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Cox v. Brewer

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

June 26, 2018

KENNETH COX, Plaintiff,
v.
SHAWN BREWER, et al. Defendants.

         OPINION AND ORDER (1) ADOPTING IN PART AND REJECTING IN PART MAGISTRATE JUDGE'S MARCH 8, 2018 REPORT AND RECOMMENDATION (ECF NO. 104); (2) GRANTING DEFENDANTS' MOTION TO DISMISS (ECF NO. 66) AND DEFENDANT DEREEN'S MOTION FOR SUMMARY JUDGMENT (ECF NO. 93); (3) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF NO. 84); AND DENYING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION AND MOTIONS TO STRIKE REPLY BRIEFS (ECF NOS. 99, 101, 105)

          LINDA V. PARKER U.S. DISTRICT JUDGE.

         Plaintiff, a Michigan Department of Corrections' prisoner, filed this lawsuit under the Americans with Disabilities Act (“ADA”) and 42 U.S.C. § 1983. Plaintiff's § 1983 claims assert infringement of his First Amendment right of access to the courts and deliberate indifference to his serious medical needs in violation of the Eighth Amendment. Defendants fall within two categories: (1) Corizon, Inc. and medical providers employed by Corizon (“Corizon Defendants”); and (2) the State of Michigan, the Michigan Department of Corrections, the Michigan Bureau of Health Care Services, and individuals employed by the State (“State Defendants”). On August 25, 2017, the Court referred this action to Magistrate Judge Patricia T. Morris for all pretrial proceedings, including a hearing and determination of all non-dispositive matters pursuant to 28 U.S.C. § 636(b)(1)(A) and/or a report and recommendation (“R&R”) on all dispositive matters pursuant to 28 U.S.C. § 636(b)(1)(B). (ECF No. 13.)

         All but five defendants subsequently filed motions to dismiss or for summary judgment (ECF Nos. 66, 84, 93), which have been fully briefed.[1]Plaintiff filed a motion for preliminary injunction and motions to strike reply briefs. (ECF Nos. 99, 101, 105.) On March 8, 2018, Magistrate Judge Morris issued an R&R in which she recommends that the Court grant Defendants' dispositive motions, sua sponte dismiss Plaintiffs' claims against the non-moving defendants, and deny as moot Plaintiff's motions. (ECF No. 104.)

         Magistrate Judge Morris' R&R

         Magistrate Judge Morris first concludes in her R&R that Plaintiff fails to state a viable ADA claim against the Corizon defendants because the statute does not impose liability upon individuals or private corporations who provide government services. (Id. at Pg ID 438.) Magistrate Judge Morris later recommends dismissal of Plaintiff's claims against the individual State Defendants for the same reason. (Id. at Pg ID 447.) Magistrate Judge Morris next concludes that Plaintiff's First Amendment right of access to the courts claim against the Corizon Defendants also fails to state a claim upon which relief may be granted. (Id. at Pg ID 440-42.) She reasons that Plaintiff fails to identify with any detail what access to the courts he has been denied as a result of the Corizon Defendants' alleged misconduct. (Id. at Pg ID 441.) Magistrate Morris indicates that the fact Plaintiff currently is litigating this lawsuit undermines the plausibility of any allegation that he is unable to bring a § 1983 claim. (Id.) Relying on the same rationale, Magistrate Judge Morris later recommends dismissal of Plaintiff's First Amendment claim against the State Defendants. (Id. at 448.)

         Turning to Plaintiff's deliberate indifference claim, Magistrate Judge Morris recommends granting the Corizon Defendants' motion to dismiss. (Id. at Pg ID 443-44.) With respect to Corizon, Magistrate Judge Morris finds that Plaintiff does not allege that it maintained a policy, practice, or custom that contributed to the alleged violations of his constitutional rights. (Id.) As to the medical providers employed by Corizon, Magistrate Judge Morris finds that Plaintiff's allegations fail to suggest that they had the requisite subjective knowledge of a danger to him. (Id. at 444.) Similarly, Magistrate Judge Morris finds an absence of facts establishing the State Defendants' subjective knowledge of any danger to Plaintiff that they ignored. (Id. at 449.)

         Magistrate Judge Morris also recommends dismissal of Plaintiff's ADA claims against the State of Michigan, the Michigan Department of Corrections (“MDOC”), and the Bureau of Health Care Services (“BHCS”) (collectively “Public Entity Defendants”). (Id. at 447.) Magistrate Judge Morris finds that Plaintiff received numerous accommodations for his disabling conditions and fails to show, except in conclusory fashion, that discriminatory attitudes toward his disability motivated the decision to not accommodate him. (Id.)

         Magistrate Judge Morris finds the reasons for granting the moving Defendants' motions equally applicable to the non-moving Defendants. She therefore recommends dismissing Plaintiffs' claims against them, as well. (Id. at 450-51.)

         At the conclusion of the R&R, Magistrate Judge Morris advises the parties that they may object to and seek review of the R&R within fourteen days of service upon them. (Id. at Pg ID 451-52.) She further specifically advises the parties that “[f]ailure to file specific objections constitutes a waiver of any further right to appeal.” (Id. at Pg ID 451.) After receiving an extension of time, Plaintiff filed objections to the R&R on May 7, 2018, which are signed and dated April 20, 2018. (ECF No. 115.) The Corizon Defendants filed a response to Plaintiff's objections. (ECF No. 116.)

         Standard of Review

         When objections are filed to a magistrate judge's R&R on a dispositive matter, the Court “make[s] a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). The Court, however, “is not required to articulate all of the reasons it rejects a party's objections.” Thomas v. Halter, 131 F.Supp.2d 942, 944 (E.D. Mich. 2001) (citations omitted). A party's failure to file objections to certain conclusions of the report and recommendation waives any further right to appeal on those issues. See Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Likewise, the failure to object to certain conclusions in the magistrate judge's report releases the Court from its duty to independently review those issues. See Thomas v. Arn, 474 U.S. 140, 149 (1985).

         Plaintiff's Objections and Analysis Objection 1

         Plaintiff first objects to the granting of Corizon's motion to dismiss. However, in this objection, Plaintiff fails to articulate with any specificity how he believe Magistrate Judge Morris erred in analyzing his claims against this defendant. As Magistrate Judge Morris warned in the R&R, “[f]ailure to file specific objections constitutes a waiver of any further right of appeal.” See supra, emphasis added. As the Sixth Circuit has stated: “The filing of vague, general, or conclusory objections does not meet the requirement of specific objections and is tantamount to a complete failure to object.” Fields v. Lapeer 71-A Dist. Court Clerk, 2 Fed.Appx. 381, 482-83 (6th Cir. 2001) (citing Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995)).

         Objection 2

         In his second objection, Plaintiff argues that Magistrate Judge Morris erred in finding that he needed to establish a policy, practice, or custom by Corizon to hold it liable on his § 1983 deliberate indifference claim. Plaintiff is incorrect, however. The Sixth Circuit upheld the dismissal of a prisoner's claims against Corizon in O'Brien v. Michigan Department of Corrections, 592 Fed.Appx. 338, 341 (2014), explaining:

While “a private entity that contracts to perform traditional state functions may …be sued pursuant to § 1983, ” a § 1983 claim cannot be based solely on a theory of respondeat superior. Johnson v. Karnes, 398 F.3d 868, 877 (6th Cir. 2005) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). Rather, an entity may be liable under § 1983 only if its official policies or customs resulted in injury to the plaintiff. Id.

Id. Like the plaintiff in O'Brien, the allegations in Plaintiff's Complaint fail to identify a policy or custom by Corizon ...


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