United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER ADOPTING THE MAGISTRATE
JUDGE'S REPORT AND RECOMMENDATION DATED OCTOBER 1, 2019
(DKT. 31); OVERRULING PLAINTIFF'S OBJECTIONS (DKT. 32);
AND DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION (DKT.
A. Goldsmith Detroit, United States District Judge.
a pro se prisoner civil rights case. Plaintiff Carl
Lee Ashley is incarcerated at the Muskegon Correctional
Facility in Muskegon, Michigan. He asserts claims under 42
U.S.C. § 1983. He named eleven employees of the Michigan
Department of Corrections (“MDOC”) as defendants,
alleging that Defendants violated his Eighth Amendment right
to be free from cruel and unusual punishment, that they
retaliated against him for the exercise of his First
Amendment rights, and that their actions violated State law.
Under the screening authority of 28 U.S.C. §
1915(e)(2)(B), the Court found that Ashley failed to state a
claim against Defendants Subrina Aikens, Robyn Harbaugh, and
the warden, Sherry Burt, and dismissed them from this action.
Ashley filed a motion to reconsider (Dkt. 10). The matter was
referred to Magistrate Judge David R. Grand for all pretrial
matters, including the motion for reconsideration (Dkt. 25).
On October 1, 2019, the magistrate judge issued a Report and
Recommendation (“R&R”) recommending that
Ashley's motion for reconsideration be denied (Dkt. 31).
Ashley subsequently filed objections to the R&R (Dkt.
32). Ashley did not object to the dismissal of Aikens and
Harbaugh, but he did object to dismissal of Burt. For the
reasons discussed below, Ashely's objections are
overruled, and the magistrate judge's R&R is adopted.
factual and procedural background has been adequately set
forth by the magistrate judge and need not be repeated here
in full. In relevant part, Ashley has bladder cancer and
underwent surgery for the removal of his bladder and
prostate. In addition to wound care, Ashley was provided with
medical supplies to care for his urostomy with ileal conduit.
His nurse suggested that he wear belt-looped pants to allow
him to situate his urine pouch inside his pants properly to
prevent blockage. Ashley alleges that he was not provided
with the proper medical supplies and was not provided with
belt-looped pants. He says that his medical conditions have
worsened due to this improper medical treatment.
STANDARD OF DECISION
Court reviews de novo any portion of the R&R to
which a specific objection has been made. See 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Alspaugh v.
McConnell, 643 F.3d 162, 166 (6th Cir. 2011)
(“Only those specific objections to the
magistrate's report made to the district court will be
preserved for appellate review; making some objections but
failing to raise others will not preserve all the objections
a party may have.”). Any issues raised for the first
time in objections to an R&R are deemed waived. Uduko
v. Cozzens, 975 F.Supp.2d 750, 757 (E.D. Mich. 2013)
(citing Murr v. United States, 200 F.3d 895, 902 n.1
(6th Cir. 2000) (“[I]ssues raised for the first time in
objections to magistrate judge's report and
recommendation are deemed waived.”)).
for reconsideration may be granted under Eastern District of
Michigan Local Rule 7.1(h)(1) when the moving party shows (1)
a “palpable defect, ” (2) that misled the court
and the parties, and (3) that correcting the defect will
result in a different disposition of the case. E.D. Mich. LR
7.1(h)(3). A “palpable defect” is a defect
“which is obvious, clear, unmistakable, manifest, or
plain.” Mich. Dep't of Treasury v.
Michalec, 181 F.Supp.2d 731, 734 (E.D. Mich. 2002)
(citations omitted). “Generally, . . . the court will
not grant motions for rehearing or reconsideration that
merely present the same issues ruled upon by the
court.” E.D. Mich. LR 7.1(h)(3).
one overarching objection to the R&R is that the
magistrate judge erred by finding that Ashley failed to state
a claim against Burt. Ashely argues that Burt is individually
liable because she “is in charge of all facility
operations.” Objs. at 1. And Ashley says that she was
aware of his alleged mistreatment because Burt denied
Ashley's grievances and appeals, did not respond to his
letter, and may or have received a memorandum from Humanity
for Prisoners. Id. The Court and the magistrate
judge both found these allegations insufficient to state a
claim for relief because Ashley failed to allege that Burt
engaged in any “active unconstitutional behavior”
rather than a “mere failure to act.” 3/14/2019
Order of Partial Dismissal at 5 (Dkt. 6) (quoting Shehee
v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)); R&R
at 8. Because Ashley has merely presented the same issues
already ruled upon by the Court and the magistrate judge, the
issues will not be addressed a third time. E.D. Mich. LR
7.1(h)(3) (“Generally, . . . the court will not grant
motions for rehearing or reconsideration that merely present
the same issues ruled upon by the court.”).
Ashley raises an issue not previously addressed. Ashely
alleges that he spoke directly with Burt on November 8, 2017,
about his difficulty getting belt-looped pants, to which she
said, “we're working on it.” Objs. at 3;
Compl. ¶ 156. Ashely argues that Burt is liable in this
section 1983 action because she knew about his problems
obtaining belt-looped pants and abandoned one of her job
functions (i.e. following an MDOC policy to provide
appropriately sized clothes within a specified time), which
resulted in his injuries. Obj. at 4. Ashley relies on
Hill v. Marshall, 962 F.2d 1209 (6th Cir. 1992) to
support his argument. Hill is distinguishable.
Hill, the defendant, the Deputy Superintendent of
Treatment at an Ohio correctional facility, had actual
knowledge of the plaintiff's complaints that he was not
receiving his medication and referred the inmate to
a head nurse whom the defendant knew would alter and destroy
the inmates' prescriptions. Hill, 962 F.2d at
1213. Under those circumstances, the Sixth Circuit held that
the Hill defendant could be held liable for failure
to do his job. Id.
by contrast, even though Ashley alleged that Burt knew about
his difficulty obtaining belt-looped pants, Ashley has not
alleged that Burt took some affirmative action to prevent or
delay Ashely from receiving properly sized belt-looped pants.
Ashley's allegations still amount to no more than an
attempt to hold Burt liable under a theory of respondeat
superior. Ashley argues that because Burt was “in
charge of all aspects of the facility, ” including
following the MDOC policies, and the policies were not
followed by her subordinates, she should be held liable. Obj.
at 5. These allegations, as explained in the R&R, fail to
state a claim for relief in a section 1983 action.
reasons stated above, Ashely's objections to the R&R
(Dkt. 32) are overruled. The magistrate judge's R&R
(Dkt. 31) is adopted, and Ashley's ...