United States District Court, E.D. Michigan, Northern Division
FLOYD E. KOHN Plaintiff,
RICHARD PIAZZA, Defendant.
ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND
RECOMMENDATION, GRANTING MOTION FOR SUMMARY JUDGMENT, DENYING
MOTION FOR APPOINTMENT OF COUNSEL, AND DISMISSING
L. LUDINGTON United States District Judge
Floyd E. Kohn, currently incarcerated at the Ionia
Correctional Facility in Ionia, Michigan, filed this pro se
civil rights action pursuant to 42 U.S.C. § 1983 against
numerous defendants on June 20, 2014, in the United States
District Court for the Western District of Michigan. Compl.,
ECF No. 1. On April 20, 2016, having dismissed all other
claims and defendants except for Plaintiff's claims
against Defendant Richard Piazza, a corrections officer at
the Michigan Department of Correction's (MDOC's)
Saginaw Correctional Facility, the United States District
Court for the Western District of Michigan transferred
Plaintiff's case to this Court for proper venue. ECF No.
3. In the Complaint, Plaintiff alleges that while he was
incarcerated at the Saginaw Correctional Facility, Defendant
Piazza violated Plaintiff's Eighth Amendment right to be
free from cruel and unusual punishment while conducting a
pat-down search of Plaintiff. Compl. at 3-4, 6, 14-15.
Piazza filed a Motion for Summary Judgment on October 26,
2016. ECF No. 17. Plaintiff filed a response on November 8,
2016. ECF No. 20. Also before the Court are Plaintiff's
Motion for Application of Counsel and Request for Court
Appointed Lawyer. ECF Nos. 18-19.
Judge Mona K. Majzoub issued a Report and Recommendation on
July 7, 2017, recommending that this Court grant
Defendant's Motion for Summary Judgment, and deny
Plaintiff's Motion for Application of Counsel and Request
for Court Appointed Lawyer. ECF No. 22. Plaintiff filed
Objections on August 8, 2017. ECF No. 23. For the reasons
that follow, the Court will adopt the Report and
Recommendation, grant Defendant's Motion for Summary
Judgment, deny Plaintiff's Motion for Application of
Counsel and Request for Court Appointed Lawyer as moot, and
dismiss the Complaint.
does not object to Judge Majzoub's summary of the factual
allegations contained in the complaint, located at section
II. A. of the Report and Recommendation. ECF No. 22.
Accordingly, that factual summary is incorporated herein by
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.”
primarily objects to Judge Majzoub's Report and
Recommendation on the ground that Defendant's conduct
violated Plaintiff's clearly established constitutional
rights under the Eight Amendment. ECF No. 23 at 1. Plaintiff
asserts no specific error in Judge Majzoub's legal
analysis, nor does the Court find any upon de novo review.
officer violates clearly established law and loses qualified
immunity when, at the time of the challenged conduct,
“the contours of [a] right are sufficiently clear that
every reasonable official would have understood that what he
is doing violates that right. The Supreme Court do[es] not
require a case directly on point . . . but existing precedent
must have placed the statutory or constitutional question
beyond debate.” Kent v. Oakland Cty., 810 F.3d
384, 395 (6th Cir. 2016) (internal citations and quotations
contours of Plaintiff's Eighth Amendment rights in this
context are not sufficiently clear, nor has existing
precedent put the question beyond debate. As explained in
Barhite, there are no factually similar Supreme
Court or Sixth Circuit cases holding that “an
officer's inappropriate touching of an inmate's
genitals during an otherwise lawful pat-down search, which
does not result in physical injury, is an Eighth Amendment
violation.” Barhite v. Sumner, ...