                           File Name: 05a0832n.06
                            Filed: October 7, 2005
                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                            No. 04-1366

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


KEVIN KING,                                        )
                                                   )
       Plaintiff-Appellant,                        )
                                                   )
v.                                                 )   ON APPEAL FROM THE UNITED
                                                   )   STATES DISTRICT COURT FOR THE
CHUCK ZAMIARA,                                     )   WESTERN DISTRICT OF MICHIGAN
                                                   )
       Defendant-Appellee.                         )



       Before: MERRITT and ROGERS, Circuit Judges; and HOOD,* District Judge.
ROGERS, Circuit Judge. Plaintiff Kevin King, a Michigan prisoner proceeding pro se, appeals

the district court’s grant of summary judgment to defendants, all of whom are employees with the

Michigan Department of Corrections (“MDOC”), in this prisoner civil rights suit. Specifically, King

alleges violations of 42 U.S.C. §§ 1983, 1985, and 1986. King claims that the defendants, in

retaliation for his participation in a class-action lawsuit against the MDOC and for his assistance in

helping other inmates file grievances against the prison, (1) made false claims of misconduct against

him, (2) transferred him to another prison, (3) and increased his security level. King also claims that

the defendants violated his due process rights by placing him in segregation without an investigation




       *
         The Honorable Judge Joseph M. Hood, Chief United States District Judge for the Eastern
District of Kentucky, sitting by designation.
No. 04-1366
King v. Zamiara

or an opportunity to be heard. Finally, King claims that the defendants conspired to violate his

constitutional rights and failed to prevent a violation of his rights.


       Because King has presented a genuine issue of material fact regarding his retaliation claim

based on his increased security level, the grant of summary judgment is reversed in part. We remand

this sole retaliation claim to the district court to determine whether defendants are entitled to

qualified immunity. King failed to object in the district court to the magistrate’s findings regarding

his due process and conspiracy claims, and, therefore, we do not review those claims.


                                           I. Background


       King is incarcerated with the MDOC. At all times relevant to this case, King was housed

at either Brooks Correction Facility (“Brooks”) or Chippewa Correctional Facility (“Chippewa”).

King alleges that the following defendants (to whom we refer collectively as “the officials”)

violated, conspired to violate, and/or failed to prevent a violation of, his First and Fourteenth

Amendment rights: (1) Chuck Zamiara, correctional facility administrator for the MDOC; (2) Curtis

Chaffee, transfer coordinator at Brooks; (3) Bonnie Lewis, corrections officer at Brooks; (4) Sharon

Wells, resident unit manager at Brooks; (5) Michael Singleton, acting deputy warden at Brooks; (6)

Mary Berghuis, warden at Brooks; (7) Terry Swift, transfer coordinator at Chippewa; and (8) Dan

Bolden, deputy director of the MDOC.




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       On September 17, 1999, King was transferred to Brooks. Complaint 3.1 King claims that

upon his arrival at Brooks an unknown officer told him that “[w]e are fully aware of who you are,

we have been expecting you and have something you’ll never forget.” Complaint 3. King claims

that this statement referred to his involvement in the class-action lawsuit Cain v. Michigan

Department of Corrections, Court of Claims, Nos. 88-61119-AZ, 93-14975-CM, 96-16341-CM.2

Complaint 3. King claims that Defendant Wells, on September 24, 1999, ordered another MDOC

staff member to write a Notice of Intent to Classify King to Segregation and indicated that “Prisoner

King is attempting to incite a demonstration amongst the prisoners. It is for the safety and security

of the institution that King be placed in segregation pending investigation.” Complaint Exhibit A.


       King subsequently became “Chairman of the Warden’s Forum” at Brooks. Complaint 4.

