James Maben v. Troy Thelen

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 18a0065p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

JAMES MABEN, ┐
Plaintiff-Appellant, │
│
> No. 17-1289
v. │
│
│
TROY THELEN, │
Defendant-Appellee. │
┘

Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:16-cv-10602—Stephen J. Murphy, III, District Judge.

Argued: March 13, 2018

Decided and Filed: April 3, 2018

Before: MERRITT, CLAY, and SUTTON, Circuit Judges.
_________________

COUNSEL

ARGUED: William C. Marra, COOPER & KIRK, PLLC, Washington, D.C., for Appellant.
Joseph Y. Ho, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for
Appellee. ON BRIEF: William C. Marra, COOPER & KIRK, PLLC, Washington, D.C., for
Appellant. Joseph Y. Ho, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing,
Michigan, for Appellee.
_________________

OPINION
_________________

CLAY, Circuit Judge. Plaintiff James Maben (“Maben”) appeals from the judgment
entered by the district court granting Defendant Troy Thelen’s (“Thelen”) motion for summary
judgment and dismissing the case. For the reasons set forth below, we AFFIRM in part and
 No. 17-1289 Maben v. Thelen Page 2

REVERSE in part the judgment of the district court and REMAND the case to the district court
for proceedings consistent with this opinion.

BACKGROUND

I. Factual History

Maben is an incarcerated prisoner in Michigan. On October 19, 2015, Maben was in the
prison’s food service line for lunch. The cafeteria server provided Maben with half a serving of
food, dumping out the other half. Maben “politely ask[ed]” the cafeteria server why he did not
receive a full serving. (R. 14, Maben Affidavit, PageID # 79.) The server responded that he
“was doing as told” and directed Maben to speak to a designated cafeteria employee. (Id.)
Maben raised the issue with that employee, who instructed Maben to speak with his supervisor at
the end of the line. Before Maben could speak to the supervisor, Thelen, a prison guard, “began
yelling” and said “shut the fuck up if you wanna eat, your [sic] not gonna change anything
Bitch.” (Id.) The supervisor “acknowledged the severely inadequate portion,” took Maben’s
tray, and gave him the full portion of food. (Id.)

Thelen then came over to Maben and demanded his identification number. Thelen said
“if you’re going to complain then you’re going to get a misconduct for it.” (R. 1, Complaint,
PageID # 5.) Thelen then issued Maben a misconduct ticket for creating a disturbance. The
cafeteria “was dead silent in amazement with defendant Thelen’s behavior.” (R. 14, Maben
Affidavit, PageID # 79.) Maben claimed that he “[n]ever” became disruptive, but that Thelen
“became bel[l]iger[e]nt[,] swearing and yelling, which did [frighten him], [and] humiliate [him]
in front of 100 plus other prisoners.” (Id.) Maben was “embarrassed, demeaned, and humiliated
by Defendant Thel[e]n’s statements, and felt that he could no longer comply with the grievance
procedure if he was going to be treated in this manner.” (R. 1, Complaint, PageID # 5.) He has
“been forced to endure shortened portions ever since, as a result of Thelen[’]s retaliation [and]
out of fear of future retaliation.” (R. 14, Maben Affidavit, PageID # 80.)

On October 22, 2015, a misconduct hearing was held. The hearing officer found
Thelen’s statement “more credible” because his report was “clear, detailed, and unequivocal.”
(R. 13-2, Misconduct Report, PageID # 67.) The hearing officer chose not to view video footage
 No. 17-1289 Maben v. Thelen Page 3

of the incident, concluding that it would be irrelevant because there was no sound. Maben was
found guilty of “Class II misconduct” for “creating a disturbance” and lost privileges for seven
days as punishment. (Id.)

II. Procedural History

On February 16, 2016, Maben brought a pro se action under 42 U.S.C. § 1983 against
Thelen in his official and individual capacities. He alleged that Thelen unconstitutionally
retaliated against him “for participating in the protected activity of attempting to comply with the
Michigan Department of Corrections1 Grievance Policy.” (R. 1, Complaint, PageID # 3.)

On April 25, 2016, Thelen filed a motion for summary judgment. Thelen argued that the
court should dismiss the official capacity claim because of the Eleventh Amendment. He also
argued that Maben’s First Amendment retaliation claim failed because he “did not engage in any
protected activity and whatever treatment he received was not attributable to any protected
activity.” (R. 13, Thelen MSJ, PageID # 47.) Finally, Thelen argued that he was protected by
qualified immunity because Maben had not demonstrated that Thelen violated clearly established
statutory or constitutional rights. Maben filed a pro se response to Thelen’s motion.

On March 1, 2017, the district court granted Thelen’s motion for summary judgment, and
dismissed the case. The district court concluded that Maben’s retaliation claim was barred based
on two grounds. First, the court concluded that “the dispute as to what really occurred was
already adjudicated by the MDOC in the course of its grievance process” and that those factual
findings were entitled to preclusive effect in federal court. (R. 20, Opinion, PageID # 120.)
Second, the court concluded that the finding of guilt at Maben’s misconduct hearing
“checkmates” his retaliation claim, citing to the Eighth Circuit’s “checkmate doctrine.” (Id.)
Henderson v. Baird, 29 F.3d 464, 469 (8th Cir. 1994).

On March 17, 2017, Maben timely filed his notice of appeal. On appeal, Maben argues
that the district court incorrectly gave preclusive effect to the factual findings at Maben’s
misconduct hearing and incorrectly applied the “checkmate doctrine.” Thelen argues that this

1
Hereinafter referred to as “MDOC.”
 No. 17-1289 Maben v. Thelen Page 4

panel should affirm the judgment of the district court on the alternative grounds that Maben has
failed to establish a First Amendment retaliation claim, that Thelen is entitled to qualified
immunity, and that the Eleventh Amendment bars Maben’s suit for damages against Thelen in
his official capacity.

