Gordon v. Cargor

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DEONTAE J. GORDON,

Plaintiff,

Case No. 22-cv-11873

v. Hon. Matthew F. Leitman

KIM CARGOR, et al.,

Defendants.

__________________________________________________________________/

ORDER (1) ADDRESSING BOTH RECOMMENDED DISPOSITION OF

REPORT AND RECOMMENDATION (ECF No. 64) AND PLAINTIFF’S

OBJECTIONS THERETO (ECF No. 65); AND (2) GRANTING

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (ECF No. 56)

Pro se Plaintiff Deontae J. Gordon is a state inmate in the custody of the

Michigan Department of Corrections (the “MDOC”). In this action, Gordon brings

claims under 42 U.S.C. § 1983 against several officials employed by the MDOC.

(See Compl., ECF No. 1.) Two of Gordon’s claims remain alive. In the first claim,

he says that for a three-month period during the COVID-19 pandemic, some of the

remaining Defendants failed to transfer him into a facility that offered meals

consistent with his religious beliefs (the “First Amendment Claim”). In the second

claim, he asserts that some of the remaining Defendants failed to provide him with

sufficient hygiene-related products and services (the “Eighth Amendment Claim”).

The Defendants have filed a motion for summary judgment on these

remaining claims. (See Mot., ECF No. 56.) The assigned Magistrate Judge issued a

Report and Recommendation (“R&R”) in which he recommended that the Court

grant the motion. (See R&R, ECF No. 64.) Gordon has now filed objections to the

R&R. (See Obj., ECF No. 65.) For the reasons explained below, the Court concludes

that the Defendants are entitled to summary judgment. It therefore GRANTS their

motion.

I

The factual background of this case is fully set forth in the R&R. (See R&R,

ECF No. 64.) The Court adopts and incorporates that background here. The Court

recounts only the most basic facts necessary to understand the Court’s ruling on

Gordon’s objections to the R&R.

A

Gordon’s claims relate to alleged acts and omissions that occurred during the

COVID-19 pandemic. During that pandemic, the MDOC established protocols to

be followed when inmates in its custody had to leave one of its facilities. Under

those protocols, “any current prisoner who left a facility on [a] writ . . . would be

routed back through [Charles E. Egeler Reception & Guidance Center (“RGC”)]

before being released to a general facility.” (Cargor Resp. to Pl.’s Interrog. No. 2,

ECF No. 56-3, PageID.614.) The MDOC routed those inmates through RGC so that

they could be quarantined for a period of at least 14 days before returning to the

general population at the facility at which they were housed. (See Director’s Office

Memorandum 2020-30R6, at 3 (Aug. 27, 2020).1) Pursuant to the protocols, once a

prisoner was medically cleared for transfer, his information was sent to the Deputy

Director of the MDOC for final transfer approval. (See Malloy Resp. to Pl.’s

Interrog. No. 3, ECF No. 56-5, PageID.629-630.) The Deputy Director alone

approved the final transfer decisions. (See id.; see also Director’s Office

Memorandum 2020-30R6, at 5.)

The MDOC adopted these protocols to guard against inmates returning to their

facilities while infected with the COVID-19 virus.

B

In 2020, Gordon was incarcerated at the Carson City Correctional Facility.

(See Compl., ECF No. 1, PageID.12.) On October 1, 2020, he was “writted” from

that facility to the Kent County Jail for an evidentiary hearing in connection with his

criminal case. (See id.; see also Gordon Dep. at 11:3-16, ECF No. 70, PageID.905.)

When his criminal proceedings concluded, pursuant to the MDOC protocols

identified above, Gordon was “transferred to” RGC. That transfer occurred on

October 6, 2020. (See Compl., ECF No. 1, PageID.12.)

1See https://www.michigan.gov/-/media/Project/Websites/corrections/publications/

Folder6/dom_2020-30r6_final.pdf.

