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Graham v. Chicowski

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

August 2, 2018

TORRANCE GRAHAM, Plaintiff,
v.
HEATHER CHICOWSKI, WILLER, BOWERMAN, and MICHAEL TROUTEN, Defendants.

          OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE'S APRIL 5, 2018 REPORT AND RECOMMENDATION AND GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF NO. 43)

          LINDA V. PARKER, U.S. DISTRICT JUDGE

         Torrance Graham, Petitioner, is a prisoner currently confined at Chippewa Correctional Facility of the Michigan Department of Corrections (“MDOC”). Petitioner filed a pro se claim under 42 U.S.C. §1983 against multiple MDOC employees (together “Defendants”): (1) Heather Chicowski, supervising nurse; (2) Tyler Willer, correctional officer; (3) Paul Bowerman, sergeant; and (4) Michael Trouten, grievance coordinator, for actions that occurred while Petitioner was confined at Duane L. Waters Health Center (“DLW”) and Saginaw Correctional Facility (“SCF”) in Freeland, Michigan. Petitioner alleges that Defendants violated his First and Fourteenth Amendment rights stemming from unlawful retaliation and a violation of due process.

         This matter has been assigned to Magistrate Judge David. R. Grand for all pretrial proceedings, including a hearing and determination for all non-dispositive matters pursuant to 28 U.S.C. §636(b)(1)(A) and/or report and recommendations on all dispositive matters pursuant to 28 U.S.C. §636(b)(1)(B) .

         I. Background

         On September 7, 2014, Petitioner was transferred to DLW in Jackson, Michigan for intravenous antibiotic treatment. (ECF No. 1 at Pg ID 5.) During his treatment, on September 23, 2014, Petitioner noticed a visible skin burn near the IV site and inquired about the IV extension by questioning one of the treating nurses about the difference of the IV bag that he received earlier that day. (Id.) Although Petitioner claims he asked about the treatment in a peaceful manner, Petitioner alleges Defendant Chicowski entered the room and accused him of being “argumentative.” (Id.) Petitioner alleges that Defendant Chicowski told the nurse in the room to document his refusal to take any medication if Petitioner continues to ask questions. (Id. at Pg ID 6.) As Defendant Chicowski left the room, Petitioner told Defendant Chicowski he was going to file a grievance against her. (Id. at Pg ID 7.)

         After Defendant Chicowski left the room, Petitioner alleges Defendant Willer entered and accused him of being “argumentative” with the nurse. (Id.) Petitioner claims Defendant Willer told him to be quiet, stop asking questions, and that “prisoners don't have rights.” Additionally, Petitioner alleges that Defendant Willer threatened to place him on “red card status.” (Id. at Pg ID 7-8.)

         According to Petitioner, the next morning, September 24, 2014 at around 2:30 a.m., an unidentified officer awoke him and his cellmate, Cliff Disney, and removed Disney from the cell. (Id. at Pg ID 8.) Petitioner alleges the officer informed him that Defendant Bowerman instructed him to place Petitioner on red card status. (Id.) Petitioner states that he did not receive a notice or hearing regarding his placement on “toplock” status per prison procedure and believes this placement was done in retaliation of telling Defendant Chicowski he was going to file a grievance. (Id. at Pg ID 10.) Petitioner claims he filed grievances against Defendants on September 24 and 26, and October 23, 2014. (Id. at Pg ID 11-12.) Also on September 24, 2014, Petitioner had a Class II and III Misconduct Hearing for disobeying a direct order on September 19, 2014. (ECF No. 43-3.) Petitioner was found guilty and sanctioned three days of loss privileges. (Id.)

         On June 17, 2016, Petitioner commenced this pro se action, alleging retaliation by multiple MDOC employees and a violation of due process. (ECF No. 1.) In response to Petitioner's complaint, on September 9, 2016, Defendants filed a motion for summary judgment under Fed.R.Civ.P. 56 (a) for failure to exhaust administrative remedies. (ECF No. 10.) Defendants provided the grievance report, which presented no evidence of Petitioner filing grievances on September 24, 2014 and September 26, 2014. In response, Petitioner argued that Defendants “impeded” his ability to exhaust all administrative remedies. (ECF No. 15.) Subsequently, Petitioner filed a motion for partial summary judgment on his first amendment retaliation claim. (ECF No. 18.) On April 18, 2017, Magistrate Judge Grand issued a Report and Recommendation (“R&R”) recommending the Court deny both motions without prejudice, which this Court adopted on July 20, 2017. (ECF No. 30.)

         On January 26, 2018, Defendants filed a second motion for summary judgment stating: (1) Petitioner failed to establish a prima facie retaliation claim; (2) Petitioner failed to prove which “liberty interest” was at stake with regards to Petitioner's due process claim; and (3) Defendants are protected by qualified immunity. (ECF No. 43 at Pg ID 379.) On April 5, 2018, Magistrate Judge Grand issued an R&R recommending the Court grant Defendants' motion for summary judgment. (ECF No. 46 at Pg ID 614.) With respect to Petitioner's First Amendment retaliation claim, Magistrate Judge Grand concluded that Petitioner failed to demonstrate an adverse action was taken against him. (Id. at 621.) Additionally, Magistrate Judge Grand found that Petitioner failed to establish an “atypical and significant hardship” under Petitioner's Fourteenth Amendment due process claim. (Id. at 627.)

         In response to Magistrate Judge Grand's R&R, Petitioner filed two separate objections, April 23, 2018 and May 3, 2018. (EFC Nos. 49 & 50.) Both objections are substantively identical. In Petitioner's objections, he asserts that Magistrate Judge Grand erred in his findings, and Defendants' motion for summary judgment should be denied.

         II. 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 the 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 R&R 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 R&R releases the court from its duty to review independently those issues. See Thomas v. Arn, 474 U.S. 140, 149 (1985).

         Additionally, only timely objections that are specific are entitled to a de novo review under the statute. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). “A general objection, or one that merely restates the arguments previously presented, does not sufficiently identify alleged errors on the part of the magistrate judge.” VanDiver v. Martin, 304 F.Supp.2d 934, 937 (E.D. Mich. Feb. 12, 2004). (An objection that does nothing more than disagrees with a magistrate judge's determination, “‘without explaining the source of the error,' is not considered a valid objection.”); Howard v. Sec'y of HHS, 932 F.2d 505, 509 (6th Cir. 1991).

         III. ...


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