DISCUSSION

I. Preclusive Effect of Factual Findings Made at the Misconduct Hearing

Standard of Review

This Court reviews a district court’s grant of summary judgment de novo. Gillis v.
Miller, 845 F.3d 677, 683 (6th Cir. 2017). Summary judgment is proper “if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a).

Analysis

The district court incorrectly found that Maben “failed to establish a First Amendment
retaliation claim” because “the dispute as to what really occurred was already adjudicated by the
MDOC in the course of its grievance process,” and “federal courts give preclusive effect to the
factual findings at misconduct hearings like Maben’s.” (R. 20, Opinion, PageID # 119–20.) The
factual findings made at Maben’s minor misconduct hearing do not have preclusive effect in
federal court and do not bar Maben’s claim.

To determine whether we must give preclusive effect to “factfinding from Michigan
prison hearings,” we look to four requirements, all of which must be met: (1) the state agency
“act[ed] in a ‘judicial capacity’”; (2) the hearing officer “resolved a disputed issue of fact that
was properly before it”; (3) the prisoner “had an adequate opportunity to litigate the factual
dispute”; and, (4) if these other three requirements are met, we must “give the agency’s finding
of fact the same preclusive effect it would be given in state courts.” Peterson v. Johnson,
714 F.3d 905, 911–13 (6th Cir. 2013) (internal citation and quotation marks omitted).

In Peterson, the Court considered, as a matter of first impression, whether a hearing
officer’s factual determination at a Michigan major misconduct hearing has preclusive effect in
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litigation brought by a prisoner under § 1983. Id. at 908, 911. The Court concluded that,
because all four requirements were met, the “hearing officer’s factual finding that [the prisoner]
was the one who grabbed [the officer’s] hand precludes a contrary finding in federal court.” Id.
at 917. In Roberson v. Torres, the Court considered the same issue, and identified the four
requirements listed above. 770 F.3d 398, 403–04 (6th Cir. 2014). The Court said that Peterson
does not mean that “any factual findings by a hearing officer in a major-misconduct hearing in a
Michigan prison are to be accorded preclusive effect.” Id. at 404. “Peterson is not a blanket
blessing on every factual finding in a major-misconduct hearing.” Id.

Indeed, the question of preclusion cannot be resolved categorically, as it turns on
case-specific factual questions such as what issues were actually litigated and
decided, and whether the party to be precluded had sufficient incentives to litigate
those issues and a full and fair opportunity to do so—not just in theory, but in
practice. It likewise turns on the court’s sense of justice and equity, which may
require a case-by-case analysis of surrounding circumstances.

Id. at 404–05 (internal citations and quotation marks omitted). The Court declined to decide the
preclusion question, and remanded the case to the district court to consider the argument for the
first time. Id. at 405. The Court instructed the district court to “give particular attention to the
fairness and accuracy of the factual findings made by the major-misconduct hearing officer.” Id.
The Court advised that “[n]umerous inquiries may be relevant to the district court’s analysis,”
like “why the hearing officer refused to review the alleged video of the incident, whether the
hearing officer provided a sufficient and reasonable basis for her factual findings, and whether
the testimony of other witnesses corroborated the accounts provided by either [the prisoner] or
[the officer].” Id. at 405.

This Court has not considered whether a hearing officer’s factual determinations at a
minor misconduct hearing have preclusive effect in subsequent § 1983 litigation. However, in
this case, we conclude that they do not because neither the first nor third requirements of the
Peterson test have been met.

Under the first requirement, the state agency must have been acting in a “judicial
capacity.” An administrative agency “acts in a judicial capacity when it hears evidence, gives
the parties an opportunity to brief and argue their versions of the facts, and gives the parties an
 No. 17-1289 Maben v. Thelen Page 6

opportunity to seek court review of any adverse findings.” Peterson, 714 F.3d at 912 (alteration
omitted) (quoting Herrera v. Churchill McGee, LLC, 680 F.3d 539, 547 (6th Cir. 2012)).

In Peterson, the Court found that the “hearing officer considered evidence that was put
into the record by [the prisoner] and [the officer], allowed the parties to argue their version of the
facts at a formal hearing, and issued a written final decision that, had [the prisoner] chosen to
appeal, could have been subject to direct review in state court.” Id. The Court noted the “whole
raft of judicial-type protections available to Michigan prisoners in major misconduct hearings.”
Id. This included that “the accused prisoner must receive an ‘evidentiary hearing without undue
delay,’ be given ‘reasonable notice’ of the hearing, receive ‘an opportunity to present evidence’
and to present ‘oral and written arguments on issues of fact,’ and be allowed to submit ‘rebuttal
evidence’ to the evidence against him.” Id. at 912 (citing MICH. COMP. LAWS § 791.252(a), (b),
(d), (e)). With regard to evidence, “any objections to the evidence’s admissibility must be
resolved and explained on the record,” id. (citing § 791.252(g)), and “all admitted evidence must
be made part of the record,” id. (citing § 791.252(h)). “[T]he presiding hearing officer must be
an attorney, [who] can ‘administer an oath or affirmation to a witness’ and ‘take depositions’ as a
part of his fact-finding role, must be impartial and must recuse if the accused files a motion
successfully showing bias, must abstain from ex parte communications with the accused prisoner
and the accusing Department of Corrections staff, and must make an official record of the
hearing at which he presides.” Id. at 912–13 (citing MICH. COMP. LAWS §§ 791.251(6);
791.252(f), (i), (j); 791.253). Finally, the “hearing officer must conclude the process by issuing a
written final decision that is based solely on the preponderance of the evidence in the record, and
that decision must be immediately mailed to the accused prisoner,” who “has a right to appeal it
within the agency and then . . . to state court.” Id. at 913 (citing MICH. COMP. LAWS
§§ 791.252(k), 791.254, 791.255).

