United States District Court, W.D. Michigan, Southern Division
ORDER APPROVING AND ADOPTING REPORT AND
J. JONKER CHIEF UNITED STATES DISTRICT JUDGE.
Court has reviewed Magistrate Judge Green's Report and
Recommendation in this matter (ECF No. 76) and
Plaintiff's Objections to the Report and Recommendation.
(ECF No. 77). Under the Federal Rules of Civil Procedure,
where, as here, a party has objected to portions of a Report
and Recommendation, “[t]he district judge . . . has a
duty to reject the magistrate judge's recommendation
unless, on de novo reconsideration, he or she finds it
justified.” 12 Wright, Miller, & Marcus, Federal
Practice and Procedure § 3070.2, at 381 (2d ed. 1997).
the Rules provide that:
[t]he district judge must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.
Fed R. Civ. P. 72(b)(3). De novo review in these
circumstances requires at least a review of the evidence
before the Magistrate Judge. Hill v. Duriron Co.,
656 F.2d 1208, 1215 (6th Cir. 1981). The Court has reviewed
de novo the claims and evidence presented to the Magistrate
Judge; the Report and Recommendation itself; and
Plaintiff's Objections. After its review, the Court finds
that Magistrate Judge Green's Report and Recommendation,
which recommends granting Defendants' Motion for Summary
Judgment (ECF No. 56), is factually sound and legally
raises three objections, as follows:
1. Plaintiff properly object[s] to the Report and
Recommendation[‘s] improper drawing of inferences and
weighing of the evidence.
2. Plaintiff objects to the portion of the Magistrate's
Report and Recommendation that gives conclusions based on
inaccurate information and misstated facts.
3. Plaintiff objects to the portion of the Magistrate's
Report and Recommendation that concludes the fact that he
failed to properly apply the law in regards to credibility
determinations and genuine issues of material fact preclude
(ECF No. 77).
three Objections can be distilled down to a single,
overriding argument. Namely, that the Magistrate Judge
weighed the evidence and credited the defendant's version
of events and discounted Plaintiff's version, in a manner
contrary to well worn law relating to summary judgment
motions. It is true that “at the summary judgment stage
the judge's function is not himself to weigh the evidence
and determine the truth of the matter but to determine
whether there is a genuine issue for trial. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). But for
the reasons that follow, the Court concludes no improper
weighing or credibility determinations were made by the
main, Plaintiff contends that the Magistrate Judge was
mistaken in finding that the Complaint (ECF No. 1) and the
brief Plaintiff filed later in the case do not satisfy the
requirements of 28 U.S.C. § 1746. The Court disagrees.
The Magistrate Judge's recommendation on this point was
correct. Under 28 U.S.C. § 1746, a person seeking to
make an unsworn declaration must state “I declare (or
certify, verify, or state) under penalty of perjury under the
laws of the United States of America that the foregoing is
true and correct.” The Court agrees with the Magistrate
Judge that the Complaint (ECF No. 1) and Plaintiff's
“sworn” brief in opposition to the pending motion
for summary judgment (ECF No. 68) are not properly verified,
for exactly reasons the Magistrate Judge details. (Report and
Recommendation, ECF No. 76, PageID.634-635). The
“statement of facts” contained in Plaintiff's
brief consists entirely of argument. As the Magistrate Judge
correctly detailed, legal conclusions even if asserted in a
sworn pleading are not enough to create a genuine issue of
material fact for trial.
the declarations Plaintiff submitted in support of the
Complaint also do not meet the statutory requirements. The
first declaration from Prisoner Mims (ECF No. 1-1, PageID.30)
is diluted, stating “Pursuant to 28 USC § 1746,
under the penalty of perjury, I Doyle Mims swear that the
following statement is true and correct to the best
of my knowledge, belief, and understanding.”
(emphasis added). The second declaration from Prisoner
Fulkerson begins by stating “Such in Such hereby
declares” and then concludes by stating “I
declare under penalty of perjury the foregoing is true
correct till the best of my
knowledge.” (ECF No. 1-1, PageID.36). It is
diluted, then, for the same reason as Prisoner Mims. See
Inman v. Riebe, No. 2:15-CV-0080-JAW, 2016 WL 3102199,
at *1 (D. Me. May 5, 2016), report and recommendation
adopted, No. 2:15-CV-00080-JAW, 2016 WL 3129115 (D. Me.
June 2, 2016) (“because Plaintiff asserts that the
information is ‘true to the best of my knowledge,'
Plaintiff's assertions are qualified and, therefore, the
language is not substantially similar to the language
authorized by section 1746.”). The third declaration
from Prisoner Workman contains no reference at all to penalty
of perjury (ECF No. 1-1, PageID.37), and thus does not meet
the statutory requirements.
qualifying language or failure to reference the penalty of
perjury undermines the evidentiary value of the affidavit and
removes it from the scope of 28 U.S.C. § 1746.
Affidavits must be based on personal knowledge, not
information and belief, and may otherwise be ...