Opinion
Case No. 5:00 cv 20.
December 21, 2000
JUDGMENT
In accordance with the opinion issued herewith:
IT IS ORDERED AND ADJUDGED that defendant's motion for judgment on the pleadings (docket # 11) be and hereby is GRANTED. Judgment is hereby entered in favor of defendant upon all plaintiff's claims. Defendant may tax his costs.
DONE AND ORDERED this 21st day of December, 2000.
This is a civil rights action filed on February 22, 2000, pursuant to 42 U.S.C. § 1983. Plaintiff is an employee of the State of Michigan working as a prison guard at the Lakeland Correctional Facility (LCF). Plaintiff named Robert Collins, Assistant Deputy Warden at LCF as the sole defendant. Plaintiff claims that Collins was unduly critical of plaintiff's work. Plaintiff attributes these criticisms to an alleged December 1997 report to an unknown individual about "suspected over familiarization between a[n unidentified] high ranking MDOC prison official and a[n unidentified] prisoner."
In July, the parties, pursuant to 28 U.S.C. § 636(c) and FED. R. CIV. P. 73, voluntarily consented to have a United States Magistrate Judge conduct all further proceedings in this case, including entry of final judgment. (docket # 9). On August 21, 2000, defendant filed a motion for judgment on the pleadings. (docket # 11). On August 23, 2000, the court issued an order notifying plaintiff that his response to the motion was due on or before September 18, 2000. (docket # 12).
Plaintiff elected not to file a response. Upon review, the court finds that defendant is entitled to judgment on the pleadings. Defendant's motion will be granted.
Standard
Motions pursuant to Rule 12(c) are evaluated in the same manner as motions to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The court construes the complaint in the light most favorable to plaintiff. See Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir. 1999). Plaintiff's factual allegations are accepted as true. The court must determine whether the plaintiff undoubtedly can prove no set of facts in support of his claim that would entitle him to relief. See Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998). The court need not accept legal conclusions or unwarranted factual inferences. Id. Conclusory allegations or legal conclusions masquerading as factual conclusions NN ill not suffice. See Jackson v. Heh, No. 98-4420, 2000 WL 761807, at * 2-3 (6th Cir. June 2, 2000) (citing Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987) and Blackburn v. Citv of Marshall, 42 F.3)d 925, 931 (5th Cir. 1995)).
Facts
Plaintiff alleges that "on or about December 1997" he reported suspected over familiarization between a high ranking MDOC prison official and a prisoner." (Complaint 11 16A). Plaintiff filed his complaint on February 22, 2000. At some unknown time between these dates, defendant allegedly took the following actions: (a) unfair counseling memos and discipline; (b) searching personal papers and leaving them out; (c) flyspecking, i.e., eight memos in one month; and (d) "false accusation of a threat-5 day suspension."
Discussion
Plaintiff claims that defendant retaliated against him in violation of his First Amendment rights. In its recent decision in Leary v. Daeschner, 228 F.3d 729, 737 (6th Cir. 2000), the Sixth Circuit examined in detail the elements of a First Amendment retaliation claim by a public employee. The employee must show the following: (1) that the plaintiff was engaged in a constitutionally protected activity; (2) that the defendant's adverse action caused the plaintiff to suffer injury that would chill a person of ordinary firmness from continuing to engage in that activity; (3) and that the adverse action was motivated at least in part as a response to the exercise of the plaintiff's constitutional rights. When the plaintiff is a public employee he must make two additional showings. First, his speech must touch on matters of public concern. Second, the employee's interest in commenting upon matters of public concern must be found to outweigh the interest of the state as an employer in promoting the efficiency of the public services it performs. "Whether the plaintiff s speech constituted protected conduct is a question of law." 228 F.3d at 737.
Plaintiff's vague and conclusory complaint satisfies none of the elements identified by the Sixth Circuit. Plaintiff seeks to constitutionalize what appear to be rather minor disagreements with his supervisor occurring at sometime during the last three years. It would have been difficult to formulate a more vague statement of the alleged exercise of a First Amendment rights than is found in paragraph 16(A) of the complaint: "On or about Dec. 1997 Plaintiff reported suspected over familiarization between a high ranking MDOC prison official and a prisoner." What type of report, to whom, what type of "over familiarization" activity, what MDOC official, what prisoner and why would this "report" have resulted in the defendant's alleged actions against plaintiff sometime during the last three years all remain unanswered. Plaintiff was required to plead specific facts in support of his claim. He failed to do so. The court finds that defendant is entitled to judgment on the pleadings.
Conclusion
For the reasons set forth above, defendant's motion (docket # 11) will be granted and judgment entered in defendant's favor.