We can easily distinguish the protections provided in a major misconduct hearing from
the barebones protections to which Maben was entitled at his minor misconduct hearing.
“A prisoner charged with minor misconduct shall be provided a fact-finding hearing conducted
in accordance with R 791.3310.” MICH. ADMIN. CODE R. 791.5501. “A prisoner shall receive
sufficient written notice of the purpose of a fact-finding hearing sufficiently prior to the hearing
 No. 17-1289 Maben v. Thelen Page 7

to allow preparation of a response.” MICH. ADMIN. CODE R. 791.3310. The notice includes “[a]
copy of any disciplinary report or other information regarding circumstances giving rise to the
hearing.” Id. During the fact-finding hearing, a prisoner is entitled to “be present and speak on
his or her own behalf” and to “receive a copy of any department document specifically relevant
to the issue before the hearing officer, unless disclosure of the document would be a threat to the
order and security of the facility or the safety of an individual.” Id. The prisoner may waive the
fact-finding hearing. Id. “Unless the prisoner waives the Class II hearing and pleads guilty, an
informal hearing shall be conducted in accordance with Administrative Rule 791.3310.” (Maben
Br. at SA7.) “Only Resident Unit Managers, Captains, and/or Lieutenants designated by the
Warden shall conduct the hearing. The staff person conducting the hearing shall have had no
prior direct involvement in the matter at issue.” (Id.) The prisoner is not entitled to an
investigation by the hearing investigator. “The hearing officer shall make a summary report of
the hearing and decision or recommendation.” MICH. ADMIN. CODE R. 791.3310. There is no
judicial review in state court of a minor misconduct report. Martin v. Stine, 542 N.W.2d 884,
886 (Mich. Ct. App. 1995).

Clearly, the procedural protections that are available for major misconducts are not the
same as those available for minor misconducts. And a number of the protections the Peterson
Court found significant are absent here, like that there be a formal hearing, that there be a written
final decision that is subject to direct appeal in state court, or that the prisoner be able to present
written arguments or submit rebuttal evidence. 714 F.3d at 912. Because there were insufficient
judicial-type protections available to Maben in his minor misconduct hearing, MDOC was not
acting in a “judicial capacity” during Maben’s minor misconduct hearing.

Under the third requirement, the prisoner must have had an adequate opportunity to
litigate the factual dispute. In Peterson, the Court’s analysis under this requirement mirrored its
analysis under the first. The Court found the prisoner had an adequate opportunity to litigate for
the reasons discussed under the first factor based on “a plethora of statutory protections”
available to prisoners. 714 F.3d at 913. For the same reasons noted above, Maben did not have
an adequate opportunity to litigate his case. Furthermore, just like the Court in Roberson, we
find it relevant that the hearing officer refused to view the video of the incident, despite Maben’s
 No. 17-1289 Maben v. Thelen Page 8

request that the officer watch it. Even though the video contained no audio, it would have helped
the hearing officer decide whether Maben was calm (as Maben claims) or whether he created a
disturbance (as Thelen claims).

Consequently, because the four-factor test as set out in Peterson and Roberson is not met
in this case, the factual findings made in Maben’s minor misconduct hearing do not have
preclusive effect. Maben can dispute the factual findings of the minor misconduct hearing and
can seek a contrary finding in federal court. The district court erred by concluding otherwise.
Accordingly, we reverse this ruling of the district court.

II. “Checkmate Doctrine”

Standard of Review

This Court reviews a district court’s grant of summary judgment de novo. Gillis,
845 F.3d at 683. Summary judgment is proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a).

Analysis

The district court concluded that the finding of guilt at Maben’s misconduct hearing
barred Maben’s claim, citing to the Eighth Circuit’s “checkmate doctrine.” (R. 20, Opinion,
PageID # 120.) The “checkmate doctrine” provides that when a prison body finds that a prisoner
has committed “an actual violation of prison rules” and the “finding [is] based on some evidence
of the violation, the finding essentially checkmates [the] retaliation claim.” Henderson, 29 F.3d
at 469; Hartsfield v. Nichols, 511 F.3d 826, 829 (8th Cir. 2008) (restating the Henderson test
without using “essentially” as a qualifier); see also O’Bryant v. Finch, 637 F.3d 1207, 1215
(11th Cir. 2011).

Other circuits have rejected this categorical bar on a retaliation claim. Watson v. Rozum,
834 F.3d 417, 426 (3d Cir. 2016) (“[A] plaintiff can make out a retaliation claim even though the
charge against him may have been factually supported.”); Bruce v. Ylst, 351 F.3d 1283, 1289–90
(9th Cir. 2003); Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995) (“Although we decline to
 No. 17-1289 Maben v. Thelen Page 9

hold as a matter of law that a legitimate prison disciplinary report is an absolute bar to a
retaliation claim, the existence of same, properly viewed, is probative and potent summary
judgment evidence . . . .”); Cain v. Lane, 857 F.2d 1139, 1145 (7th Cir. 1988).

This Court has never adopted the “checkmate doctrine” in a published opinion.2 We now
reject that doctrine. A finding of guilt at a prison misconduct hearing does not act as an absolute
bar to a prisoner’s First Amendment retaliation claim.

