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Cummings v. Klee

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

June 5, 2018

Walter Cummings, Plaintiff,
v.
Paul Klee, et al., Defendants.

          Stephanie Dawkins Davis U.S. Magistrate Judge

         ORDER ADOPTING THE REPORT AND RECOMMENDATION [164]; OVERRULING PLAINTIFF'S OBJECTION [168]; GRANTING PLAINTIFF'S MOTION TO AMEND [126]; AND DENYING PLAINTIFF'S SECOND NOTICE OF RETALIATION, REQUEST FOR PRELIMINARY INJUNCTION, AND MOTION FOR EXTENSION OF TIME TO RESPOND [133]

          Arthur J. Tarnow Senior United States District Judge

         Pro se Plaintiff Walter Cummings, an inmate in the custody of the Michigan Department of Corrections (“MDOC”), has brought claims against various MDOC officials pursuant to 42 U.S.C. § 1983. On February 10, 2016, the Court referred pretrial matters in this case to the Magistrate Judge [Dkt. 46].

         On November 27, 2017, Plaintiff filed a Motion to Amend by Striking Defendant Nicholas Guajardo from the Amended Complaint Without Prejudice [126]. On January 8, 2018, Plaintiff filed a Second Notice of Retaliation, Request for Preliminary Injunction, and Motion for Extension of Time to Respond to Any and All Deadlines [133].

         On April 25, 2018, the Magistrate Judge issued a Report and Recommendation (“R&R”) [164], advising the Court to grant without prejudice Plaintiff's motion to strike Defendant Guajardo and deny Plaintiff's motion for preliminary injunction and for extension of time to respond.

         Plaintiff filed an Objection [168] to the R&R on May 11, 2018. It appears that Plaintiff only objects to the portion of the R&R that denies the motion for preliminary injunction and extension of time to respond.

         For the reasons discussed below, the Court ADOPTS the R&R [164]. Plaintiff's Objection [168] is OVERRULED. Plaintiff's Motion to Amend [126] is GRANTED. Plaintiff's Second Notice of Retaliation, Request for Preliminary Injunction, and Motion for Extension of Time [133] is DENIED.

         Factual Background

         The factual background, for the purposes of this order, [1] is set forth as follows:

In his motion for a preliminary injunction and extension of time to respond to all deadlines, plaintiff details instances of retaliation he has suffered from Librarians Platte and Loomis and Hearing Officer Harris at Carson City Correctional Facility for filing a grievance against Platte. (Dkt. 133, Pg ID 1238-39). According to plaintiff, in retaliation for filing the grievance, Loomis threatened plaintiff and Harris confiscated plaintiff's legal materials after a legal property hearing. (Id. at Pg ID 1239). Plaintiff requests injunctive relief in the form of being allowed to forward his legal documents to this Court to ensure they will be preserved. (Id. at Pg ID 1240). According to plaintiff, there is a reasonable likelihood of success on this claim and he will suffer irreparable injury because he cannot afford an attorney to get back the legal items the above-named individuals confiscated. (Id.). Plaintiff further requests a six-month extension of time to respond to all Court orders or court rule deadlines due to the above-named individuals' actions. (Id.).
In response, defendant Jindal argues that the alleged retaliatory conduct took place at Carson City Correctional Facility, but that Jindal's last contact with plaintiff was at Gus Harrison Correctional Facility before plaintiff was transferred on January 21, 2014. (Dkt. 145, at p. 1-2). Jindal states that she has no personal knowledge of the allegations in plaintiff's motion for preliminary injunction.
The MDOC defendants argue the same in their response. Defendants assert that plaintiff's allegations of retaliatory conduct involve individuals at Carson City, not Gus Harrison, the site of the events detailed in plaintiff's complaint. (Dkt. 147, at p. 2). The defendants assert that they do not have any involvement in the allegations plaintiff makes in his motion. The defendants point out, as does Jindal, that plaintiff was transferred from Gus Harrison in January 2014. None of the named defendants ...

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