Davis #231964 v. Bauman et al

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
MARIO D. DAVIS #231964, 	Case No. 2:24-cv-140
Plaintiff, 	Hon. Maarten Vermaat
U.S. Magistrate Judge
v.
CATHERINE BAUMAN, et al.,
Defendants.
/
OPINION AND ORDER
I. 	Introduction
This Opinion addresses Defendant Corrections Officer (CO) Dakota Latoski’s
motion for summary judgment, ECF No. 36. 	Plaintiff has not responded to
Defendant’s motion.
Plaintiff – state prisoner Mario D. Davis – filed an unverified complaint under
42 U.S.C. § 1983 alleging that Defendants violated his Eighth Amendment rights
while he was incarcerated at Alger Correctional Facility (LMF) in Munising, MI.
Following 	screening and 	Defendants’ 	motion 	for 	summary 	judgment 	based 	on
exhaustion, only Davis’s First Amendment retaliation claim against CO Latoski
remains.
In the present motion for summary judgment, CO Latoski argues that she is
entitled to summary judgment for the following reasons: (1) Davis did not engage in
protected conduct; (2) Davis cannot prove the causation element of his retaliation
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claim; and (3) CO Latoski is entitled to qualified immunity. 	ECF No. 37. 	Davis did
not respond to CO Latoski’s motion.
In the opinion of the undersigned, there are no genuine disputes of material
fact as to Plaintiff’s retaliation claim. 	For the reasons stated below, the Court
grants Defendant’s motion for summary judgment and dismisses Davis’s case.
II. 	Factual Allegations
Davis’s allegations against CO Latoski were set forth in the Court’s Screening
Opinion. 	There, the Court provided, in pertinent part:
Plaintiff alleges that on December 29, 2023, he filed several grievances
on Defendants Latoski, Aho, Decatur, and Fleury for “inappropriate
behavior and violation of policies and procedures.” (Comp., ECF No. 1,
PageID.6.)
[…]
Plaintiff was interviewed on the grievances by Defendant K. Hubble,
who was also the subject of a grievance by Plaintiff. (Id.) Plaintiff asserts
that Defendant K. Hubble went to Defendants Latoski and Decatur to
“get their story straight.” (Id.) The next day, Plaintiff received two
misconduct tickets and a Notice of Intent (NOI) from Defendant Latoski.
(Id.) Latoski and Decatur subsequently told the block rep for Spruce
Unit to tell Plaintiff to back off on his grievances or else Defendants
Latoski and Decatur would make D-Wing a hostile environment for
other prisoners. (Id.) As a result, a few gang members approached
Plaintiff and tried to convince him to request protective custody so that
they would not have to worry about having their cells searched. (Id.)
Plaintiff states that Defendants Latoski, Decatur, and Aho faced D-
Wing and watched prisoner movements. (Id.)
[…]
Plaintiff states that Defendant Price instructed unit corrections officers
to write misconduct tickets on Plaintiff for anything he does and
specified that they could write a threatening behavior ticket on Plaintiff
to make sure he went to segregation. (Id.) Plaintiff states that Defendant
Price’s statement was overheard by prisoner Harris. (Id.) Defendant
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Lancour restricted Plaintiff’s ability to use the grievance procedure and
enlisted Defendant Bauman’s assistance by enacting a bogus restriction
on or about the month of March. (Id., PageID.9.) Defendant Mann
participated in many hearings on misconducts written by Defendants
Latoski, Decatur, and Aho. (Id.) Plaintiff states that because he had filed
a grievance on Defendants Mann and Latoski for watching football in
Defendant Loman’s Office, it was impossible for Plaintiff to get a fair
hearing. (Id.)
[…]
On May 19, 2024, Defendant Price was conducting a hearing on a
misconduct charge received by Plaintiff and stated, “Ain’t karma a bitch,
I guess I’ll have to keep spanking your ass.” (Id.) Defendant Price gave
Plaintiff 30 days loss of privileges on a class II misconduct. (Id.) Plaintiff
asserts that he had previously only received 10 days loss of privileges
for a class I misconduct and that Defendant Price gave him an excessive
punishment in retaliation for Plaintiff’s use of the grievance system.
