Kratochvil

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

JOHN JOSEPH KRATOCHVIL, )

)

Plaintiff, )

) NO. 3:24-cv-01042

v. )

) JUDGE RICHARDSON

FRANK STRADA, et al., )

)

Defendants. )

)

MEMORANDUM OPINION

Pending before the Court1 is the report and recommendation (Doc. No. 30, “R&R”) of the

Magistrate Judge, which recommends that the Court deny the motion to dismiss (Doc. No. 23,

“Motion”) filed by Defendants, Frank Strada and L. R. Thomas (collectively, “Defendants”).

Defendants have filed Objections (Doc. No. 32, “Objections”)2 to the R&R. For the reasons stated

herein, the Court will adopt the R&R with the caveats discussed below.

Below, the Court first will review the relevant procedural and factual background. The

Court next will provide an examination of the substance of the R&R before then reviewing the

legal standard for a district court judge’s review of the report and recommendation of a magistrate

judge. The Court will then analyze Defendants’ Objections to the R&R and review (as necessary)

any portions of the Magistrate Judge’s R&R to which a proper objection was made by Defendants.

1 Herein, “the Court” refers to the undersigned District Judge, as opposed to the Magistrate Judge who

authored the R&R.

2 Herein, a given use of the term “Objections” may refer to the document (Doc. No. 32) itself, to the

purported objections contained therein (i.e., the “objections” to the R&R contained within the

“Objections”), or both.

BACKGROUND

A. Procedural History

Absent any objection to the statement of procedural history set forth by the Magistrate

Judge in the R&R, the Court adopts that procedural history in its entirety and quotes it here

(including the sole footnote appended by the Magistrate Judge to this statement, which is included

here as footnote 3 herein, albeit with three bracketed words added):

Plaintiff initiated this Section 1983 action in the Eastern District of

Tennessee on August 20, 2024, alleging violations of his rights under the First and

Fourteenth Amendments to the Constitution, violations of his rights under the

Tennessee Constitution, and violations of Tennessee statutes and regulations. (Doc.

No. 2.) Alongside his Complaint, Plaintiff applied to proceed in forma pauperis

(IFP). (Doc. No. 1.) The Eastern District approved Plaintiff’s application to proceed

IFP and, on August 27, 2024, the court issued a Memorandum Opinion and Order

that partially screened Plaintiff’s initial complaint as required by the Prison

Litigation Reform Act, 28 U.S.C. §§ 1915(e)(2)(B) and 1915(A). (Doc. No. 5.)

On initial screening, the Eastern District found that Plaintiff’s claims

against Eller did not give rise to a plausible inference that Eller was personally

involved in the policies at issue and, as a result, were insufficient for showing Eller

could be held liable for any alleged violations of Plaintiff’s constitutional rights.

(Id.) For that reason, the court dismissed Eller as a defendant. (Id.)

With Eller dismissed, the court reasoned that, because Plaintiff was

ultimately challenging policies put forth and enforced by TDOC personnel

operating out of Nashville, Tennessee, venue in the Eastern District was

inappropriate. (Id.) The case was subsequently transferred to this Court on August

27, 2024. (Doc. No. 7.) Within days, Plaintiff was permanently transferred out of

NECX to the Trousdale Turner Correctional Center (TT[C]C) in Harstville,

Tennessee. (Doc. No. 13.)

Because the Eastern District ended its screening after determining that the

case should be transferred, it deferred screening the remainder of Plaintiff’s

Complaint. Upon its initial review, this Court addressed the claims against Strada

and Thomas; denied Plaintiff’s motion to reconsider the Eastern District’s decision

to dismiss Eller (Doc. No. 11); and granted Plaintiff’s Motion to Supplement3 (Doc.

No. 12).

3 Although [this motion was] styled as a Motion to Amend his Complaint (Doc. No. 12), the Court construed

it as a Motion to Supplement under Federal Rule of Civil Procedure 15(d) (Doc. No. 13).

After reviewing Plaintiff’s initial and supplemental complaints, the Court

permitted Plaintiff’s original First Amendment claims against Strada and Thomas

to proceed. (Doc. No. 13.) The Court further found that Plaintiff raised in his

Supplemental Complaint plausible claims of First Amendment retaliation against

the Defendants stemming from his transfer to TTCC after undertaking the grievance

process and then filing this action. (Id.) The Court referred the case to the

Magistrate Judge to conduct further proceedings and dispose or recommend

disposition of any pretrial motions under 28 U.S.C. §§ 636(b)(1)(A) and (B). (Id.)

Defendants filed their Motion to Dismiss and Memorandum in Support on

April 10, 2025 (Doc. Nos. 23, 24), to which Plaintiff responded in opposition (Doc.

No. 26). Defendants then filed an optional reply brief. (Doc. No. 27.) The motion

has been fully briefed and is ripe for consideration.

(Doc. No. 30 at 2-4). In Defendants’ Motion, Defendants assert that the Court should

dismiss both of Plaintiff’s claims. (Doc. No. 23 at 1). First, Defendants move the Court to

dismiss Plaintiff’s First Amendment freedom of speech claim (“Free Speech Claim”),

asserting that “Plaintiff lacks standing to sue Defendants . . . because he has not adequately

alleged an injury.” (Id.). Second, Defendants move the Court to dismiss Plaintiff’s First

Amendment retaliation claim (“Retaliation Claim”), asserting both that Plaintiff “has not

sufficiently alleged an adverse action against him by Defendants” and that Plaintiff “has

not sufficiently alleged . . . the requisite motive to make such action retaliatory.” (Id.).

