United States District Court, W.D. Michigan, Southern Division
OPINION AND ORDER
T. NEFF UNITED STATES DISTRICT JUDGE
a prisoner civil rights action filed pursuant to 42 U.S.C.
§ 1983. Defendants filed a motion for summary judgment
pursuant to Fed.R.Civ.P. 56(a). The matter was referred to
the Magistrate Judge, who issued a Report and Recommendation
(R&R, ECF No. 60), recommending that the motion be granted.
The matter is presently before the Court on Plaintiff's
objections to the Report and Recommendation (Pl. Obj., ECF
No. 61). 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.
expressly states six objections to the Magistrate Judge's
Report and Recommendation, which the Court will address in
First Objection. Plaintiff's first objection
concerns the Magistrate Judge's analysis of his
retaliation claim against Defendant Hamel for removing legal
documents from his mail. The Magistrate Judge found that
Plaintiff satisfied the first element of his claim-protected
conduct-because Plaintiff was engaged in the filing of a
civil lawsuit (R&R, ECF No. 60 at PageID.555). Regarding the
second element of his claim-adverse action, Plaintiff alleged
that Defendant Hamel took an adverse action against him by
intentionally removing a “declaration” from
Plaintiff's legal mail in an unrelated case (Pl. Compl.
¶ 111, ECF No. 1 at PageID.19). The Magistrate Judge
determined that Plaintiff's assertion of an adverse
action was not supported by the record, which indicated that
the Court received the documents listed on the authorization
form signed by Plaintiff, including a
“declaration” (R&R, ECF No. 60 at PageID.556).
Plaintiff objects to the Magistrate Judge's
determination, arguing that the declaration that Hamel
removed was not merely the exhibit verification that
“declares under the penalty of perjury, ” but a
“declaration …to add more arguments and facts to
the matter” (Pl. Obj., ECF No. 61 at PageID.567).
Indeed, Plaintiff opines that the Magistrate Judge improperly
“took it upon himself to determine the facts”
objection lacks merit. As set forth in the Report and
Recommendation, the Magistrate Judge's task in reviewing
Defendants' motion was to specifically determine whether
the record contained sufficient evidence on which a jury
could reasonably find for Plaintiff on his retaliation claim
against Defendant Hamel (R&R, ECF No. 60 at PageID.554). Not
only does Plaintiff's objection fail to demonstrate any
factual error by the Magistrate Judge, but his objection also
fails to demonstrate that the Magistrate Judge committed any
legal error. Plaintiff's objection is properly denied.
Second Objection. Plaintiff's second objection also
concerns the Magistrate Judge's retaliation analysis.
Plaintiff objects to the Magistrate Judge's determination
that Plaintiff had not established the third element of his
claim-a causal connection. Plaintiff alleged that a causal
connection existed between his protected conduct and the
purported adverse action based on a November 2, 2015
conversation he had with Defendant Hamel about his legal mail
(Pl. Compl. ¶ 122, ECF No. 1 at PageID.21); however,
after Defendant Hamel produced evidence that he did not work
on November 2, 2015, Plaintiff contended that he had relied
on the wrong date. The Magistrate Judge declined to adopt a
set of facts that is “blatantly contradicted by the
record” and determined that no reasonable juror could
find a causal connection on the basis of the conversation
(R&R, ECF No. 60 at PageID.557). Plaintiff opines that the
Magistrate Judge “ignored my evidence” and
“misquoted what my evidence had stated” (Pl.
Obj., ECF No. 61 at PageID.569).
objection lacks merit. As delineated in the Report and
Recommendation, the record contains several instances where
Plaintiff declared under penalty of perjury that his
purported conversation with Hamel occurred on November 2,
2015 (R&R, ECF No. 60 at PageID.557). That Plaintiff now
believes he was mistaken about the date and disputes the
Magistrate Judge's characterization of one of
Plaintiff's reiterations of the incident, does not serve
to demonstrate any error in the Magistrate Judge's
causal-connection determination, let alone the Magistrate
Judge's ultimate conclusion that the record supports
neither the second nor third elements of Plaintiff's
retaliation claim against Defendant Hamel. Plaintiff's
objection is properly denied.
Third Objection. Plaintiff's third objection
concerns the Magistrate Judge's analysis of his
interference-with-access-to-courts claim against Defendants
Perttu and Loop for refusing to send out his legal mail,
which consisted of motion papers seeking injunctive relief.