(Id.) On March 12, 2024, Plaintiff was unnecessarily handcuffed and
taken to level IV, which Plaintiff claims is what Defendants Price and
Latoski had promised the week before. (Id.) Plaintiff states that during
the pack up of his property, Defendants Decatur and Latoski went
through his legal paperwork and threw away “a bunch of important
paperwork … that would help Plaintiff prevail in court.” (Id.) Plaintiff
states that the paperwork contained names of all correctional officers
and administration officials that Plaintiff had come into contact with
during the events described in this lawsuit as well as pertinent dates
and times. (Id.)
ECF No. 7, PageID.47-49.
III. 	Summary Judgment Standard
Summary judgment is appropriate when the record reveals that there are no
genuine issues as to any material fact in dispute and the moving party is entitled to
judgment as a matter of law. 	Fed. R. Civ. P. 56; Kocak v. Comty. Health Partners of
Ohio, Inc., 400 F.3d 466, 468 (6th Cir. 2005). 	The standard for determining whether
summary judgment is appropriate is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one
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party must prevail as a matter of law.” 	State Farm Fire & Cas. Co. v. McGowan,
421 F.3d 433, 436 (6th Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251−52 (1986)). 	The court must consider all pleadings, depositions, affidavits,
and admissions on file, and draw all justifiable inferences in favor of the party
opposing the motion. 	Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986); Twin City Fire Ins. Co. v. Adkins, 400 F.3d 293, 296 (6th Cir.
2005).
The materials a court may consider in evaluating a motion for summary
judgment are identified in Fed. R. Civ. P. 56(c). Courts, however, allow a plaintiff to
rely on a “verified complaint,” which has “ ‘the same force and effect as an affidavit’
for purposes of responding to a motion for summary judgment.” Lavado v. Keohane,
992 F.2d 601, 605 (6th Cir. 1993) (quoting Williams v. Browman, 981 F.2d 901, 905
(6th Cir.1992)). 	To qualify as “verified,” a complaint must be executed in a manner
that meets the requirements set forth in 28 U.S.C. § 1746. 	Id. 	In contrast,
complaints that are unverified are not considered Rule 56 evidence. 	Cooper v.
Parker, No. 2:17-CV-00155, 2019 WL 5273967, at *2 (W.D. Mich. Aug. 29, 2019)
(citations omitted), report and recommendation adopted, No. 2:17-CV-155, 2019 WL
4686423 (W.D. Mich. Sept. 26, 2019). 	Here, Plaintiff has not presented a verified
statement to the Court.
Furthermore, when, as here, the non-movant fails to respond to a motion for
summary judgment, the Court must “examine the movant’s motion for summary
judgment to ensure that he has discharged his initial burden.” Stough v. Mayville
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Cmty. Sch., 138 F.3d 612, 614 (6th Cir. 1998) (citing Carver v. Bunch, 946 F.2d 451,
455 (6th Cir. 1991)).
IV. 	Analysis
In his Complaint, Davis asserts that he wrote several grievances against CO
Latoski and other corrections officers on December 29, 2023. 	Davis alleges that CO
Latoski retaliated by writing Davis a misconduct report and notice of intent (NOI) to
restrict telephone privileges. 	CO Latoski argues that he is entitled to summary
judgment on Davis’s remaining retaliation claims because (1) Davis’s grievances were
frivolous, and (2) Davis cannot prove the causation element of his claims.
Retaliation based upon a prisoner’s exercise of his or her constitutional rights
violates the Constitution. 	Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999)
(en banc). 	In order to set forth a First Amendment retaliation claim, a plaintiff must
establish that: (1) he was engaged in protected conduct; (2) an adverse action was
taken against him that would deter a person of ordinary firmness from engaging in
that conduct; and (3) the adverse action was motivated, at least in part, by the
protected conduct. 	Id. 	Moreover, a plaintiff must be able to prove that the exercise
of the protected right was a substantial or motivating factor in the defendant’s alleged
retaliatory conduct. 	Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001) (citing
Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). 	The
Sixth Circuit has also employed a burden-shifting approach:
Once the plaintiff has met his burden of establishing that his protected conduct
was a motivating factor behind any harm, the burden of production shifts to the
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defendant. 	If the defendant can show that he would have taken the same action in
the absence of the protected activity, he is entitled to prevail on summary judgment.
Thaddeus-X, 175 F.3d at 399.
The Sixth Circuit has explained that “protected conduct includes a prisoner’s
‘undisputed First Amendment right to file grievances against prison officials on his
own behalf.’” 	Hill v. Lappin, 630 F.3d 468, 472 (2010) (quoting Herron v. Harrison,
203 F.3d 410, 415 (6th Cir.2000)). 	This right extends to grievances that are, in
accordance with MDOC policy, raised with staff prior to submitting a formal, written
grievance. 	Maben v. Thelen, 887 F.3d 252, 265-66 (6th Cir. 2018) (explaining that it
would be “unfair and illogical” to require prisoners to attempt informal resolution of
a grievable issue, and then limit the recognition of protected conduct to filing formal,
written 	grievances); 	MDOC 	PD 	03.02.130(Q) 	(requiring 	a 	prisoner 	to 	attempt
resolution of the grievable issue prior to filing a Step I grievance). 	“If the grievances
are frivolous, however, this right is not protected.” 	Hill, 630 F.3d at 472. 	Prisoners
“cannot exercise that right in a manner that violates legitimate prison regulations or
penological objectives.” 	Smith, 250 F.3d at 1037. 	“‘Abusive or manipulative use of
a grievance system [is] not ... protected conduct,’ and prison officials may take action
in response to the prisoner’s improper use of the grievance process as long as the
response aligns with a legitimate penological goal.” 	Griffin v. Berghuis, 563 F. App’x
411, 416 (6th Cir. 2014) (quoting King v. Zamiara, 680 F.3d 686, 699 (6th Cir. 2012)).
Generally, an action is deemed adverse when it increases the restrictions
placed on a prisoner, or decreases the privileges that prisoner enjoys. 	Maben, 887
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F.3d at 266 (citing Hill v. Lapin, 630 F. 3d 468, 474 (6th Cir. 2004)). 	To determine
whether a misconduct ticket constitutes an adverse action, courts look to “both the
punishment [the prisoner] could have faced and the punishment he did face.” 	Id.
(citing Scott v. Churchill, 377 F.3d 565, 572 (6th Cir. 2004)).
While evidence of temporal proximity may not be enough on its own to survive
summary judgment on a retaliation claim, the Sixth Circuit does construe such
proximity as a factor in support of a causal connection. Smith v. Campbell, 250 F.3d
1032, 1038 (6th Cir. 2001).
A. Protected Conduct
Davis alleges that he wrote a grievance against CO Latoski on December 29,
2023. 	Davis’s Step I grievance in LMF-24-01-0009-17I, shown below, asserts that
CO Latoski was browsing the internet and playing video games while at work.
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ECF No. 18-3, PageID.155.
Davis filed another grievance on January 7, 2024, alleging that CO Latoski
continued to engage in the same behavior. 	Id., PageID.159. 	Davis’s Step I
grievance in LMF-24-01-0021-17I, is shown below.
Id., PageID.159.
CO Latoski argues that Davis did not engage in protected conduct because his
grievances were frivolous. 	ECF No. 37, PageID.381.
Protected conduct under the First Amendment includes a prisoner’s right to
file civil rights actions against prison officials. 	Bell v. Johnson, 308 F.3d 594, 607
(6th Cir. 2002). 	Merely threatening to file a lawsuit is considered a protected
activity as well. 	Dean v. Conley, 1999 U.S. App. LEXIS 29768, 1999 WL 1045166,
at *2 (6th Cir. Nov. 9, 1999). 	However, prisoners “cannot exercise [the right to file
grievances] in a manner that violates legitimate prison regulations or penological
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objectives.” 	Smith v. Campbell, 250 F.3d 1032, 1037 (citing Ward v. Dyke, 58 F.3d
271, 274 (6th Cir. 1995)). 	“’Abusive or manipulative use of a grievance system [is]
not . . . protected conduct,’ and prison officials may take action in response to the
prisoner’s improper use of the grievance process as long as the response aligns with
a legitimate penological goal.” 	Griffin v. Berghuis, 563 F. App'x 411, 416 (6th Cir.
2014) (alteration in original) (quoting King v. Zamiara, 680 F.3d 686, 699 (6th Cir.
2012)). 	This includes the filing of frivolous grievances. 	Hill v. Lappin, 630 F.3d
468, 472 (6th Cir. 2010).
Beyond 	the 	general 	acknowledgment 	that 	grievances 	used 	to 	abuse 	or
manipulate the grievance system are frivolous, limited authority exists as to what
renders a grievance frivolous. As acknowledged by the Sixth Circuit in Maben v.
Thelen, “cases in this Circuit appear to suggest that a prisoner’s grievance is frivolous
when the underlying grievance itself is de minimis.” 887 F.3d 252, 264-65 (6th Cir.
2018) (collecting cases). This Court has also found grievances involving “verifiably
untrue” allegations to be frivolous. Chrzan v. Mackay, No. 1:19-cv-116, 2020 U.S.
Dist. LEXIS 244403, 2020 WL 7774741, at *3 (W.D. Mich. Nov. 30, 2020) (finding
that the plaintiff's grievance was frivolous where a video recording of the underlying
event contradicted the allegations in the grievance), report and recommendation
adopted, No. 1:19-cv-116, 2020 U.S. Dist. LEXIS 244188, 2020 WL 7773419 (W.D.
Mich. Dec. 30, 2020).
Similarly, the Sixth Circuit held that a prisoner’s grievance complaining about
conduct that had no impact on the prisoner was frivolous. 	Thaddeus-X v. Love, No.
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98-2211, 2000 U.S. App. LEXIS 11813, 2000 WL 712354, at *2-3 (6th Cir. May 22,
2000) (finding that a grievance complaining about a prison employee eating at his
desk was “patently frivolous as the defendant’s conduct had no adverse impact on
[the 	plaintiff]”). Courts 	have 	found 	grievances 	to 	be de 	minimis, and 	therefore
frivolous when the grievance complains of verbal abuse or harassment. Sampson v.
Davis, No. 2:19-CV-176, 2022 U.S. Dist. LEXIS 125392, 2022 WL 2760061, at *3
(W.D. Mich. May 12, 2022) (finding that a prisoner’s threat to file a grievance on a
CO 	for 	verbal 	harassment 	was de 	minimis and 	therefore 	frivolous), R&R
adopted, No. 2:19-CV-176, 2022 U.S. Dist. LEXIS 125010, 2022 WL 2753565 (W.D.
Mich. July 14, 2022); Maben, 887 F.3d at 264 (citing Scott v. Kilchermann, No. 99-
1711, 2000 U.S. App. LEXIS 23682, 2000 WL 1434456, at *2 (6th Cir. Sept. 18, 2000)).
In White v. Perron, this Court concluded that a prisoner’s grievance that a
prison guard was using the internet at work to conduct personal business was
frivolous because the computer use did not impact the prisoner. 	White v. Perron, No.
2:20-CV-00247, 2023 WL 3871964, at *3 (W.D. Mich. Feb. 24, 2023), report and
recommendation adopted, No. 2:20-CV-247, 2023 WL 3476288 (W.D. Mich. May 16,
2023). 	That 	holding 	seems 	particularly 	relevant 	to 	this 	case. 	But 	Davis’s
grievances against CO Latoski are somewhat different. 	Davis grieved conduct that
he asserted violated MDOC policy for prison employees, and, in the second grievance,
he connected that policy violation with concerns about his own safety. 	Specifically,
he said that “this C/O continues to put the lives of his co-workers and Prisoner [sic]
as he cannot perform his Job Duties . . . C/O Latoski has a duty to protect co-worders
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and Prisoners. 	So, this C/O’s reckless behavior jeopardizes people’s lives.” 	ECF
No. 18-3, PageID.159. 	Thus, viewing the record in the light most favorable to the
non-moving party, the undersigned concludes that a genuine issue of fact remains
regarding whether Davis engaged in protected conduct.