Pursuant to MDOC policy, the role of prisoner representatives on the Warden’s Forum “is to assist

with the identification and resolution of prisoner concerns . . . [and to] function in an advisory

capacity.” Complaint Exhibit C. King submitted one affidavit each from two prisoners stating that

they were uneducated in the law and that they would have been unable to seek effective redress for

their grievances without King’s assistance. Complaint 19-20. He also submitted an affidavit from




       1
        “Complaint” refers to King’s First Amendment Complaint. There is no Joint Appendix for
this appeal.
       2
         The Cain class-action lawsuit was brought on behalf of all present and future male prisoners
in the MDOC, and it concerned prisoners’ access to the courts, personal property rights, and
classification and placement of prisoners. See Prison Legal Services of Michigan Amicus Br. 1-2.


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a translator for Spanish-speaking prisoners stating that King’s assistance was needed for those

prisoners to seek effective redress of their grievances. Complaint 18.


       King was charged with a major misconduct violation on February 19, 2000, for being “out

of place.” Complaint 5. King claims that he was charged with this violation at the instruction of

Defendant Wells. Complaint 4. Although the hearing officer’s report is hard to decipher, the officer

found that King was placed on and violated toplock status. Complaint Exhibit D. Toplock status

“consists of confinement to the prisoner’s cell except for limited release periods[.]” See Goodell v.

Trombley, No. 01-10103-BC, 2002 WL 1041734, at *6 (E.D. Mich. May 23, 2002). The hearing

officer, however, found King not guilty because the hearing officer determined that King lacked

notice of his restricted toplock status at the time of the violation. Complaint Exhibit D.


       On March 31, again allegedly at the instruction of Defendant Wells, Defendant Lewis

charged King with a major misconduct violation for “creating a disturbance.” Complaint 4-5. King

was also found not guilty of this charge. The hearing officer found that, because Officer Lewis

made inconsistent statements to her supervisor and the hearing officer, she was biased and not

credible. Complaint Exhibit E. King alleges that these charges were brought against him in

retaliation for his “own written complaints and assistance to other prisoners via the Warden’s Forum

and Departmental Grievance Procedure.” Complaint 4.


       On April 20, 2000, Defendant Wells wrote a memorandum requesting that King be

transferred because



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       He is becoming increasingly more powerful in the eyes of the prisoners in the
       Conklin Unit. He has made the statement to a unit officer that “these guys in the unit
       will do whatever I ask” and “if I wanted to cause a disturbance I could anytime.”
       Prisoners have also approached me on several occasions with different types of
       request[s] and when refused they will either state that “they will get with someone
       who will take [care] of it” and when the grievance is written it is more often than not
       written by prisoner King or they will state that they will make sure “King knows
       about this.” The most recent situation in where [sic] King was found not guilty on
       a Creating a Disturbance, has boosted King’s status in the unit with the prisoners.
       I believe it should be considered a security risk to the unit officers when prisoner
       Kings’ [sic] authority over other prisoners is higher th[a]n the officers working in the
       unit . . . . I am asking for permission to move him on the next move day, 4-26-00.
Complaint Exhibit F.


       On May 8, 2000, Defendant Chaffee filled out a Security Classification Screen, on which he

wrote “manageable in level II/remain in level II” in reference to King. He sent the following email

to Defendant Zamiara:


       Deputy Harry has asked for [King] to be transferred to an alternate Level II. We are
       asking for DRF placement. The reason for [this] request is that he has been at
       [Brooks] for 6 months [and] during this time, he has developed a cadre of followers
       over whom he has substantial influence. It seems that he can instigate them to create
       problems (grievances, complaints to Warden’s Forum, etc.) while he remains
       uninvolved directly. Currently he is printing out grievances about various issues and
       having other prisoners sign them and send them in. Deputy Harry has asked for a
       “break” from prisoner King and would accept him back after a period of time.
Complaint Exhibit H.