The “checkmate doctrine” is contrary to and irreconcilable with the burden-shifting
framework that this Court has adopted when analyzing a prisoner’s retaliation claim. This Court
has repeatedly held that to succeed on a First Amendment retaliation claim, a plaintiff must show
that:

(1) the plaintiff engaged in protected conduct; (2) an adverse action was taken
against the plaintiff 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 the plaintiff’s protected conduct.

Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). Under the third element,
“the subjective motivation of the defendants is at issue.” Id. at 399. “The analysis of motive in
retaliation claims is well-developed”—“[o]nce 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.” Id. (citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274 (1977)). “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.” Id.
A defendant must make this showing by a preponderance of the evidence. King v. Zamiara,
680 F.3d 686, 709 (6th Cir. 2012). And officers can point to “disruptive” behavior as a reason
for taking action. Id.

Adopting the “checkmate doctrine” as articulated by the Eighth Circuit would render our
Circuit’s Mount Healthy burden-shifting framework superfluous. Guilt of misconduct may be

2
This Court has applied the “checkmate doctrine” in various unpublished opinions. See, e.g., Patterson v.
Godward, 505 F. App’x 424, 425 (6th Cir. 2012); Jackson v. Madery, 158 F. App’x 656, 662 (6th Cir. 2005).
 No. 17-1289 Maben v. Thelen Page 10

relevant summary judgment evidence within that framework, but it does not automatically bar a
plaintiff’s claim. Adopting the “checkmate doctrine” would also improperly lower a defendant’s
evidentiary burden. Under the Mount Healthy and Thaddeus-X analysis, a defendant must show
by a preponderance of the evidence “that he would have taken the same action in the absence of
the protected activity.” Thaddeus-X, 175 F.3d at 399; King, 680 F.3d at 694. This is a greater
burden than the “checkmate doctrine’s” “some evidence” standard. Henderson, 29 F.3d at 469.

Furthermore, in the motion to dismiss context, we have explicitly rejected the argument
that an “administrative determination that [the prisoner] actually committed the . . . misconduct
precludes him from being able to establish retaliation.” Thomas v. Eby, 481 F.3d 434, 440 (6th
Cir. 2007). The Court found in Thomas that “guilt of misconduct” did not negate an allegation
of protected conduct and rejected MDOC’s argument that the prisoner could not “show causation
without first demonstrating that the misconduct charge was ultimately resolved in his favor.” Id.
at 440–42. We see no reason why we would apply a different rule depending on whether a case
is at the motion to dismiss stage, or at the summary judgment stage.

In all, we cannot reconcile the “checkmate doctrine” with this Court’s First Amendment
retaliation case law and we will not adopt a doctrine that would flout this Court’s precedent.
Holding otherwise would also “unfairly tempt corrections officers to enrobe themselves and their
colleagues in what would be an absolute shield against retaliation claims.” Woods, 60 F.3d at
1165. A prisoner “deserves the opportunity to try to show that the reasons given for disciplining
him were a pretext for the prison officials’ retaliatory animus.” Orebaugh v. Caspari, 910 F.2d
526, 529–30 (8th Cir. 1990) (Heaney, J., concurring in part and dissenting in part). On summary
judgment, the traditional burden-shifting framework announced in Mount Healthy and Thaddeus-
X applies.

Consequently, the district court erred when it concluded that MDOC’s finding of
misconduct “checkmates” Maben’s retaliation claim. Maben’s claim is not barred based merely
on the fact he was found guilty of creating a disturbance at a misconduct hearing. Accordingly,
we reverse this ruling of the district court.
 No. 17-1289 Maben v. Thelen Page 11

III. First Amendment Retaliation

Standard of Review

This Court reviews a district court’s grant of summary judgment de novo. Gillis,
845 F.3d at 683. Summary judgment is proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). The moving party bears the burden of showing that no genuine issues of
material fact exist. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The moving party must
demonstrate the “basis for its motion, and identify[] those portions of the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, which it
believes demonstrate the absence of a genuine issue of material fact.” Id. at 323 (internal
citations and quotation marks omitted). The nonmoving party “must set forth specific facts
showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250 (1986) (internal citations and quotation marks omitted). The reviewing court must then
determine “whether the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251–52.
A court should view the facts and draw all reasonable inferences in favor of the non-moving
party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Analysis

Thelen argues that this Court should affirm the grant of summary judgment in his favor
because “Maben failed to establish the elements of a retaliation claim.” (Thelen Br. at 7.) He
argues that Maben was not engaged in constitutionally protected activity, and that even if he
were, that he violated a legitimate prison regulation and was no longer engaged in protected
activity once he became disruptive. Thelen also argues that issuing a minor misconduct ticket
does not rise to the level of “adverse action.” Finally, he argues that Maben has failed to show
that the misconduct was motivated by Maben’s protected activity.

A First Amendment retaliation claim has three elements:

(1) the plaintiff engaged in protected conduct; (2) an adverse action was taken
against the plaintiff that would deter a person of ordinary firmness from
 No. 17-1289 Maben v. Thelen Page 12

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 the plaintiff’s protected conduct.

Thaddeus-X, 175 F.3d at 394.

A. Protected Conduct

As to the first element, “[a]n inmate has an undisputed First Amendment right to file
grievances against prison officials on his own behalf.” Herron v. Harrison, 203 F.3d 410, 415
(6th Cir. 2000); Violett v. Reynolds, 76 F. App’x 24, 27 (6th Cir. 2003) (“Filing grievances
through the inmate grievance mechanism is protected conduct.”). However, the right to file
grievances is protected only insofar as the grievances are not “frivolous.” Herron, 203 F.3d at
415. “Abusive or manipulative use of a grievance system would not be protected conduct,”
King, 680 F.3d at 699, and an “inmate cannot immunize himself from adverse administrative
action by prison officials merely by filing a grievance or a lawsuit and then claiming that
everything that happens to him is retaliatory,” Spies v. Voinovich, 48 F. App’x 520, 525 (6th Cir.
2002).

