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Annabel v. Frost

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

September 20, 2017

Robert Annabel, Plaintiff,
v.
Jack Frost, ET AL., Defendants.

          R. Steven Whalen Magistrate Judge

          ORDER: (1) ADOPTING IN PART REPORT AND RECOMMENDATION [107];(2) OVERRULING PLAINTIFF'S OBJECTIONS TO REPORT AND RECOMMENDATION [114]; (3) DENYING PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION [69]; (4)DENYING PLAINTIFF'S MOTION FOR DISTRICT JUDGE TO ISSUE DIRECTIVE ORDER TO MAGISTRATE JUDGE [91]

          Arthur J. Tarnow Senior United States District Judge

         On December 1, 2016, Plaintiff Robert Annabel filed a Motion for Temporary Restraining Order (“TRO”) [Dkt. #69].[1] On July 25, 2017, the Magistrate Judge filed a Report and Recommendation (“R&R”) [107], recommending that the Court deny Plaintiff's Motion. On August 9, 2017, Plaintiff filed Objections [114] to the Magistrate Judge's R&R.

         On March 16, 2017 Plaintiff filed a Motion for District Judge to Issue Directive Orders to Magistrate Judge [91].

         For the reasons stated below, the July 25, 2017 R&R [107] is ADOPTED in part; Plaintiff's Objections to the R&R [114] are OVERRULED; Plaintiff's Motion for TRO and Preliminary Injunction [69] is DENIED; and Plaintiff's Motion for District Judge to Issue Directive Order to Magistrate Judge [91] is DENIED.

         Factual and Procedural Background

         Plaintiff filed a Complaint [1] on January 17, 2014 and an Amended Complaint [18] on April 8, 2014. In a previous R&R on this case [Dkt. #38], the Magistrate Judge summarized Plaintiff's allegations as follows:

At the time of the alleged incidents giving rise to his complaint, [Plaintiff] was incarcerated at the Gus Harrison Correctional Facility. On July 1, 2013, he asked Assistant Resident Unit Manager Steven Kindinger to post a sign-up sheet for inmates seeking to obtain a position as unit representative to the Warden's Forum. Kindinger told him, “I don't want you as block rep.” Amended Complaint, ¶ IV-1. Because Kindinger had still not posted a sign-up sheet by July 12, 2013, Plaintiff filed a grievance on July 17, 2013. Id. ¶ IV-3. Defendants Eaton and Campbell rejected the grievance, and notified Defendants Kindinger and Frost, a Corrections Officer, that Plaintiff had written a grievance and should be disqualified from a unit representative position. Id. ¶ IV-4-5.
Plaintiff alleges that on July 22, 2013, he opened the tray slot in prisoner McQuitter's cell and delivered a folded t-shirt to McQuitter. Id. ¶ IV-8. Defendant Frost then walked toward Plaintiff and said, “You're in trouble, go lock up.” Id. ¶ IV-9. Frost wrote a Class II misconduct ticket against Plaintiff for disobeying a direct order. Id. ¶ 10. Plaintiff alleges that “Frost would not have written a Class II misconduct for disobeying a direct order if Plaintiff hadn't pressed the issue about a unit representative position with his superiors and then filed a grievance.” Id. ¶ IV-12.
At the misconduct hearing on August 4, 2013, Plaintiff admitted to opening McQuitter's tray slot, but denied that Frost had ever given him a direct order to not pass items to another prisoner. Plaintiff states that Captain McConnell, who conducted the hearing, “falsely claimed in a hearings report that Plaintiff admitted disobeying a direct order.” Id. ¶¶ IV-17-20. He also alleges that in his August 6, 2013 hearings report, McConnell “acknowledged that Plaintiff said the incident could not have occurred at 1620 hours, as stated on the misconduct report and changed the time to ‘approximately 1830 hours'....” Id. ¶ IV-20. Following the misconduct report, Plaintiff, who had won election as unit representative, was removed from that position. Id. ¶¶ IV-19, 21.
Plaintiff brings the following claims:
(1) That all Defendants retaliated against him, in violation of his First Amendment right to file a grievance and “for his exercise of the right to freedom of speech on behalf of himself and other prisoners.”
(2) That Defendant Frost violated substantive due process by issuing a false misconduct charge.
(3) That Defendant McConnell violated procedural due process at the misconduct hearing.
(4) That Defendant Campbell violated due process by upholding McConnell's “false and unsupported findings.”
[Dkt. #38 at 2-3].

         Defendants moved for summary judgment on all claims [28]. In addition, on October 22, 2015, Plaintiff filed his first Motion for TRO and Preliminary Injunction [55], in which he claimed infringement of his right to access the courts because he lacked a sufficient supply of legal paper on which to draft his pleadings.

         On January 22, 2016 the Court entered an Order [59], which, among other things, adopted the Magistrate Judge's R&R; granted Defendants' Motion for Summary Judgment; and denied Plaintiff's first Motion for TRO and Preliminary Injunction.

         On February 10, 2016, Plaintiff filed an Amended Notice of Appeal [61] on the Court's decision to grant summary judgment. On September 21, 2016, the Sixth Circuit reversed in part, vacating the Court's dismissal of the First Amendment retaliation claim, and affirming the dismissal of Plaintiff's procedural and substantive due process claims. Annabel, II v. Frost, No. 15-1518, (6th Cir. Sept. 21, 2016). The only claim remaining in this action is Plaintiff's First Amendment retaliation claim.

         In Plaintiff's current Motion for TRO and Preliminary Injunction [69], he again claims interference with his constitutional right to access the courts. Plaintiff maintains that he has been denied meaningful use of the prison's law library. He further contends that officers at the Gus Harrison Correctional Facility withheld his legal mail, in violation of Michigan Department of Corrections (“MDOC”) policies.

         Plaintiff is now incarcerated at the Ionia Maximum Correctional Facility. On July 28, 2017, Plaintiff filed a Renewed Motion for TRO and Preliminary Injunction [110].[2] In his Renewed Motion [110], Plaintiff repeats the claims asserted in the current Motion ...


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