B. Factual Background4

4 Because the Objections challenge the Magistrate Judge’s framing of Plaintiff’s allegations, the Court will

provide its own recitation of the relevant facts as the Court understands they should be accepted for purposes

of the instant Motion.

The facts contained in this section come from Plaintiff’s Complaint (Doc. No. 2) and supplemental

complaint (Doc. No. 12, “Supplemental Complaint”). For purposes of the instant Motion and pursuant to

the typical mechanisms of assessing motions under Federal Rule of Civil Procedure 12(b)(6), the Court

accepts the facts alleged in the Complaint and Supplemental Complaint as true. But the Court does not

accept as true any legal conclusions (even if couched as facts). As for any representation in the Complaint

and/or Supplemental Complaint that the Court is not accepting as true, the Court generally identifies it by

qualifying it (as, for example, by “Plaintiff alleges”) to denote that it is not being taken as true but rather is

set forth to indicate what Plaintiff claims to be true. Throughout this Order, except as indicated in the next

sentence, the Court forgoes any such qualifiers for any fact that it is accepting as true, stating those facts

without qualification even with the awareness that any such alleged fact may ultimately prove false. Having

said that, at times when assessing whether Plaintiff has alleged factual matter sufficient to support its

respective claims, the Court does point out that it is basing its assessment on the facts alleged in the

At the time Plaintiff filed the Complaint, he was an inmate incarcerated at the Tennessee

Department of Correction at Northeast Correctional Complex (“NECX”) in Mountain City,

Tennessee. (Doc. No. 2 at 2).5 Between April 1, 2024 and the filing of the Complaint, “inmates

[were] completely cut-off from all possible ways to order and/or receive books and other printed

material.” (Id. at 10).

Plaintiff “sent in a book order the first week in April to come from Hamilton Books,” but

“was told that all book orders [going to Unit Manager Reburn] for approval [would] be denied

until the situation with Union Supply6 is settled.” (Id. at 7). In response, Plaintiff filed two separate

grievances: the first was filed on May 6, 2024 (“First Grievance”), and the second was filed on

June 18, 2024 (“Second Grievance”). (Id. at 2-4). On May 9, 2024, Plaintiff received from Seargent

Phillips a response after the First Grievance, which stated, “As of April 1, 2024, Intake was

instructed by Administration of NECX not to let offenders have books” (“Policy of Suspending

Books”). (Id. at 2). Dissatisfied with the response, Plaintiff requested a hearing before the

Grievance Board (“Board”), and after a May 15, 2024 hearing, the Board agreed to forward

Plaintiff’s grievance to NECX Warden Brian Eller. (Id. at 2-3). On May 20, 2024, “Warden Eller

denied the appeal stating, ‘This is only temporary until a vendor is approved.’” (Id. at 3).

After filing the Second Grievance, Plaintiff was told by the NECX Associate Warden of

Treatment that the Tennessee Department of Correction (“TDOC”) has the authority to limit which

Complaint and Supplemental Complaint; in that particular context, the Court does use the phrase “Plaintiff

alleges” to precede the facts alleged, even though the Court is taking those facts as true for purposes of the

Motion.

5 The Complaint has two sets of page numbers: the page numbers found in black on the bottom right-hand

corner (“Set 1”) and the page numbers found in blue at the bottom of the page (“Set 2”). When citing to the

Complaint, the Court uses Set 2’s page numbers as Set 1 appears to skip page one of the Complaint.

6 It is the Court’s understanding that Union Supply is the distributor of personal packages within NECX.

(Doc. No. 2 at 3 and 9).

vendors may be approved and to regulate which books may be ordered based on their content. (Id.

at 3-4). On appeal, Eller concurred with the decision, and the subsequent appeal to TDOC was

denied by Assistant Commissioner Thomas’s office. (Id. at 4).

“On July 17, 2024, inmates at [NECX] received a memo from Assistant Commissioner

Thomas dated July 15, 2024,” which stated a policy (“Two-Vendor Policy”) that books “are now

to be ordered through staff from only two (2) distributors for non-religious books: 1)

Abebooks.com and (2) Bookshop.org.” (Id. at 7). The Two-Vendor Policy “appears to eliminate

newspapers, magazines, periodicals, and other printed material,” (id.) and “limits the number of

books an inmate can order to five (5)” (id. at 12). Plaintiff “has been ordering and receiving books

from Edward R. Hamilton Bookseller Company for approximately thirteen (13) years, as well as

from other distributors.” (Id. at 7).

As discussed above, after filing the Complaint, Plaintiff filed a supplemental complaint

(Doc. No. 12, “Supplemental Complaint”) outlining conduct that occurred after the filing of the

Complaint. “One week following the Judgment Order” of the Eastern District—wherein the

Eastern District partially screened the Complaint and transferred the case to this District—Plaintiff

was subjected to a transfer (“Transfer”) from NECX to Trousdale Turner Correctional Center

(“TTCC”): a prison within this district (the Middle District of Tennessee) that is notoriously

violent and is currently under federal civil rights investigation. (Id. at 1-2). The Transfer cost him

his “good paying and rewarding job as a tutor in the GED program” at NECX. (Id. at 2). Plaintiff

does not have a job at TTCC. (Id.). Two days after his Transfer, another inmate “who is filing a

similar lawsuit” was likewise transferred to TTCC. (Id.).