       Defendant Zamiara responded, “Let’s send him to [Chippewa] as a level III, note in the

departure, prisoner is perceived as a disruptive prisoner who is manipulating others to create unrest

at [Brooks].” Complaint Exhibit H. Plaintiff was transferred on May 17, 2000, to Chippewa,

located in the Upper Peninsula of Michigan, at increased security level III. King asserts that the

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decision to transfer him to Chippewa was done for retaliatory purposes. King offers the following

emails, sent between Defendants Zamiara and Berghuis, on June 14, 2000, as evidence that the

officials altered paperwork to conceal the fact that King had previously been declared “manageable”:


       [Zamiara to Berghuis:] Pete Govorchin called about the transfer order and security
       classification screen prepared at [Brooks] in May when Prisoner King was
       transferred to [Chippewa]. It appears the documents were prepared before the
       request was made to transfer the prisoner. Prisoner King was not approved for DRF
       level II but instead as a departure to level III and transfer to Chippewa. New
       documents (transfer order and screen) should have been done, they were not, hand
       written changes on the documents prepared to send King to DRF are a concern in
       that King is involved in the prisoner law suit that is before Judge Giddings[’] court,
       and the issue of retaliation may be raised.
               I will fax the copies of the T.O. [transfer order] and S.C.S. [security
       classification screen] to you[.] [C]ould you have your staff re-do these and indicate
       that transfer to [Chippewa] level III and the one level departure was done because
       Prisoner King is perceived as a disruptive prisoner who is manipulating others to
       create unrest at [Brooks?]
              Mr. Govorchin also ask[ed] that I advise you that staff from [Brooks] may be
       called to court to answer questions concerning Prisoner King’s transfer to
       [Chippewa].
              Please let me know if you have any questions. Let me know when you get
       the e-mail and I will fax the other documents to you. Thanks.


       [Berghuis to Zamiara:] I have reviewed your E-mail . . . and also got the faxed
       documents. I will have staff correct. How should the corrections be routed?


       [Zamiara to Berghuis:] Just have them [sent] to [Chippewa] to replace the
       documents from May. I will copy Terry Swift the transfer coordinator at [Chippewa]
       the e-mails so she will have the background.


Complaint Exhibit K. That same day, June 14, 2000, Defendant Swift emailed Defendant Berghuis

the following message: “Will the paperwork mentioned in the attachment be coming to [Chippewa]

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King v. Zamiara

addressed to me? Just want to be sure I know where to look for it so that I can ensure that it gets to

the file and the old one is removed.” Complaint Exhibit L.


       The note on the security classification screen in King’s MDOC files was changed from

“manageable in level II/remain in level II” to “prisoner manipulates other prisoner to be

disruptive/needs high level of security.” Complaint Exhibits G and M. King alleges that the

documents were backdated and signed by Defendants Berghuis and Singleton, and then forwarded

to Defendant Swift. Complaint 6-7. A subsequent investigation by the Office of Legislative

Corrections Ombudsman determined:


       [Zamiara’s] directions to depart Mr. King to level 3 and his subsequent directions to
       Warden Berghuis to change Mr. King’s security classification screen has the
       appearance of punishing Mr. King for involvement in an unpopular lawsuit against
       the Department[.]
       In conclusion, the record gives the distinct impression that his increase in custody
       was done for discussing issues with other prisoners, which may have prompted them
       to file grievances or complaints with the [Brooks] administration. No other
       explanation of how Mr. King manipulated other prisoners to create unrest at [Brooks]
       was provided in his grievance responses or elsewhere documented in his records.”
Complaint Exhibit S. The Ombudsman noted that, because King was behaved well for 90 days

while at level III, King should have been transferred to level II on August 13, 2000. The

Ombudsman’s decision suggests that Defendant Zamiara denied the transfer to level II until March

7, 2001, when King was moved to another facility. See Complaint Exhibit S.


       King also submits grievances he filed in October and December 2001 as additional evidence

of protected conduct for which he was punished. See Complaint Exhibits N and O.



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       King filed this civil action in the District Court for the Western District of Michigan on July

26, 2002, and he filed an amended complaint on December 2, 2002. The complaint sought

declaratory relief and monetary damages. Complaint 1. The officials filed a Motion for Summary

Judgment pursuant to Fed. R. Civ. P. 56(b) on April 1, 2003. The magistrate issued her report and

recommendation on January 23, 2004. She concluded that all the officials were entitled to summary

judgment. Specifically, she determined that King had not engaged in any form of protected conduct

before the alleged retaliation and that, even if King had engaged in protected conduct, such conduct

was not “a motivating factor” in the alleged retaliation. In addition, the magistrate determined that

King was not denied due process by being placed in segregation without an investigation or hearing

because segregation was not “a typical and significant” hardship that implicated a liberty interest.

