United States District Court, W.D. Michigan, Southern Division
ROBERT L. DYKES, Plaintiff,
NANCY MARSHALL, et al., Defendants.
OPINION AND ORDER ADOPTING REPORT AND
J. QUIST UNITED STATES DISTRICT JUDGE
Robert Dykes, is currently incarcerated by the Michigan
Department of Corrections. This case arises out of the
termination of Plaintiff's prison work assignment with
the prison food services. Plaintiff alleges that (1)
Defendant Marshall discriminated against him in violation of
the Equal Protection clause; and (2) Defendants Marshall and
Jones retaliated against Plaintiff in violation of the First
Amendment by terminating his employment with food services
and classifying him as unemployable after Jones found a note
from Plaintiff that purportedly demanded payment from another
inmate for legal services performed by Plaintiff. Defendants
Marshall and Jones moved for summary judgment, arguing that
they were entitled to judgment as a matter of law and
qualified immunity. (ECF No. 73.)
21, 2017, Magistrate Judge Ray Kent issued a Report and
Recommendation (R&R) recommending that the Court grant
Defendants' motion as to the equal protection claim and
the retaliation claim against Defendant Jones, and deny
Defendants' motion as to Plaintiff's retaliation
claim against Defendant Marshall. (ECF No. 83.) Plaintiff
timely objected. (ECF No. 85.) Upon receiving objections to a
R&R, the district judge “shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1). After conducting a
de novo review of the R&R, Plaintiff's objections,
and the pertinent portions of the record, the Court concludes
that the R&R should be adopted.
of Deadline to File Dispositive Motions
first objects to Magistrate Judge Kent granting
Defendants' request to extend a deadline for filing
dispositive motions. (ECF No. 85 at PageID.720.) Judge Kent
entered an order granting an extension on November 1, 2016.
(ECF No. 68.) Under Rule 72, Plaintiff had 14 days from the
date of service to file objections to that order.
Fed.R.Civ.P. 72(a). Plaintiff's objection is, itself,
untimely. The extension was properly granted in any event.
Rule 6(b) authorizes the Court to extend deadlines “for
good cause.” Fed.R.Civ.P. 6(b)(1)(A). Defendants'
brief in support demonstrates good cause. (ECF No. 65.) This
objection is overruled.
Magistrate Judge recommended that the Court grant
Defendants' motion on Plaintiff's equal protection
claims because Plaintiff failed to identify
similarly-situated white inmates that were treated
differently. (ECF No. 83 at PageID.712.) In his complaint,
Plaintiff identified a number of white prisoners who were
terminated from the food services department for various
reasons but who were not issued a misconduct or classified as
Prisoners Edgley and Hibdon were both taken to segregation
from their food service job assignements
[sic]…Prisoner Duranso was accuse [sic] of assaulting
a female food service supervisor…[and] Prisoners Moore
and Fox were accused of being over familiar with a food
service female supervisor….
(ECF No. 1 at PageID.23-24.) The R&R based its conclusion
on the fact that no prisoner described above was terminated
for the same reason for which Plaintiff was purportedly
terminated: for having attempted to obtain payment from
another prisoner for legal work. (ECF No. 83 at PageID.709-10
(citing ECF No. 75, PageID.634).)
objects on a number of grounds. First, Plaintiff argues that
Defendants' grounds for termination was fabricated, and
that they have not otherwise produced evidence to support a
finding that Plaintiff was terminated because of the alleged
extortion. (ECF No. 85 at PageID.721-23.) Plaintiff's
theory of this case is that he was terminated because he
wrote a grievance against Defendant North on May 13, 2014.
Even assuming that Plaintiff's accusation of fabrication
is correct, he has still failed to show that the white
prisoners were similarly-situated inasmuch as the identified
white prisoners were not terminated in retaliation for
writing grievances. This objection is overruled.
Plaintiff objects that the R&R failed to address a
related, but separate, equal protection claim based on
Defendant Marshall's refusal to reclassify Plaintiff.
(ECF No. 85 at PageID.724.) This objection is overruled for
the same reason as the previous objection: Plaintiff has
failed to identify similarly-situated inmates who were
also objects that the R&R “failed to analyze the
Plaintiff's claim under the theory that the Plaintiff was
treated differently as a ‘class of one' without a
rational basis.” (Id.) Plaintiff did not raise
a class-of-one argument in response to Defendants' motion
for summary judgment. (ECF No. 78.) This objection has been
waived. Becker v. Clermont Cty. Prosecutor, 450 F.
App'x 438, 439 (6th Cir. 2011) (citing Murr v. United
States, 200 F.3d 895, 902-03 n.1 (6th Cir. 2000)).
R&R recommended that the Court grant all of the
Defendants' motion for qualified immunity on the equal
protection claims and on the First Amendment retaliation
claim against Defendant Jones. (ECF No. 83 at PageID.717.)
Plaintiff objects, simply arguing that “the defendants
are being sued in their official and personal capacities[,
and] the defendants were fully aware of the constitutional
law violations. (ECF No. 85 at PageID.724.) “[A]
general objection to a magistrate's report, which fails
to specify the issues of contention, does not satisfy the
requirement that an objection be filed. The objections must
be clear enough to enable the district court to discern those
issues that are dispositive and contentious.”
Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995).
“In general, ‘the failure to file specific
objections to a magistrate's report constitutes a waiver
of those objections.'” Carter v. Mitchell,
829 F.3d 455, 472 (6th Cir. 2016), cert. denied ...