United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT & RECOMMENDATION  TO GRANT IN PART AND DENY IN PART DEFENDANT GREEN'S MOTION FOR SUMMARY JUDGMENT  AND TO DISMISS PLAINTIFF'S CLAIMS AGAINST DEFENDANT GREEN PURSUANT TO § 1915 SUA SPONTE
JUDITH E. LEVY, District Judge.
Before the Court is plaintiff's objection to the Magistrate Judge's Report and Recommendation to Grant in Part and Deny in Part Defendant Green's Motion for Summary Judgment and to Dismiss Plaintiff's Claims Against Defendant Green Pursuant to § 1915 Sua Sponte. (Dkt. 73.)
For the reasons set forth below, plaintiff's objections are rejected and the Report and Recommendation is adopted as the findings and conclusions of this Court.
The facts of this case were set out in a clear and accurate fashion in the February 27, 2015 Report and Recommendation that was adopted by this Court on June 4, 2015. (Dkt. 45; Dkt. 59.) Facts relevant to this motion are also set forth in a clear and accurate fashion in the July 29, 2015 Report and Recommendation and are adopted here. (Dkt. 68.)
II. Standard of Review
Before the Court is a dispositive motion to which the plaintiff objects. ( See Dkt. 68; Dkt. 72.) District courts review de novo those portions of a Report and Recommendation to which a specific objection has been made. 28 U.S.C. § 636(b)(1)(C). " De novo review in these circumstances entails at least a review of the evidence that faced the magistrate judge; the Court may not act solely on the basis of a Report and Recommendation." Spooner v. Jackson, 321 F.Supp.2d 867, 869 (E.D. Mich. 2004). But objections to the Report and Recommendation must not be overly general, such as objections that dispute the correctness of the Report and Recommendation but fail to specify findings believed to be in error. Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir. 2006); see also Howard v. Sec'y of HHS, 932 F.2d 505, 509 (6th Cir. 1991). "The objections must be clear enough to enable the district court to discern those issues that are dispositive and contentious." Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995).
Summary judgment is proper where "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 Court may not grant summary judgment if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court "views the evidence, all facts, and any inferences that may be drawn from the facts in the light most favorable to the nonmoving party." Pure Tech Sys., Inc. v. Mt. Hawley Ins. Co., 95 F.Appx. 132, 135 (6th Cir. 2004) (citing Skousen v. Brighton High Sch., 305 F.3d 520, 526 (6th Cir. 2002)).
Plaintiff filed a "Motion to Vacate Defendant Adrian L. Green's Summary Judgment and on the Basis of Quasi-Judicial Immunity, " see (Dkt. 73), which the Court construes as an objection to the Magistrate Judge's Report and Recommendation to Grant in Part and Deny in Part Defendant Green's Motion for Summary Judgment and to Dismiss Plaintiff's Claims Against Defendant Green Pursuant to § 1915 Sua Sponte. ( See Dkt. 68.) A pro se litigant's objection should be liberally construed. See Boswell v. Mayer, 169 F.3d 384, 387 (6th Cir. 1999). But even construing the objection liberally, plaintiff fails to state a proper basis for objecting to the Report and Recommendation.
The Local Rules for the Eastern District of Michigan require that the objecting party "specify the part of the order, proposed findings, recommendations, or report to which a person objects... [and] state the basis for the objection." E.D. Mich. LR 72.1(d)(1). Plaintiff does not do so. He instead argues that "defendants and the U.S. Magistrate Judge Anthony P. Patti did not give proper Notice of this Motion... and that the failure to oppose the motion was due to surprise [sic] and excusable neglect or the fraud or misrepresentation of Defendants." (Dkt. 72 at 1-2.) But the motion that plaintiff refers to is not at issue here. ( See Dkt. 72 at 2 ("Plaintiff was ordered by the U.S. Magistrate Judge Anthony P. Patty to respond to the Defendants' Motion to Stay Discovery by May 20, 2015. The U.S. Magistrate have [sic] not yet issued any decision of the Defendant's [sic] Motion To Stay Discovery not plaintiff's Responsive pleadings believing to give rise to due process regarding a fair hearing or under the fair hearing doctrine.").) Plaintiff also argues that defendant Green generally violated plaintiff's rights to "Disclosure of the evidence, present relevant witnesses and to have assistance of counsel at a fair hearing" at his "preliminary parole violation hearing." (Dkt. 72 at 2.) Although plaintiff has failed to properly object to the Report and Recommendation, the Court has reviewed the issues raised in defendant's Motion for Summary Judgment and agrees with the conclusions reached by the Magistrate Judge.
a. Defendant Green is entitled to summary judgment on the basis of qualified immunity as to plaintiff's claim regarding the failure to provide him an attorney at his parole hearing, but not as to plaintiff's other claims.
Defendant Green did not violate plaintiff's due process rights when defendant did not appoint plaintiff an attorney during the preliminary parole hearing because plaintiff does not have a liberty interest in having an attorney appointed at such a hearing under federal or state law. But summary judgment will not be granted on plaintiff's other claims, because Green fails to address them in his Motion for Summary Judgment. ( See Dkt. 39 at 11.)
To establish that his due process rights were violated, plaintiff must demonstrate that he was deprived of a liberty interest implicated by the United States Constitution or state law. See Hewitt v. Helms, 459 U.S. 460, 466 (1983). This requires that "an individual claiming a protected interest must have a legitimate claim of entitlement to it." Ky. Dep't of Corrs. v. Thompson, 490 U.S. 454, 460 (1989). Under the doctrine of qualified immunity, defendant is protected unless plaintiff can establish that "the violation of a constitutional right has occurred, " and that the "constitutional right at issue was clearly established at the time of defendant's alleged misconduct." Grawey v. Drury, 567 F.3d 302, 309 (6th Cir. 2009); see Pearson v. Callahan, 555 U.S. 223, 231 (2009); Ortega v. U.S. Immigration & Customs Enforcement, 737 F.3d 435, 439 (6th Cir. 2013) (a constitutional right is clearly established if there is "on-point, controlling authority or a robust consensus of cases of persuasive authority'") (quoting Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2084 (2011)); see also Cnty. of Sacramento v. Lewis, 523 U.S. 833, 842 n.5 (1998) (holding that courts analyzing claims of qualified immunity are not required to first determine whether the facts shown by plaintiff ...