Finally, the magistrate determined that, because King did not establish that his constitutional rights

had been violated, his conspiracy claims also failed.


       King filed his objections to the magistrate’s report on February 3, 2004. King objected to

the magistrate’s recommendations to dismiss the retaliation claims but not to the magistrate’s

conclusions as to his due process or conspiracy claims. On March 5, 2004, the district court adopted

the magistrate’s report and thus granted summary judgment in favor of the officials. King appeals

the district court’s grant of summary judgment as to his retaliation claims, his due process claim, and

his conspiracy claims. The officials have not filed a brief for this appeal.


                                            II. Analysis




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        Although the district court engaged in a careful and thoughtful analysis, we conclude, based

on our de novo review, that King has presented a genuine issue of material fact regarding his claim

that the officials increased his security level to retaliate for his participation in the Cain class action

and his legal assistance to other prisoners. We therefore reverse the district court’s grant of

summary judgment in favor of the officials as to that claim and remand for the district court to

determine whether the officials are entitled to qualified immunity.3 We affirm, however, the district

court’s grant of summary judgment regarding all of King’s other retaliation claims. Because King

failed to preserve his due process and conspiracy claims for appeal, we do not review those claims.


A.      Standard of Review


        A district court’s grant of a motion for summary judgment is reviewed de novo. Seaway

Food Town, Inc. v. Med. Mut. of Ohio, 347 F.3d 610, 616 (6th Cir. 2003). In reviewing such a grant,


        3
         We do not resolve the issue of qualified immunity at this time because the parties did not
sufficiently brief the issue at the district court or on appeal. See Dominique v. Telb, 831 F.2d 673,
677 (6th Cir. 1987) (stating that good practice requires that the parties address the issue of qualified
immunity in the district court). Since there is sufficient evidence of a constitutional violation to
survive summary judgment, whether the officials are entitled to qualified immunity depends on
whether the violation was “clearly established.” See Bell v. Johnson, 308 F.3d 594, 601 (6th Cir.
2001). Ultimately, whether increasing an inmate’s security level in retaliation for his participation
is protected activity under the First Amendment is a “clearly established” violation depends on how
the violation is characterized, see Brosseau v. Haugen, 125 S. Ct. 596, 599 (2005), and whether
federal caselaw would put a reasonable official on notice that his conduct was unlawful at the time
of the alleged violation, see Siggers-El v. Barlow, 412 F.3d 693, 703 (2005); see also Saucier v.
Katz, 533 U.S. 194, 202 (2001). The officials argued in the district court that they were entitled to
qualified immunity solely on the grounds that no constitutional violation occurred; they did not
address the “clearly established” factor. We do not determine whether increasing an inmate’s
security level for engaging in protected conduct was a “clearly established” constitutional violation
in May 2000, and it is prudent for us to have the district court decide the issue in the first instance.

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this court’s review is limited to whether “the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any

material fact . . . [so] that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.

P. 56(c). In so deciding, we “must draw all reasonable inferences in favor of the nonmoving party,

and [we] may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The generous summary judgment standard is

further relaxed when a petitioner proceeds pro se. See Haines v. Kerner, 404 U.S. 519, 520-21

(1972) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).


B.      King can withstand summary judgment as to his retaliation claim based on his increased
        security level.
        King has presented a genuine issue of material fact as to whether the officials increased his

security level because of his litigation activities. King engaged in protected conduct by participating

in the Cain class action and assisting inmates as the representative to the Warden’s Forum. He has

produced sufficient evidence for a reasonable jury to find that the officials took the adverse action

of increasing his security level because he engaged in litigation. King has not produced sufficient

evidence, however, for his other retaliation claims to withstand summary judgment.


