Lee v. Hill

Filing 23

OPINION AND ORDER granting 15 Motion for Judgment; granting 15 Motion for Summary Judgment; adopting 21 Report and Recommendation on 15 . Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TRAVIS LEE,
Plaintiff,
v.

Civil Case No. 2:12-cv-10486
Honorable Patrick J. Duggan

SERGEANT TODD HILL, SERGEANT
TIMOTHY WILLIS, DEPUTY JASON
RUPE, DEPUTY ERIC HOISINGTON,
DEPUTY RICHARD HOWE, DEPUTY
DARIUS ZAJAC, DEPUTY STEVEN
CARTER, SERGEANT LESLIE WHITFIELD,
DEPUTY BRYAN PASINI, DEPUTY JEREMY
BABIAK, DEPUTY JOSEPH EDDY, GREG
SMITH, OAKLAND COUNTY SHERIFF MICHAEL
BOUCHARD, CITY OF PONTIAC, and THE
COUNTY OF OAKLAND,
Defendants.
____________________________________/
OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
On February 3, 2012, Plaintiff initiated this civil rights action Defendants
claiming that he was attacked by officers when booked on June 7, 2012. In an
order dated April 30, 2012, this Court dismissed all defendants except Eric
Hoisington and Jason Rupe. (ECF No. 6.) On December 14, 2012, Defendants
Hoisington and Rupe filed a motion for judgment on the pleadings or for summary
judgment. (ECF No. 15.) This Court referred the motion to Magistrate Judge

Laurie J. Michelson for a report and recommendation (“R&R”) pursuant to 28
U.S.C. § 636(b)(1)(B). (ECF No. 18.) Plaintiff never filed a response to the
motion and on August 9, 2013, Magistrate Judge Michelson issued a R&R
recommending the granting of Defendants’ motion for summary judgment. (ECF
No. 21.)
In her R&R, Magistrate Judge Michelson concludes that the undisputed facts
fail to show a Fourth Amendment violation by Defendants Hoisington or Rupe.1
At the conclusion of the R&R, Magistrate Judge Michelson advises the parties that
they may object to and seek review of the R&R within fourteen days of service
upon them. (Id. at 12.) She further specifically advises the parties that “[f]ailure to
file specific objections constitutes a waiver of any further right to appeal.” (Id.) No
objections to the R&R were filed.2

1

While Plaintiff’s Complaint refers to the Eighth Amendment and claims that
Plaintiff was subjected to cruel and unusual punishment, he was a pretrial detainee
at the time of the incident. Thus, as Magistrate Judge Michelson correctly
determines, the Fourth Amendment applies. (R&R at 6.)
2

The R&R initially was mailed to Plaintiff at the Ionia Maximum
Correctional Facility where Plaintiff was last incarcerated. However, according to
the Michigan Department of Corrections’ Offender Tracking Information Service,
Plaintiff was paroled July 30, 2013. See
http://mdocweb.state.mi.us/otis2/otis2profile.aspx?mdocNumber=726000. Thus
the copy of the R&R that had been sent to him was returned to the Court as
undeliverable. (ECF No. 22.) Plaintiff nevertheless has not provided the Court
with an updated address as required by Eastern District of Michigan Local Rule
11.2. Notably, the Court informed the parties of their obligation to provide any
(continued...)

The Court has carefully reviewed the R&R and concurs with the conclusions
reached by Magistrate Judge Michelson. The Court therefore adopts Magistrate Judge
Michelson’s August 9, 2013 Report and Recommendation.

Accordingly,
IT IS ORDERED, that Defendants’ motion for summary judgment is
GRANTED.
Dated: September 12, 2013

s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE

Copies to:
Travis Lee, #72600
c/o Pontiac Parole Office
2001 Centerpoint Parkway, Suite 101
Pontiac, MI 48341
Mary M. Mara, Esq.

2

(...continued)

change of address early in this case. (ECF No. 3.) The Court nevertheless sent a
second copy of the R&R to Plaintiff at his assigned parole office on August 19,
2013. Despite waiting an additional fourteen days for Plaintiff to file any
objections to the R&R that he might have, no objections have been received.