United States District Court, W.D. Michigan, Southern Division
Lonnie L. Parker, Jr., # 200008, Plaintiff,
Simon Vasquez, et al., Defendants.
Honorable Robert J. Jonker Judge.
REPORT AND RECOMMENDATION
PHILLIP J. GREEN UNITED STATES MAGISTRATE JUDGE
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.
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).
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. (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,
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
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.
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).
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,
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,
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).
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. (Compl. ¶¶ 31, 34, PageID.10).
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