        A prisoner’s claim that prison officials retaliated against him for engaging in protected

conduct is grounded in the First Amendment. See Thaddeus-X v. Blatter, 175 F.3d 378, 388 (6th

Cir. 1999) (en banc). To prove a retaliation claim, King must show that: (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) the adverse action was motivated, at least in part,

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by his protected conduct. Id. at 394. King has satisfied these requirements for only his retaliation

claim based on his increased security level.


       1. King’s participation in the Cain class action and his legal assistance to other prisoners
       were activities protected under the First Amendment.
       King produced sufficient evidence to establish that he engaged in two forms of conduct

protected under the First Amendment when he challenged his prison conditions in the Cain class

action and assisted prisoners in filing grievances as the representative to the Warden’s Forum. King

also argues that filing grievances on his own behalf in 2001 constituted protected conduct. The

magistrate determined that King had not engaged in any protected conduct. Magistrate’s Report and

Recommendation 7. While the grievances King filed on his own behalf were not protected conduct,

King’s participation in the Cain lawsuit and legal assistance to inmates were protected activities.


       a. King’s participation in the Cain class-action lawsuit was protected conduct.


       In light of the generous standard afforded to pro se litigants in pleading their causes of

action, see Haines, 404 U.S. at 520-21, King has sufficiently alleged that his involvement with the

class action was protected conduct. Inmates have a constitutional right of access to the courts to

challenge prison conditions. See Thaddeus-X, 175 F.3d at 391. The magistrate failed to address

King’s involvement in the Cain lawsuit as protected conduct. Admittedly, King’s amended

complaint is confusing on this issue. In the facts of that complaint, King alleges that he was “well-

known” by the officials due to his involvement in the Cain lawsuit; yet, in the sections dealing with

the adverse actions taken by the defendants, King does not mention the Cain lawsuit as a basis for


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the officials’ allegedly retaliatory conduct. While his pleading was artless, King sufficiently alleged

his participation in the Cain litigation by listing his participation as the first fact of his complaint.


        Moreover, after the magistrate filed her report, King objected in writing to the magistrate’s

determination that he had not engaged in protected conducted prior to the officials’ allegedly

retaliatory actions. King referred to his involvement with the Cain litigation, which undisputedly

occurred prior to the events at issue in this case and was mentioned in his amended complaint. See

Appellant’s Objections to the Magistrate’s Report and Recommendation 2. Finally, King has

presented an email demonstrating that the officials knew of his involvement in the Cain litigation.

See Complaint Exhibit K. King has thus presented sufficient evidence for a jury to find that he

participated in the Cain litigation, which was protected conduct.


        b. King’s legal assistance to other inmates constituted protected conduct because those he
        assisted had no reasonable alternatives for other legal assistance.
        Because King has offered evidence that his assistance was necessary for other inmates to

access the courts, his assistance to other inmates was protected conduct. While a prisoner has a First

Amendment right to file grievances against prison officials on his own behalf, “an inmate does not

have an independent right to help other prisoners with their legal claims.” Thaddeus-X, 175 F.3d

at 395. This court has held, however, that an inmate engages in protected activity by providing legal

assistance when his assistance is necessary to provide another inmate with constitutionally-protected

access to the courts. Id. King was elected to the Warden’s Forum as a representative of his housing

unit pursuant to MDOC Policy 04.01.150. According to that policy, King was the person that

prisoners in his unit should contact about “concerns that have not been resolved at the unit level.”

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Complaint Exhibit C. King was not a jailhouse lawyer merely “hanging a shingle” with hopes of

attracting business; he was the appointed representative to whom the officials told other inmates to

turn for the resolution of grievances.