B. Causation
CO Latoski also argues that he is entitled to summary judgment because
Davis’s retaliation claim fails on the causation element.
To prevail on a retaliation claim, retaliatory motive “must be a ‘but-for’ cause
[of the injury], meaning that the adverse action against the plaintiff would not have
been taken absent the retaliatory motive.” 	Nieves v. Bartlett, 139 S. Ct. 1715, 1721
(2019). 	As stated above, at the summary judgment stage, the Sixth Circuit employs
a burden-shifting approach with regards to the causal requirement:
Once the plaintiff has met his burden of establishing that his protected
conduct was a motivating factor behind any harm, the burden of
production shifts to the defendant. If the defendant can show that he
would have taken the same action in the absence of the protected
activity, he is entitled to prevail on summary judgment.
Thaddeus-X, 175 F.3d at 399; see also Thomas, 481 F.3d at 441.
In CO Latoski’s affidavit, he states that he wrote Davis a misconduct report
and NOI on January 9, 2023, while monitoring prisoner phone calls as part of his job
responsibilities, he found that Davis made fifteen phone calls while on loss of
privileges 	sanctions. 	ECF 	No. 	37-5, 	PageID. 	406-407. 	Furthermore, 	in 	his
affidavit, 	CO 	Latoski 	says 	that 	neither 	the 	misconduct 	report 	nor 	NOI 	were
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retaliatory. 	CO Latoski asserts, as shown below, that he would have written the
misconduct report and NOI whether Davis filed the grievances or not.
ECF No. 37-5, PageID.407.
Davis 	did 	not 	respond 	to 	CO 	Latoski’s 	motion 	and 	his 	complaint 	was
unverified. 	Accordingly, there is no genuine issue of material fact as to the
misconduct report and NOI were motivated by Davis’s grievances against CO Latoski
– the record before the Court indicates that they were not. 	Therefore, even if Davis
did engage in protected conduct, CO Latoski is entitled to summary judgment on the
causation element.
V. 	Qualified Immunity
Alternatively, 	Defendant 	argues 	that 	he 	is 	entitled 	to 	dismissal 	of 	the
complaint against him based upon qualified immunity. 	“Under the doctrine of
qualified 	immunity, 	‘government 	officials 	performing 	discretionary 	functions
generally are shielded from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.’” 	Phillips v. Roane Cty., 534 F.3d 531, 538 (6th Cir. 2008)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). 	Once a defendant raises
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the qualified immunity defense, the burden shifts to the plaintiff to demonstrate that
the defendant officer violated a right so clearly established “that every ‘reasonable
official would have understood that what he [was] doing violate[d] that right.’”
Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (quoting Anderson v. Creighton, 483 U.S.
635, 640 (1987)).
The analysis entails a two-step inquiry. 	Martin v. City of Broadview Heights,
712 F.3d 951, 957 (6th Cir. 2013). 	First, the court must “determine if the facts
alleged make out a violation of a constitutional right.” 	Id. 	(citing Pearson v.
Callahan, 555 U.S. 223, 232 (1982)). 	Second, the court asks if the right at issue was
“‘clearly established’ when the event occurred such that a reasonable officer would
have known that his conduct violated it.” 	Id. (citing Pearson, 555 U.S. at 232). 	A
court may address these steps in any order. 	Id. (citing Pearson, 555 U.S. at 236).
A government official is entitled to qualified immunity if either step of the analysis
is not satisfied. 	See Citizens in Charge, Inc. v. Husted, 810 F.3d 437, 440 (6th Cir.
2016).
