United States District Court, E.D. Michigan, Northern Division
Patricia T. Morris Magistrate Judge
ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND
RECOMMENDATION, GRANTING MOTION TO DISMISS, DENYING
PLAINTIFF'S MOTIONS, WITHDRAWING ORDER OF REFERENCE,
L. LUDINGTON United States District Judge
Joshua Nelson filed a complaint on February 1, 2016, alleging
that he was mistreated while incarcerated in Macomb
Correctional Facility because he is a gay, Jewish man. ECF
No. 1. He joins as Defendants three employees of the Macomb
Correctional Facility: Lisa Walsh,  Janine LaCroix,
Jon Pavitt. Nelson filed an amended complaint on
February 22, 2016. ECF No. 8. In that complaint, Nelson
brings thirteen claims: Violation of Rape Elimination Act,
Denial of Equal Protection, First Amendment Retaliation,
Denial of Access to Courts, Eighth Amendment Violations,
Violation of Free Exercise Clause, Violation of RLUIPA and
RFRA, Deliberate Indifference, Cruel and Unusual Punishment,
Criminal Negligence, Fraud, Declaratory Relief, and
Injunctive Relief. The case was referred to Magistrate Judge
Elizabeth A. Stafford. ECF No. 13.
April 22, 2016, Defendants LaCroix and Walsh filed a motion
to dismiss. ECF No. 22. Several months later, Nelson filed a
motion for entry of default judgment against Defendant
Pavitt. ECF No. 31. On August 29, 2016, Nelson filed a motion
to amend the first count of his amended complaint. ECF No.
35. Five weeks later, Pavitt filed a motion for summary
judgment. ECF No. 36.
Judge Stafford has issued a report recommending that Walsh
and LaCroix's motion to dismiss be granted and
Nelson's outstanding motions be denied. ECF No. 39.
Nelson has filed five objections to the report and
recommendation. ECF No. 41. For the reasons stated below,
those objections will be overruled and the report and
recommendation will be adopted.
indicates that he does not object to Judge Stafford's
summary of the procedural and factual history of the case.
Accordingly, that summary is adopted and incorporated as if
recounted here in full. For clarity, a brief summary will be
provided. Nelson alleges that because he is gay, Walsh
refused to separate him from a known, violent gang member
with whom Nelson was sharing a cell. According to Nelson, his
cellmate had threatened to sexually abuse him, but prison
employees took no action when informed of the threat. Nelson
asserts that Walsh refused to accommodate his request for a
transfer because she believed that Nelson wanted a homosexual
cellmate. Nelson further argues that Walsh transferred him to
a facility that did not have a kosher-meal program despite
knowing that Nelson is Jewish. He believes this transfer was
retaliation for the grievances he filed against Walsh. Nelson
alleges that Defendant LaCroix denied him access to the
courts because she gave Nelson a financial statement which
misrepresented the amount of funds in his trust account.
Because of that misrepresentation, he was unable to pay a
court filing fee, and his suit was dismissed.
to Federal Rule of Civil Procedure 72, a party may object to
and seek review of a magistrate judge's report and
recommendation. See Fed. R. Civ. P. 72(b)(2).
Objections must be stated with specificity. Thomas v.
Arn, 474 U.S. 140, 151 (1985) (citation omitted). If
objections are made, “[t]he district judge must
determine de novo any part of the magistrate judge's
disposition that has been properly objected to.”
Fed.R.Civ.P. 72(b)(3). De novo review requires at least a
review of the evidence before the magistrate judge; the Court
may not act solely on the basis of a magistrate judge's
report and recommendation. See Hill v. Duriron Co.,
656 F.2d 1208, 1215 (6th Cir. 1981). After reviewing the
evidence, the Court is free to accept, reject, or modify the
findings or recommendations of the magistrate judge. See
Lardie v. Birkett, 221 F.Supp.2d 806, 807 (E.D. Mich.
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). “The parties have the duty to
pinpoint those portions of the magistrate's report that
the district court must specially consider.”
Id. (internal quotation marks and citation omitted).
A general objection, or one that merely restates the
arguments previously presented, does not sufficiently
identify alleged errors on the part of the magistrate judge.
See VanDiver v. Martin, 304 F.Supp.2d 934, 937 (E.D.
Mich. 2004). An “objection” that does nothing
more than disagree with a magistrate judge's
determination, “without explaining the source of the
error, ” is not considered a valid objection.
Howard v. Sec'y of Health and Human Servs., 932
F.2d 505, 509 (6th Cir. 1991). Without specific objections,
“[t]he functions of the district court are effectively
duplicated as both the magistrate and the district court
perform identical tasks. This duplication of time and effort
wastes judicial resources rather than saving them, and runs
contrary to the purposes of the Magistrate's Act.”
has five objections to Judge Stafford's report and
recommendation. First, Nelson objects to Judge Stafford's
articulation of his claims. Second, he asserts that he
exhausted all claims. Third, Nelson challenges the
sufficiency of the affidavits which Walsh and LaCroix
submitted. Fourth, Nelson asserts that LaCroix was personally
involved in the mistreatment he suffered. Fifth, Nelson
argues that the Defendants are not entitled to qualified
first objection, Nelson argues: “The Magistrate
improperly interprets the complaint and amended complaint to
indicate that she was in fact the claim under 42 USC 1985
makes a single reference to make only one allegation.”
Objs. at 1, ECF No. 41. Nelson further clarifies his
objection: Walsh and two non-defendants were engaged in a
conspiracy to transfer Nelson to a facility without a
kosher-meal program in retaliation for the grievances he
careful consideration of Nelson's first objection, the
Court is unable to determine which portion of the report and
recommendation Nelson is challenging. To the extent the first
objection is meant to correct factual misunderstandings made
by Judge Stafford, the Court is unable to find any material
contradictions between the facts as articulated in Judge
Stafford's report and recommendation and the allegations
in the first objection. To the extent Nelson is attempting to
bring a conspiracy claim, that effort is futile because
Nelson has not named or sought leave to name two of the
alleged members of the conspiracy as defendants. To the
extent Nelson is challenging Judge Stafford's resolution
of his claim under the Prison Rape Elimination Act, he does
not dispute ...