Millhouse v. Jones et al

Filing 117

ORDER ADOPTING RECOMMENDED DISPOSITION AND ORDER: (1) The Recommended Disposition and Order of the United States Magistrate Judge (Doc. # 115 ) is hereby ADOPTED as the findings of fact and conclusions of law of the Court; (2) Plaintiff's Ob jections (Doc. # 116 ) are hereby OVERRULED; (3) Plaintiff's Motion for Summary Judgment (Doc. # 89 ) is DENIED; (4) Defendants' Motion for Summary Judgment (Doc. # 104 ) is GRANTED; (5) This matter is hereby DISMISSED and STRICKEN from the Court's active docket; and (6) A separate Judgment will be filed concurrently herewith. Signed by Judge David L. Bunning on 3/4/20.(SYD)cc: CORand Kareem Millhouse by US Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
CIVIL ACTION NO. 18-125-DLB-HAI
KAREEM MILLHOUSE

v.

PLAINTIFF

ORDER ADOPTING RECOMMENDED
DISPOSITION AND ORDER

RHONDA JONES, et al.
* *

DEFENDANTS
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* *

* *

* *

* *

* *

* *

This matter is before the Court on cross-Motions for Summary Judgment (Docs.
# 89 and 104). Consistent with local practice, these matters were referred to United
States Magistrate Judge Hanly A. Ingram for the purpose of reviewing the Motions,
holding any necessary hearings, and preparing a Report and Recommendation. On
January 30, 2020, Judge Ingram issued his Recommended Disposition and Order
wherein he recommends that the Defendants’ Motion for Summary Judgment be granted
and Plaintiff’s Motion for Summary Judgment be denied.1 (Doc. # 115). Millhouse having
filed timely Objections2 to the Recommended Disposition, (Doc. # 116), it is now ripe for
the Court’s review. For the reasons set forth herein, the Recommended Disposition is

In the same filing, Judge Ingram also ordered that Plaintiff’s pending Rule 56(d) Motion
(Doc. # 114) be denied.
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Under the prison-mailbox rule, a prisoner’s filings, including objections, are deemed filed
when “delivered to the proper prison authorities for forwarding to the district court.” Walker v. City
of Lakewood, 35 F.3d 567, 1994 WL 462137, at *1–2 (6th Cir. 1994) (unpublished table decision).
Presumably Millhouse was served with the Recommended Disposition by mail, so objections were
due February 16, 2020. See FED. R. CIV. P. 6(d), 72(b)(2). On his certificate of service, Millhouse
represents that he gave his Objections to unit staff for mailing on February 12, 2020. (Doc. # 116
at 7). Accordingly, the Objections are deemed timely filed under the prison-mailbox rule.
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adopted as the findings of fact and conclusions of law of the Court, and this matter is
dismissed.3
I.

STANDARD OF REVIEW
A magistrate judge may be designated to consider and “submit to a judge of the

court proposed findings of fact and recommendations for the disposition” of a summaryjudgment motion. 28 U.S.C. § 636(b)(1)(B). Upon the issuance of the Magistrate Judge’s
Recommended Disposition, any party may file written objections to any of the findings
within the Recommended Disposition. (Doc. # 115 at 15) (citing 28 U.S.C. § 636(b)(1)).
A district judge must then review de novo any properly-objected-to portions of the
Recommended Disposition. 28 U.S.C. § 636(b)(1). The district judge may “accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate
judge.” Id. The objection process “is supported by sound considerations of judicial
economy,” as “[t]he filing of objections to a magistrate’s report enables the district judge
to focus attention on those issues—factual and legal—that are at the heart of the parties’
dispute.” Thomas v. Arn, 474 U.S. 140, 147 (1985).
Only proper objections are considered by the district judge. Objections must be
“specific . . . to the proposed findings and recommendations.” FED. R. CIV. P. 72(b)(2).
An objection is specific and “preserves an issue when it ‘explain[s] and cite[s] specific
portions of the report’” which the party considers to be “problematic.” Robert v. Tesson,
507 F.3d 981, 994 (6th Cir. 2007) (alterations in original) (quoting Smith v. Chater, 121
F.3d 702, 1997 WL 415309, at *2 (6th Cir. 1997) (unpublished table decision)). “[T]o the

In the interest of judicial efficiency, the Court herein incorporates Judge Ingram’s summary
of the relevant facts and procedural history. See (Doc. # 15 at 1–4).

