Kohn v. Piazza

Filing 25

ORDER Overruling 23 Objections, Adopting 22 Report and Recommendation, Granting 17 Motion for Summary Judgment, Denying 18 , 19 Motion for Appointment of Counsel, and Dismissing 1 Complaint. Signed by District Judge Thomas L. Ludington. (KWin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
FLOYD E. KOHN
Plaintiff,
v.

Case No. 16-cv-11418
Honorable Thomas L. Ludington

RICHARD PIAZZA,
Defendant.
__________________________________________/
ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND
RECOMMENDATION, GRANTING MOTION FOR SUMMARY JUDGMENT,
DENYING MOTION FOR APPOINTMENT OF COUNSEL, AND DISMISSING
COMPLAINT
Plaintiff Floyd E. Kohn, currently incarcerated at the Ionia Correctional Facility in Ionia,
Michigan, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against numerous
defendants on June 20, 2014, in the United States District Court for the Western District of
Michigan. Compl., ECF No. 1. On April 20, 2016, having dismissed all other claims and
defendants except for Plaintiff’s claims against Defendant Richard Piazza, a corrections officer
at the Michigan Department of Correction’s (MDOC’s) Saginaw Correctional Facility, the
United States District Court for the Western District of Michigan transferred Plaintiff’s case to
this Court for proper venue. ECF No. 3. In the Complaint, Plaintiff alleges that while he was
incarcerated at the Saginaw Correctional Facility, Defendant Piazza violated Plaintiff’s Eighth
Amendment right to be free from cruel and unusual punishment while conducting a pat-down
search of Plaintiff. Compl. at 3–4, 6, 14–15.
Defendant Piazza filed a Motion for Summary Judgment on October 26, 2016. ECF No.
17. Plaintiff filed a response on November 8, 2016. ECF No. 20. Also before the Court are

Plaintiff’s Motion for Application of Counsel and Request for Court Appointed Lawyer. ECF
Nos. 18–19.
Magistrate Judge Mona K. Majzoub issued a Report and Recommendation on July 7,
2017, recommending that this Court grant Defendant’s Motion for Summary Judgment, and deny
Plaintiff’s Motion for Application of Counsel and Request for Court Appointed Lawyer. ECF
No. 22. Plaintiff filed Objections on August 8, 2017. ECF No. 23. For the reasons that follow,
the Court will adopt the Report and Recommendation, grant Defendant’s Motion for Summary
Judgment, deny Plaintiff’s Motion for Application of Counsel and Request for Court Appointed
Lawyer as moot, and dismiss the Complaint.
I.
Plaintiff does not object to Judge Majzoub’s summary of the factual allegations contained
in the complaint, located at section II. A. of the Report and Recommendation. ECF No. 22.
Accordingly, that factual summary is incorporated herein by reference.
II.
Pursuant to Federal Rule of Civil Procedure 72, a party may object to and seek review of
a magistrate judge’s report and recommendation. See Fed. R. Civ. P. 72(b)(2). Objections must
be stated with specificity. Thomas v. Arn, 474 U.S. 140, 151 (1985) (citation omitted). If
objections are made, “[t]he district judge must determine de novo any part of the magistrate
judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). De novo review
requires at least a review of the evidence before the magistrate judge; the court may not act
solely on the basis of a magistrate judge’s report and recommendation. See Hill v. Duriron Co.,
656 F.2d 1208, 1215 (6th Cir. 1981). After reviewing the evidence, the court is free to accept,