THE MAGISTRATE JUDGE’S R&R

The R&R recommended denial of Defendants’ Motion, finding that Plaintiff’s Free

Speech Claim and Retaliation Claim should survive the Motion. (Doc. No. 30 at 1).

First, as it relates to Plaintiff’s Free Speech Claim, the Magistrate Judge pointed out that

“Defendants sidestep the constitutional question and argue instead that Plaintiff’s First

Amendment claim must be dismissed because Plaintiff does not have standing to seek redress.”

(Id. at 5). The Magistrate Judge emphasized that because “Defendants argue only that Plaintiff has

not adequately pleaded that he suffered an injury in fact,” (id. at 6), she “will not examine the other

necessary elements of Plaintiff’s standing to bring suit” (id. at 8). Ultimately, the Magistrate Judge

concluded “that Plaintiff has sufficiently pleaded facts that, on their face, plausibly show he

suffered a concrete and particularized invasion of his First Amendment right to receive information

and ideas, including mail and reading material, that is not merely conjectural or hypothetical.” (Id.

at 7). In reaching that conclusion, the Magistrate Judge framed the relevant facts as follows:

Plaintiff plainly states that, after the [T]wo-[V]endor [P]olicy took effect, Plaintiff was

barred from ordering or receiving any books or publications. (Doc. No. 2.) Defendants rely

on Plaintiff’s broad generalizations of the impact of the policy to argue that he, himself,

suffered no particular harm. Moreover, they suggest that he is attempting to rectify injuries

allegedly suffered by other inmates or third-party publishers. However, Plaintiff states, in

full:

3. The Plaintiff has been ordering and receiving books from Edward R.

Hamilton Bookseller Company for approximately thirteen (13) years, as

well as from other distributors.

4. Plaintiff sent in a book order the first week in April to come from

Hamilton Books, and when he received no answer concerning the Trust

Fund approval, he questioned Unit Manager Reburn since Trust Fund

requests from Complex III go to him for approval.

5. Plaintiff was told that all book orders coming to him for approval will be

denied until the situation with Union Supply is settled.

(Id. at 7.) Frustrated by this, Plaintiff used the internal grievance process to object to

“banning [inmates] from ordering books.” (Doc. No. 2-1.) Instead of disputing Plaintiff’s

contention, the Warden and staff at NECX stated simply that “this [barring Plaintiff from

ordering books] is only temporary until a vendor can be approved.” (Id.)

(Doc. No. 30 at 7).

Second, as it relates to Plaintiff’s Retaliation Claim, the Magistrate Judge recommended

denying dismissal, finding that Plaintiff had plausibly pled all three elements of a First Amendment

retaliation claim:

(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—that

is, the adverse action was motivated at least in part by [his] protected conduct.

(Id. at 8 (quoting Maben v. Thelen, 887 F.3d 252, 262 (6th Cir. 2018) (internal citation and

quotation omitted))).

Notably, although Defendants brought challenges only as to the second and third element

of a First Amendment retaliation claim, the Magistrate Judge nonetheless found that “Plaintiff

ha[d] plainly satisfied the first element because his ‘undisputed First Amendment right to file

grievances against prison officials on his own behalf’ is protected conduct.” (Id. at 9 (quoting

Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000)). Thereafter, the Magistrate Judge found

that Plaintiff had alleged factual matter plausibly suggesting fulfilment of elements two and three

as well, stating that Plaintiff “sufficiently pleaded facts that his Transfer to TTCC was an adverse

action for purposes of a First Amendment retaliation claim,” (i.e., element two) (id. at 11), and that

“Plaintiff’s Complaint is ‘sufficient to establish the retaliatory-motive element when scrutinized

under the failure-to-state-a-claim standard’” (i.e., element three) (id. at 13 (quoting Hill v. Lappin,

630 F.3d 468, 476 (6th Cir. 2010) (citing Iqbal, 566 U.S. at 677))).

LEGAL STANDARD FOR THE REVIEW OF REPORTS & RECOMMENDATIONS

When a magistrate judge issues a report and recommendation regarding a dispositive

pretrial matter, the district court judge shall make a de novo determination of those portions of the

report or specified proposed findings or recommendations to which a proper objection is made.

Fed. R. Civ. P. 72(b)(3); 28 U.S.C.A. § 636(b)(1).7 The district judge may accept, reject, or modify

the recommended disposition, review further evidence, or return the matter to the magistrate judge

with instructions. Id.

A district judge is not required to review, under a de novo or any other standard, those

aspects of a report and recommendation to which no proper objection is made. Ashraf v. Adventist

Health Sys./Sunbelt, Inc., 322 F. Supp. 3d 879, 881 (W.D. Tenn. 2018); Benson v. Walden Sec.,

7 Significantly, and perhaps surprisingly, the statute does not actually direct the district judge to expressly

rule on the objections themselves (i.e., expressly sustain or reject the objector’s specific criticism(s) of what

the magistrate judge did). Instead of requiring the district judge to determine the validity of the objections

to what the magistrate judge did, the statute requires the district judge to make a determination—de novo,

which inherently means ultimately without reference to whether what the magistrate judge did was

objectionable—of the portion(s) of the report and recommendation to which objection was made. Moreover,

since the review of the objected-to portions of the report and recommendation is de novo, any critiquing of

what the magistrate judge did ultimately would be dicta (albeit relevant and probative dicta to the extent

that such critiquing explains the analysis underlying the district judge’s determination of the objected-to

portions of the R&R). Additionally, district judges in this Circuit not infrequently either decline to rule (or,

to the same effect, deny as moot) particular objections on the specific ground that so doing is unnecessary

to rule on the objected-to portion of the report and recommendation. E.g., Collins v. Bright, No. 2:13-CV-

