Fitts et al v. Snyder et al

Filing 80

ORDER granting 44 Motion to Dismiss; adopting 63 Report and Recommendation. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CAMERON FITTS, ET AL.,
CASE NO. 12-13575
Plaintiffs,
SENIOR UNITED STATES DISTRICT JUDGE
ARTHUR J. TARNOW

v.
RICK SNYDER, ET AL.,

MAGISTRATE JUDGE R. STEVEN WHALEN
Defendants.
/
ORDER ADOPTING THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATIONS [63] AND GRANTING DEFENDANT DAN
BOLDEN’S MOTION TO DISMISS [44]
Before the Court is the Magistrate Judge’s Report and Recommendation
[63], recommending that the Court grant Defendant Dan Bolden’s Motion to Dismiss
[44].
For the reasons stated below, the Report and Recommendation [63] is adopted,
Defendant Bolden’s Motion to Dismiss [44] is granted.
I. Procedural Background
On August 13, 2012, pro se Plaintiffs filed their Complaint [1] before this
Court. Plaintiffs filed an Amended Complaint [12] on October 1, 2012.
On September 27, 2013, this Court entered an Order [54] granting all Michigan
Department of Corrections (MDOC) Defendants’ Motion to Dismiss [22].

On May 20, 2013, Defendant Dan Bolden filed his Motion to Dismiss [44].
Plaintiff Kenneth Wilson filed a Response [46] on June 12, 2013.
The Magistrate Judge entered the Report and Recommendation [63],
recommending that this Court grant Defendant Bolden’s Motion to Dismiss [44], on
January 14, 2014. On January 29, 2014, Plaintiff Michael Davis filed Objections [72]
to the Report and Recommendation [63].1
Plaintiff Davis filed a Petition for Habeas Corpus [67] on January 21, 2014.
II. Standard of Review
The Court reviews objections to a Magistrate Judge’s Report and
Recommendation on a dispositive motion de novo. Fed. R. Civ. P. 72(b); see also 28
U.S.C. §636(b)(1)(C). Making some objections to a Magistrate Judge’s Report and
Recommendation, but failing to raise others, will not preserve all objections a party
may have to the Report and Recommendation. McClanahan v. Commissioner of Soc.
Sec., 474 F.3d 830, 837 (6th Cir. 2006).
In a motion to dismiss, “the Plaintiff’s well-pleaded factual allegations are taken
as true, and reasonable inferences must be drawn in the Plaintiff’s favour.” Meador
v. Cabinet for Human Res., 902 F.2d 474, 475 (6th Cir. 1990). However, a court need

1

The docket incorrectly labels entries [68] and [69] as objections. Instead, the
substance of these entries suggest that they are more appropriately categorized as
separate motions, and will not be addressed by the Court here.
2

not accept as true legal conclusions or draw unwarranted factual inferences.
Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998). Further the plaintiff must
“plead[] factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009). The plaintiff’s factual allegations must do more than demonstrate a
“sheer possibility that a defendant has acted unlawfully.” Id.
III. Facts.
The Report and Recommendation [63] contains an explanation of the factual
background of this case. The Court adopts the factual background as set out in the
Report and Recommendation [63] in full.
IV. Analysis
Defendant Dan Bolden is former deputy director of the MDOC. Plaintiffs’
Amended Complaint [12] claims that Defendant Bolden improperly denied Plaintiff
Fitts 563 days of disciplinary credits, improperly denied parole to all Plaintiffs, and
improperly denied Plaintiff Davis and Wilson’s requests for “pardon, reprieve, or a
commutation.” Plaintiffs argue that these actions were improper as they were based
on illegally amended state law. Plaintiffs in part request release from custody.
In the Report and Recommendation [63] now before the Court, the Magistrate
Judge correctly finds that Plaintiffs have failed to make claims cognizable in federal
court, or more specifically, that Plaintiffs have failed to allege the deprivation of a
3

