United States District Court, W.D. Michigan, Southern Division
OPINION AND ORDER
T. NEFF United States District Judge
a prisoner civil rights action involving Plaintiff's
Eighth Amendment claims under 42 U.S.C. § 1983 and his
claim under the Americans with Disabilities Act (ADA), 42
U.S.C. § 12101 et seq. Pending before the Court
is Plaintiff's objections (ECF No. 55) to the Magistrate
Judge's Report and Recommendation (R&R, ECF No. 47),
recommending that Defendants' motions for summary
judgment be granted and this matter terminated. In accordance
with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(3),
the Court has performed de novo consideration of those
portions of the Report and Recommendation to which objections
have been made. The Court denies the objections and issues
this Opinion and Order.
September 8, 2016, Defendants moved for summary judgment of
the claims pending against them (Motions, ECF Nos. 19 &
23). Three months later, on December 9, 2016, Plaintiff filed
a Motion to Amend Complaint (ECF No. 31), with a proposed
amended complaint and associated exhibits (ECF No. 32).
Defendants filed responses in opposition to Plaintiff's
Motion to Amend Complaint (ECF Nos. 33-34 & 36), to which
Plaintiff filed a reply with supporting brief (ECF Nos. 41
& 42). The Magistrate Judge denied Plaintiff's Motion
to Amend Complaint, determining that “Plaintiff's
attempt to amend his complaint at this juncture demonstrates
bad faith and an attempt to forestall resolution of
Defendants' motions for summary judgment” (Order,
ECF No. 50 at PageID.490).
January 9, 2017, Plaintiff filed a response and brief in
opposition to both summary judgment motions (ECF Nos. 39
& 40). On January 19, 2017, Plaintiff filed exhibits A
through I as “catch up materials” in support of
his brief in opposition (ECF No. 43). On January 23, 2017,
Defendants filed their respective replies (ECF Nos. 44 &
January 26, 2017, the Magistrate Judge issued a Report and
Recommendation (R&R, ECF No. 47), recommending that both
summary judgment motions be granted and this matter
terminated. Plaintiff subsequently filed his own affidavit
(ECF Nos. 48 [unsigned] & 49 [signed]) and objections to
the Report and Recommendation (ECF No. 55). Defendant Orrison
filed a response to Plaintiff's objections (ECF No. 57).
Eighth Amendment Claims
regard to Plaintiff's Eighth Amendment claim that
Defendants refused his requests for catheters, the Magistrate
Judge examined Defendants' evidence that Plaintiff was
provided with catheters, noted Plaintiff's lack of
evidence to the contrary, and concluded that “[t]he
evidence reveals that Defendants were not deliberately
indifferent to Plaintiff's medical needs” (R&R,
ECF No. 47 at PageID.465).
objection, Plaintiff argues that the Magistrate Judge
“totally ignored the evidentiary proofs plaintiff
submitted” (Pl. Obj., ECF No. 55 at PageID.502-504).
Specifically, Plaintiff references “the evidentiary
proofs plaintiff submitted with his motion and brief in
opposition to defendants' motion for summary
judgment” (id. at PageID.503-504), apparently
his later filed “Exhibits A to I” (ECF No. 43).
Plaintiff opines that while his “Affidavit was filed
after the Magistrate's ruling, the Exhibits are
sufficient to demonstrate a genuine issue of material fact in
dispute” (id. at PageID.504). Plaintiff
identifies exhibits D, E and I as supporting his argument
(id. at PageID.503-504).
Exhibit D is an April 2, 2015 “Inmate Activity”
note indicating (1) that Plaintiff stated during booking that
he “uses a catheter, ” and (2) that
“catheters delivered by family @ 1400 hours”
(Pl.'s Ex. D, ECF No. 43 at PageID.410). Exhibit E is an
affidavit of Jackey Jones, Plaintiff's brother, attesting
that he supplied Plaintiff with catheters from April to
August 2015 “due to Berrien County Jail failing to
supply plaintiff with such” (Pl.'s Ex. E, ECF No.
43 at PageID.412). Exhibit I is an Inmate Purchase Record,
delineating purchases of soap, a legal pad, a washcloth,
deodorant, a comb and various snacks (Pl.'s Ex. I, ECF
No. 43 at PageID.447).
argument that “[t]his evidence indicates that Defendant
Orrison was deliberately indifferent to plaintiff's
serious medical needs” (ECF No. 55 at PageID.504) lacks
merit. As Defendant Orrison points out in response to
Plaintiff's objections, Exhibits D, E and I do not
reference Orrison (ECF No. 57 at PageID.514-515). Further,
these exhibits fail to respond to Defendant Orrison's
specific argument in support of summary judgment that she did
not receive, respond to, or approve prisoner requests to
catheter or catheter supplies (id. at PageID.516).
Last, Plaintiff does not dispute Defendants' evidence
that he was, in fact, provided catheters. Plaintiff's
argument fails to demonstrate any factual or legal error in
the Magistrate Judge's analysis or conclusion that
Defendants are entitled to summary judgment of his Eighth
Amendment catheter claim. A plaintiff cannot simply
“replace conclusory allegations of the complaint . . .
with conclusory allegations of an affidavit.” Lujan
v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888
(1990). “Conclusory allegations, speculation, and
unsubstantiated assertions are not evidence, and, are not
enough to defeat a well-supported motion for summary
judgment.” Ferrari v. Ford Motor Co., 826 F.3d
885, 897-98 (6th Cir. 2016) (quoting Pearce v. Faurecia
Exhaust Sys., Inc., 529 F.App'x 454, 458 (6th Cir.
objections do not address the Magistrate Judge's analysis
or conclusion ...