United States District Court, W.D. Michigan, Southern Division
Honorable Paul L. Maloney
REPORT AND RECOMMENDATION
PHILLIP J. GREEN United States Magistrate Judge.
a civil rights action brought pro se by a state
prisoner pursuant to 42 U.S.C. § 1983.
Plaintiffs complaint arises out of conditions of his
confinement at the Richard A. Handlon Correctional Facility.
The defendants are Assistant Resident Unit Supervisor (ARUS)
Robert Woldhuis and Counselor Bradley Rozen. Plaintiff
alleges that ARUS Woldhuis violated his First and Eighth
Amendment rights by placing prisoner Chad Bryant in his cell.
He alleges that Counselor Rozen violated his First and Eighth
Amendment rights by placing prisoner Conus Russell in his
matter is before the Court on plaintiffs motion for rehearing
(ECF No. 101), his motion for a default judgment (ECF No.
103), and his motion for summary judgment (ECF No. 110).
Defendants oppose the motions. (See ECF No. 107,
112). Plaintiff filed a reply brief in support of his motion
for a default judgment. (ECF No. 111). For the reasons set
forth herein, I recommend that plaintiffs motions be denied.
Motion for Rehearing Plaintiff filed this lawsuit in the
United States District Court for the Eastern District of
Michigan. On July 12, 2017, Judge Denise Page Hood completed
screening of plaintiff's amended complaint. She dismissed
all plaintiff's claims attacking his sentence and she did
not order service of plaintiff's amended complaint
against Warden Burton. (Op. & Order, 4-5, 9, ECF No. 47,
31, 2018, Magistrate Judge Steven Whalen entered an Order
granting Defendants motion to transfer the matter to the
Western District of Michigan and directing the Clerk's
Office to transfer the file. (ECF No. 85, PageID.477; ECF No.
January 8, 2019, I entered a report and recommendation,
recommending that the Court grant defendants' motion for
partial summary judgment, and dismiss all plaintiff's
claims, other than his claims against ARUS Woldhuis stemming
from housing him with prisoner Chad Bryant and against
Counselor Rozen stemming from housing him with prisoner Conus
Russell. Plaintiff filed objections. (ECF No. 98). On January
24, 2019, Judge Paul Maloney overruled plaintiff's
objections and adopted the report and recommendation.
(1/24/19 Order, ECF No. 99). “The only claims that
survive are Dunbar's claim against Woldhuis for placing
Chad Bryant in Dunbar's cell and Dunbar's claim
against Rozen for placing Conus Russell in Dunbar's
cell.” (Id. at 4, PageID.705).
February 6, 2019, plaintiff filed a “Petition for
Rehearing, ” arguing that the above-referenced order is
deficient because it did not address his petition for habeas
corpus under 28 U.S.C. § 2241 claiming that his sentence
is incorrect and that he should have been awarded
disciplinary credits. (ECF No. 101). I find no basis for
disturbing the Court's order.
federal habeas statute straightforwardly provides that the
proper respondent to a habeas petition is ‘the person
who has custody over [the petitioner].' ”
Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004)
(quoting 28 U.S.C. § 2242). Judge Hood dismissed all
plaintiff's claims against Warden Burton.
district courts lack jurisdiction to consider second or
successive habeas petitions without preauthorization from the
relevant Court of Appeals.” Franklin v.
Jenkins, 839 F.3d 465, 473 (6th Cir. 2016) (citing
Burton v. Stewart, 549 U.S. 147, 149 (2007) (per
curiam) and 28 U.S.C. § 2244(b)(3)). Plaintiff required
leave of the Sixth Circuit to file a second or successive
petition. See In re Dunbar, No. 11-2595 (6th Cir. Aug. 9,
2012) (denying plaintiff's fifth application for leave to
file a second or successive habeas corpus
petition). There is no habeas corpus claim before
this Court. I recommend that plaintiff's motion for
rehearing be denied.
Motion for a Default Judgment
January 28, 2019, the Court entered its amended case
management order. (1/28/2019 Order, ECF No. 100). Among other
things, the Court ordered defendants to file their response
to plaintiff's amended complaint “on or before
February 27, 2019.” (Id. at 1, PageID.706). On
February 27, 2019, defendants filed their Answer. (ECF No.
Answer was timely. The Court should deny plaintiff's
motion for entry ...