United States District Court, E.D. Michigan, Southern Division
ORDER ACCEPTING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION [DOC. 42]
GEORGE
CARAM STEEH, UNITED STATES DISTRICT JUDGE.
Plaintiff
Bishop Perry, proceeding pro se, filed this prisoner
civil rights action pursuant to 18 U.S.C. § 1983,
against three employees of the Michigan Department of
Corrections (MDOC). Defendant Sean Hart was dismissed from
the action on September 20, 2018 (docket no. 5).
Plaintiff's claimed violations of his First and
Fourteenth Amendment rights are pending against defendant
Brian Rousseau and Tonica Bates.
Seven
motions were referred to Magistrate Judge Majzoub for a
report and recommendation: (1) Plaintiff's Motion for
Preliminary Injunction (docket no. 10); (2) Plaintiff's
Motion for Sanctions (docket no. 11); (3) Defendants'
Motion for Partial Summary Judgment Based on Failure to
Exhaust (docket no. 17); (4) Plaintiff's Motion
Preliminary Injunction (docket no. 20); (5) Plaintiff's
Motion for Sanctions (docket no. 22); (6) Plaintiff's
Motion for Sanctions (docket no. 30); and (7) Plaintiff's
Motion to Dismiss (docket no. 32). The Magistrate Judge
issued a report and recommendation on August 6, 2019.
Plaintiff
filed objections to the report and recommendation which are
presently before the court. Defendants did not file any
timely objections. Objections must be specific and must
precisely recite the provisions of the report and
recommendation to which they pertain. “The filing of
vague, general, or conclusory objections does not meet the
requirement of specific objections and is tantamount to a
complete failure to object, ” and as such does not
preserve the right to appeal a subsequent order of the
district court adopting the report. Cole v. Yukins,
7 Fed.Appx. 354, 356 (6th Cir. 2001) (citations omitted).
Plaintiff's
objections ask the court to take a de novo look at his two
motions for preliminary injunction and his motion to dismiss
(docket nos. 10, 20, and 32), and informs the court that he
filed a new motion as it relates to two of his motions for
sanctions (docket nos. 11 and 22). These are not the type of
precise objections which are required of an objecting party.
The Advisory Committee Notes to Federal Rule of Civil
Procedure 72 provide that “[w]hen no timely objection
is filed, the court need only satisfy itself that there is no
clear error on the face of the record in order to accept the
recommendation.” Plaintiff's complaint focuses on
an incident whereby defendant Bates allegedly violated the
MDOC's operating procedure regarding prisoner mail and
retaliated against plaintiff for having an ongoing legal case
against MDOC. Plaintiff further claims that defendants Bates
and Rousseau conspired to prevent him from accessing the
courts. Another incident involved Rousseau transferring
plaintiff to another facility after plaintiff asked the
deputy warden if he had received a kite plaintiff had given
to Rousseau. Plaintiff claims defendants violated his due
process rights and his right to be free from retaliation
under the First and Fourteenth Amendments.
In his
motions for preliminary injunction, plaintiff states that he
is harassed at his current facility and seeks to be
transferred to either the Macomb Correctional Facility or the
G. Robert Cotton Correctional Facility because they offer the
opportunity for prisoners to work as dog handlers, which will
enable him to earn money to retain an attorney, as well as to
be near his family. Once transferred he asks that he remain
at the new facility, plus he seeks a court order that
prevents anyone from taking his television or Walkman for any
reason.
The
Magistrate Judge properly analyses plaintiff's claims in
support of his motions for preliminary injunction. The court
agrees that plaintiff has no likelihood of succeeding on the
merits of his claims relating to the conditions of his
confinement, many of which are not even alleged in his
complaint. Plaintiff also has failed to show irreparable
injury. Finally, and importantly, for the court to interfere
with the state's prison facilities on the facts of this
case is not in the public interest. The court finds no clear
error and accepts the Magistrate Judge's recommendation
that plaintiff's motions for preliminary injunction be
denied.
In
recommending that plaintiff's duplicative motions for
sanctions be denied, the Magistrate Judge points out the
proper procedure for filing a motion for sanctions pursuant
to Federal Rule of Civil Procedure 11. In his objections,
plaintiff states that he has since filed a new motion
following the proper procedure. That motion is not currently
pending before the court and has no bearing on the denial of
the improperly filed motions.
Plaintiff
generally objects to the report and recommendation as it
relates to his motion to dismiss on the basis that defendant
produced fraudulent documents in response to plaintiff's
discovery requests. The Magistrate Judge reviewed the
documents at issue and found that plaintiff's suggestions
of fraud lack merit. The court finds no clear error and
accepts the report and recommendation to deny plaintiff's
motion to dismiss and the corresponding motion for sanctions
(docket no. 30).
Finally,
the court finds no clear error in the recommendation that
defendants' motion for partial summary judgment based on
failure to exhaust be granted in part and denied in part. In
accordance with this finding, the matter will proceed on
plaintiff's claims against Bates and Rousseau for the
improper handling of his legal mail and his claim against
Rousseau for retaliatory transfer.
For the
reasons set forth above, plaintiff's objections are
overruled. The court hereby accepts the Magistrate
Judge's report and recommendation. Plaintiff's
Motions for Preliminary Injunction (docket nos. 10, 20),
Plaintiff's Motions for Sanctions (docket nos. 11, 22,
30), and Plaintiff's Motion to Dismiss (docket no. 32)
are DENIED, and Defendants' Motion for Partial Summary
Judgment Based on Failure to Exhaust (docket no. 17) is
GRANTED IN PART and DENIED IN PART. This matter will proceed
on plaintiff's claims against defendants for the improper
handling of his legal mail and his claim against defendant
Rousseau for retaliatory transfer. Now, ...