Consistent with the MDOC’s COVID-19 protocols, when Gordon arrived at

RGC, he was subject to the quarantine period applicable to all inmates assigned to

RGC before they returned to general population. (See Director’s Office

Memorandum 2020-30R6, at 3.) When that period concluded, Gordon’s name was

submitted to the Deputy Director of the MDOC for transfer on a weekly basis. (See

Emails, ECF Nos. 56-13, 56-14.) But before the Deputy Director approved him for

transfer, in November of 2020, Gordon’s unit at RGC suffered a COVID-19

outbreak. (See id.) Gordon, himself, contracted COVID-19. (See Obj., ECF No. 65,

PageID.817.) At that point, Gordon was not eligible for transfer until he received

medical clearance. (See Director’s Office Memorandum 2020-30R6, at 2-3, 6.) He

received that clearance on January 4, 2021 (see Emails, ECF No. 56-13, PageID.709-

711), and the MDOC Deputy Director approved his transfer on January 6, 2021 (see

id., PageID.712). On January 7, 2021, Gordon was transferred out of RGC. (See

Transfer Order, ECF No. 56-6.)

C

Gordon is a “registered Buddhist” and has accordingly “been authorized to eat

from the MDOC Religious Menu as a ‘Vegan’ for several years.” (Compl., ECF No.

1, PageID.12.) It is undisputed that RGC does not offer vegan meals (see Mot. for

Summ. J., ECF No. 56, PageID.524), and that as a result, Gordon was not provided

meals consistent with his religious beliefs during his time at RGC. Gordon claims

that when he arrived at RGC, he “kited the chaplain, food service director, and . . .

others” to request vegan meals. (Gordon Dep. at 21:3-5, ECF No. 70, PageID.915.)

When they did not respond, he “kit[ed] . . . administrative figures like the wardens,

the . . . deputy wardens, the [Resident Unit Manager], . . . everybody” with the same

request. (Id. at 21:5-9.) Gordon claims he “informed them that [he] was a Vegan

and that he needed to be immediately transferred back to” the Carson City

Correctional Facility “and/or accommodated thru the dietician.” (Id.) Gordon

further alleges that the Defendants “not only had the authority to order [his] transfer,

but [were] obligated per MDOC policy to do” so. (Id.)

E

Gordon also claims that while he was incarcerated at RGC, some of the

Defendants either completely denied, or provided insufficient access to, a number of

hygiene related products and services. More specifically, Gordon contends the

following:

 He was deprived of soap, toothpaste, and deodorant for three weeks

(see Compl., ECF No. 1, PageID.15; Gordon Dep. at 40:23-25, ECF

No. 70, PageID.934);

 Based upon the laundry schedule at RGC, his clothes were washed

only once per week (see Gordon Dep. at 48:3-51:18, ECF No. 70,

PageID.942-945);

 Toilet paper was issued on a “one roll of [toilet] tissue per week, no

exceptions” basis (id. at 66:11-23, PageID.960);

 He was not able to purchase shower shoes from the store for

approximately three weeks (see id. at 25:20-28:14, PageID.919-

922); and

 He was deprived of hot water in his cell for one week (see id. at

64:25-65:3, PageID.958-959).

F

On August 12, 2022, Gordon filed this action under 42 U.S.C. § 1983 against

several officials employed by the MDOC. (See Compl., ECF No. 1.) He asserted

several constitutional claims against the Defendants. (See id.) As noted above,

Gordon’s two remaining claims are the First Amendment Claim and the Eighth

Amendment Claim. In the First Amendment Claim, Gordon alleges that Acting

Warden Cargor, Deputy Warden Jarrett, Deputy Warden Malloy, Deputy Warden

Howard, Resident Unit Manager Pearl, and John/Jane Doe Transfer Coordinator (the

“First Amendment Defendants”) violated his First Amendment rights when they

failed to transfer him out of RGC and into a facility that offered vegan meals. In the

Eighth Amendment Claim, Gordon contends that Cargor, Jarrett, Malloy, Howard,

Pearl, and Facility Manager Murray (the “Eighth Amendment Defendants”) violated

his Eighth Amendment rights when they deprived him of hygiene products, toilet

paper, laundry services, shower shoes, and hot water.

The Defendants filed a motion for summary judgment. (See Mot., ECF No.

56.) In that motion, they argued that all of Gordon’s claims failed on the merits and,

in addition, that they were entitled to qualified immunity on all of the claims. (See

id., PageID.544-546.) Gordon’s response focused almost entirely on the merits of

his claims and said very little about the Defendants’ qualified immunity defense.