02987-JPM-CGC, 2021 WL 5205622, at *3 (W.D. Tenn. Nov. 9, 2021) (“[T]his objection does not affect

or alter the conclusions of the Magistrate Judge and is overruled as moot.”); Lashuay v. Fornwalt, No. 1:15-

CV-1109, 2017 WL 4160947, at *1 (W.D. Mich. Sept. 20, 2017) (“This Court need not resolve all of the

objections,” because only some of them needed to be addressed in order to resolve the motion that was the

subject of the report and recommendation); Weatherspoon v. Williams, No. 2:14-CV-108, 2016 WL

6070994, at *1 (W.D. Mich. Oct. 17, 2016) (“Plaintiff’s objections are irrelevant and will be denied.”);

Bowers v. Burnett, No. 1:08-CV-469, 2011 WL 1047343, at *2 n.1 (W.D. Mich. Mar. 18, 2011) (noting

that the Court need not resolve an objection to the extent that the objector’s position on the R&R has other

fatal deficiencies); Powell v. Alcoa High Sch., No. 3:10-CV-212, 2010 WL 2598260, at *2 (E.D. Tenn.

June 24, 2010) (“Because this objection is irrelevant to [the magistrate judge’s] recommendations, it is

hereby overruled.”) Cline v. Kelly, No. 09CV859, 2010 WL 1006529, at *9 n.1 (N.D. Ohio Mar. 16, 2010)

(“The Court acknowledges [the petitioner’s] objection, but need not resolve it because that specific fact is

not relevant to the resolution of any of the grounds for relief set forth in [the] Petition” that the magistrate

judge had recommended be denied.).

Thus, although it seems clear that the district judge can expressly rule on the objections, the Court

concludes that a district judge is not required to do so. Herein, the Court does expressly rule on Objection

2. Otherwise, the Court declines to rule herein specifically on the Objections, focusing instead on the

required de novo review and determination of the objected-to parts of the R&R—albeit in part by taking

account of any ways in which the objections shed light on what the Court’s ultimate determination should

be.

No. 3:18-CV-0010, 2018 WL 6322332, at *3 (M.D. Tenn. Dec. 4, 2018) (citing Thomas v. Arn,

474 U.S. 140, 150 (1985)).

“Only ‘specific written objections’ to the magistrate judge’s proposed factual findings and

legal conclusions are ‘proper’ under Federal Rule of Civil Procedure 72(b).” Frias v. Frias, No.

2:18-CV-00076, 2019 WL 549506, at *2 (M.D. Tenn. Feb. 12, 2019). Furthermore, Local Rule

72.02(a) provides that such objections must be written and must state with particularity the specific

portions of a magistrate judge’s report or proposed findings or recommendations to which an

objection is made. L.R. 72.02(a); see also See Fed. R. Civ. P. 72(b)(2). Significantly, “[t]he filing

of vague, general, or conclusory objections does not meet the requirement of specific objections

and is tantamount to a complete failure to object. Moreover, an objection that does nothing more

than state a disagreement with a magistrate’s suggested resolution, or simply summarizes what has

been presented before, is not an objection as that term is used in this context.” Frias, 2019 WL

549506, at *2 (internal citations and quotations omitted). In other words, “the district court need

not provide de novo review,” or any other type of review, “where the objections are ‘frivolous,

conclusive or general,’” and therefore improperly made. Mira v. Marshall, 806 F.2d 636, 637 (6th

Cir. 1986) (per curiam) (quoting Nettles v. Wainwright, 677 F.2d 404, 410 n.8 (5th Cir. 1982)).

See also Ashraf, 322 F. Supp. 3d at 881 (“The district court is not required to review—under a de

novo or any other standard—those aspects of the report and recommendation to which no objection

is made.” (citation omitted)); Benson, 2018 WL 6322332, at *3 (same).

ANALYSIS OF DEFENDANTS’ OBJECTIONS AND REVIEW OF THE R&R

Defendants have filed four Objections to the R&R. The first objection (“Objection 1”)

relates to Plaintiff’s Free Speech Claim and challenges the Magistrate Judge’s finding that Plaintiff

plausibly pled an “injury in fact” sufficient to have standing to bring his Free Speech Claim. (Doc.

No. 32 at 2-6). The remaining three objections relate to Plaintiff’s Retaliation Claim. (Id. at 6-10).

More specifically, the second objection (“Objection 2”) challenges how the Magistrate Judge

framed the protected conduct that underlies Plaintiff’s Retaliation Claim, (id. at 6-7); the third

objection (“Objection 3”) challenges the Magistrate Judge’s finding that Plaintiff plausibly pled

an adverse action to support his Retaliation Claim, (id. at 7-8); and the fourth objection (“Objection

4”) challenges the Magistrate Judge’s finding that Plaintiff plausibly pled a retaliatory motive to

support his Retaliation Claim, (id. at 8-10). The Court will sequence its analysis by claim.

I. Free Speech Claim

As discussed above, only one of Defendant’s Objections (i.e., Objection 1) relates to the

Free Speech Claim. Objection 1 challenges the Magistrate Judge’s conclusion that Plaintiff alleged

factual matter plausibly suggesting that he suffered an “injury in fact” sufficient to have standing

to bring his Free Speech Claim. Because Objection 1 is specific, written, and a proper objection

warranting de novo review, the Court will conduct a de novo review of that portion of the R&R

that Objection 1 challenges.

