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Nelson v. Walsh

United States District Court, E.D. Michigan, Northern Division

March 24, 2017

JOSHUA NELSON, Plaintiff,
v.
LISA A. WALSH, et al Defendant.

          Patricia T. Morris Magistrate Judge

          ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND RECOMMENDATION, GRANTING MOTION TO DISMISS, DENYING PLAINTIFF'S MOTIONS, WITHDRAWING ORDER OF REFERENCE, GRANTING MOTIO

          THOMAS L. LUDINGTON United States District Judge

         Plaintiff 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, [1] Janine LaCroix, [2] and Jon Pavitt.[3] 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.

         On 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.

         Now, 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.

         I.

         Nelson 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.

         II.

         Pursuant 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. 2002).

         Only 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.” Id.

         III.

         Nelson 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 immunity.

         A.

         In his 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 filed.

         After 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 ...


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