In applying the first step of the qualified immunity analysis, a court must
identify “the specific constitutional right allegedly infringed” and determine whether
a violation occurred. 	Graham v. Connor, 490 U.S. 386, 394 (1989). 	The court
considers the state of the law at the second step. 	As the Supreme Court has
observed, “this Court’s case law does not require a case directly on point for a right to
be clearly established, [but] existing precedent must have placed the statutory or
constitutional question beyond debate.” 	White v. Pauly, 580 U.S. 73, 78 (2017)
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(internal quotation marks and original brackets omitted) (quoting Mullenix v. Luna,
577 U.S. 7, 11 (2015)). 	As explained by the Supreme Court:
To 	be 	clearly 	established, 	a 	legal 	principle 	must 	have 	a
sufficiently clear foundation in then-existing precedent. The rule must
be “settled law,” Hunter v. Bryant, 502 U.S. 224, 228, 112 S.Ct. 534, 116
L.Ed.2d 	589 	(1991) 	(per 	curiam), 	which 	means 	it 	is 	dictated 	by
“controlling authority” or “a robust ‘consensus of cases of persuasive
authority,’ ” al–Kidd, supra, at 741–742, 131 S.Ct. 2074 (quoting Wilson
v. Layne, 526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)). It
is not enough that the rule is suggested by then-existing precedent. The
precedent must be clear enough that every reasonable official would
interpret it to establish the particular rule the plaintiff seeks to apply.
See Reichle, 566 U.S., at 666, 132 S.Ct. 2088. Otherwise, the rule is not
one that “every reasonable official” would know. Id., at 664, 132 S.Ct.
2088 (internal quotation marks omitted).
The “clearly established” standard also requires that the legal principle
clearly prohibit the officer’s conduct in the particular circumstances
before him. The rule’s contours must be so well defined that it is “clear
to a reasonable officer that his conduct was unlawful in the situation he
confronted.” Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150
L.Ed.2d 272 (2001). This requires a high “degree of specificity.” Mullenix
v. Luna, 577 U.S. ––––, ––––, 136 S.Ct. 305, 309, 193 L.Ed.2d 255 (2015)
(per curiam). We have repeatedly stressed that courts must not “define
clearly established law at a high level of generality, since doing so avoids
the 	crucial 	question 	whether 	the 	official 	acted 	reasonably 	in 	the
particular circumstances that he or she faced.” Plumhoff, supra, at 2023
(internal quotation marks and citation omitted). A rule is too general if
the unlawfulness of the officer’s conduct “does not follow immediately
from the conclusion that [the rule] was firmly established.” Anderson,
supra, at 641, 107 S.Ct. 3034. In the context of a warrantless arrest, the
rule must obviously resolve “whether ‘the circumstances with which [the
particular officer] was confronted ... constitute[d] probable cause.’”
Mullenix, supra, at 309 (quoting Anderson, supra, at 640–641, 107 S.Ct.
3034; some alterations in original).
D.C. v. Wesby, 583 U.S. 48, 63−64 (2018).
In the qualified immunity context, if the facts alleged and evidence produced,
viewed in the light most favorable to the plaintiff, would permit a reasonable juror to
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find that the officer violated a clearly established constitutional right, dismissal by
summary judgment is inappropriate. 	Barton v. Martin, 949 F.3d 938, 947 (6th Cir.
2020) (citing Morrison v. Bd. of Trs. of Green Twp., 583 F.3d 394, 400 (6th Cir. 2009)).
As set forth above, CO Latoski is entitled to summary judgment on Davis’s
remaining retaliation claims and those claims are dismissed. 	Accordingly, CO
Latoski is entitled to qualified immunity on those claims as well.
VI. 	Conclusion
For the reasons stated above, there are no genuine issues of material facts
regarding Davis’s retaliation claims against CO Latoski. 	Accordingly, the Court
hereby grants CO Latoski’s motion for summary judgment and dismisses Davis’s
case.
IT IS SO ORDERED.
Dated: 	May 14, 2026 	/s/ `ttÜàxÇ ixÜÅttà
MAARTEN VERMAAT
U.S. MAGISTRATE JUDGE
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