Importantly, “[t]he First Amendment protects ‘the right to receive information and ideas,’

which, as applicable in the prison context, extends to the right to receive mail and to access reading

material.” Bethel v. Jenkins, 988 F.3d 931, 938 (6th Cir. 2021) (quoting Kleindienst v. Mandel,

408 U.S. 753, 762 (1972)). It is this Court’s understanding8 that Plaintiff’s Free Speech Claim

challenges not only the new policy contained in the memo dated July 15, 2024 (i.e., the Two-

8 The Court arrives at this understanding based on Plaintiff’s Complaint. In the “Statement of Claims”

section of the Complaint, Plaintiff makes two statements of relevance. Plaintiff states first that it is his

“contention that the current policy of suspending all book orders and other printed material and the receiving

of books in the mail violates due process and the First Amendment,” and second that he “contends that the

new policy contained in the memo dated July 15, 2024, allowing books to be ordered from only two (2)

distributors for non-religious books violates due process and the First Amendment.” (Doc. No. 2 at 5). The

Court interprets these contentions as challenges to both the Book Suspension Policy and Two-Vendor

Policy, respectively.

Vendor Policy), but also the (prior) policy of suspending all book orders as of April 1, 2024 (i.e.,

the Book Suspension Policy). (Doc. No. 2 at 5).

Construing the Complaint in Plaintiff’s favor as required at the current motion-to-dismiss

phase, the Court agrees with the Magistrate Judge that “Plaintiff has sufficiently pleaded facts that,

on their face, plausibly show he suffered a concrete and particularized invasion of his First

Amendment right to receive information and ideas, including mail and reading material, that is not

merely conjectural or hypothetical.” (Doc. No. 30 at 7).

Plaintiff alleged that he sent in a book order the first week in April 2024, (Doc. No. 2 at 7),

but was eventually informed—after filing his First Grievance—that “[a]s of April 1, 2024, Intake9

was instructed by Administration of NECX not to let offenders have books” (i.e., Book Suspension

Policy). (Id. at 2). Plaintiff alleged that on “[o]n July 17, 2024, inmates at [NECX] received a

memo from Assistant Commissioner Thomas dated July 15, 2024,” stating that books “are now to

be ordered through staff from only two (2) distributors for non-religious books: 1) Abebooks.com

and (2) Bookshop.org” (i.e., Two-Vendor Policy). (Id. at 7). Plaintiff alleges that the Two-Vendor

Policy “appears to eliminate newspapers, magazines, periodicals, and other printed material,” (id.)

and “limits the number of books an inmate can order to five (5)” (id. at 12). At the time of his

initial Complaint, Plaintiff alleged that since April 1, 2024, “inmates have been completely cut-off

from all possible ways to order and/or receive books and other printed material.” (Id. at 10).

From the aforementioned, the Court finds that Plaintiff has alleged factual matter plausibly

suggesting that he himself—as well as other inmates—have been unable to order or receive any

9 It is the Court’s understanding that “Intake” refers to the department that screens packages—among other

things—before items can enter the prison and be distributed to the prisoners. (Doc. No. 2 at 2 (“Intake was

instructed by Administration of NECX not to let offenders have books.”); 10 (“[T]he Mailroom/Intake also

has an x-ray machine.”)

books or publications10 from any source outside the facility since April 1, 2024, due to the policies

implemented by NECX: whether that be by virtue of the Book Suspension Policy, the Two-Vendor

Policy, or a combination of both. This alleged harm is certainly not conjectural or hypothetical but

instead appears to be quite concrete and particularized to Plaintiff. The Court ultimately agrees

with the Magistrate Judge’s statement that “Plaintiff has pleaded sufficient facts plausibly showing

he suffered a concrete and particularized invasion of his rights sufficient to be an injury in fact.

Plaintiff has a right to receive reading materials.” (Doc. No. 30 at 7).

In sum, the Court will adopt and approve the portion of the R&R recommending denial of

the Motion as it relates to Plaintiff’s Free Speech Claim. In so doing, the Court notes that it finds

that that recommendation actually is supported by something that the Magistrate Judge appears

not to have relied on: Plaintiff’s allegations of injury-in-fact stemming from the Book Suspension

Policy (which the Court relies on in addition to Plaintiff’s allegations of injury-in-fact stemming

from the Two-Vendor Policy, which appears to be the sole policy discussed by the Magistrate

Judge in connection with this recommendation.)

II. Retaliation Claim

As discussed above, the final three Objections (i.e., Objection 2, Objection 3, and Objection

4) relate to Plaintiff’s Retaliation Claim. To establish a First Amendment retaliation claim, an

inmate must “prove that (1) he engaged in protected conduct, (2) the defendant took an adverse

action that is capable of deterring a person of ordinary firmness from continuing to engage in that

10 Limiting one’s access to publication necessarily implicates one’s First Amendment right to free speech

because “[t]he First Amendment protects ‘the right to receive information and ideas.’” Bethel, 988 F.3d at

938 (quoting Kleindienst, 408 U.S. at 762). Accord Kleindienst, 408 U.S. at 762-63 (1972) (“It is now well

established that the Constitution protects the right to receive information and ideas. ‘This freedom (of

speech and press) . . . necessarily protects the right to receive. . . .” (quoting Martin v. City of Struthers, 319

U.S. 141, 143 (1943) (internal citations and quotations omitted))).

conduct, and (3) the adverse action was motivated at least in part by the prisoner’s protected

conduct” (The Court refers to these respectively as “Element 1,” “Element 2,” and “Element 3”).