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extent the Court can identify specific objections, the Court ‘is not required to articulate all
of the reasons it rejects a party’s objections.’” Hnatiuk v. Rapelje, No. 06-13880, 2010
WL 2720881, at *1 (E.D. Mich. July 8, 2010) (quoting Thomas v. Halter, 131 F. Supp. 2d
942, 944 (E.D. Mich. 2001)); see also Tuggle v. Seabold, 806 F.2d 85, 92 (6th Cir. 1986)
(finding that it was sufficient for the district court, when adopting an R&R, to merely state
that it made a de novo review of the record and of all objections to the magistrate’s
findings and recommendations).
“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.” Cole
v. Yukins, 7 F. App’x 354, 356 (6th Cir. 2001) (citing Miller v. Currie, 50 F.3d 373, 380
(6th Cir. 1995)). Additionally, to be considered proper, objections must do more “than
state a disagreement with a magistrate’s suggested resolution” or restate those
arguments that “ha[ve] been presented before.” United States v. Vanover, No. 2:10-cr14, 2017 WL 1356328, at *1 (E.D. Ky. Apr. 11, 2017) (quoting VanDiver v. Martin, 304 F.
Supp. 2d 934, 938 (E.D. Mich. 2004)). An objection that “is simply a repetition of what
the Magistrate Judge has already considered . . . fails ‘to put the Court on notice of any
potential errors in the Magistrate’s R&R’” and is thus improper. United States v. Bowers,
No. 0:06-cv-7-DLB-REW, 2017 WL 6606860, at *1 (E.D. Ky. Dec. 26, 2017) (quoting
United States v. Shephard, No. 5:09-cr-81-DLB, 2016 WL 9115464, at *1 (E.D. Ky. Sept.
18, 2016)). Finally, objections must be understandable in order to be considered. When
objections are so unclear that “even the most perspicacious judge [would have] to guess
at [their] meaning ... the district court judge should not be forced to waste time interpreting

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such requests.” Howard v. Sec. of Health & Human Servs., 932 F.2d 505, 509 (6th Cir.
1991).
A court should, however, construe filings from a pro se petitioner liberally, Boswell
v. Mayer, 169 F.3d 384, 387 (6th Cir. 1999); Franklin v. Rose, 765 F.2d 82, 84–85 (6th
Cir. 1985), though this requirement is not absolute, Martin v. Overton, 391 F.32d 710, 714
(6th Cir. 2004). Such “[l]iberal construction does not require a court to conjure allegations
on a litigant’s behalf,” id., and “pro se parties must still brief the issues advanced ‘with
some effort at developed argumentation,’” Coleman v. Shoney’s, Inc., 79 F. App’x 155,
157 (6th Cir. 2003) (quoting United States v. Reed, 167 F.3d 984, 993 (6th Cir. 1999)).
Additionally, a pro se petitioner is not exempt from following the rules of the court.
Ashenhust v. Ameriquest Mortg. Co., No. 07-13352, 2007 WL 2901416, at *1 (E.D. Mich.
Oct. 3, 2007) (citing McNeill v. United States, 508 U.S. 106, 113 (1993)) (While “[t]hese
[objection] rules are tempered by the principle that pro se pleadings are to be liberally
construed . . . a pro se litigant must still comply with the procedural rules of the court.”).
Given this standard, Millhouse’s objections will be construed leniently by the Court, but
those that are clearly improper will not be considered.
II.

PLAINTIFF’S OBJECTIONS
Plaintiff makes three main objections to MJ Ingram’s Recommended Disposition

and Order. See generally, (Doc. # 116). At the outset, however, the Court notes that
Millhouse’s objections are cursory and difficult to follow. In fact, the objections are likely
improper because they are so vague and unclear. See Cole, 7 F. App’x at 356; Howard,
932 F.2d at 509. Out of an abundance of caution, however, the Court will consider each
objection in turn.

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A.

