated against Brown in violation of the First

Amendment.

E. First Amendment Retaliation: Brandon VanAcker

Brown’s retaliation claim against VanAcker stems from an allegedly false, retaliatory

misconduct report VanAcker filed against Brown. Brown alleges that he asked VanAcker

for a PREA grievance to file against Allen because Allen kept retaliating against him.

VanAcker “refused to give [Brown] a PREA and instructed [him] that . . . a normal Grievance

was appropriated.” (Compl. ¶ 39.) VanAcker then allegedly issued Brown an insolence

misconduct ticket for requesting a PREA grievance to file against Allen ( ¶ 40.)

Brown engaged in protected conduct when he requested a grievance to file against

Allen. VanAcker engaged in adverse action when he issued a misconduct ticket against

Brown. A causal nexus existed between the protected conduct and adverse action because

VanAcker’s misconduct report provided that he “felt” Brown requested a grievance “to

degrade his coworker.” ( ) Thus, Brown has provided a prima facie case of First

Amendment retaliation against VanAcker.

F. First Amendment Retaliation: William Torongo

Brown’s retaliation claim against Torongo stems from the alleged false and retaliatory

misconduct report by VanAcker. Brown claims that VanAcker issued Brown a misconduct

ticket to retaliate against Brown for filing a grievance against Allen. (Compl. ¶¶ 39-40.)

Torongo reviewed VanAcker’s charge. ( ) Torongo found Brown guilty of

misconduct because Brown waived the right to a hearing and pled guilty to the charge

VanAcker accused him of. (Misconduct Tickets, Ex. 5, PageID.301.) As a result, Torongo

issued Brown a seven-day loss of privileges sanction. ( ¶ 40.) Brown claims that this was

retaliatory. But as discussed, Torongo was required to issue appropriate sanctions if he

found Brown guilty of misconduct. So like Brown’s claim against Baldini, the magistrate

recommends that this Court grant Torongo summary judgment.

Brown argues that the body of VanAcker’s misconduct ticket was clear that VanAcker

issued it to retaliate against Brown for filing a grievance. Thus, Tornogo was required to

dismiss it. The Court rejects this argument by Brown. With what was presented to Torongo,

including Brown’s admission and waiver of hearing, Torongo’s decision to issue sanctions

was not causally related to VanAcker’s alleged retaliation. His decision was based off of what

was presented to him at the misconduct hearing. The Court will adopt the magistrate judge’s

recommendation that no genuine issue of material fact exists as to whether Torongo

retaliated against Brown in violation of the First Amendment.

* * *

In sum, the Court finds that Brown has established a prima facie First Amendment

retaliation claim against Allen and VanAcker, but not against Bott, Baldini, or Torongo. The

Court also finds that Brown fails to establish a prima facie § 1983 conspiracy claim against

Huss.

G. Qualified Immunity

Defendants raise qualified immunity as a defense to Brown’s constitutional claims.

Qualified immunity involves a two-step inquiry, which the Court can address in any order.

, 555 U.S. 223, 236 (2009). The Court must determine whether, based

upon the applicable law, the facts viewed in the light most favorable to the plaintiff show that

a constitutional violation occurred. ,533 U.S. at 201. If so, the right that was violated

must have been clearly established at the time. ; , 101

F.3d 1151, 1158 (6th Cir. 1996). Only then can the claimant overcome the qualified

immunity defense.

As for the clearly established prong, the right in question must have been so clearly

established “at the time of the challenged conduct” that “every reasonable official would have

understood that what he [was] doing violate[d] that right.” , 563 U.S. at 741;

, 109 F.4th 854, 860 (6th Cir. 2024) (citing ,

583 U.S. 48, 63 (2018). This determination is guided by the decisions of the United States

Supreme Court, and the Sixth Circuit Court of Appeals. , 474 F.3d

283, 287 (6th Cir. 2007); , 700 F.3d 845, 853 (6th Cir.

2012).

1. Constitutional Violation

The Court concludes that Brown has failed to prove a constitutional or statutory

violation against Huss, Bott, Baldini, and Torongo. But he has proved a prima facie

constitutional violation against Allen and VanAcker. So the next step is whether the right

Brown alleges these Defendants violated was clearly established at the time.

