United States District Court, W.D. Michigan, Southern Division
ORDER APPROVING AND ADOPTING REPORT AND
J. JONKER CHIEF UNITED STATES DISTRICT JUDGE.
Court has reviewed the Magistrate Judge's Report and
Recommendation (ECF No. 53) and Plaintiff's Objection to
the Report and Recommendation (ECF No. 54). Under the Federal
Rules of Civil Procedure, where a party has objected to
portions of a Report and Recommendation, “[t]he
district judge . . . has a duty to reject the magistrate
judge's recommendation unless, on de novo
reconsideration, he or she finds it justified.” 12
Wright, Miller & Marcus, Federal Practice and Procedure
§ 3070.2, at 451 (3d ed. 2014). Specifically, the Rules
The district judge must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.
Civ. P. 72(b). De novo review in these circumstances requires
at least a review of the evidence before the Magistrate
Judge. Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th
Cir. 1981). The Court has reviewed de novo the claims and
evidence presented to the Magistrate Judge, the Report and
Recommendation itself, Plaintiff's Objections to the
Magistrate's Report and Recommendation, and
Defendants' Response to Plaintiff's Objection. After
its review, the Court approves and adopts Magistrate Judge
Kent's Report and Recommendation as amplified in this
Report and Recommendation carefully reviews the record and
examines the relevant law, and recommends that summary
judgment be granted on Counts I, II, III, and IV as to all
the Defendants, that Count V be dismissed under 28 U.S.C.
§ 1367(c)(3), and that this action be terminated (ECF
No. 53, PageID.335). Plaintiff does not object to the
recommendation regarding his claim for conspiracy under 42
U.S.C. § 1985(3) (Count IV), and so the Court accepts
that portion of the Report and Recommendation. Plaintiff
objects to the remaining counts, but the Court agrees with
the Magistrate Judge that summary judgment is appropriate on
those counts. The Court finds the Magistrate Judge's
Report and Recommendation to be well-reasoned and thorough,
and accordingly adopts its conclusion.
complaint arises out of a police encounter on November 4,
2012, that he says included excessive force. He brings claims
for: violation of his substantive due process and equal
protection rights under the Fourteenth Amendment; violation
of his right to be free of use of excessive force under the
Eighth Amendment; civil conspiracy under Section 1985; and
assault and battery under Michigan law (ECF No. 1).
Defendants moved for summary judgment on all of these claims.
The Report and Recommendation recommends that Defendants'
motion be granted because the undisputed facts-as confirmed
by contemporaneous videotape-show no constitutional
violations occurred during the incident at issue, and as a
result, no compelling reason exists to exercise supplemental
jurisdiction over Plaintiff's state law claims.
raises several objections, all of which lack merit. First,
Plaintiff alleges several variations of the argument that the
Magistrate Judge failed to address his inability to watch the
police videos relevant to his claims. The record belies
Plaintiff's claim-the only reason he did not review the
videos is that he failed to obtain the approvals he needed
from MDOC. Under MDOC policy, in order to arrange for
delivery and watch the relevant videos, Plaintiff was
required to obtain approval from the relevant authorities
because MDOC policy does not allow a prisoner to possess dvds
or a dvd player (ECF No. 18-1, 18-2, 18-3, 18-4). Plaintiff
never obtained-or even requested-permission (ECF No. 51,
PageID.314). Plaintiff does not dispute that MDOC policy
prohibits possession of the videos and that he never obtained
MDOC approval-or even requested such approval-from the proper
authorities. The videos have always been available to
Plaintiff; he just failed to make the arrangements to view
them. If he had viewed them, he would have seen what the
Court saw: the tapes belie Plaintiff's claims.
Accordingly, this first objection is overruled.
Plaintiff raises several objections to the merits of the
Magistrate Judge's recommendation. These objections,
however, are all based on arguments that were not presented
to the Magistrate Judge. “[I]ssues raised for the first
time in objections to the magistrate judge's
recommendation are deemed waived.” Marshall v.