Hill, 630 F.3d at 472 (quoting Thaddeus-X v. Blatter, 175 F.3d 378, 394, 398 (6th Cir. 1999) (en

banc)).11

The Court discerns that via Objection 2, Defendants are objecting not to the Magistrate

Judge’s ultimate conclusion that Element 1 of Plaintiff’s Retaliation Claim has been “satisfied,”12

(Doc. No. 30 at 9), but rather to the Magistrate Judge’s finding that the protected conduct was

Plaintiff’s submission of multiple grievance filings (as opposed to Plaintiff’s filing of the

Complaint in the present action). (Doc. No. 32 at 7 (“[Plaintiff] never alleged that his grievances

are the protected conduct that spurred his [T]ransfer”)). Because Objection 2 is a specific, written

objection, the Court will conduct a de novo review of the portion of the R&R that Objection 2

11 In their Memorandum, relying on Hill, Defendants take the position that Plaintiff must establish these

three things to establish a First Amendment retaliation claim. (Doc. No. 24 at 8). The Court accepts

Defendants’ position on this point for present purposes (i.e., on a motion to dismiss), though not necessarily

for any future purposes.

12 If Defendants were attempting to assert via this Objection that Plaintiff did not engage in any protected

conduct that could support Plaintiff’s Retaliation Claim, such would be improper at this stage. This is

because in Defendants’ Motion, Defendants sought dismissal of Plaintiff’s Retaliation Claim by challenging

fulfilment of Element 2 (i.e., adverse action) and Element 3 (i.e., causal connection) of a retaliation claim,

but Defendants did not challenge fulfillment of Element 1 (i.e., that Plaintiff engaged in protected conduct).

Importantly, “absent compelling reasons, [the Magistrate Judge Act] does not allow parties to raise at the

district court stage new arguments or issues that were not presented to the magistrate.” Enyart v. Coleman,

29 F. Supp. 3d 1059, 1070 (N.D. Ohio 2014) (quoting Murr v. U.S., 200 F.3d 895, 902 n.1 (6th Cir. 2000)).

Accord Dykes v. Orsborne, No. 2:21-CV-113, 2022 WL 17546618, at *2 (W.D. Mich. Dec. 9, 2022)

(“Because Plaintiff may not, in an objection to an R&R, raise ‘new arguments or issues that were not

presented to the magistrate,’ Plaintiff waived this argument” (quoting Murr, 200 F.3d at 902 n.1)); Uduko

v. Cozzens, 975 F. Supp. 2d 750, 757 (E.D. Mich. 2013) (“Any arguments made for the first time in

objections to an R & R are deemed waived.” (citing Murr, 200 F.3d at 902 n.1)). Accordingly, if Objection

2 was attempting to challenge the existence of any protected conduct, such argument has been waived (or,

to put it more precisely, forfeited); if Defendants wanted to contest that Plaintiff engaged in protected

conduct, Defendants should have proffered such argument in their Motion.

challenges—namely, the portion that identifies the “protected conduct” that underlies Plaintiff’s

Retaliation Claim.

The filing of grievances against prison officials can qualify as protected conduct. Herron,

203 F.3d at 415 (finding that filing grievances against prison officials is protected conduct “if the

grievances are not frivolous.”). However, the Supplemental Complaint makes clear that Plaintiff’s

Retaliation Claim is premised on his filing of the Complaint in this action, not his submission of

grievances. For example, the Supplemental Complaint—wherein Plaintiff asserts his Retaliation

Claim—states that “Plaintiff contends that he has been retaliated against for filing his Complaint

for violation of his Civil Rights.” (Doc. No. 12 at 1 (emphasis added)). The Supplemental

Complaint goes on to outline the timing of his filing of the Complaint and his subsequent Transfer

to TTCC, but makes no mention of the grievances that he filed with NECX. (Id. at 1-2). For this

reason, the Court expressly sustains Objection 2. Nonetheless, because “[f]iling a nonfrivolous

prisoner civil-rights lawsuit constitutes protected conduct,” Bocook v. Wittrup, No. 22-3383, 2023

WL 3467006, at *2 (6th Cir. Apr. 10, 2023) (citing Thaddeus-X, 175 F.3d at 394), the sustaining

of the objection does not change the relevant result (or the validity of the relevant recommendation

of the magistrate judge) with respect to the instant Motion: Element 1 of Plaintiff’s Retaliation

Claim is satisfied. On the other hand, the sustaining of Objection 2 has consequences for this case

as it progresses; namely, the Court will hold Plaintiff to the theory that his protected conduct was

the filing of the Complaint in this action (“Protected Conduct”) (and only the filing of the

Complaint in this action).

Objection 3 and Objection 4 challenge the Magistrate Judge’s analysis regarding whether

Plaintiff plausibly pled Elements 2 and 3 of his Retaliation Claim. (Doc. No. 32 at 7-10). Because

they are specific and written objections, the Court will conduct a de novo review of those portions

of the R&R that these objections challenge. Ultimately, after conducting such review, the Court

agrees and adopts the Magistrate Judge’s conclusion that Plaintiff has alleged facts plausibly

suggesting satisfaction of Elements 2 and 3 of his Retaliation Claim.