2. Clearly Established Right

“[T]he First Amendment bars retaliation for protected speech,” which is what Brown

alleges occurred here. , 523 U.S. 574, 592 (1998). That being the

case, the Court asks whether any reasonable official would have understood that Brown’s

speech was protected, and thus that the official could not retaliate against him.

, 81 F.4th 550, 557 (6th Cir. 2023). In identifying clearly established

rights, the claimant must identify a case with facts “similar enough” that would bind a Sixth

Circuit panel:

In identifying clearly established rights, the Supreme Court warns lower courts

against defining them “at a high level of generality.” , 563

U.S. 731, 742 (2011). The claimant must show that the right’s contours were

“sufficiently clear” such that “every reasonable official would have understood”

that the officer’s actions violated it. at 741 (quoting ,

483 U.S. 635, 640 (1987)). That usually means the claimant must identify a

case with facts “similar enough that” it “squarely governs this one,” ,

33 F.4th 860, 863 (6th Cir. 2022) (quotation omitted), what amounts to “on-

point caselaw that would bind a panel of this court,” ,

37 F.4th 362, 368.

, 126 F.4th at 1167-68. For example, in the Fourth Amendment context, a general

rule like an arresting officer’s force must be “objectively reasonable,” “offer[s] little guidance”

to officers apart from “obvious violations.”

Similarly, a general rule like an inmate has a First Amendment right to file or even

threaten to file grievances against prison officials, offers little guidance to prison

officials except for obviously non-frivolous grievances. ,203 F.3d at 415; , 345

F. App’x at 985. The Sixth Circuit has provided more guidance when it held that grievances

designed to be “[a]busive or manipulative” are frivolous. , 887 F.3d at 264-65. The

Sixth Circuit has also that a grievance may be frivolous if the underlying grievance

itself was de minimis. For instance, a grievance that is related to basic necessities, like

food, is not de minimis. (“[W]e refuse to say that a complaint about one of the major

requirements of life is a frivolous or grievance.”). The court has found the

following grievances as de minimis, as well: when a prisoner complained that a corrections

officer should “not be able to conduct a non-invasive pat-down search” of her,

, 90 F. App’x 808, 810 (6th Cir. 2004); when a prisoner complained that he was

required to use a typewriter rather than a computer, , 43 F. App’x 792,

794 (6th Cir. 2002); and when a prisoner complained that he had been subject to verbal

abuse, , 230 F.3d 1359, 2000 WL 1434456, at *2 (6th Cir. 2000).

The question then becomes, would a reasonable official in Bott or Allen’s shoes have

been on notice that the grievances Brown filed were non-frivolous, specifically, Grievances

MBP 190629466 and MBP 19090136527B. The Court finds that a reasonable official

would have been put on fair notice of the second grievance (MBP 19090136527B), but not

the first (MBP 190629466), was non-frivolous.

(a) Grievance MBP 190629466

This grievance alleges that Bott stared at Brown in a voyeuristic manner. The video

clearly contradicts this allegation. But even if it didn’t, it was not clearly established by 2019

whether Bott’s conduct constituted voyeurism. Therefore, whether this grievance wasn’t

frivolous was not clearly established.

Brown argues that illuminated enough light on this issue that it was clearly

established that his grievance against Bott was not frivolous. But did not clearly

establish Brown’s right in this context. dealt with a grievance based on a necessity of

life, food. That court had nothing to say about voyeurism. Nor do any of the cases that

Brown cites in his objections— , , or —constitute a case with facts

“similar enough” that would bind a panel of this court. It wasn’t until 2022 that the Sixth

Circuit ruled on this issue. Obviously, the Sixth Circuit’s appellate review was not available

to Defendants in 2019.

The Court, moreover, cannot find any other case before 2019 that would have put a

reasonable official on notice. Indeed, the PREA regulations define voyeurism. However,

no court had analyzed that definition in this context. The Court, therefore, adopts the

magistrate judge’s recommendation that a reasonable official would not have been put on

notice that Grievance MBP 190629466 was non-frivolous. What this means is that any

retaliation Brown faced because of filing or threatening to file a grievance against Bott for the

June 19 encounter cannot satisfy the protected conduct element.

