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Dunbar v. Rozen

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

July 1, 2019

Joseph Gregory Dunbar, # 129278, Plaintiff,
v.
Bradley Rozen, et al., Defendants.

          Honorable Paul L. Maloney

          REPORT AND RECOMMENDATION

          PHILLIP J. GREEN United States Magistrate Judge.

         This is 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 cell.

         The 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.

         Discussion

         I. 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, PageID.343-44, 348).

         On May 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. 86).

         On 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).

         On 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.

         “The 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.

         “[F]ederal 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).[1] There is no habeas corpus claim before this Court. I recommend that plaintiff's motion for rehearing be denied.

         II. Motion for a Default Judgment

         On 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. 109).

         Defendants' Answer was timely. The Court should deny plaintiff's motion for entry ...


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