United States District Court, D. Maine
MICHAEL L. FORTIN, Plaintiff
KEVIN COX, Defendant
MICHAEL L FORTIN, Plaintiff, Pro se, WARREN, ME.
For KEVIN COX, Sergeant at Maine State Prison, Defendant: DIANE SLEEK, LEAD ATTORNEY, ASSISTANT ATTORNEY GENERAL, AUGUSTA, ME.
John C. Nivison, U.S. Magistrate Judge.
On November 24, 2014, I issued a Recommended Decision on Defendant's Motion to Dismiss. (ECF No. 20.) Specifically, I recommended that the Court (1) dismiss Plaintiff's claim based on Defendant's alleged violation of the Prison Rape Elimination Act; (2) dismiss Plaintiff's claim based on Defendant's alleged verbal harassment; and (3) defer ruling on Plaintiff's claim based on Defendant's alleged retaliation until Plaintiff had the opportunity to amend his complaint.
Defendant objected to the recommendation that the Court permit Plaintiff an opportunity to amend his complaint. (ECF No. 22.) On December 5, 2014, Plaintiff filed a motion to amend his complaint.(ECF No. 21.) Defendant filed an objection to the Motion to Amend. (ECF No. 23.)
As explained below, following a review of Plaintiff's Motion to Amend, and after consideration of the parties' arguments, the recommendation is that the Court grant Plaintiff's Motion to Amend.
Courts should grant leave to amend " freely" when " justice so requires." Fed.R.Civ.P. 15(a). Leave to amend is properly denied for " undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc." Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).
A prisoner alleging retaliation must show (1) constitutionally protected conduct, (2) an adverse action by prison officials which is sufficient to deter a person of ordinary firmness from exercising his constitutional rights,  and (3) a causal link between the exercise of his constitutional rights and the adverse action taken against him. Hannon v. Beard, 645 F.3d 45, 48 (1st Cir. 2011). In the Recommended Decision on Defendant's request for summary judgment, I determined that in his complaint, Plaintiff had not sufficiently identified the protected activity in which he was engaged when he reported Defendant's conduct to Defendant's employer.
In his Motion to Amend, Plaintiff asserts that " my report [to Defendant's supervisor] was recognized as a protected activity, under the First Amendment." (Motion to Amend at 3.) Despite referencing a mere " report" in his Complaint and his Motion to Amend, Plaintiff previously filed an affidavit in which he stated that he formally grieved the matter on April 24, 2014, and demanded an apology for the offensive comment. (ECF No. 12-2, PageID # 24; ECF No. 12-3.) 
The filing of a prison grievance is considered protected activity for purposes of the First Amendment. Hannon, 645 F.3d at 48 (" The plaintiff, in filing his own grievances and legal actions, plainly engaged in protected activity.") To be protected under the First Amendment, a grievance must not be frivolous. Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000).
As alleged, Plaintiff's report, which consists of the filing of the grievance, is a protected activity. In addition, given the relatively deferential standard of review on a motion to dismiss, and given that Plaintiff alleges a report of sexual harassment that resulted in an investigation, Plaintiff's allegation cannot be construed as frivolous. Accordingly, the amendment would not be futile, and otherwise should be allowed.
Based on the foregoing analysis, the recommendation is (1) that the Court grant Plaintiff's Motion to Amend, and (2) that the Court deny Defendant's Motion ...