Objection One

Millhouse first objects to the dismissal of his Federal Tort Claims Act (“FTCA”)
claim. He argues that “this Court state that Plaintiff’s failure to submit a certificate of merit”
and dismissal of his FTCA claim is “a fundamental miscarriage of justice.” (Doc. # 116 at
1). He goes on to explain that he moved for counsel “in order to obtain a certificate of
merit” and that a “certificate of merit has nothing to do with the FTCA claim for falling from
the upper bunk.” Id. at 1–2. He also notes that the Defendants did not file “their notice
of intention to enter judgment of non pros for failure to file a com,” “the United States is
responsible for its agencies employee conduct,” he exhausted his administrative
remedies prior to filing the FTCA claim, and “USP-McCreary failed to further diagnoses
[sic] those injuries from the fall.” Id. In sum, he states that “[t]here is no way Plaintiff’s
FTCA claims should be dismissed.” Id. at 2.
First, many of Plaintiff’s arguments in this first objection are not specific to Judge
Ingram’s Recommended Disposition and Order. Millhouse does not “explain[]” or “cite[]
specific portions of the report” which he finds “problematic,” so his arguments are not
specific to the conclusions that Judge Ingram recommended. Robert, 507 F.3d at 994
(quoting Smith, 121 F.3d 702, 1997 WL 415309, at *2). For example, Millhouse refers to
a “certificate of merit.” (Doc. # 116 at 1). At no point in his R&R, however, does Judge
Ingram discuss the need for such a certificate in order to proceed with an FTCA claim.
See generally (Doc. # 115). The fact that the objection discusses something that was
never mentioned in the Order demonstrates that the objection is not specific. Moreover,
Millhouse’s other comments—including that the U.S. is responsible for conduct of its
employees, that he exhausted his administrative remedies, and that the staff failed to

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diagnose injuries he sustained from a fall—are vague and non-specific.

Id. at 2.

Millhouse’s statements fail to set forth arguments as to why Judge Ingram’s
Recommended Disposition is problematic; in fact, none of his statements even address
Judge Ingram’s Recommended Disposition at all. These non-specific objections, within
Millhouse’s first general objection, are improper. See Cole, 7 F. App’x at 356.
Next, Plaintiff’s statement about the Defendants’ failure to file “their notice of
intention to enter judgment of non pros for failure to file a com” is unclear. (Doc. # 116 at
1). Beyond not being specific to the Recommended Disposition and failing to present any
argument in support of the proposition, the Court would have to “guess” at the meaning
of this apparent objection to Judge Ingram’s Recommended Disposition, which is
improper. Howard, 932 F.2d at 509. It appears that perhaps Plaintiff is referring to a rule
in the Pennsylvania Administrative Code entitled “Entry of Judgment of Non Pros for
Failure to File Certification.”

231 PA. CODE § 1042.7.

Not being in Pennsylvania,

however, even if this were a proper objection, Plaintiff’s apparent attempt to apply out of
state law is inappropriate.
Finally, Millhouse makes the general statement that the FTCA claim should not be
dismissed. Again, this statement is not specific to Judge Ingram’s Order. Additionally,
Millhouse is simply “stating [his] disagreement with [the] magistrate’s suggested
resolution,” which is not a proper objection. Vanover, 2017 WL 1356328, at *1. As none
of the objections to Judge Ingram’s recommendation to dismiss the FTCA claim are
proper, the first objection will be overruled.

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B.

Objection Two

Next Millhouse objects to the dismissal of his claims under the Eighth Amendment.
His objection states: “Its too much evidence in the record for deliberate indifference. If no
test conducted which are required to further diagnose plaintiff condition alone is deliberate
indifference.” Reading the objection leniently, as required, Boswell, 169 F.3d at 387;
Franklin, 765 F.2d at 84–85, it appears that perhaps Millhouse is arguing that failure to
conduct medical tests is a form of deliberate indifference under the Eighth Amendment.
The objection is inappropriate, however, because he fails to cite to support for this
proposition or make any “effort at developed argumentation.” See Coleman, 79 F. App’x
at 157 (quoting Reed, 167 F.3d at 993).
Additionally, Millhouse’s argument would not change Judge Ingram’s conclusion
even if it were a proper objection. As Judge Ingram correctly explained, “[a] plaintiff
asserting deliberate indifference to his serious medical needs must establish both the
objective and subjective components of such a claim.” (Doc. # 115 at 8) (citing Jones v.
Muskegon Co., 625 F.3d 935, 941 (6th Cir. 2010)). To meet the objective component,
the plaintiff must “show that the medical condition is ‘sufficiently serious,’” id. at 8–9 (citing
Farmer v. Brennan, 511 U.S. 825, 834 (1994)), while the subjective component “requires
the plaintiff to show that prison officials actually knew of a substantial risk of harm to
plaintiff’s health but consciously disregarded it,”

id. at 9 (citing Cooper v. Cty. of

Washtenaw, 222 F. App’x 459, 466 (6th Cir. 2007); Brooks v. Celeste, 39 F.3d 124, 128
(6th Cir. 1994)).
While in some cases failure to administer diagnostic tests may support a claim of
deliberate indifference, see Tate v. Coffee Cty., Tenn., 48 F. App’x 176, 179–80 (6th Cir.

