United States District Court, Western District of Michigan, Southern Division
OPINION AND ORDER
JANET T. NEFF United States District Judge.
More than two years ago, on December 5, 2012, Plaintiff filed this multi-claim prisoner civil rights action pursuant to 42 U.S.C. § 1983 against five Michigan Department of Corrections (MDOC) Defendants, after Plaintiff was allegedly assaulted at the Ionia Correctional Facility (ICF). As a result of this Court’s Order following initial screening, 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c) (3/4/2013 Order, Dkt 17), and this Court’s Order on the motion for summary judgment filed by Defendants Fair, Richardson and Sisson (Dkt 3/20/2014 Order, 69), all claims have been dismissed except Plaintiff’s Eighth Amendment excessive force and First Amendment retaliation claims against Defendant Sisson, who is the only remaining Defendant.
Plaintiff filed a motion in April 2014 seeking summary judgment in his favor (Dkt 83). Defendant filed a motion for summary judgment in August 2014 (Dkt 98). The matter was referred to the Magistrate Judge, who issued a Report and Recommendation on the motions (Dkt 112). The Magistrate Judge recommends that Plaintiff be found to have waived any Eighth Amendment excessive force claim against Defendant and instead to have asserted a state law claim for assault (id. at 7). The Magistrate Judge therefore further recommends either that Defendant Sisson’s motion for summary judgment be granted as to Plaintiff’s assault claim or, in the alternative, that the Court dismiss without prejudice Plaintiff’s assault claim so that he may pursue such in state court (id., citing 28 U.S.C. § 1367(c)(3)). As for Plaintiff’s retaliation claim, because Plaintiff failed to submit admissible evidence contradicting Defendant’s evidence, the Magistrate Judge recommends that Defendant’s motion for summary judgment be granted as to Plaintiff’s retaliation claim (id. at 9).
The matter is presently before the Court on Plaintiff’s objections to the Report and Recommendation (Dkt 114). Though neither clearly delineated nor clearly articulated, Plaintiff’s objections essentially advance six arguments, to wit: (1) the Magistrate Judge erred in finding that Plaintiff waived his Eighth Amendment claim; (2) the Magistrate Judge improperly relied on Plaintiff’s deposition testimony; (3) Plaintiff was improperly denied discovery, preventing him from gathering factual information; (4) the Magistrate Judge improperly recommended Defendant be granted summary judgment, despite the fact that Plaintiff’s claim against Defendant survived initial screening; (5) Defendant is not entitled to summary judgment based on a defense of qualified immunity, and (6) the Magistrate Judge improperly denied Plaintiff’s retaliation claim. In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(3), the Court has performed de novo consideration of those portions of the Report and Recommendation to which objections have been made. The Court denies the objections and issues this Opinion and Order.
1. Plaintiff’s Eighth Amendment Claim
First, Plaintiff contends that the Magistrate Judge erred in finding that Plaintiff waived his Eighth Amendment claim against Defendant. Plaintiff acknowledges that he stated on the record during his deposition that he was not alleging such a claim against Defendant, that he was pursuing an “assault and battery claim, ” but he now claims that he “did not understand the question” asked by defense counsel (Objs, Dkt 114 at 1). This argument fails to identify any error by the Magistrate Judge, who noted that Plaintiff was asked multiple times during his deposition about his Eighth Amendment claim against Defendant, and Plaintiff answered in the negative on each occasion (R&R, Dkt 112 at 5, citing Df.’s Sum. J. Br., Dkt 99, Ex. A at 7).
Furthermore, the Court observes that at the outset of Plaintiff’s deposition, defense counsel advised Plaintiff, “[i]f you don’t understand a question that I’ve asked, I would like you to indicate to me that you don’t understand the question . . . .” (Df.’s Sum. J. Br., Dkt 99, Ex. A at 3), which Plaintiff agreed to do. At no time did Plaintiff express any misunderstanding when asked about his Eighth Amendment claim. Indeed, when directly asked whether Plaintiff had “an active 8th Amendment claim against Officer Sisson, ” he replied, “Not at the moment, no” (id. at 7). In short, Plaintiff’s position that he did not waive his Eighth Amendment claim because he misunderstood the deposition questions is untenable.
Nonetheless, Plaintiff asserts that he should “still be allow[ed] to remain with my original complaint, ” which he contends states an Eighth Amendment claim (Objs., Dkt 114 at 2). Plaintiff cites no authority for his position that he should be allowed, at this late date, to “remain with” the federal claim that he waived at his deposition. In contrast, the Magistrate Judge determined that a plaintiff can waive a claim in a deposition (R&R, Dkt 112 at 5, citing Smith v. Merline, 797 F.Supp.2d 488, 501 n.7 (D. N.J. 2011), and Bennett v. Gates, No. 1:09-CV-00647-TWP, 2010 WL 4668367, at *5 (S.D. Ind. Nov. 9, 2010)). Plaintiff’s objection to the result fails to demonstrate any factual or legal error in the Magistrate Judge’s reasoning or conclusion that he waived his federal claim.
2. Plaintiff’s Deposition
Next, Plaintiff argues in the alternative that it was error for the Magistrate Judge to rely on his deposition testimony because he was “supposed to have the [court] reporter in the room with me which that did not happen . . . .” (Objs., Dkt 114 at 2, 12). Plaintiff claims the court reporter’s physical absence at his location violates an unspecified federal rule, and therefore the deposition should not be used as evidence (id. at 2).
Plaintiff’s argument lacks merit.
Plaintiff’s Exhibit J indicates that the court reporter was with defense counsel in Lansing during Plaintiff’s deposition, and that Plaintiff’s deposition was taken remotely, via video conference from the prison (Dkt 114-1 at 14). Under the applicable federal rule, Fed R. Civ. P. 30, depositions may be taken by telephone and by other remote electronic means. If Plaintiff disagreed with being deposed remotely, then the time to raise such objection was either before or at the deposition, not several months after the deposition concluded. Therefore, Plaintiff has not demonstrated that the Magistrate Judge improperly relied on Plaintiff’s deposition testimony.
Plaintiff asserts multiple times throughout his objections that the Magistrate Judge refused him discovery, which ultimately prevented Plaintiff from gathering facts necessary to defeat Defendant’s ...