Viewing the facts and drawing all inferences in Maben’s favor, Maben has presented
sufficient evidence that he was engaged in protected conduct. According to Maben’s account, he
received half the serving of food that he was entitled to receive. He then “politely” and “quietly”
raised the inadequacy of his food portion to a line worker, a cafeteria worker, and a supervisor.
(R. 14, Maben Affidavit, PageID # 79–80.) It was Thelen who interrupted that process by
yelling at Maben, “charg[ing]” over to Maben to demand his identification, and issuing him a
misconduct ticket. (Id. at # 79.) Despite Thelen’s actions, the cafeteria supervisor
“acknowledged the severely inadequate portion,” took Maben’s tray, and gave him the correct
serving. (Id.) By complaining about the insufficient quantity of food he had received, Maben
was pursuing a grievance about prison conditions and seeking redress of that grievance.
Accordingly, Maben was engaged in protected conduct.

Some cases in this Circuit appear to suggest that a prisoner’s grievance is frivolous when
the underlying grievance itself is de minimis. Ziegler v. State of Michigan, 90 F. App’x 808, 810
(6th Cir. 2004) (finding a grievance frivolous when the prisoner complained that the prison
 No. 17-1289 Maben v. Thelen Page 13

officer should “not be able to conduct a non-invasive pat-down search” of her); White-Bey v.
Griggs, 43 F. App’x 792, 794 (6th Cir. 2002) (finding grievances that “concerned being required
to use a typewriter rather than a computer, and being required to sit quietly in defendant’s office
after being told again that there was no computer available for him to use” to be frivolous and
not to “rise to the level of protected conduct”); Scott v. Kilchermann, 230 F.3d 1359, at *1–2 (6th
Cir. 2000) (finding a grievance frivolous when the inmate complained that he had been subject to
verbal abuse); Thaddeus-X v. Love, 215 F.3d 1327, at *2–3 (6th Cir. 2000) (finding a prisoner’s
threat to file a grievance against an officer for “eating waffles at a prison guard desk,” which was
against prison policy, “patently frivolous as the defendant’s conduct had no adverse impact on
[the prisoner]”). We have also described a non-frivolous grievance as a “legitimate” grievance.
Pasley v. Conerly, 345 F. App’x 981, 985 (6th Cir. 2009). Whether there is in fact a de minimis
exception to prisoner grievances is irrelevant to the disposition of this case. Maben was
complaining about the adequacy of his food, and we refuse to say that a complaint about one of
the major requirements of life is a frivolous or de minimis grievance. This is especially true
where Maben appears to have been correct: the cafeteria worker “acknowledged the severely
inadequate portion” and corrected the error. (R. 14, Maben Affidavit, PageID # 79.)

Further, this is true even though Maben pursued his grievance orally, rather than in
writing. An inmate has a right to file “non-frivolous” grievances against prison officials on his
own behalf, whether written or oral. Mack v. Warden Loretto FCI, 839 F.3d 286, 299 (3d Cir.
2016) (“[The prisoner’s] oral grievance to [the prison officer] regarding the anti-Muslim
harassment he endured at work constitutes protected activity under the First Amendment.”);
Pearson v. Welborn, 471 F.3d 732, 741 (7th Cir. 2006) (“[W]e decline to hold that legitimate
complaints lose their protected status simply because they are spoken.”); see also Pasley, 345 F.
App’x at 985 (finding that a prisoner engaged in protected conduct by threatening to file a
grievance).

“Nothing in the First Amendment itself suggests that the right to petition for redress of
grievances only attaches when the petitioning takes a specific form.” Holzemer v. City of
Memphis, 621 F.3d 512, 521 (6th Cir. 2010) (finding that a conversation constituted protected
petitioning activity) (quoting Pearson, 471 F.3d at 741). While we recognize concerns about
 No. 17-1289 Maben v. Thelen Page 14

opening the floodgates to frivolous prisoner lawsuits, “we are not persuaded that an oral
grievance should not receive constitutional protection solely because it is lodged by a prisoner as
opposed to a civilian.” Mack, 839 F.3d at 298. A “prisoner[] retain[s] the constitutional right to
petition the government for the redress of grievances.” Turner v. Safley, 482 U.S. 78, 84 (1987)
(citing Johnson v. Avery, 393 U.S. 483 (1969)). But this right is limited insofar as the petitioning
activity is “inconsistent with his status as a prisoner or with the legitimate penological objectives
of the corrections system.” Pell v. Procunier, 417 U.S. 817, 822 (1974). “[A]lthough certain
types of ‘petitioning’ would be obviously inconsistent with imprisonment (marches or group
protests, for example),” we do not think that Maben’s oral complaint about prison conditions
“fall[s] into that category.” Pearson, 471 F.3d at 741.

Moreover, MDOC’s own grievance policy required that prisoners raise their grievances
orally with staff before they file a formal written grievance, and a grievance may even be
dismissed if “[t]he grievant did not attempt to resolve the issue with the staff member involved
prior to filing the grievance.” (R. 14, Grievance Policy, PageID # 85). Maben has maintained
that he was “attempting to resolve [his] issue with the staff involved prior to writing a grievance”
and “engaged in the grievance process according to [MDOC] policy.”3 (R. 14, Maben Affidavit,
PageID # 79–80.) It would be an unfair and illogical result for prisons to require initial oral
complaints, but then be able to argue that a retaliation claim fails because the prisoner filed an
oral, rather than written, complaint. Maben should not be punished for complying with prison
policy, nor should prison officials be allowed to retaliate against Maben for making an oral
grievance.

