United States District Court, E.D. Michigan, Southern Division
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)
V. PARKER U.S. DISTRICT JUDGE.
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.)
five defendants subsequently filed motions to dismiss or for
summary judgment (ECF Nos. 66, 84, 93), which have been fully
briefed.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.)
Judge Morris' R&R
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.)
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.)
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.)
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.
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.)
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).
Objections and Analysis Objection 1
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)).
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 ...