Element 2 of a First Amendment retaliation claim is that Defendants took some “adverse

action” against Plaintiff. See Josephson v. Ganzel, 115 F.4th 771, 787 (6th Cir. 2024). “The term

‘adverse action’ arose in the employment context and has traditionally referred to actions such as

‘discharge, demotions, refusal to fire, nonrenewal of contracts, and failure to promote.’” Fritz v.

Charter Twp. of Comstock, 592 F.3d 718, 724 (6th Cir. 2010) (citing Thaddeus-X, 175 F.3d at

396). However, the concept of an adverse action is broader in the context of retaliation claims (as

opposed to class-based employment discrimination claims)—including claims of First

Amendment retaliation, in which context it includes “action[s] that ‘would chill or silence a person

of ordinary firmness from future First Amendment activities.’” Josephson, 115 F.4th at

787 (quoting Benison v. Ross, 765 F.3d 649, 659 (6th Cir. 2014) (quotation omitted)). Ultimately,

“[t]he adverse nature of a particular action ‘will depend on context.’” Id. (quoting Bell v. Johnson,

308 F.3d 594, 602-03 (6th Cir. 2002) (internal quotations and citations omitted)). This Court has

explained that “[e]ven though a prisoner has no inherent constitutional right to avoid segregated

housing or prison transfers, the [State] may not place the prisoner in segregated housing or transfer

him to another prison as a means of retaliating against him for exercising his First Amendment

rights.” Atkins v. Sutton, No. 3:25-CV-115, 2026 WL 18902, at *3 (M.D. Tenn. Jan. 2, 2026)

(Trauger, J.) (quoting Hill, 630 F.3d at 473). “[A] prison transfer . . . can be an adverse action if

that transfer would result in foreseeable, negative consequences to the particular prisoner.” Hill,

630 F.3d at 475 (emphasis added) (citation omitted).

Element 3 is that the “adverse action was motivated at least in part by the prisoner’s

protected conduct.” Id. Element 3 of a First Amendment retaliation claim “looks at the defendant’s

subjective motivation for taking the alleged adverse action.” Heyward v. Cooper, 88 F.4th 648,

657 (6th Cir. 2023) (citing Hill, 630 F.3d at 475). The Sixth Circuit has taught that “a ‘motivating

factor’ is essentially but--for cause--‘without which the action being challenged simply would not

have been taken.’” Leonard v. Robinson, 477 F.3d 347, 355 (6th Cir. 2007) (emphasis added)

(quoting Greene v. Barber, 310 F.3d 889, 897 (6th Cir. 2002)).

Notably, Sixth Circuit precedent may foster some uncertainty “over whether a plaintiff

must prove this but-for test or whether the plaintiff need only show that the protected conduct was

a motivating factor for the action (which switches the burden to the defendant to prove the absence

of but-for causation).” Rudd v. City of Norton Shores, 977 F.3d 503, 515 (6th Cir. 2020). However,

the Sixth Circuit has consistently stated that at the motion-to-dismiss phase a Plaintiff simply needs

to “provide enough facts to show that ‘the adverse action was motivated at least in part by

[Plaintiff’s] protected conduct.’” Hardrick v. Huss, 155 F.4th 518, 527 (6th Cir. 2025) (emphasis

added) (quoting Heyward, 88 F.4th at 657 (citation omitted)); see also Hill, 630 F.3d at 475 (“The

third element that [the plaintiff] must establish for his retaliation claim . . . is that the adverse action

was motivated at least in part by the prisoner’s protected conduct.” (citation omitted)); Fritz, 592

F.3d at 729 (holding that plaintiff alleged facts plausibly suggesting that the “adverse actions were

motivated, at least in part, by her protected conduct,” sufficient to survive the motion to dismiss.).

In other words, Plaintiff need only allege facts plausibly suggesting that the adverse action was

motivated in part by his protected conduct. The Sixth Circuit “has concluded that evidence of

temporal proximity between filing grievances and the adverse action provides some support for

establishing retaliatory motive,” but “it has been reluctant to find that such evidence alone

establishes retaliatory motive.” Hill, 630 F.3d at 476. However, “on a particular set of facts,

extremely close temporal proximity could permit an inference of retaliatory motive, but . . . often

evidence in addition to temporal proximity is required to permit the inference.” Vereecke v. Huron

Valley Sch. Dist., 609 F.3d 392, 401 (6th Cir. 2010).

The Court will analyze Element 2 and Element 3 in turn. First, with respect to Element 2,

Plaintiff alleges that the adverse action was his Transfer to TTCC. (Doc. No. 12 at 1). The Court

finds that Plaintiff has alleged factual matter plausibly suggesting that the Transfer would qualify

as an adverse action because the Transfer resulted in “foreseeable, negative consequences,” Hill,

630 F.3d at 475, to Plaintiff that “would chill or silence a person of ordinary firmness from future

First Amendment activities,” Josephson, 115 F.4th at 787 (quoting Benison, 765 F.3d at 659

(quotation omitted)). Here, Plaintiff has alleged factual matter plausibly suggesting that his

Transfer led to a number of foreseeable negative consequences, such as loss of a high-wage job