Finally, Thelen argues that if Maben was initially engaged in protected activity, “once
Maben became disruptive, he violated a legitimate prison regulation and was no longer engaged
in protected conduct.” (Thelen Br. at 10.) We have previously said that “if a prisoner violates a
legitimate prison regulation, he is not engaged in ‘protected conduct,’ and cannot proceed
beyond step one.” Thaddeus-X, 175 F.3d at 395. But at this stage of the litigation, we must
“consider the evidence in the light most favorable to the non-moving party and draw all

3
Even at his misconduct hearing, Maben maintained that he was “trying to resolve the issue, before filing a
grievance like Policy told [him].” (R. 13-2, Misconduct Report, PageID # 67.)
 No. 17-1289 Maben v. Thelen Page 15

reasonable inferences in that party’s favor,” McKay v. Federspiel, 823 F.3d 862, 866 (6th Cir.
2016), and Maben swore in his affidavit that “[n]ever did [he] become disruptive.” (R. 14,
Maben Affidavit, PageID # 79.) Thelen appears to argue only that his version of events is true,
and Maben’s is false, which he cannot do at this stage.

B. Adverse Action

As to the second element, “[a]n 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.
“Whether a retaliatory action is sufficiently severe to deter a person of ordinary firmness from
exercising his or her rights is a question of fact.” Bell v. Johnson, 308 F.3d 594, 603 (6th Cir.
2002). However, some adverse actions are so de minimis that they do not rise to the level of a
constitutionally cognizable injury. Thaddeus-X, 175 F.3d at 396 (citing Ingraham v. Wright,
430 U.S. 651, 674 (1977)). “[T]his threshold is intended to weed out only inconsequential
actions, and is not a means whereby solely egregious retaliatory acts are allowed to proceed past
summary judgment.” Id. at 398. Indeed, “unless the claimed retaliatory action is truly
‘inconsequential,’ the plaintiff’s claim should go to the jury.” Bell, 308 F.3d at 603. (citing
Thaddeus-X, 175 F.3d at 398); Kennedy v. Bonevelle, 413 F. App’x 836, 840 (6th Cir. 2011)
(“[O]nly de minimis violations should be dismissed as a matter of law; in general, the
adverseness question should survive the pleading stage.”).

When deciding whether the issuance of a misconduct ticket rises to the level of an
adverse action, we look to both the punishment Maben could have faced and the punishment he
ultimately did face. See Scott v. Churchill, 377 F.3d 565, 572 (6th Cir. 2004) (“[T]he mere
potential threat of disciplinary sanctions is sufficiently adverse action to support a claim of
retaliation.”); Brown v. Crowley, 312 F.3d 782, 789 (6th Cir. 2002) (looking to what the prisoner
“could have been sentenced to . . . if he had been found guilty”). The sanctions that Maben faced
for a Class II misconduct included: “[t]oplock (confinement to quarters), not to exceed five
days . . . .”; loss of privileges for up to 30 days; assignment of extra duty; and, restitution and/or
disgorgement. (Maben Br., Disciplinary Sanctions, SA21; R. 13-2, Misconduct Hearing, PageID
# 67.) The actual punishment resulting from Maben’s misconduct hearing was loss of privileges
for seven days. These privileges included the rights to access exercise facilities, to attend group
 No. 17-1289 Maben v. Thelen Page 16

meetings (including Bible class), to use the telephone, to have visitors, to access the general
library, and to access the activity room.

In Hill v. Lapin, this Court found that “actions that result in more restrictions and fewer
privileges for prisoners are considered adverse.” 630 F.3d 468, 474 (6th Cir. 2010). In Noble v.
Schmitt, this Court denied qualified immunity where the conduct at issue was that “Defendants
restricted his privileges after he filed a considerable number of grievances against them.”
87 F.3d 157, 162 (6th Cir. 1996). In Harbin-Bey v. Rutter, when concluding that the prisoner
suffered no adverse action, the Court noted that the prisoner “did not lose any privileges as a
result of the [Notice of Intent to Conduct an Administrative Hearing].” 420 F.3d 571, 579 (6th
Cir. 2005).

In other cases, we have found sufficiently adverse punishments that were “at least as
severe as” the one imposed here, including confiscating legal papers and other property, Bell,
308 F.3d at 604, subjecting the prisoner to retaliatory cell searches, id., and damaging a
prisoner’s typewriter, LaFountain v. Harry, 716 F.3d 944, 948–49 (6th Cir. 2013); see also
Watson v. Rozum, 834 F.3d 417, 423 (3d Cir. 2016) (“[E]ven though his Class I misconduct was
reduced to a Class II misconduct at his hearing, Watson lost his radio as a result and the Class II
misconduct became part of his prison record. This is substantially more than a de minimis
consequence for someone confined in a prison cell.”); Barr v. Diguglielmo, 348 F. App’x 769,
774 (3d Cir. 2009) (finding an adverse action where a prisoner “was prohibited from
participating in any prison activities (including religious activities . . .)”); Reynolds v. Green,
25 F. App’x 256, 261 (6th Cir. 2001) (finding an adverse action where a prisoner was transferred
from a facility where he could “come and go with permission,” to a facility where he could not);
Hall v. Sutton, 755 F.2d 786, 787–88 (11th Cir. 1985) (holding that an inmate stated a First
Amendment retaliation claim based upon the confiscation of his tennis shoes). But see Ingram v.
Jewell, 94 F. App’x 271, 273 (6th Cir. 2004) (finding that a loss of fourteen days of privileges
did not constitute adverse action).

