Richards v. McKee et al

Filing 46

ORDER Adopting Report and Recommendation for GRANTING 21 Motion for Order filed by Capau, DISMISSING AS MOOT 35 Motion for Summary Judgment, filed by Niemiec, Wise, Malcom, Perez, Mote, Gibson, Angel, Bennickson, Wall, M aynard, Gilbert, GRANTING 37 Motion to Sever filed by Kyle Richards, DENYING 23 Motion filed by Kyle Richards, DISMISSING AS MOOT 39 Motion for Summary Judgment filed by Striat, Gibson (Officer), Gilbert, Malcom (Officer), Maynard (Officer), Mote, Niemiec, Perez, Striat (Officer), Wall (Officer), Wise, Angel and Bennickson Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KYLE RICHARDS,
Plaintiff,
v.

Case No.: 12-cv-14148

KEN MCKEE, et al.,

Honorable Sean F. Cox
District Court Judge

Defendants.

Laurie J. Michelson
Magistrate Judge

_________________________________________/
OPINION AND ORDER
ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION
Before the Court is Plaintiff Kyle Richards’ (“Richards”) Objection to Magistrate Judge
Laurie J. Michelson’s Report and Recommendation, in this § 1983 action. The court finds that the
issues have been adequately presented in the parties’ briefs and that oral argument would not
significantly aid the decision making process. See Local Rule 7.1(f)(2), U.S. District Court, Eastern
District of Michigan. The Court therefore orders that the motion will be decided on the briefs. For
the reasons that follow, the Court shall ACCEPT and ADOPT Magistrate Judge Michelson’s
Report and Recommendation [Docket Entry No. 40].
BACKGROUND
On September 19, 2012, Richards, a Michigan state prisoner, filed a Complaint against fifty
(50) defendants alleging, among other things, a § 1983 action for violations of his First and Eighth
Amendment rights, as well as various state laws claims. (Docket Entry No. 1.) Following the initial
screening of Richards’ Complaint pursuant to the Prison Litigation Reform Act, what remains are

1

Richards’ contentions that various correction officers at the Bellamy Creek Correctional Facility are
depriving him of his Eighth Amendment right to be free from cruel and unusual punishment by
means of starvation, and several Macomb County Jail officers retaliated against him in violation of
his First Amendment rights. (Docket Entry Nos. 13, 40, at 1.)
Several motions have been filed by the parties that are currently pending before the Court.
Defendant Scott Campau, a Macomb County Correctional Deputy, seeks leave to take Richards’
deposition. (Docket Entry No. 21.) Various Michigan Department of Correction officers filed
motions for summary judgment based on Richards’ alleged failure to exhaust his administrative
remedies. (Docket Entry Nos. 35, 39.) Richards filed a “Motion for Solidification and Admission
of Exhibits,” requesting that this Court make a preliminary finding that he was “obstructed and
wrongly prevented from exhausting the grievance process” and that he is “under the imminent threat
of serious physical harm due to starvation . . . .” (Docket Entry No. 23, at 1.) Richards also filed
a “Motion to Sever and Transfer to Ionia County District Court and Notice of Deviation,” which
makes the following request:
The Plaintiff hereby ‘drops’ all federal claims . . . (claims arising out of
federal law) . . . against the following Defendants:
1) Robert Mote,
2) Jerud Niemiec,
3) Matthew Bennickson,
4) Scott Gilbert,
5) Donald Wise,
6) Veronica Perez,
7) Bryce Angel,
8) Ronald Walls,
9) Lewis Malcolm,
10) Brian Gibson,
11) Patrick Maynard.
However, ‘state law’ claims in this lawsuit, remain active . . . .
When matters of federal law are the primary issue of focus, additional state
law claims may hold ‘supplemental’ value.
Since all matters of federal law have been dismissed, the remaining state law
claims have become primary.
The Court no longer has jurisdiction over Plaintiffs[sic] claims against the
above MDOC Defendants.
The proper action would be for the Court to transfer the remaining claims, to
2