       Besides alleging that his representative status rendered his conduct protected, King has

produced sufficient evidence in the form of three affidavits to demonstrate the necessity of his

assistance. King submitted affidavits from two prisoners that state that they were uneducated in the

law and that they would have been unable to seek effective redress without King’s help. Complaint

19-20. King also submitted an affidavit from a translator for Spanish-speaking prisoners, which

stated that “[m]any of the Spanish speaking prisoners are functionally illiterate in American terms”

and that “[w]ithout assistance from Kevin King . . . meaningful redress would not have otherwise

been available.” Complaint 18. This court has previously held that similar inmate affidavits were

sufficient to survive summary judgment. See Thaddeus-X, 175 F.3d at 395-96. The officials’

conclusory rebuttal to these claims in the lower court was that King did not merely present claims

but that he was “fomenting unrest.” Defendants’ Brief in Support of Summary Judgment 9. Thus,

since prisoners were required to lodge complaints with King as a prerequisite to accessing the courts

and since King has presented uncontested affidavits stating that his help was necessary, he has

presented sufficient evidence that his legal assistance to others constitutes protected conduct.




       c. Filing grievances on King’s own behalf did not constitute protected conduct because
       King filed the grievances after the officials’ alleged retaliatory conduct.



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        However, because the grievances King proffers were filed after the officials allegedly took

retaliatory action against him, the grievances cannot be evidence of protected conduct in this case.

The filing of non-frivolous grievances is considered protected conduct. See Herron v. Harrison, 203

F.3d 410, 415 (6th Cir. 2000). But, as noted by the magistrate, the October and December 2001

grievances that King presented on his own behalf were filed after the officials’ allegedly retaliatory

conduct in 2000. These grievances, accordingly, were not protected conduct against which the

officials retaliated.


2. King has produced sufficient evidence that the officials took adverse action against him.


        King has also presented sufficient evidence that the officials took adverse action against him

when he was charged with misconduct and when he had his security level increased to level III. An

adverse action “is one that would ‘deter a person of ordinary firmness’ from the exercise of the right

at stake.” Thaddeus-X, 175 F.3d at 396 (quoting Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982)).

King alleges in his complaint three retaliatory actions: (1) false charges of misconduct, (2) increased

security level, and (3) institutional transfer. Being falsely charged with a major misconduct and

having one’s security level increased could deter a person of ordinary firmness from exercising his

First Amendment rights; accordingly, they are adverse actions. Mere transfer to a different prison,

without more, is not an adverse action because transfer is insufficient to deter a person of ordinary

firmness from exercising his First Amendment rights.


        a. Charging an inmate with misconduct is an adverse action.



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       Charging an inmate with misconduct is an adverse action because serious consequences can

flow from erroneous charges. See Magistrate’s Report and Recommendation 9. King alleges that

Defendants Wells and Lewis retaliated against him by falsely charging him with two major

misconduct violations, one for being “out of place” and one for “creating a disturbance.” King was

subsequently found not guilty of both charges. This court has previously held that being charged

with major misconduct is sufficient adverse action. See Brown v. Crowley, 312 F.3d 782, 789 (6th

Cir. 2002) (noting that a major misconduct could result in, among other things, the prisoner’s

segregation or loss of good time credits); Scott v. Churchill, No. 97-2061, 2000 WL 519148, at *2

(6th Cir. April 6, 2000). Because charging an inmate with major misconduct when the charges are

subsequently determined to be unfounded could deter a person of ordinary firmness from exercising

his First Amendment rights, the misconduct charges against King are adverse actions.


       b. The increase in King’s security level constituted an adverse action.


       Increasing King’s custody security level was an adverse action because the result of more

restrictions and fewer privileges could deter a person of ordinary firmness from engaging in

protected conduct. Cf. Friedmann v. Corr. Corp. of Am., No. 99-6587, 2001 WL 467990, at *3-*4

(6th Cir. Apr. 26, 2001) (noting that this court has found that transfers at the same security level are

not adverse actions); see also Magistrate’s Report and Recommendation 15. The ramifications of

a security-level increase may be similar to those for major misconduct charges, such as loss of

disciplinary or good time credits. Accordingly, an increase in security level may be an adverse

action that could deter a person of ordinary firmness from engaging in protected conduct.

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       c. Transferring a prisoner to another facility is not a cognizable adverse action.