In all, the deprivation of privileges is hardly “inconsequential”—indeed, they are all that
prisoners really have. Furthermore, the issuance of the minor misconduct ticket subjected
Maben to the risk of even more significant sanctions, including confinement to his cell, which is
 No. 17-1289 Maben v. Thelen Page 17

certainly not “inconsequential.” See Hill, 630 F.3d at 474. Because this case did not involve de
minimis retaliatory action, this question cannot be resolved as a matter of law. It is for the
factfinder to decide whether the deprivation of those privileges “poses a sufficient deterrent
threat to be actionable.” Bell, 308 F.3d at 603.

C. Causation

Under the third element, “[u]sually, the question of causation is a factual issue to be
resolved by a jury, and may be satisfied by circumstantial evidence.” Harris v. Bornhorst,
513 F.3d 503, 519–20 (6th Cir. 2008) (citing Hartsel v. Keys, 87 F.3d 795, 803 (6th Cir. 1996)).
“Nonetheless, a court may grant summary judgment even in a causation inquiry, where it is
warranted.” Hartsel, 87 F.3d at 803 (citing Langford v. Lane, 921 F.2d 677, 683–84 (6th Cir.
1991)). “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.” Thaddeus-
X, 175 F.3d at 399 (citing Mount Healthy, 429 U.S. 274). “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.” Id.

Maben has presented evidence that, after receiving less than a standard serving of food,
he “politely” and “quietly” complained about the quantity of food. (R. 14, Maben Affidavit,
PageID # 79–80.) Maben said that he “[n]ever” became disruptive, but that it was Thelen who
began yelling at Maben, who “became bel[l]iger[e]nt,” and who issued Maben a misconduct
ticket. (Id. at # 79)

Three separate witnesses corroborate Maben’s account of the events.4 For example,
Russell Govett stated that Thelen “continued yelling abuses [at Maben] and said something about

4
These statements were included in Maben’s pro se response to Thelen’s motion for summary judgment.
Thelen suggests that the “unsworn statements vary in their compliance with 28 U.S.C. § 1746.” (Thelen Br. at 10
n.1.) Section 1746 provides that an unsworn declaration may be used as a sworn statement if it is “subscribed” by a
person “as true under penalty of perjury, and dated.” 28 U.S.C. § 1746. Luke Carlson’s statement is signed and
dated “under the penalty of perjury” and attested “to the best of my knowledge.” (R. 14, Statements, PageID # 87.)
Russell Govett’s statement is signed and dated “under penalty of perjury, that the afore mentioned [sic] is both true
and correct.” (Id. at # 88.) Anthony Post’s statement is sworn “under penalty of perjury, that the foregoing is both
true and correct,” it is signed, but it is not dated. (Id. at # 89.) Under § 1746, then, it seems the only problematic
statement is Post’s because it does not contain a date.
 No. 17-1289 Maben v. Thelen Page 18

him being a bitch and he would not change anything anyway.” (R. 14, Govett Statement, PageID
# 88.) Govett also stated that Thelen “asked Mr. Maben for his ID and wrote him a ticket for
complaining.” (Id.) He said that “[a]t no time during the incident did Mr. Maben get loud or
speak in more than a conversational tone.” (Id.)

Additionally, there is a suspicious temporal proximity between Maben’s grievance and
the alleged retaliatory action. This Court has “previously considered the temporal proximity
between protected conduct and retaliatory acts as creating an inference of retaliatory motive.”
King, 680 F.3d at 695–96 (citations omitted); Muhammad v. Close, 379 F.3d 413, 417–18 (6th
Cir. 2004) (“[T]emporal proximity alone may be significant enough to constitute indirect
evidence of a causal connection so as to create an inference of retaliatory motive.” (citation and
internal quotation marks omitted)). Indeed, Thelen issued the misconduct ticket immediately
after Maben raised the issue of inadequate food portions and as Maben was trying to remedy the
situation with the food supervisor.5

Based upon this evidence, we conclude that Maben has introduced sufficient evidence for
a reasonable jury to find that Thelen’s “adverse action was motivated at least in part by
[Maben’s] protected conduct.” Brown, 312 F.3d at 790. Consequently, the burden shifts to
Thelen. Id.

Thelen’s only response is that the issuance of a misconduct ticket was not causally
connected to any constitutionally protected activity. Instead, he argues that he intervened not
because Maben was engaged in protected activity, but because Maben was causing a disturbance.
In his affidavit, Thelen denied retaliating against Maben. Again, however, Maben “hotly
disputes” that “Maben was causing a disturbance.” (Maben Rep. Br. at 23.) Thelen has “done
little more than deny the allegations put forth by” Maben, which is insufficient to meet his
burden. Thaddeus-X, 175 F.3d at 399.

5
Maben also alleges in his pro se complaint that Thelen said “if you’re going to complain then you’re
going to get a misconduct for it.” (R. 1, Complaint, PageID # 5.) Immediately after making that threat to punish
Maben for pursuing the grievance, Maben alleges that Thelen followed through and issued the misconduct ticket.
Although this did not make it into Maben’s affidavit, if true, it would certainly support Maben’s claim that Thelen
issued the misconduct ticket because of the complaint, and not because Maben created a disturbance.
 No. 17-1289 Maben v. Thelen Page 19

In all, then, Maben has introduced sufficient evidence to withstand summary judgment on
his First Amendment retaliation claim. We therefore decline to affirm the district court’s
decision based on this alternate ground.

IV. Qualified Immunity

Standard of Review

This Court reviews a district court’s grant of summary judgment de novo. Gillis,
845 F.3d at 683. Summary judgment is proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a).

Analysis

Thelen argues that this Court should affirm the district court’s grant of summary
judgment for Thelen on the grounds that Thelen is entitled to qualified immunity. He argues that
“there is insufficient evidence that his actions violated clearly established law.” (Thelen Br. at
15.) We think Maben has introduced sufficient evidence of a violation of a clearly established
constitutional right.