Chater, 75 F.3d 1421, 1426-27 (10th Cir. 1996)
(citations omitted); see also Swain v. Comm'r of
Social Security, 379 F. App'x 512, 517-18 (6th Cir.
2010) (“A claim raised for the first time in objections
to a magistrate judge's report is deemed waived.”)
(quotation marks omitted). Accordingly, “[a]bsent
compelling reasons, a party is not allowed to raise at the
district court stage new arguments or issues that were not
presented to the Magistrate Judge.” Pasley v.
Oliver, No. 1:07-cv-583, 2009 WL 4950467, at *1 (W.D.
Mich. Dec. 14, 2009) (citing 28 U.S.C. § 631; Murr
v. United States, 200 F.3d 895, 902 (6th Cir. 2000);
Marshall, 75 F.3d at 1426-27). Because Plaintiff
failed to raise these arguments before the Magistrate Judge,
he has waived these objections.
apart from any procedural waiver, Plaintiff's objections
fail on the merits. The Magistrate Judge found that: (1)
Officer McCarthy had reasonable suspicion to stop Plaintiff;
(2) Officer McCarthy's decision to unholster his gun was
reasonable; (3) Officers Host and Wartz had probable cause to
arrest Plaintiff; (4) the officers did not apply excessive
force to Plaintiff in removing him from his vehicle; and (5)
Plaintiff was not stopped and seized because of his race (ECF
No. 54, PageID.324-332). Plaintiff's objections to these
findings essentially tie in one way or another to the
argument that, because he was stopped and seized at gunpoint
in a parked car by an open restaurant, he must have been
targeted based on his race.
de novo review of the entire record-including the police
videos-the Court finds that the Magistrate Judge's
recommendations on the issues listed above are factually
sound and legally correct. The Magistrate Judge carefully and
thoroughly considered the evidentiary record, the
parties' arguments, and the governing law. The
Magistrate's analysis of these issues is entirely proper.
Nothing in Plaintiff's objections persuades the Court
record evidence establishes that Officer McCarthy stopped
Plaintiff based on a reasonable belief that Plaintiff's
evasive, suspicious movements in a high-crime area in early
morning hours meant that criminal activity was afoot. As
Officer McCarthy pulled into the Chicken Coop parking lot and
was about to pass by Plaintiff's car, he noticed that
Plaintiff avoided direct eye contact with him; turned away
from him in an unusually extreme position; placed his head
“virtually in the lap” of the passenger; and
engaged in movement that appeared to be the jamming of an
item between the car seats (ECF No. 44-3, PageID.267-268).
Based on Plaintiff's behavior and keenly aware of the
premises history of the restaurant-which included “many
instances of violent crimes including assaults, robberies,
and weapons violations, narcotics offenses and intoxicated
persons, destruction of property and crowd control
issues”-Officer McCarthy unholstered his gun as he
approached Plaintiff's vehicle. Id. at
PageID.267-268. Fearing that Plaintiff was engaging in
criminal activity, Officer McCarthy immediately instructed
Plaintiff to place his hands on the steering wheel and keep
them there. Id. at PageID.268. It was only after
Plaintiff moved his hand down between the driver door and his
seat-after repeated instructions by Officer McCarthy to keep
his hands on the steering wheel-that the officers removed
Plaintiff from his car and handcuffed him. In contrast, the
record is devoid of any evidence supporting the inference
that Plaintiff was stopped and seized because of his race.
Accordingly, the Magistrate Judge properly recommended
dismissal of Plaintiff's claims and Plaintiff's
objections are meritless.
Plaintiff objects to the Magistrate Judge's decision not
to engage in a qualified immunity analysis and to dismiss the
state law claims. Plaintiff's argument is without merit.
The Magistrate Judge found that Plaintiff's
constitutional rights had not been violated, meaning there
was no reason to engage in the qualified immunity analysis
and all claims over which this Court had original
jurisdiction would be dismissed. Because the Court agrees
with the Magistrate Judge's opinion, Plaintiff's
objection is overruled.
IT IS ORDERED that the Report and Recommendation of the