United States District Court, W.D. Michigan, Southern Division
OPINION AND ORDER
T. NEFF, UNITED STATES DISTRICT JUDGE
a prisoner civil rights action filed pursuant to 42 U.S.C.
§ 1983 involving alleged retaliation by Defendant
Kimmel, a department of corrections employee, against
Plaintiff inmate Taylor. Defendant filed a motion for summary
judgment, arguing that Plaintiff failed to establish his
retaliation claim. The matter was referred to the Magistrate
Judge, who issued a Report and Recommendation (R&R) in
favor of summary judgment. The matter is presently before the
Court on Plaintiffs objections to the Report and
Recommendation and Plaintiffs appeal of a Magistrate
Judge's order denying Plaintiffs motion to compel
discovery (ECF No. 49).
accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P.
72(b)(3), the Court has performed de novo consideration of
those portions of the Report and Recommendation to which
objections have been made. The Court denies the objections.
first argues that the Magistrate Judge erred "by
dismissing" this action after "determining that
[Plaintiffs] Complaint was defective because it was not
properly verified" (Pl. Obj., ECF No. 49 at PageID.222).
Plaintiff misunderstands the basis for the Magistrate
Judge's consideration of Plaintiff s purported
verification of his Complaint (see ECF No. 1 at
PageID.6), which was to determine whether the Complaint
constituted admissible evidence in response to
Defendant's motion for summary judgment (see
R&R, ECF No. 48 at PageID.215-216), not whether Plaintiff
s Complaint was subjectto dismissal based on the pleadings.
As Plaintiff himself points out, the Magistrate Judge did not
dismiss the action at the initial, "screening"
stage (Pl. Obj., ECF No. 49 at PageID.225). Instead, the
Magistrate Judge recommended summary judgment based on the
defense's motion. See Fed. R. Civ. P. 56.
Plaintiffs arguments based on the pleadings are not
pertinent, e.g., that he is entitled to amend pleadings in
the face of a defect (ECF No. 49 at PagelD.222-223), that
Defendant had fair notice of Plaintiff s claims
(id.), and that the R&R contradicts the case
management order's finding of no basis for dismissal
(id. at PageID.225). Plaintiffs objection based on
arguments related to the pleadings is denied.
further objects to the Magistrate Judge's conclusion that
Plaintiff lacks admissible evidence supporting his claim.
Here, the Magistrate Judge correctly placed the burden on
Plaintiff to come forward with evidence in response to
Defendant's motion for summary judgment (R&R, ECF No.
48 at PageID.215). Plaintiff asserts that he "attached
evidence," i.e., the grievance he filed against
Defendant demonstrating Defendant fabricated a false theft
report in retaliation for Plaintiff engaging in protected
conduct. Plaintiff also references as attached, a misconduct
report, a hearing report, a work assignment evaluation, and a
witness affidavit from Stacey Bowers (Pl. Obj., ECF No. 49 at
PageID.226). However, Plaintiff provides no record cites for
these documents, and they were not submitted in response to
the motion for summary judgment (ECF Nos. 38, 40). Thus, the
Magistrate Judge did not err in failing to consider them.
Plaintiff instead submitted these after the Report and
Recommendation, in conjunction with his Objections
(see ECF No. 50). Regardless, even considering these
documents in the light most favorable to Plaintiff, they fail
to provide a sufficient evidentiary basis to support
Plaintiffs claim of retaliation against Defendant. And
although Plaintiff relies on his own sworn statement and
allegations in the Complaint, as the Magistrate Judge
concluded, such do not constitute admissible evidence
establishing retaliation. This objection is denied.
appeals the Magistrate Judge's January 4, 2019 order (ECF
No. 46) denying Plaintiffs motion to compel discovery (ECF
No. 42). This Court will reverse an order of the Magistrate
Judge only where it is shown that the decision is
"clearly erroneous or contrary to law." 28 U.S.C.
§ 636(b)(1)(A); see also FED. R Civ. P. 72(a);
W.D. Mich. LCivR 72.3(a). "'A finding is
'clearly erroneous' when, although there is evidence
to support it, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has
been committed.'" United States v. Mabry,
518 F.3d 442, 449 (6th Cir. 2008) (quoting United States
v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).
the record is consistent with the timeline recited in
Magistrate Judge's order denying Plaintiffs motion (ECF
No. 46). The case management order of March 12, 2018 (ECF No.
12) required discovery to be completed within 120 days. That
deadline was later extended to September 4, 2018 by an order
of the Magistrate Judge granting Plaintiffs motion to extend
discovery (ECF No. 32).
motion to compel was filed December 11, 2018 (ECF No. 42).
The Magistrate Judge denied the motion as untimely without
good cause having been argued or established (ECF No. 46).
asserts that his December 11 motion was not "late,"
but Plaintiff offers no facts that contradict the Magistrate
Judge's timeline (ECF No. 49 PageID.227). Rather,
Plaintiff argues the importance of discovery in the
litigation process and points to the particular difficulties
prisoners face in conducting discovery (id.). While
this Court is not unsympathetic to those difficulties in
certain cases, no specific difficulties are implicated here.
Nor does the Court find any basis for the appointment of
counsel as Plaintiff requests. Plaintiff has failed to show
that the Magistrate Judge's denial of his motion to
compel was clearly erroneous.
this Court denies Plaintiffs objections and appeal and adopts
the Magistrate Judge's Report and Recommendation as the
Opinion of this Court. A Judgment will be entered consistent
with this Opinion and Order. See Fed. R. Civ. P. 58.
Because this action was filed in forma pauperis,
this Court certifies, pursuant to 28 U.S.C. §
1915(a)(3), that an appeal of this decision would not be
taken in good faith. See McGore v. ...