(b) Grievance MBP 19090136527B

This grievance alleges Allen moved Brown from a base-floor cell to a second-floor

cell because he filed a PREA grievance against Bott. Brown complains that the second-floor

cell required him to traverse stairs even though Allen knew he had a knee injury.

Furthermore, he complains that the second-floor cell was covered with fecal matter, and he

was handed no cleaning supplies.

This grievance was not frivolous, and a reasonable officer in 2019 would or should

have known that it wasn’t. By 2019, it was clearly established that a grievance that complains

about being retaliated against for filing an earlier grievance is not frivolous. , 887 F.3d

at 264 (finding that pursuing a grievance about prison conditions and seeking redress of that

grievance qualified as protected conduct); , 695 F. App’x 144, 145 (6th

Cir. 2017); , 630 F.3d at 472. Moreover, this is one of those “obvious” cases where

an official would be put on fair notice that a prisoner complaining about a new cell that was

covered in fecal matter and was denied cleaning supplies is not frivolous. Thus, the Court

finds that Allen and VanAcker had fair notice that Brown engaged in protected conduct

when he filed Grievance MBP 19090136527B.

H. Proposed Witness List

The magistrate judge recommends that the Court deny Brown’s motion for a

proposed witness list. Brown requested leave to file a proposed witness list so he can “gain

approval from MDOC to initiate contact” with Troy Allen Hite, a legal writer, and Joshua

Mosher, another legal writer. (Mot. Proposed Witness List, PageID.703-04.) Those two

individuals allegedly have information on Bott’s behavior of staring at larger set men. ( )

Brown argued that he could not contact either of them without a proposed witness list due

to the MDOC’s Policies. ( , PageID. 702-05.) The magistrate judge found that Brown’s

motion for a proposed witness list was not proper because the discovery process is the correct

avenue to obtain information. (R&R 36-37.)

Brown objects. He argues that the MDOC denied his application for prisoner-to-

prisoner legal mail, as this Court has no record of a witness list being filed. Therefore, he

needs a proposed witness list filed with the Court to show the MDOC that he needs to contact

those legal writers.

The Court will adopt the magistrate judge’s recommendation in denying Brown leave

to file a proposed witness list. The magistrate judge correctly found that the correct process

for Brown to gather information from Mosher and Hite is the discovery process. Further,

Brown has provided no caselaw or rule establishing that he needs a proposed witness list to

contact Mosher or Hite. Thus, Brown’s objection is overruled.

I. Sur-reply Brief

The magistrate judge recommends that the Court grant Defendants’ motion to strike

Brown’s sur-reply brief because Brown failed to obtain the Court’s leave to file the sur-reply.

(ECF Nos. 111, 114.) Brown fails to respond. (R&R 37-38.) Further, under Western

District of Michigan Local Civil Rule 7.2(c), Brown was required to obtain leave from this

Court to file this additional reply. He did not; thus, the Court will adopt the R&R.

IV. CONCLUSION

For these reasons, the Court will adopt and reject in part the R&R.

IT IS ORDERED that the magistrate judge’s R&R is ADOPTED IN PART and

REJECTED IN PART. The Court adopts the magistrate judge’s recommendation that

Brown be denied leave to file a proposed witness list (ECF No. 109), Defendants’ motion to

strike Brown’s sur-reply be granted (ECF No. 114), Defendants Bott, Baldini, and Torongo’s

motion for summary judgment be granted regarding Brown’s First Amendment retaliation

claims against them, and Defendant Huss’s motion for summary judgment be granted

regarding Brown’s 42 U.S.C. § 1983 civil conspiracy claim against her. (ECF No. 97.) The

Court, however, denies the magistrate judge’s recommendation that Defendants Allen and

VanAcker be granted summary judgment regarding Brown’s First Amendment retaliation

claims against them. (ECF No. 118.)

IT IS FURTHER ORDERED that the Court grants Brown’s motion to file a reply

in support of his objections as Brown was never required to obtain leave to file this in the

first place. (ECF No. 122.)

Date: August 6, 2025 /s/ Paul L. Maloney

Paul L. Maloney

United States District Judge