The Magistrate Judge determined that because Plaintiff's
legal mail was not being filed in any pending case nor to
initiate a case, Plaintiff had not identified an actual
injury that resulted from Defendants' alleged refusal
(R&R, ECF No. 60 at PageID.558). In his objection, Plaintiff
asserts that in reaching this determination, the Magistrate
Judge “failed to acknowledge” that “none of
the people” in the cases upon which the Magistrate
Judge relied “had filed a civil rights actions to any
of their claims that were stated in their preliminary
injunction” (Pl. Obj., ECF No. 61 at PageID.570).
objection lacks merit. The Magistrate Judge accurately cited
three cases that stand for the proposition that absent a
properly filed complaint, a court lacks power to issue
injunctive relief (R&R, ECF No. 60 at PageID.559, citing
Powell v. Rios, 241 F. App'x 500, 505 (10th Cir.
2007); Gardner v. McQueen, No. 2:16-cv-13790, 2017
WL 131553, at *2 (E.D. Mich. Jan. 13, 2017); Albright v.
ISIS, No. 15-cv-10671, 2015 WL 12699371, at *1 (E.D.
Mich. Mar. 25, 2015)). In the other two cases upon which the
Magistrate Judge relied, the party seeking injunctive relief
had either initiated a case or filed motion papers in a
pending case (id., citing Univ. of Texas v.
Camenisch, 451 U.S. 390, 391 (1981) (the plaintiff
requested injunctive relief as part of the relief requested
in his complaint); Colvin v. Caruso, 605 F.3d 282,
288 (6th Cir. 2010) (the plaintiff requested injunctive
relief as part of the relief requested in his complaint and
subsequently filed a motion for a preliminary injunction in
his pending case)). Therefore, the objection is properly
Fourth Objection. Next, with regard to his retaliation
and Eighth Amendment claims against Defendant Perttu,
Plaintiff asserts that the Magistrate Judge again
“ignored my facts and evidence [regarding cell
shakedowns] and had believed the Defendants [sic] facts and
evidence” (Pl. Obj., ECF No. 61 at PageID.672).
Plaintiff's objection lacks merit. The Magistrate Judge
did not “ignore” Plaintiff's evidence but
specifically determined that the evidence was insufficient to
prove an adverse action where “Plaintiff offered no
evidence to establish when the shakedowns occurred, how many
times they occurred, or how they differed in any way from
routine shakedowns in the prison facility” (R&R, ECF
No. 60 at PageID.562-563). This objection is properly denied.
Fifth Objection. Next, Plaintiff objects to the
Magistrate Judge's recommendation that his claim against
Defendant Olson for supervisory liability should be
dismissed. Plaintiff argues that the Magistrate Judge's
determination “makes no sense whatsoever” (Pl
Obj., ECF No. 61 at PageID.672). However, the Magistrate
Judge properly concluded that “Defendant Olsen could
not have ‘implicitly authorized, approved or knowingly
acquiesced' in the unconstitutional conduct because, as
discussed above, there were no constitutional
violations” (R&R, ECF No. 60 at PageID.563). This
objection is properly denied as well.
Sixth Objection. Last, Plaintiff “objects to the
Magistrate Judge's recommendation that the Defendant be
entitled to qualified immunity” and opines that
“it is clear that the Defendants had violated clearly
established rights” (Pl. Obj., ECF No. 61 at
PageID.573). However, where the Magistrate Judge agreed with
Defendants that the record supported no underlying
constitutional violations, the Magistrate Judge therefore
also properly determined that qualified immunity was
warranted (R&R, ECF No. 60 at Page ID.564). Plaintiff's
sixth objection is denied.
determined that Plaintiff's objections lack merit, this
Court adopts the Magistrate Judge's Report and
Recommendation as the Opinion of this Court, including the
Magistrate Judge's recommendation to decline to exercise
supplemental jurisdiction over Plaintiff's state-law
claims (R&R, ECF No. 60 at Page ID.554-555, 564). Because
this Opinion and Order resolves all pending claims in this
matter, a corresponding Judgment will also enter.
See Fed. R. Civ. P. 58. Last, because this action
was filed in forma pauperis, this Court certifies pursuant to
28 U.S.C. § 1915(a)(3) that an appeal of this decision
would not be taken in good faith. See McGore v.
Wrigglesworth, 114 F.3d 601, 610 (6th Cir. 1997),
overruled on other grounds by Jones v. Bock, 549
U.S. 199, 206, 211-12 (2007). Therefore:
IS HEREBY ORDERED that the Objections (ECF No. 61)
are DENIED and the Report and Recommendation of the
Magistrate Judge (ECF No. 60) is ...