       The officials’ decision, however, to transfer King to Chippewa, a prison in upstate Michigan,

was not an adverse action because King’s transfer did not limit his ability to challenge the conditions

of his confinement. As this court held in Friedmann v. Corrections Corporation of America, “[T]he

circumstances [of the inmate’s transfer] must evidence some form of deterrent effect on the inmate,”

which would make him less likely to engage in protected conduct. No. 99-6587, 2001 WL 467990,

at *4 (6th Cir. Apr. 26, 2001). King has not alleged in any way that the transfer alone had any

deterrent effect on him. It is true that in Siggers-El v. Barlow this court held that a transfer that

causes an inmate to lose a job that pays for his attorney and causes him to have limited access to his

attorney can be an adverse action because the consequences of that “transfer would deter a person

of ordinary firmness from engaging in protected conduct.” 412 F.3d 693, 701-02 (2005). But,

unlike the inmate in Siggers-El, King’s transfer did not deprive him of access to an attorney or

deprive him from prison employment that allowed King to pay for an attorney. King, therefore,

cannot demonstrate that his transfer to Chippewa constituted an adverse action that would deter one

of ordinary firmness from exercising his First Amendment rights.




3. King presented sufficient evidence to support a causal connection between his protected conduct
and his increased security level.
       King satisfies the third requirement because he presented sufficient evidence for a reasonable

jury to find a causal connection between his protected conduct and his increased security level but


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not the officials’ misconduct charges. The causation analysis in retaliation claims employs a two-

step burden-shifting framework. See Thaddeus-X, 175 F.3d at 399. King must first establish “that

his protected conduct was a motivating factor behind any harm.” Id. The burden then shifts to the

officials to “show that [they] would have taken the same action in the absence of protected activity.”

Id. If the officials make such a showing, they prevail on summary judgment. Id. In this case, there

is a genuine issue of material fact whether the officials would have increased King’s security level

if King had not participated in his protected activities. But no genuine issue of fact exists regarding

retaliation by false misconduct charges because King produced no evidence that his protected

conduct was the motivating factor for the officials’ charges.


       a. King created an issue of material fact as to whether the officials increased his security
       level in retaliation for his participation in protected activity.
       Summary judgment for the officials was not proper as to King’s claim that they increased

his security level in retaliation for his participation in protected activity because (1) King has

satisfied his burden that the officials increased his security level from level II to level III as

retaliation for his participation in protected conduct, and (2) the officials have failed to produce

sufficient evidence that they would have taken the same action in the absence of his protected

activity. King has offered evidence that, soon after the officials requested King’s transfer,

Defendant Chaffee noted that King was “manageable in level II/remain in level II.” Complaint

Exhibit G. The paperwork was subsequently changed to reflect a security level of III with a note

that “prisoner manipulates other prisoners to be disruptive/needs high level of security.” Complaint

Exhibit M. The documents were backdated and signed by Defendants Berghuis and Singleton and


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then forwarded to Defendant Swift. Complaint 6-7. King offers the aforementioned June 14, 2000,

emails sent between Defendants Zamiara and Berghuis that request the alterations and can

reasonably imply that the alterations were requested because King was involved in the Cain class

action. See Complaint Exhibit K. With these emails and other paperwork, King has satisfied his

burden of producing sufficient evidence to create a genuine issue of material fact as to whether the

officials increased his security level, at least in part, for his participation in protected activities.


        The officials fail to meet their burden of producing evidence that they would have increased

King’s security in the absence of his participation in protected activity because they have provided

only their own unsupported assertions as evidence that King was disruptive. The officials claimed

in the lower court that they did not request the transfer with an increased security level for purposes

of retaliation but rather “because [King] was perceived as a disruptive prisoner who was

manipulating others to create unrest at [Brooks], and approved for transfer to [Chippewa] level III

for the purpose of providing closer supervision.” Zamiara Affidavit, ¶ 9. The only evidence

introduced to substantiate the officials’ claims, other than their own uncorroborated assertions upon

which the magistrate relied,4 was a Notice of Intent that was issued to King on September 24, six

days after King had arrived at Brooks and approximately eight months before officials increased his


        4
        Although the magistrate relied on declarations that King had “demonstrate[d] against
personal clothing policy changes,” see Magistrate’s Report and Recommendation 15-16, a neutral
hearing officer exonerated King of those allegations. See Complaint Exhibit E. Defendant Bolden
also declared that King had been implicated in “two attempted escape plots” in 1989. See
Magistrate’s Report and Recommendation 15. Yet, King’s complicity does not explain why he
became a security risk only ten years later and after the officials’ request for transfer at security level
II was denied.