right secured by the Constitution or laws of the United States. Such an allegation is
required to make a cognizable civil rights claims under 42 U.S.C. § 1983. See Stanley
v. Vining, 602 F.3d 767, 769 (6th Cir. 2010)(“It has long been established that the
violation of a state statute or regulation is insufficient alone to make a claim
cognizable under §1983.”).
Plaintiffs attempt to make claims of Constitutional due process violations based
on allegedly invalid state rules and regulations, which Plaintiffs assert impacted the
possibility of parole, pardon, and reprieve, forfeiture of disciplinary credits, and the
possibility of sentence commutation. However, Plaintiffs have no constitutionally
protected liberty interest in parole, reprieve, commutation, or pardon. Manning v.
Unknown Parties, 56 Fed. Appx. 710, 711 (6th Cir. 2003). Moreover, to the extent to
which Plaintiffs seek to attack the legality or length of their confinement, including
Plaintiff Fitts’s claims as to disciplinary credits, these requests are more appropriately
made in a petition for writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 486
(1973); see also Ruiz v. Hofbauer, 325 Fed. Appx. 427, 430 (6th Cir. 2009).
In Plaintiff Davis’s Objections [72] now before the Court, Plaintiff first requests
that his “personal records” are not sent to his co-Plaintiffs. Local Rule 5.3 provides
that, “[w]hen a statute or rule authorizes filing a document or other item under seal in
a civil case, the item may be filed without a court order...A separate notice of filing
under seal must be filed before filing an item under seal...Except as provided by
4

statute or rule, documents...may be sealed in a civil case only by court order.” Plaintiff
does not detail the exact records he wishes to be sealed, and therefore the Court is
unable to comply with this request at this time.
In his Objections [72], Plaintiff Davis goes on to list a series of alleged facts
and legal claims. This list includes that Plaintiff Davis was denied pardon in
November 2012, was mislead regarding the commutation of his sentence and future
release, was wrongfully arrested, is currently falsely imprisoned, that unlawful
misconduct occurring against Plaintiff while incarcerated will not stop until he is
released, and that Plaintiff has a constitutional right to pardon, reprieve, and release
upon writ of habeas corpus.
In making these objections, Plaintiff Davis fails to negate the legal basis
requiring the granting of Defendant Bolden’s Motion to Dismiss [44] as detailed
above. See supra at 3-5. In fact, Plaintiff Davis fully recognizes that his claims,
particularly as to the legality and length of his confinement are properly addressed
through a petition for writ habeas corpus.2
Plaintiff Davis’s Objections [72] include new allegations of possible physical
and medical abuse. However, these allegations do not appear to be made against
Defendant Bolden.

2

Plaintiff Davis has filed a Petition for Habeas Corpus [67] before this
Court. The Court will not address Plaintiff’s Petition [67] at this time.
5

Therefore, Plaintiff Davis’s Objections [72] are without merit.

V. Conclusion
For the reasons stated above, the Report and Recommendation [63] is adopted,
Defendant Bolden’s Motion to Dismiss [44] is granted.
Therefore,
IT IS HEREBY ORDERED that the Report and Recommendation is
ADOPTED.
IT IS FURTHER ORDERED that Defendant Bolden’s Motion to Dismiss
[44] is GRANTED.
SO ORDERED.
s/Arthur J. Tarnow
ARTHUR J. TARNOW
SENIOR UNITED STATES DISTRICT JUDGE
Dated: March 31, 2014
____________________________________________________________
CERTIFICATE OF SERVICE
I hereby certify on March 31, 2014 that I electronically filed the foregoing paper with the Clerk of the Court
sending notification of such filing to all counsel registered electronically. I hereby certify that a copy of this paper was
mailed to the following non-registered ECF participants on March 31, 2014: Cameron Fitts, Michael Davis, Kenneth
Wilson.
s/Michael E. Lang
Case Manager to
District Judge Arthur J. Tarnow
[phone]

6