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2002), that is not the case here. As Judge Ingram explained, the standard of culpability
for deliberate indifference to a serious medical need is higher than the level of culpability
needed to show medical negligence. (Doc. # 115 at 9). Millhouse has not put forth
sufficient evidence to show medical negligence, id. at 6–8, and therefore cannot show
deliberate indifference to a serious medical need whether by failing to administer
diagnostic tests or otherwise, id. at 10. Again, Millhouse fails to cite to any portion of the
R&R or develop any specific argument as to why Judge Ingram’s R&R is incorrect; thus,
he has not properly objected. See Robert, 507 F.3d at 994 (quoting Smith, 121 F.3d 702,
1997 WL 415309, at *2); Coleman, 79 F. App’x at 157 (quoting Reed, 167 F.3d at 993).
Moreover, the comment that “Its too much evidence in the record for deliberate
indifference” seems to suggests a mere disagreement with Judge Ingram’s conclusion
that Millhouse has failed to show deliberate indifference, which is simillarly improper.
Vanover, 2017 WL 1356328, at *1. Thus, Millhouse’s second objection is overruled.
C.

Objection Three

Millhouse’s final objection reads “Plaintiff submitted a Rule 56(D) Motion in
response to Defendants[’] Motion for Summary Judgment so how can the Court state
Plaintiff did not respond.”

Plaintiff does not cite to the particular portion of the

Recommended Disposition to which he is referring, which makes the objection not
specific. See Robert, 507 F.3d at 994 (quoting Smith, 121 F.3d 702, 1997 WL 415309,
at *2). Additionally, this last objection reads more like a question to the Court, rather than
an objection to Judge Ingram’s Recommended Disposition. Accordingly, this objection is
improper.

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Even if the objection were proper, it is meritless. It appears perhaps that Plaintiff
is referring to Judge Ingram’s summary of the procedural history of this case where Judge
Ingram notes that Millhouse did not file a response to Defendants’ Motion for Summary
Judgment by the January 3, 2020 deadline. (Doc. # 115 at 4). Judge Ingram does,
however, note that Millhouse filed a discovery motion.

Id.

Judge Ingram correctly

summarizes the procedural history of this case. Having reviewed the docket sheet, it is
clear that Plaintiff Millhouse did not file a specific response to the Defendants’ Motion for
Summary Judgment. While Plaintiff did file a Rule 56(d) Motion requesting discovery,
(Doc. # 114), this is not the same as filing a response brief in opposition to Defendants’
Motion for Summary Judgment setting forth arguments as to why the Defendants’ Motion
should be denied. Thus, to the extent Millhouse’s third objection is proper, it is overruled.
III.

CONCLUSION
In sum, Millhouse fails to raise any specific, discernable, or meritorious legal

objections to Judge Ingram’s R&R. Additionally, the Court has reviewed the entirety of
Judge Ingram’s Recommended Disposition and finds that its analysis and conclusions
are sound in all respects. Accordingly, for the reasons set forth herein,
IT IS ORDERED as follows:
(1)

The Recommended Disposition and Order of the United States Magistrate

Judge (Doc. # 115) is hereby ADOPTED as the findings of fact and conclusions of law of
the Court;
(2)

Plaintiff’s Objections (Doc. # 116) are hereby OVERRULED;

(3)

Plaintiff’s Motion for Summary Judgment (Doc. # 89) is DENIED;

(4)

Defendants’ Motion for Summary Judgment (Doc. # 104) is GRANTED;

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(5)

This matter is hereby DISMISSED and STRICKEN from the Court’s active

docket; and
(6)

A separate Judgment will be filed concurrently herewith.

This 4th day of March, 2020.

J:\DATA\ORDERS\London\2018\18-125 Order Adopting R&R.docx

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