United States District Court, E.D. Michigan, Southern Division
PRESENT: Honorable Gerald E. Rosen, United States District
ORDER REJECTING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION, AND RE-REFERRING THE CASE TO THE MAGISTRATE
JUDGE FOR RULING ON THE MERITS THE PENDING MOTIONS
E. Rosen, United States District Judge
matter is presently before the Court on the November 28, 2016
Report and Recommendation of U.S. Magistrate Judge Patricia
T. Morris, recommending that the Court deny Defendants'
Motions for Summary Judgment (Dkt. Nos. 103 and 109) as MOOT,
deny Plaintiff's Motions for Summary Judgment (Dkt. Nos.
112, 127) as MOOT, and deny Plaintiff's Motion to Compel
Discovery (Dkt. No. 122) as MOOT, and that the court enter a
final judgment dismissing Plaintiff's claims, with
prejudice. Plaintiff Martin timely filed Objections to the
R&R, to which Defendant Jerry Makin, M.D., has responded.
reviewed the Magistrate Judge's R&R, Plaintiff's
Objections, Defendant Makin's Response, and the entire
record of this matter, the Court concludes that
Magistrate's Report and Recommendation must be rejected.
Magistrate Judge's recommendation that the Court find the
pending motions to be moot is predicated on an erroneous
reading of the Sixth Circuit Court of Appeals February 2,
2015 Order addressing Plaintiff's appeal of this
Court's order granting the defendants' motions to
revoke his in forma pauperis status, and its remand
of the case to this Court.
briefly summarize the history of this case, Plaintiff is a
prisoner who filed a Section 1983 complaint alleging that the
defendants violated his constitutional rights by forcing him
to take Haldol, an anti-psychotic medication. He applied for
and was granted leave to proceed with his case in forma
pauperis. Thereafter, Defendants moved to revoke
Plaintiff's ifp status pursuant to 28 U.S.C.
§ 1915(g) which provides that a prisoner who has
previously had three or more federal lawsuits dismissed as
frivolous, malicious, or for failure to state a claim upon
which relief can be granted may not again proceed in
forma pauperis (the “three strikes rule”).
Plaintiff admits that he has had three or more federal
lawsuits dismissed pursuant to 28 U.S.C. § 1915(g)
before he filed this lawsuit. However, he argued that the
“imminent danger of physical injury” exception to
the three strikes rule applied in his case.
matter was referred to a Magistrate Judge who recommended
that the Court grant Defendants' motions, revoke
Plaintiff's ifp status, and dismiss his
Complaint, without prejudice. The Court adopted the R&R
and dismissed the case, without prejudice.
appealed that decision to the Sixth Circuit Court of Appeals.
February 2, 2015, the Court of Appeals issued its ruling
finding that this Court erred in declining to apply the
imminent danger exception and accordingly, held that §
1915 did not bar Martin from proceeding ifp in this
action. See CTA Order at Dkt. No. 63. Therefore, the
appellate court vacated this Court's judgment and
remanded the matter “for further proceedings.”
remand, both Plaintiff and Defendants filed a number of
motions. Among these was a a Motion for Temporary Restraining
Order, Preliminary Injunction and Permanent Injunction filed
by the Plaintiff. The Magistrate Judge issued a Report and
Recommendation on January 30, 2016, addressing this motion
and also addressing the claim for injunctive relief raised in
Plaintiff's complaint. The Magistrate Judge recommended
that the Court deny the requested injunctive relief.
See Dkt. No. 93. The Court adopted the R&R on
April 20, 2016. See Dkt. No. 106.
also filed motions for summary judgment. These motions
addressed the merits of Plaintiff's claim that his
“forced” medication amounted to cruel and unusual
punishment in violation of the Eighth Amendment and his claim
of violation of his First Amendment right to free speech.
Plaintiff also moved for summary judgment in his favor.
Responses and reply briefs were filed. On November 28, 2016,
the Magistrate Judge issued an R&R recommending that the
Court find all of these motions to be moot.
Magistrate Judge based her R&R on her reading of the
Sixth Circuit's February 2, 2015 Order and this
Court's Order of April 20, 2016:
[T]he Sixth Circuit, on appeal, found that “the
district court erred by declining to apply the imminent
danger exception, and § 1915 does not bar [Plaintiff]
from proceeding [in forma pauperis] in this action,
” vacated the district court's judgment, and
remanded the matter for further proceedings. The result
of this remand was to reopen this case as to Plaintiff's
requests for preliminary injunctive relief only.
Thereafter, all pretrial matters were referred to the
undersigned Magistrate Judge (Doc. 64). On January 30, 2016,
I issued a Report and Recommendation (Doc. 93), to deny
Plaintiff's motions to appoint expert witness (Doc. 85),
for oral deposition, (Doc. 72), for temporary restraining
order, for preliminary injunction, and for permanent
injunction (Doc. 76), and to dismiss Plaintiff's
complaint (Doc. 1). On April 20, 2016, District Judge
Rosen issued an Order adopting my Report and Recommendation
(Doc. 106), thus denying Plaintiff's motions for a
preliminary injunction, permanent injunction, temporary
restraining order, oral deposition, and appointment of an
expert witness. More recently, Judge Rosen issued an Order