United States District Court, W.D. Michigan, Southern Division
Jamero T. Moses, #231885, et al., Plaintiffs,
v.
Thomas Finco, et al., Defendants.
OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION
Paul
L. Maloney, United States District Judge
This is
a civil rights action brought by a group of ten state
prisoners under 42 U.S.C. § 1983. Most plaintiffs have
been dismissed from the action; the three remaining
plaintiffs are Jamero Moses, William Johnson, and Lamont
Heard (ECF No. 40). On January 7, 2019, United States
Magistrate Judge Ellen S. Carmody issued a Report &
Recommendation (“R&R”) recommending that the
Court grant Defendants Finco, Leach, and Martin's motion
for summary judgment based on Plaintiffs' failure to
state a claim upon which relief can be granted (ECF No. 100;
R&R ECF No. 114). This matter is before the Court on each
Plaintiff's objections to the R&R. Heard raises six
objections (ECF No. 117), Johnson raises two objections (ECF
No. 119), and Moses raises four objections (ECF No. 115),
though some overlap. For the reasons to be discussed, the
Court will overrule all objections and adopt the R&R as
the Opinion of the Court.
Legal
Framework
With
respect to a dispositive motion, a magistrate judge issues a
report and recommendation, rather than an order. After being
served with a report and recommendation (R&R) issued by a
magistrate judge, a party has fourteen days to file written
objections to the proposed findings and recommendations. 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). A district court
judge reviews de novo the portions of the R&R to which
objections have been filed. 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72(b).
Only
those objections that are specific are entitled to a de novo
review under the statute. Mira v. Marshall, 806 F.2d
636, 637 (6th Cir. 1986) (per curiam) (holding the district
court need not provide de novo review where the objections
are frivolous, conclusive, or too general because the burden
is on the parties to “pinpoint those portions of the
magistrate's report that the district court must
specifically consider”). Failure to file an objection
results in a waiver of the issue and the issue cannot be
appealed. United States v. Sullivan, 431 F.3d 976,
984 (6th Cir. 2005); see also Thomas v. Arn, 474
U.S. 140, 155 (upholding the Sixth Circuit's practice).
The district court judge may accept, reject, or modify, in
whole or in part, the findings and recommendations made by
the magistrate judge. 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72(b).
Analysis
1. Plaintiffs' Fraud Claim
Heard
objects to the magistrate judge's recommendation that all
remaining claims be dismissed because Defendants and the
magistrate judge failed to address Plaintiffs' fraud
claim. This objection fails. As will be discussed, Defendants
did not violate Plaintiffs' constitutional or statutory
rights, so Plaintiffs' rights could not have been
violated as a result of fraud. Thus, summary disposition is
proper on both counts. Further, Plaintiffs do vaguely allege
that some fraud occurred in the preliminary statement of
their complaint (see ECF No. 8), but Plaintiffs pleaded the
violation of their rights without any mention of fraud (see
ECF No. 8 at ¶¶ 70-73). Plaintiffs have failed to
set forth any facts supporting a claim of fraud, let alone
plead facts with particularity as required by Federal Rule of
Civil Procedure 9(b). The magistrate judge did not err when
she granted summary judgment to Defendants on all fraud
claims; accordingly, this objection is overruled.
2.
Evidence: “and/or eating”
Heard
objects to the following characterization of Plaintiffs'
behavior: “. . . Plaintiffs were both purchasing,
possessing, and/or eating foods which are expressly contrary
to the individualized diet Plaintiffs were requesting”
(ECF No. 114 at PageID.1068). Heard claims that there was no
evidence that Plaintiffs were eating foods contrary to the
meal plan they requested. Even assuming this is an accurate
characterization of the evidence, there is no error because
the R&R uses the “and/or” designation. The
R&R did not specifically conclude that Plaintiffs were
eating foods contrary to their plan, so Heard's objection
is meritless.
Additionally,
this Court notes that the mere purchase or possession of
foods contrary to a requested diet is sufficient to deny a
prisoner's request for that specific diet. See
Russell v. Wilkinson, 79 Fed.Appx. 175, 177 (6th
Cir. 2003). Heard does not deny that Plaintiffs were
purchasing and possessing foods contrary to their requested
diet. Therefore, this objection is legally irrelevant; it
does not matter whether Plaintiffs were eating foods contrary
to their requested meal plan, because it is undisputed that
they had possessed foods contrary to their requested meal
plan. This objection is overruled.
3.
Evidence: magistrate judge relied on “wrong
information”
Heard
next brings a similar but separate objection, arguing that
the magistrate judge focused on the wrong evidence when the
R&R considered the purchase and possession of foods
prohibited by Plaintiffs' requested diet (ECF No. 114 at
PageID.1068). Heard argues that the true reason the requests
were denied was because prison officials believed a vegan
diet accommodates Muslim dietary restrictions, and that the
magistrate judge erred when the R&R failed to consider
this explanation.
In
support of their motion for summary judgment, Defendants
produced two memos written by Defendant Leach, one citing
each justification for denying Plaintiffs' meal plan
requests (see ECF No. 100-7, PageID.871-72). The R&R
explicitly considers both justifications for the denial,
showing that the magistrate judge appropriately considered
all the evidence presented (see ECF No. 114 at
PageID.1067-71). Additionally, the memo explaining
Heard's purchase and possession of prohibited foods is
much more detailed than the short memo stating that the vegan
diet satisfies Muslim dietary restrictions. Therefore, the
evidence supports the magistrate judge's conclusion that
the primary reason prison staff denied Heard's request
for an alternative meal plan was his purchase and possession
of prohibited foods. Plaintiff is not entitled to pick and
choose the evidence that best supports his case, and
accordingly, this objection is overruled.
Plaintiff
Moses brings a similar objection, arguing that the magistrate
judge erroneously concluded that he had received an
individualized meal plan beyond the vegan meal plan. This is
a misreading of the R&R, which clearly states that
“Plaintiffs were permitted to participate in the
MDOC's religious vegan diet” and that their request
for a more specialized diet was denied (ECF No. 114 at
PageID.1068). Nowhere in the R&R does it state that any
Plaintiff, ...