the appropriate venue and jurisdiction:
1)
which is Ionia County District Court, in Ionia, Michigan.
Request to sever:
Upon transfer of MDOC Defendants, to Ionia County, their case will
automatically be severed from the Defendants remaining in federal court, Scott
Campau, Officer Klien, CO Lois.
The remaining 3 Defendants in federal court are still being sued under the 8th
and 14th Amendment.
(Docket Entry No. 37, at 1–2.)
This Court referred those motions to Magistrate Judge Michelson for a report and
recommendation. (Docket Entry No. 14.) On June 18, 2013, Magistrate Judge Michelson filed her
Report and Recommendation, recommending that “Plaintiff’s Motion to Sever, to the extent it seeks
to voluntarily dismiss all federal claims against MDOC Defendants Mote, Niemiec, Bennickson,
Gilbert, Wise, Perez, Angel, Wall, Striat, Malcom, Gibson, and Maynard, [should] be GRANTED.
[Magistrate Judge Michelson] . . . further recommends that any remaining state law claims against
these Defendants [should] also be DISMISSED WITHOUT PREJUDICE. Because this results in
dismissal of the MDOC Defendants, [Magistrate Judge Michelson] . . . further RECOMMENDS that
the MDOC Defendants’ Motions for Summary Judgment (Dkts. 35, 39) be DISMISSED AS
MOOT.” (Docket Entry No. 40, at 8.)
In addition, Magistrate Judge Michelson “ORDERED that Plaintiff’s Motion for
Solidification and Admission of Exhibits (Dkt. 23) is DENIED, and Defendant Campau’s Motion
for Leave to Depose Plaintiff (Dkt. 21) is GRANTED, but Campau should not schedule Plaintiff’s
deposition for 60 days.” (Id.)
STANDARD OF REVIEW
This Court has jurisdiction to review Magistrate Judge Michelson’s Report and
Recommendation. 28 U.S.C. § 636(b)(1)(C). This Court may accept, reject or modify, in whole or
3

in part, the recommendations made by Magistrate Judge Michelson. (Id.) However, the matters as
to which objections are made must be reviewed de novo. See id.; see also Jones v. Stine, 843 F.Supp.
1186, 1189 (W.D. Mich. Feb. 10, 1994).
ANALYSIS
Richards’ Objection to the Report and Recommendation requests that this Court allow him
to withdraw his motion to sever. (Docket Entry No. 42.) He contends that Magistrate Judge
Michelson mistakenly interpreted his motion to sever as a “voluntary dismissal” motion. (Id. at 1.)
Richards also contends that the Report and Recommendation illustrates “a strong hint of bias and
a history of undue favor shown towards the attorney general.” (Id. at 2.)
The Report and Recommendation, recommends precisely what Richards’ motion requested.
Richards does not provide any argument suggesting otherwise. Richards’ allegations of bias relies
on Magistrate Judge Michelson’s alleged failure to recommend that this Court grant any of his
motions or requested injunctions “despite urgent need.” (Id.) The mere fact that a court has not
granted any motions or injunctions in one’s favor does not imply strong bias. See Amadasu v. Mercy
Franciscan Hosp., 515 F.3d 528, 530 (6th. Cir. 2008) (stating that a judicial bias assertion is
improper when based on dissatisfaction with court rulings).
CONCLUSION AND ORDER
IT IS ORDERED that the Court ADOPTS AND ACCEPTS Magistrate Judge Michelson’s

4

Report and Recommendation [Docket Entry No. 40].
IT IS SO ORDERED.

Dated: August 5, 2013

S/ Sean F. Cox
Sean F. Cox
U. S. District Court Judge

I hereby certify that on August 5, 2013, the foregoing document was served upon counsel of
record by electronic means and upon Kyle Richards by First Class Mail at the address below:
Kyle Richards
641715
Bellamy Creek Correctional Facility
1727 West Bluewater Highway
Ionia, MI 48846
Dated: August 5, 2013

S/ J. McCoy
Case Manager

5