Gordon’s discussion of qualified immunity did not cite a single case. (See Resp.,

ECF No. 58, PageID.730.) Instead, that section provided, in its entirety:

DEFENDANTS ARE NOT ENTITLED TO

QUALIFIED IMMUNITY.

It is undisputed that Plaintiff has a 1st Amendment

right to freely exercise his religious beliefs and a[n] 8th

Amendment right to humane living conditions.

Defendants make a mockery of the Covid-19

pandemic averring that due to the pandemic, they were not

allowed to [do] any transfers. However, Exhibit A shows

that inmates by the dozens were being transferred [during]

the time in question. In fact Defendants are refusing via

discovery to produce the transfer history during the

relevant times. Which ultimately will establish that

hundreds of inmates were being transferred.

Defendants have violated clearly established law as

outlined herein, and should have known they were.

Wherefore, abrogating their qualified immunity as a

government agent.

(Id.; emphasis in original.)

The assigned Magistrate Judge thereafter issued the R&R in which he

recommended the Court grant the motion. (See R&R, ECF No. 64.) The Magistrate

Judge did not reach Defendants’ qualified immunity defense. Instead, he based his

recommendation upon his analysis of the merits of Gordon’s claims.

The Magistrate Judge concluded that the First Amendment Defendants were

entitled to summary judgment on the First Amendment Claim because Gordon failed

to show that any of them “had the authority to effectuate his transfer during the

relevant time period.” (Id., PageID.803.) He then determined that the Eighth

Amendment Defendants were entitled to summary judgment on the Eighth

Amendment Claim because Gordon failed to show that (1) they were responsible for

denying Gordon’s access to the hygiene-related products and services Gordon

identified and/or (2) that the alleged deprivations rose to the level of Eighth

Amendment violations. (See id., PageID.804-811.)

Gordon has now filed objections to the R&R. (See Obj., ECF No. 65.)

II

When a party objects to portions of a Magistrate Judge’s report and

recommendation, the Court reviews those portions de novo. See Fed. R. Civ. P.

72(b)(3); Lyons v. Comm’r of Soc. Sec., 351 F.Supp.2d 659, 661 (E.D. Mich. 2004).

The Court has no duty to conduct an independent review of the portions of the R&R

to which the parties did not object. See Thomas v. Arn, 474 U.S. 140, 149 (1985).

III

The Court addresses each of Gordon’s claims separately below.

A

The Court begins with the First Amendment Claim. As noted above, the

Magistrate Judge concluded that the First Amendment Defendants are entitled to

summary judgment on that claim because none of them had the authority to transfer

Gordon to a facility that served vegan meals. Gordon disputes the Magistrate

Judge’s conclusion that the First Amendment Defendants did not have the power to

transfer him. He points to two pieces of evidence that, he says, create a question of

fact as to whether the First Amendment Defendants did have that authority. The

Court will address each piece of evidence separately.

1

The first piece of evidence that Gordon identifies is an email dated October

21, 2020, from Defendant Malloy to Defendants Cargor and Howard (the “October

20 Email”). Gordon contends that the October 20 Email shows that the First

Amendment Defendants were “in control of the transfers and ‘transfer pools’ and

thus dictated who stayed and who left.” (Obj., ECF No. 65, PageID.815.) It does

not.

Gordon relies on the following portion of the October 20 Email:

atgiaeeestensee a _—

Catan

□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□

(October 20 Email, ECF No. 56-13, PageID.693.) Gordon emphasizes Malloy’s use

of “we” in connection with transferring prisoners, and Gordon suggests that this

email, along with other similar emails (see, e.g., 10/27/20 Email, ECF No. 56-13,

PageID.695), are admissions that Defendants Malloy, Cargor, and Howard had the

power to transfer him. He says that those Defendants must have had the power to

transfer him because they would have had no other reason to “be sending such emails

amongst each other.” (Obj., ECF No. 65, PageID.816.) The Court disagrees with

Gordon’s reading of the October 20 Email.

First, the October 20 Email is simply a report on the capacity of RGC at the

time in question. Nothing in the email suggests that Defendants Malloy, Cargor, and

Howard had the authority to determine who was transferred and when.