(Doc. No. 12 at 2 (“The Plaintiff went from a good paying and rewarding job as a tutor in the GED

program to no job at all.”)), and transfer to an institution with more violent, higher-classification

inmates (id. at 1-2 (alleging that TTCC “is one of, if not, the most violent prisons in Tennessee,”

and is “currently under Federal investigation stemming from approximately forty-three (43)

killings, corruption within the administration, and other civil rights violations.”)). See e.g., Adams

v. Lewis, No. 1:22-CV-125-SKL, 2024 WL 1539426, at *6 (E.D. Tenn. Apr. 9, 2024) (“Here,

Plaintiff has presented evidence that that his transfer led to a number of foreseeable consequences,

such as the loss of property; loss of a high-wage job; loss of participation in rehabilitative,

vocational, and educational programs; loss of more lenient access to recreation and the law library;

and transfer to an institution housing more violent, higher-classification inmates. Such

consequences could constitute an adverse action.” (emphasis added) (internal citations omitted)

(collecting cases)). Therefore, the Court finds that Plaintiff has alleged factual matter showing that

the Transfer resulted in “foreseeable, negative consequences,” Hill, 630 F.3d at 475, that would

deter a person of ordinary firmness from engaging in the Protected Conduct. Therefore, for the

reasons outlined above, the Court finds that at the present (motion-to-dismiss) phase, the Transfer

qualifies as an adverse action.

Second, with respect to Element 3, at the motion-to-dismiss phase, a plaintiff need only

“provide enough facts to show that ‘the adverse action was motivated at least in part by

[Plaintiff’s] protected conduct.’” Hardrick, 155 F.4th at 527 (emphasis added) (quoting Heyward,

88 F.4th at 657 (citation omitted)). So, to survive the instant Motion, Plaintiff need only allege

facts plausibly suggesting that the adverse action was motivated—at least in part—by Plaintiff’s

filing of the Complaint in the instant action (i.e., Protected Conduct). Ultimately, the Court finds

that Plaintiff has alleged facts from which the Court can reasonably infer that the adverse action

was motivated at least in part by Plaintiff’s Protected Conduct. The Court finds such inference

permissible in light of the temporal proximity between Protected Conduct and the Transfer as well

as the other alleged surrounding circumstances. First, Plaintiff alleges that he unexpectedly was

transferred to TTCC approximately two weeks after he initially filed the Complaint and

approximately one week after the Eastern District partially screened his Complaint and transferred

the case to this District. (Doc. No. 12 at 1). The Court finds that given the very close proximity

between the Protected Activity and the alleged adverse action, this situation would likely qualify

as the kind of “particular set of facts . . . [that] could permit an inference of retaliatory motive.”

Vereecke, 609 F.3d at 401 (“[O]n a particular set of facts, extremely close temporal proximity

could permit an inference of retaliatory motive.”). However, Plaintiff relied not solely on temporal

proximity, but also on additional factual matter from which the Court can infer a retaliatory motive,

namely that two days after his Transfer, another inmate who was filing a similar type of lawsuit

was similarly transferred to TTCC. (Doc. No. 12 at 2 (“On September 5, 2024, another inmate,

Howard Atkins, who is filing a similar lawsuit as Plaintiff, was transferred to [TTCC]”)). The

Court agrees with the Magistrate Judge that Plaintiff “has narrowly satisfied his burden and

pleaded facts that could permit a finding of retaliatory motive.” (Doc. No. 30 at 12).

This conclusion is further supported by the requirement that “[a] document filed pro se is

to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less

stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89,

94 (2007) (internal citations and quotations omitted). Accord Bawcom v. Roades, No. 3:22-CV-

00923, 2023 U.S. Dist. LEXIS 13432, at *3-4 (M.D. Tenn. Jan. 26, 2023) (Richardson, J.) (“Pro

se pleadings must be liberally construed and held to less stringent standards than formal pleadings

drafted by lawyers.” (internal citations and quotations omitted)). The Court agrees with the

Magistrate Judge that “[u]nder the totality of the circumstances here, the Court finds that . . .

Plaintiff’s Complaint is ‘sufficient to establish the retaliatory-motive element when scrutinized

under the failure-to-state-a-claim standard,’” albeit a close call. (Doc. No. 30 at 13 (quoting Hill,

630 F.3d at 476 (citing Iqbal, 566 U.S. at 677))).13

After conducting a de novo review of those portions of the R&R to which Plaintiff objected

through Objection 3 and Objection 4, the Court agrees with the Magistrate Judge that Plaintiff has

alleged facts plausibly suggesting fulfillment of Elements 2 and 3 of his Retaliation Claim.

Accordingly, at this early stage of the case, the Court concludes that Plaintiff’s

Retaliation Claim passes muster. Therefore, the Court will adopt and approve the portion of the

R&R recommending denial of the Motion as it relates to Plaintiff’s Retaliation Claim, with the

13 It goes almost without saying that this suggestion (i.e., that Defendants had a retaliatory motive when

transferring Plaintiff) could be put to the test at later stages of litigation.

caveat (consistent with the above-discussed sustaining of Objection 2) that the Court clarifies that

the “protected conduct” that supports the Retaliation Claim is the filing of the Complaint in the

instant action, and not Plaintiff's submission of grievances (or anything else, for that matter).

CONCLUSION

Accordingly, for the reasons described herein, the Court will adopt and approve the R&R

(Doc. No. 30), except as to its portion finding that the protected conduct that supported the

Retaliation Claim was Plaintiffs grievance filings. With the caveat in the prior sentence, the Court

will DENY Defendants’ Motion (Doc. No. 23).

An appropriate corresponding order will be entered.

CHL Richardson

ELI RICHARDSON

UNITED STATES DISTRICT JUDGE