United States District Court, W.D. Michigan, Southern Division
ORDER APPROVING AND ADOPTING REPORT AND
J. JONKER CHIEF UNITED STATES DISTRICT JUDGE.
matter before the Court is on the Report and Recommendation
from Magistrate Judge Green. The Magistrate recommends that
Judgement be entered against Plaintiff on all his claims.
(ECF No. 36). Plaintiff filed an unsigned Objection (ECF No.
39) and on February 8, 2018, the Court entered a conditional
Order striking Plaintiff's Objection and Sworn Affidavit
unless Plaintiff submitted a signature page. (ECF No. 42).
Plaintiff has timely done so. (ECF No. 43). Accordingly, the
Court has reviewed Magistrate Judge Green's Report and
Recommendation and Plaintiff's Objection to it.
the Federal Rules of Civil Procedure, where, as here, a party
has objected to portions of a Report and Recommendation,
“[t]he district judge . . . as a duty to reject the
magistrate judge's recommendation unless, on de novo
reconsideration, he or she finds it justified.” 12
Wright, Miller & Marcus, Federal Practice and Procedure
§ 3070.2, at 451 (3d ed. 2014). Specifically, the Rules
The district judge must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.
Fed R. Civ. P. 72(b)(3). De novo review in these
circumstances requires at least a review of the evidence
before the Magistrate Judge. Hill v. Duriron Co.,
656 F.2d 1208, 1215 (6th Cir. 1981). The Court has reviewed
de novo the claims and evidence presented to the Magistrate
Judge; the Report and Recommendation itself; and
Petitioner's Objection. After its review, the Court finds
that Magistrate Judge Green's Report and Recommendation
is factually sound and legally correct.
Objection contains several individual arguments. None of them
merit relief, though some warrant further discussion than
first argues that the Magistrate failed to consider his
response to the Defendants' first motion for summary
judgment. This assertion is plainly incorrect. The Magistrate
in fact stated that “[a]ll the documents previously
filed by plaintiff . . . are considered herein.” (ECF
No. 36, PageID.179 n.1). This was more than lip service. The
Magistrate clearly dealt with all the arguments that
Plaintiff has advanced.
third and fourth objections will also be overruled. The
Magistrate cited sound case law on the role of verified
complaints and affidavits in summary judgment proceedings.
And though Plaintiff has submitted a nurse's note in his
Objection, the note does not appear to have been in the
record before the Magistrate Judge. Even if there was an
oversight on the part of the Magistrate, the oversight has no
bearing on the resolution of this matter.
sixth objection relates to a First Amendment retaliation
claim. The Magistrate Judge correctly noted that Plaintiff
did not present evidence on which a reasonable trier of fact
could find in his favor, specifically as it relates to the
causation element. The claim itself appears to have been an
afterthought in Plaintiff's Complaint, and none of
Plaintiff's subsequent filings up to his Objection
expands upon the claim in any detail. Furthermore nothing in
Plaintiff's argument here would allow a reasonable trier
of fact to find in Plaintiff's favor on the causation
element. Accordingly this objection is also overruled.
remaining arguments in Plaintiff's Objection all have to
do with Plaintiff's Eighth Amendment claim and all raise
the question, to some degree, of whether the factual findings
made by the hearing officer should have preclusive effect. As
the Magistrate Judge noted, this is a question which the
Sixth Circuit has recently addressed. In Peterson v.
Johnson, 714 F.3d 905 (6th Cir. 2013), the Sixth Circuit
held that under certain circumstances a court must afford
preclusive effect to the factual findings made in a prison
disciplinary proceedings. Id. ay 911-18. However,
such preclusive treatment is not merely accorded as a matter
of course. In Roberson v. Torres, 770 F.3d 398 (6th
Cir. 2014), the Sixth Circuit underscored this point:
To the extent that Torres argues that, in light of
Peterson, any factual findings by a hearing officer
in a major-misconduct hearing in a Michigan prison are to be
accorded preclusive effect, we reject such a reading of
Peterson as overbroad. Peterson is not a
blanket blessing on every factual finding in a
major-misconduct hearing. Although the language of our
opinion in Peterson is at times categorical, our
decision to accord preclusive effect to particular findings
from Peterson's prison hearing necessarily turned, at
least in part, on the particular circumstances of
Id. at 404.
Torres, in order to obtain preclusive effect of the
factual findings made by a state agency, the following
factors must be satisfied: (1) the state agency was acting in
a judicial capacity; (2) the hearing officer resolved a
disputed issue of fact that was properly before him; and (3)
the party to be precluded from re-litigating the fact(s) in
question was afforded an adequate opportunity to litigate the
factual dispute. Id. at 403-04. If these three
factors are satisfied, the ...