Second (and more importantly), Gordon ignores both the remainder of the

October 20 Email and a series of related emails — all of which confirm that the Eighth

Amendment Defendants did not have the authority to transfer him. The remainder

of the October 20 Email (1) identified those inmates who had been medically cleared

for transfer (see bottom portion of October 20 Email) and (2) indicated that the email

10

was forwarded to the MDOC Deputy Director so that he could review the list of

cleared inmates and determine which of them would be transferred (see top portion

of October 20 Email). (See October 20 Email, ECF No. 56-13, PageID.693.) The

October 20 Email is thus fully consistent with the Eighth Amendment Defendants’

contention that the Deputy Director had the sole authority to approve transfers and

that the Eighth Amendment Defendants did not have that authority. The October 20

Email therefore does not create a material factual dispute as to whether the Eighth

Amendment Defendants had such authority. Accordingly, Gordon’s objection based

on the October 20 Email is OVERRULED.

2

Gordon next identifies what he believes is a “SMOKING GUN” showing that

Defendant Cargor had the authority to transfer him and failed to do so. (Obj., ECF

No. 65, PageID.817.) The “SMOKING GUN,” according to Gordon, is Cargor’s

statement that “she submitted Gordon’s information to the Deputy Director on

January 4, 2021 (the day Gordon was alleged medically cleared), and consequently

Gordon was approved for transfer by the Deputy Director on January 6, 2021, and

transferred out on January 7, 2021.” (Id.)2

2 Gordon does not cite a particular statement by Cargor to this effect. The Court

surmises that Gordon may be referring to a portion of the Defendants’ motion for

summary judgment, in which they describe the emails and timeline related to

Gordon’s transfer. (See Mot., ECF No. 56, PageID.536-537, citing Emails, ECF No.

56-13, PageID.709-712.)

Gordon says that Cargor’s statement is significant for two reasons. First, he

says that the statement “shows she indeed had the authority to submit Gordon’s name

and effectuate his transfer.” (Id.) Second, he says that the statement shows that she

failed to timely exercise that authority. In support of that contention, he highlights

Cargor’s “admission” that she did not take action to transfer him until January 4,

2021, and he says that that is an admission of a delay because he “would have been

medically cleared for transfer” roughly one month earlier, on December 4, 2020.3

(Obj., ECF No. 65, PageID.817.)

There are two problems with this line of argument. First, Cargor’s submission

of Gordon’s name for transfer once he was medically approved for a transfer does

not show or suggest that she had the authority to transfer Gordon. Her statement

shows only that she could submit inmates for transfer consideration by the MDOC

Deputy Director once they were medically cleared.

Second, Gordon does not cite any actual evidence that he was medically

cleared for transfer one month before Cargor submitted his name for consideration

by the MDOC Deputy Director. He simply assumes that he “would have been”

medically cleared for transfer as of that date because that date was 14 days after he

3 Here is how Gordon landed on the December 4, 2020, clearance date. He says that

he was diagnosed with COVID-19 on November 19, 2020, and that under the

MDOC’s protocols, he should have been cleared for transfer 14 days later – which

is December 4, 2020. (See Obj., ECF No. 65, PageID.817.)

was diagnosed with COVID-19, and “[i]nmates and patients were medically cleared

[for transfer] after 14 days of contracting” COVID-19. (Obj., ECF No. 65,

PageID.817.) But Gordon does not cite any evidence that could support a finding

that inmates were cleared for transfer 14 days after contracting COVID-19. And

the evidence submitted by the Defendants suggests that there was no fixed 14-day

time period for medically clearing inmates who had contracted the virus. For

instance, the Director’s Office Memorandum explains that prisoners who “test

positive for COVID-19” shall be placed in a “designated isolation area” and “shall

only be released from an isolation area after they have been cleared by a Physician,

and [obtained] approval from” medical administrators. (Director’s Office

Memorandum 2020-30R6, at 2-3.) That memorandum says nothing about a specific

time for medical clearance of inmates who have contracted the virus.4 The bottom

line is that Gordon has failed to submit any evidence that he was (or should have

been) medically cleared for transfer 14 days after he contracted the virus in

November of 2020. For all of these reasons, he has failed to show (1) that he was

4 The Director’s Office Memorandum does reference a 14-day time period of

isolation for individuals who had “close contacts” with other individuals who were

infected with COVID-19. (See Director’s Office Memorandum 2020-30R6, at 3.)

