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Hershey v. Berghuis

March 29, 2010

KENNETH HERSHEY, PLAINTIFF,
v.
MARY BERGHUIS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable Paul L. Maloney

OPINION AND ORDER ADOPTING IN PART AND REJECTING IN PART A REPORT AND RECOMMENDATION AND GRANTING DEFENDANTS' MOTIONS

Plaintiff Kenneth Hershey, a prisoner under the control of the Michigan Department of Corrections (MDOC), filed a complaint alleging violations of his constitutional rights under 42 U.S.C. § 1983. Defendants Whalen, Booth, Kelley, Rodriguez and Koches ("Defendants") filed a motion for summary judgment. (Dkt. No. 45.) Plaintiff filed a reply. (Dkt. No. 68.) Defendants Correctional Medical Services (CMS) and Graeser filed a motion to dismiss and/or for summary judgment. (Dkt. No. 56.) Defendant Spitters also filed a motion to dismiss and/or for summary judgment. (Dkt. No. 67.) Plaintiff did not file a response to the two motions filed by CMS, Graeser and Spitters. The magistrate judge reviewed all three motions and issued a report recommending (1) Defendants' motion be granted in part and denied in part and (2) the other two motions be granted. The magistrate judge further recommends dismissing the claims against the remaining unnamed defendants. Defendants filed an objection. (Dkt. No. 84.) Plaintiff did not file any objection.

STANDARD OF REVIEW

After being served with a report and recommendation (R&R) issued by a magistrate judge, a party has ten days to file written objections to the proposed findings and recommendations. 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005). A district court judge reviews de novo the portions of the R&R to which objections have been filed. 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b). Only those objections that are specific are entitled to a de novo review under the statute. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (per curiam) (holding the district court need not provide de novo review where the objections are frivolous, conclusive or too general because the burden is on the parties to "pinpoint those portions of the magistrate's report that the district court must specifically consider"). The United States Supreme Court has held that the statute does not "positively require[] some lesser review by the district court when no objections are filed." Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file an objection results in a waiver of the issue and the issue cannot be appealed. Sullivan, 431 F.3d at 984; see also Arn, 474 U.S. at 155 (upholding the Sixth Circuit's practice). The district court judge may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b).

ANALYSIS

A. UNNAMED DEFENDANTS

The magistrate judge recommends dismissing, without prejudice, the remaining unnamed Defendants for failure to timely effect service. Plaintiff has not objected to this recommendation. Accordingly, the magistrate judge's report with regard to this issue is ADOPTED as the opinion of this court and the remaining unnamed Defendants are DISMISSED WITHOUT PREJUDICE.

B. DEFENDANTS CMS, GRAESER, AND SPITTERS

Defendants CMS, Graeser, and Spitters are entitled to have the claims against them dismissed. Plaintiff opted not to respond to the motions filed by Defendants CMS, Graeser and Spitters. The magistrate judge reviewed the motions and recommends granting the motion filed by Defendants CMS and Graeser. Specifically, the magistrate judge recommends granting the motion to dismiss with regard to Defendant CMS and granting the motion for summary judgment with regard to Defendant Graeser. The magistrate judge also recommends granting the motion for summary judgment filed by Defendant Spitter. Plaintiff opted not to object to these recommendations. Accordingly, the magistrate judge's report with regard to this issue is ADOPTED as the opinion of this court and the two motions (Dkt. No.s 56 and 67) filed by Defendants CMS, Graeser and Spitters are GRANTED.

C. DEFENDANTS WHALEN, BOOTH, KELLEY, RODRIGUEZ AND KOCHES

Defendants moved for summary judgment on several grounds. First, each of these Defendants asserted Plaintiff failed to exhaust his administrative remedies regarding the events giving rise to the specific claims against each of them. Second, Defendants argue Plaintiff lacks evidentiary support for his claims for deliberate indifference to his medical needs in violation of the Eighth Amendment, for retaliation in violation of the First Amendment, and for conspiracy. Finally, Defendants argue they are entitled to sovereign immunity for any claims brought against them in their official capacity and qualified immunity for claims brought against them in their individual capacity.

The magistrate judge recommends granting portions of Defendants' motion. First, the magistrate judge finds Defendant Booth is entitled to summary judgment on both the deliberate indifference claim and on the retaliation claim. Second, the magistrate judge finds Defendant Whalen is entitled to summary judgment on the deliberate indifference claim against him. Third, the magistrate judge recommends Defendant Kelley is entitled to summary judgment on the deliberate indifference claim against him. Fourth, the magistrate judge finds all Defendants are entitled to dismissal of the claims against them for conspiracy and for violating their constitutional oath. Plaintiff has not filed any objection to the report. Accordingly, the magistrate judge's report with regard to these claims is ADOPTED as the court's opinion and the relief recommended in the report is GRANTED.

The magistrate judge recommends denying other portions of Defendants' motion, to which Defendants have objected. Specifically, the magistrate judge recommends denying the deliberate indifference claim against Defendant Koches and against Defendant Rodriguez. Defendants assert five objections to these two recommendations. In the first three objections, Defendants argue the magistrate judge failed to address their exhaustion defense, their sovereign immunity defense, and their qualified immunity defense. Defendants then argue the magistrate judge did not place the burden on Plaintiff to show objective evidence of his medical injuries with regard the medical indifference claim against Defendant Koches. Finally, Defendants argue there is no genuine issue of fact with regard to the medical indifference claim against Defendant Rodriguez. The magistrate judge's report accurately summarizes ...


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