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King v. Zamiara

security level. The officials have produced no evidence of any other notices during the eight months

King remained at Brooks, including any notices issued during the time between the denial of the

officials’ original transfer request at level II and King’s subsequent transfer at level III.


       Moreover, the magistrate ignored the March 15, 2002, report of the Legislative Ombudsman,

who routinely decides prisoner claims and found that “[t]here appears to be no evidence that Mr.

King was engaged in prohibited activities at Brooks, otherwise he would surely have been cited with

a major misconduct or Notice of Intent.” Complaint Exhibit S. The Ombudsman also noted, “[Mr.

Zamiara’s] directions to depart Mr. King to level 3 and his subsequent directions to Warden

Berghuis to change Mr. King’s security classification screen has the appearance of punishing Mr.

King for involvement in an unpopular lawsuit against the Defendant. . . . [T]he record gives the

distinct impression that his increase in custody was done for discussing issues with other prisoners,

which may have prompted them to file grievances or complaints with the [Brooks] administration.

No other explanation of how Mr. King manipulated other prisoners to create unrest at [Brooks] was

provided in his grievance responses or elsewhere documented in his records.” Complaint Exhibit

S. In light of King’s evidence and the neutral Ombudsman’s findings, the magistrate could have

granted summary judgment to the officials only by impermissibly deeming the officials credible and

discounting King’s contrary evidence. King has produced a genuine issue of material fact regarding

the circumstances of his increased security level, and the officials’ unsupported assertions are

insufficient evidence for a trial court to find that no reasonable jury could find in King’s favor.




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King v. Zamiara

       b. King creates no genuine issue of material fact as to whether his protected conduct was
       the motivating factor for the officials’ charges of misconduct.
       However, King cannot withstand summary judgment as to his retaliation claims based on the

misconduct charges because he has failed to offer any evidence that his protected conduct motivated

the officials to bring charges. As to the charge that King was “out of place,” the hearing officer

found King not guilty because, although King was placed on toplock when he was seen returning

to his cell, King may not have realized his status at that time. See Complaint Exhibit D. Since King

was on toplock at the time of the charge, the evidence that King proffers demonstrates that the

ticketing officer had reason to believe that King was violating the rules when she filed her charge.

He offers no evidence of any retaliatory motive.


       King has also failed to proffer any evidence that the charge of “creating a disturbance” was

related to his protected conduct. Although the hearing officer found “evident inconsistencies” in

Defendant Lewis’ statements, which indicated “some bias on [her] part,” Complaint Exhibit E, the

hearing officer’s findings in no way create any evidence of why Defendant Lewis falsely accused

him. Because King has not demonstrated a causal connection between his litigation activities and

the allegations of misconduct, summary judgment was proper as to these claims.


C. King did not preserve his due process and conspiracy claims.
       King did not object to the magistrate’s recommendation to grant the officials summary

judgment on the due process and conspiracy claims. “[O]nly those specific objections to the

magistrate’s report made to the district court will be preserved for appellate review; making some

objections but failing to raise others will not preserve all the objections a party may have.” Smith

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King v. Zamiara

v. Detroit Fed’n of Teachers, 829 F.2d 1370, 1373 (6th Cir. 1987). Because King did not object to

the magistrate’s findings, we decline his invitation to review these claims on appeal.


                                           III. Conclusion


        We reverse the district court’s grant of summary judgment as to King’s claim that the

officials increased his security level as retaliation for his participation in the Cain class action and

for his assistance to other inmates. We remand only this claim for other proceedings consistent with

this opinion. We affirm the district court’s grant of summary judgment in all other respects.




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