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.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To determine whether
government officials are entitled to qualified immunity, we ask: “First, taken in the light most
favorable to the party asserting the injury, do the facts alleged show that the officer’s conduct
violated a constitutional right? Second, is the right clearly established?” Silberstein v. City of
Dayton, 440 F.3d 306, 311 (6th Cir. 2006) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).
Courts may address these two prongs in whichever order they choose. Pearson v. Callahan,
555 U.S. 223, 236 (2009). Plaintiff bears the burden of showing that defendants are not entitled
to qualified immunity. Chappell v. City Of Cleveland, 585 F.3d 901, 907 (6th Cir. 2009).
 No. 17-1289 Maben v. Thelen Page 20

As to the first prong, as discussed above, Maben has introduced sufficient evidence that
Thelen violated Maben’s constitutional rights. Thelen tries to argue that he “acted because
Maben was causing a disturbance, not in retaliation, and not because Maben was engaged in any
protected activity.” (Thelen Br. at 17.) But “we assume the truth of all record-supported
allegations by the non-movant,” Bays v. Montmorency Cty., 874 F.3d 264, 268 (6th Cir. 2017)
(citing Plumhoff v. Rickard, 134 S. Ct. 2012, 2017 (2014)), and “under either prong, courts may
not resolve genuine disputes of fact in favor of the party seeking summary judgment,” Tolan v.
Cotton, 134 S. Ct. 1861, 1866 (2014).

As to the second prong, this Court has repeatedly recognized that if a prison officer
“retaliated against [a prisoner] for filing grievances,” the “alleged conduct also comprises a
violation of clearly established constitutional law.” Noble, 87 F.3d at 162 (citations omitted);
King v. Zamiara, 150 F. App’x 485, 493 (6th Cir. 2005) (“Charging an inmate with misconduct
is an adverse action because serious consequences can flow from erroneous charges.”); Scott,
377 F.3d at 572 (finding it clearly established that “the false issuance of a misconduct charge is
unconstitutional retaliation”); Bell, 308 F.3d at 612.

Thelen further argues that there was no violation of a clearly established right because
our cases dealing with the false issuance of misconduct charges deal with the issuance of major
misconduct charges and not minor misconduct charges. We think Thelen’s preoccupation with
MDOC’s label of major and minor misconduct is misplaced. Instead of focusing on that
classification, Thelen should focus on the action of retaliating by issuing a misconduct ticket and
the penalties that come with being found guilty of misconduct. We have made clear that a prison
officer may not undertake adverse actions in retaliation for a prisoner’s exercise of his First
Amendment rights. Bell, 308 F.3d at 612. We have also made clear that actions comparable in
seriousness to the ones at issue in this case implicate a prisoner’s First Amendment rights. Id.;
see supra III.B. (discussing punishments at least as severe as the one imposed in this case).
Moreover, the sanctions that may be imposed as a result of minor misconduct share features with
the sanctions that may be imposed as a result of major misconduct. For example, a prisoner
found guilty of minor misconduct may be confined to their cell for five days and lose any
visitation rights or access to any prison facilities, including the library. This shares features with
 No. 17-1289 Maben v. Thelen Page 21

administrative segregation, and we have held that being confined in administrative segregation
for five days constituted a sufficiently adverse action. Herron, 203 F.3d at 416. Consequently,
we think that a reasonable prison officer would have been aware that issuing a misconduct ticket,
even a minor misconduct ticket, in retaliation for the inmate’s exercise of his First Amendment
rights could give rise to constitutional liability. Anderson v. Creighton, 483 U.S. 635, 640
(1987) (“The contours of the right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” (citations omitted)); Bell, 308 F.3d at 612.

Consequently, we decline Thelen’s invitation to affirm the district court’s decision based
on qualified immunity.

V. Eleventh Amendment Immunity

Standard of Review

This Court reviews a district court’s grant of summary judgment de novo. Gillis,
845 F.3d at 683. Summary judgment is proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a).

Analysis

Thelen argues that as a state officer, the Eleventh Amendment bars Maben’s suit against
him in his official capacity.

The Eleventh Amendment “denies to the federal courts authority to entertain a suit
brought by private parties against a state without its consent.” Ford Motor Co. v. Dep’t of
Treasury of Indiana, 323 U.S. 459, 464 (1945) (citation omitted). “The [Supreme] Court has
held that, absent waiver by the State or valid congressional override, the Eleventh Amendment
bars a damages action against a State in federal court.” Kentucky v. Graham, 473 U.S. 159, 169
(1985) (citation omitted). “This bar remains in effect when State officials are sued for damages
in their official capacity.” Id. (citations omitted). Section 1983 “was not intended to abrogate a
State’s Eleventh Amendment Immunity.” Id. at n.17. (citations omitted). The Eleventh
 No. 17-1289 Maben v. Thelen Page 22

Amendment, however, does not bar suits for damages against officers in their personal capacity
under § 1983. Hafer v. Melo, 502 U.S. 21, 25–27 (1991).

The Eleventh Amendment bars Maben’s “official-capacity action for damages” against
Thelen in federal court. See Kentucky, 473 U.S. at 170. However, the Eleventh Amendment
does not bar Maben’s § 1983 claim against Thelen for damages in his personal capacity. See
Hafer, 502 U.S. at 27.

Accordingly, we affirm the district court’s grant of summary judgment to Thelen on
Maben’s official-capacity claim based on the Eleventh Amendment.

CONCLUSION

Based on the foregoing, we AFFIRM in part and REVERSE in part the judgment of
the district court and REMAND the case to the district court for proceedings consistent with this
opinion.