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Parker v. Vasquez

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

March 14, 2019

Lonnie L. Parker, Jr., # 200008, Plaintiff,
v.
Simon Vasquez, et al., Defendants.

          Honorable Robert J. Jonker Judge.

          REPORT AND RECOMMENDATION

          PHILLIP J. GREEN UNITED STATES MAGISTRATE JUDGE

         This was a civil rights action brought pro se by a state prisoner under 42 U.S.C. § 1983. The lawsuit arose out of conditions of plaintiff's confinement on December 20, 2015, at the Oaks Correctional Facility. Plaintiff named Food Service Supervisor Simon Vasquez and Corrections Officer Mitchell Gainer as defendants. Plaintiff alleged that defendants retaliated against him in violation of his First Amendment rights. He alleged that Food Service Supervisor Vasquez retaliated against him by recommending that his work assignment be terminated. He alleged that Officer Gainer retaliated against him by filing a misconduct charge against him for disobeying a direct order. Plaintiff alleged that the defendants conspired to have his work assignment terminated.

         On September 26, 2018, the Court overruled plaintiff's objections, approved and adopted a report and recommendation, and entered a judgment in defendants' favor on all plaintiff's claims. (ECF No. 116-17).

         The matter is now before the Court on plaintiff's motion for leave to amend both his complaint and the affidavits that he filed in opposition to defendants' motions for summary judgment.[1] (ECF No. 118). Plaintiff seeks leave to amend these documents to correct mistakes by removing the “information and belief” limitations, and by making clear that his statements were made under penalty of perjury. (Id. at PageID.693-94; ECF No. 119, PageID.699-702).

         This case is closed. (ECF No. 117). No. relief is possible absent plaintiff first obtaining relief from the Court's judgment. See Leisure Caviar, LLC v. United States Fish & Wildlife Service, 616 F.3d 612, 616 (6th Cir. 2010). Plaintiff's motion is considered as a Rule 60(b)(6) motion for relief from judgment because it does not fit within any other category under Rule 60(b). See Fed.R.Civ.P. 60(b). Rule 60(b)(6) “is a ‘catchall provision' providing relief from a final judgment for any reason not otherwise captured in Rule 60(b).” Miller v. Mays, 879 F.3d 691, 698 (6th Cir. 2018). “Rule 60(b)(6) applies only in exceptional or extraordinary circumstances where principles of equity mandate relief[.]” Id. (citations and quotations omitted).

         I recommend that plaintiff's motion for relief from judgment (ECF No. 118) be denied because plaintiff's motion does not present exceptional or extraordinary circumstances where equity principles mandate relief. Further, even assuming that the Court allowed plaintiff to supplement the summary judgment evidence and the Court considered the facts in the expanded record in the light most favorable to plaintiff under Rule 56 standards, defendants would still be entitled to judgment in their favor as a matter of law on all plaintiff's claims.

         Facts

         Plaintiff is an inmate held in the custody of the Michigan Department of Corrections (MDOC). In December 2015, he was an inmate at the Oaks Correctional Facility (ECF). (Compl. ¶ 1, ECF No. 1, PageID.5).

         Food Service Supervisor Simon Vasquez was an employee of Trinity Services Group, Inc., (Trinity) during the period at issue. Trinity was a private company providing food services to ECF inmates pursuant to its contract with the MDOC. (Compl. ¶ 2, PageID.5; Plf. Aff. ¶ 1, ECF No. 96, PageID.570; Vasquez Decl. ¶¶ 1-2, ECF No. 79-2, PageID.334-35).

         Corrections Officer Mitchell Gainer is an MDOC employee. He was regularly assigned to ECF's food service area during the period at issue. His job duties included the safety and security of ECF's food service building, and ensuring that inmate workers reported to their food service detail assignments. (Compl. ¶¶ 3, 7, PageID.5-6; Plf. Aff. ¶ 1, ECF No. 99, PageID.605; Gainer Aff. ¶ 5, ECF No. 83-2, PageID.431).

         On September 1, 2015, plaintiff began working in food service and Mr. Vasquez was his supervisor. Plaintiff states that he studied food service and beverage management at Baker College and that he has an extensive history of food service work. Plaintiff complained to Mr. Vasquez's supervisor that he was committing various health and food safety violations. Plaintiff also complained that corrections officers were being “overserved” with extra food portions. (Compl. ¶¶ 8-46, PageID.6-12).

         In October 2015, plaintiff filed grievances against Food Service Supervisor Vasquez. (ECF No. 97-1, PageID.590-92). Plaintiff states that Mr. Vasquez told corrections officers about his grievance, claiming that officers were being overserved pizza and French fries.[2] (Compl. ¶¶ 31, 34, PageID.10).

         On December 2, 2015, Mr. Vasquez accused plaintiff of overserving cake portions. Plaintiff did not receive any sanctions, but he was moved to another shift to limit his interaction ...


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