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reject, or modify the findings or recommendations of the magistrate judge. See Lardie v. Birkett,
221 F. Supp. 2d 806, 807 (E.D. Mich. 2002).
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). “The parties have the duty to pinpoint those
portions of the magistrate’s report that the district court must specially consider.” Id. (internal
quotation marks and citation omitted). A general objection, or one that merely restates the
arguments previously presented, does not sufficiently identify alleged errors on the part of the
magistrate judge. See VanDiver v. Martin, 304 F. Supp. 2d 934, 937 (E.D. Mich. 2004). An
“objection” that does nothing more than disagree with a magistrate judge’s determination,
“without explaining the source of the error,” is not considered a valid objection. Howard v. Sec’y
of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). Without specific objections,
“[t]he functions of the district court are effectively duplicated as both the magistrate and the
district court perform identical tasks. This duplication of time and effort wastes judicial resources
rather than saving them, and runs contrary to the purposes of the Magistrate’s Act.” Id.
III.
A.
Plaintiff primarily objects to Judge Majzoub’s Report and Recommendation on the
ground that Defendant’s conduct violated Plaintiff’s clearly established constitutional rights
under the Eight Amendment. ECF No. 23 at 1. Plaintiff asserts no specific error in Judge
Majzoub’s legal analysis, nor does the Court find any upon de novo review.
An officer violates clearly established law and loses qualified immunity when, at the time
of the challenged conduct, “the contours of [a] right are sufficiently clear that every reasonable
official would have understood that what he is doing violates that right. The Supreme Court

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do[es] not require a case directly on point . . . but existing precedent must have placed the
statutory or constitutional question beyond debate.” Kent v. Oakland Cty., 810 F.3d 384, 395 (6th
Cir. 2016) (internal citations and quotations omitted).
The contours of Plaintiff’s Eighth Amendment rights in this context are not sufficiently
clear, nor has existing precedent put the question beyond debate. As explained in Barhite, there
are no factually similar Supreme Court or Sixth Circuit cases holding that “an officer’s
inappropriate touching of an inmate’s genitals during an otherwise lawful pat-down search,
which does not result in physical injury, is an Eighth Amendment violation.” Barhite v. Sumner,
2013 WL 6569144, at *5 (E.D. Mich. Aug. 21, 2013), report and recommendation adopted, 2013
WL 6569593 (E.D. Mich. Dec. 13, 2013).
However, there is precedent reaching the opposite conclusion. In Solomon, the Sixth
Circuit rejected an Eighth Amendment claim on similar facts. Solomon v. Michigan Dep't of
Corr., 478 F. App'x 318 (6th Cir. 2012) (citing Boddie v. Schneider, 105 F.3d 857 (2d Cir.
1997)); see also Jackson v. Madery, 158 F. App’x 656 (6th Cir. 2005) (finding no Eighth
Amendment violation occurred in isolated incident of inappropriate sexual contact by a security
officer). Thus, Defendant violated no clearly established constitutional right so as to pierce his
qualified immunity. Accordingly, Plaintiff’s objection is overruled.
B.
Plaintiff’s Objections also allege that Defendant violated the Prisoner Rape Elimination
Act. 34 U.S.C.A § 30301. However, the PREA does not grant a private cause of action to a
prisoner against a corrections officer. McCloud v. Prack, 55 F. Supp. 3d 478, 482 (W.D.N.Y.
2014). Accordingly, Plaintiff’s objection is overruled.

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C.
Plaintiff’s Objections can also be construed as raising two novel causes of action: the
Equal Protection clause and the Federal Tort Claims Act. U.S. Const. amend. XIV; 28
U.S.C.A. §§ 1346, 2671–2680. Plaintiff has pleaded no facts to support a claim that Plaintiff has
been denied equal protection of the laws. The Federal Tort Claims Act applies to civil claims
against the United States, not state actors. 28 U.S.C.A. § 1346. Accordingly, Plaintiff’s
objections are overruled.
IV.
Accordingly, it is ORDERED that Plaintiff’s Objections, ECF No. 23, are
OVERRULED.
It is further ORDERED that Magistrate Judge Majzoub’s Report and Recommendation,
ECF No. 22, is ADOPTED.
It is further ORDERED that Defendant’s Motion for Summary Judgment, ECF No. 17, is
GRANTED.
It is further ORDERED that Plaintiff’s Motion for Application of Counsel and Request
for

Court

Appointed

Lawyer,

ECF

Nos.

18–19

are

DENIED

as

moot.

It is further ORDERED that Plaintiff’s Complaint, ECF No. 1, is DISMISSED with
prejudice.

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: September 15, 2017

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PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on September 15, 2017.
s/Kelly Winslow
KELLY WINSLOW, Case Manager

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