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Moses v. Finco

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

September 17, 2019

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, ...


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