But Gordon did not merely have “close contact” with an infected individual on

November 19, 2020. Instead, as he acknowledges, he was actually infected with the

virus at that time. (See Obj., ECF No. 65, PageID.817.) Thus, the 14-day period

mentioned in the Memorandum did not apply to Gordon.

eligible for transfer on December 4, 2020, and (2) that Cargor could have and should

have submitted his name for transfer out of RGC at that time.

Accordingly, Gordon’s “SMOKING GUN” objection is OVERRULED.

B

The Court next turns to Gordon’s Eighth Amendment Claim. In the Eighth

Amendment Claim, Gordon alleges that, for a period of up to three weeks, the Eighth

Amendment Defendants were deliberately indifferent to his need for toilet paper,

hygiene products (e.g., soap, toothpaste, and deodorant), laundry services, shower

shoes, and hot water. As noted above, the Magistrate Judge addressed this claim on

the merits even though the Defendants asserted a qualified immunity defense to the

claim. The Court, however, concludes that there is no need to reach the merits of

the claim. Defendants are plainly entitled to qualified immunity on the claim

because Gordon has not cited a single case in which any court has held that the

deprivation of toilet paper, hygiene products (e.g., soap, toothpaste, and deodorant),

laundry services, shower shoes, and/or hot water, under circumstances like those

presented in this case, violated the Eighth Amendment.5 Indeed, Gordon has not

cited a single case that even addresses or involves the deprivation of any of these

5 Even though the Magistrate Judge did not address Defendants’ qualified immunity

defense, it is permissible and appropriate for this Court to do so. The Defendants

raised that defense in their motion for summary judgment, and Gordon had a full and

fair opportunity to respond to it – and he did offer a response to it – in his opposition

to Defendants’ motion.

things. Instead, he simply asserts that it is “undisputed that [he] has . . . an 8th

Amendment right to humane living conditions.” (Resp., ECF No. 58, PageID.730.)

That is not enough to overcome Defendants’ qualified immunity defense. See

Guertin v. State, 912 F.3d 907, 932 (6th Cir. 2019) (explaining that in order to defeat

a qualified immunity defense, a plaintiff must, among other things, cite case law

with a similar fact pattern showing that the particular constitutional right underlying

his claim is “clearly established”); Mosier v. Evans, 90 F.4th 541, 546 (6th Cir. 2024)

(explaining that for purposes of qualified immunity, a plaintiff may not identify a

“clearly established” right at a high level of generality). The Eighth Amendment

Defendants are therefore entitled to qualified immunity on the Eighth Amendment

Claim.6

IV

For all of the reasons explained above, IT IS HEREBY ORDERED as

follows:

6 The Court recognizes that, as an inmate, Gordon may not have unrestricted access

to legal materials and may be limited, to some extent, in his ability to locate and cite

case law. However, Gordon’s response to Defendants’ motion for summary

judgment reveals that he did have access to legal materials. He cited and addressed

cases (including unpublished cases available through LEXIS) concerning, among

other things, the summary judgment standard, liability for failure to transfer an

inmate, supervisory liability under Section 1983, and omission-based liability under

Section 1983. (See Resp., ECF No. 58, PageID.724-725, 729.)

1. Gordon’s objections to the Magistrate Judge’s recommended

disposition of the First Amendment Claim are OVERRULED;

2. Gordon’s objections to the Magistrate Judge’s recommended

disposition of the Eighth Amendment Claim are

TERMINATED AS MOOT in light of the Court’s decision to

resolve that claim on the basis of qualified immunity, rather than

on the basis recommended by the Magistrate Judge; and

3. Defendants’ Motion for Summary Judgment is GRANTED.

IT IS SO ORDERED.

s/Matthew F. Leitman

MATTHEW F. LEITMAN

UNITED STATES DISTRICT JUDGE

Dated: August 7, 2025

I hereby certify that a copy of the foregoing document was served upon the

parties and/or counsel of record on August 7, 2025, by electronic means and/or

ordinary mail.

s/Holly A. Ryan

Case Manager

(313) 234-5126