United States District Court, E.D. Michigan, Southern Division
K. Majzoub U.S. Magistrate Judge.
ADOPTING REPORT AND RECOMMENDATION ; DENYING
PLAINTIFF'S MOTION FOR VOLUNTARY
DISMISSAL ; GRANTING IN PART DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT ; DENYING AS MOOT
DEFENDANT'S EX PARTE MOTION TO FILE
EXHIBIT IN TRADITIONAL MANNER 
J. Tarnow Senior United States District Judge.
filed a pro se complaint on May 4, 2015, pursuant to
42 U.S.C. §1983, alleging that Defendants Village of
Beverly Hills Department of Public Safety
(“BHDPS”) and Lieutenant Michael Vargas violated
his Fourth, Sixth and Eighth Amendment rights . Defendants
filed a Motion for Summary Judgment on August 1, 2016 .
Plaintiff filed a Motion for Voluntary Dismissal  on
October 31, 2016, requesting that the case be dismissed
without prejudice because he was unable to answer the motion
by the Court's deadline due to a lack of resources to
obtain necessary affidavits to defend his case. Defendants
responded on November 9, 2016 . The Magistrate Judge
issued a report and recommendation on January 20, 2017 ,
recommending that the Court grant Defendants' Motion for
Summary Judgment in part, dismissing all of Plaintiff's
claims with prejudice and denying Defendants' request for
costs and attorney fees, and deny Plaintiff's Motion for
Voluntary Dismissal. Plaintiff filed objections to this
Report and Recommendation on February 17, 2017 .
Defendant filed a response and an Ex Parte Motion to File
Exhibit in Traditional Manner . For the reasons stated
below, Defendant's Ex Parte Motion to File Exhibit in
Traditional Manner  is DENIED as moot. The Court ADOPTS
the Report and Recommendation . Plaintiff's Motion
for Voluntary Dismissal  is DENIED. Defendants'
Motion for Summary Judgment  is GRANTED in part, granted
in dismissing all of Plaintiff's claims against named
Defendants with prejudice and denied as to Defendants'
request for attorney fees and costs.
Magistrate Judge summarized the factual background of the
complaint as follows:
Plaintiff is currently incarcerated at the Marquette Branch
Prison in Marquette, Michigan as a result of a conviction on
two charges of Aggravated Stalking related to the arrests
described in the instant Complaint. (Docket no. 29 at 12; see
Mich. Dep't of Corr. Offender Tracking Info. Sys.
(OTIS).2) In the Complaint, Plaintiff alleges that he was
arrested and detained in a holding cell at the Village of
Beverly Hills Department of Public Safety (BHDPS) from
November 23, 2013, to November 25, 2013. (Docket no. 1 ¶
9.) He alleges that throughout his detention, he was denied
food and the medication that he takes for his psychological
condition. (Id. ¶ 10.) Plaintiff claims that
the deprivation described above constituted cruel and unusual
punishment in violation of his Eighth Amendment rights.
(Id.) According to Plaintiff, when he asked
Defendant Vargas for something to eat, Defendant Vargas
mocked him and made fun of him by saying, “You're
too fat as it is, you don't need to eat.”
(Id. ¶ 11.) Plaintiff claims that on November
24, 2013, he called his mother and his attorney, Jean Hansen,
and told them that he had not been given his medication or
anything to eat and informed them of Defendant Vargas's
response to his request for food. (Id. ¶ 12.)
Plaintiff states that he did not eat until late in the
evening on November 24, 2013, when Ms. Hansen brought him a
sandwich and French fries. (Id. ¶ 13.)
Plaintiff also asserts that his other attorney, Joyce
Rosenthal, contacted the BHDPS on November 25, 2013 to
inquire into Plaintiff's status, but Defendant Vargas
hung up on her. (Id. ¶ 14.)
Plaintiff alleges that he was arrested again on Friday,
November 29, 2013, and was detained in a holding cell at the
BHDPS for the entire weekend. (Id. ¶ 15.)
According to Plaintiff, he was fed only one granola bar
throughout the detention, was deprived of his medication, and
was again mocked by Defendant Vargas for being fat.
(Id. ¶ 16.) Plaintiff avers that he was
arraigned on November 30, 2013, for which his attorney, Jean
Hansen, was present and voiced concern over Plaintiff not
receiving his medication. (Id. ¶ 17.) Plaintiff
alleges that in response to Ms. Hansen's concerns,
Defendant Vargas stated, that Plaintiff would be transported
to the county jail shortly, which has a medical facility.
(Id.; docket no. 29-8 at 15.)
Plaintiff also alleges that he was not transported to the
county jail for more than 48 hours and reiterates that he was
deprived of his medication and given only one granola bar
during the entire detention. (Id.) Plaintiff further
alleges that his attorney arrived at the BHDPS before the
arraignment and asked to meet with Plaintiff, but her request
was denied by Defendant Vargas, who allegedly said, “We
have nowhere for you to meet him, you'll have to speak
with him through the cell door slot, and watch what you talk
about as the whole area is being recorded, and I'll be
listening to it later.” (Id. ¶ 18.)
Plaintiff claims that Defendant Vargas's behavior in this
regard infringed upon his Sixth Amendment right to counsel.
Plaintiff also alleges that the Village of Beverly Hills
Department of Public Safety is not equipped to house
detainees for any extended period of time and that detainees
are instead housed in the neighboring City of Birmingham.
(Id. ¶ 20.) Plaintiff alleges that such was the
practice and procedure in effect during both of his
detentions, during which he was subjected to cruel and
unusual punishment and deprived of his Sixth Amendment
Plaintiff makes several other allegations in the Complaint,
most of which are seemingly unrelated to the two periods of
detention discussed above. For example, Plaintiff alleges
that in February of 2014, he arrived at the BHDPS with an
envelope from his attorney that contained privileged
information. (Id. ¶ 19.) Plaintiff asserts that
the envelope was taken from him and was not returned until
October of 2014. (Id.) Plaintiff also alleges that
in August of 2014, his attorney, Ms. Rosenthol, attempted to
contact the BHDPS to pick up papers requested through the
Freedom of Information Act (FOIA), but she was hung up on.
(Id. ¶ 21.) According to Plaintiff, when Ms.
Rosenthol went to the BHDPS in person to pick up the
requested paperwork, Defendant Vargas threw the paperwork at
her. (Id.) Plaintiff claims that he discovered upon
reading the contents of that paperwork that he had been left
completely alone while he was detained in the holding cell at
the BHDPS while the officers went on a fire run, which he
claims subjected him to a potential medical and/or fire
emergency. (Id. ¶ 22.) Lastly, Plaintiff
alleges that in July of 2014, he learned that a GPS tracking
device was attached to one of his work vehicles.
(Id. ¶ 23.) Plaintiff claims that he then hired
a private investigator, who determined through the
longitudinal and latitudinal coordinates that the device was
activated at the BHDPS. (Id.) Plaintiff claims that
the use of the device violated his Fourth Amendment rights
because neither he nor his attorney was aware of any warrant
authorizing the device. (Id.)
[37 at 2-4].
Court reviews objections to an R&R on a dispositive
motion de novo. See 28 U.S.C. § 636(b)(1)(c).
Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of
law.” Fed.R.Civ.P. 56(c). The moving party has the
burden of establishing that there are no genuine issues of
material fact, which may be accomplished by demonstrating
that the nonmoving party lacks evidence to support an
essential element of its case. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The Court must
construe the evidence, and all reasonable inferences drawn
therefrom, in the light most favorable to the nonmoving
party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio