Moore v. Palmer et al

Filing 87

ORDER (1) Overruling Defendants' 85 Objection; (2) Adopting the Magistrate Judge's 84 Report and Recommendation; and Granting in Part and Denying in Part Defendants' 70 Motion for Summary Judgment. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MAURICE MOORE,
Plaintiff,

Case No. 12-14783
Hon. Matthew F. Leitman

v.
CARMEN PALMER et al.,
Defendants.
__________________________________________________________________/
ORDER (1) OVERRULING DEFENDANTS’ OBJECTION (ECF #85);
(2) ADOPTING THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION (ECF #84); AND GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT (ECF #70)
Plaintiff Maurice Moore is a former inmate of the Michigan Department of
Corrections (“MDOC”). In this action, Plaintiff alleges that numerous MDOC
employees and officials violated his First and Eighth Amendment rights. Plaintiff
also asserts a claim under state law for gross negligence. All of Plaintiff’s claims
relate to his allegation that he was repeatedly and viciously assaulted by members
of the Latin Counts gang while in MDOC custody.
Following the close of discovery, Defendants filed a motion for summary
judgment; Plaintiff opposed the motion. Magistrate Judge Mona K. Majzoub
prepared a thorough and well-reasoned twenty-eight page Report and
Recommendation (“R & R”) in which she recommends that the Court grant the

motion in part and deny it in part. More specifically, the R & R suggests that the
Court (1) grant summary judgment in favor of Defendants Scutt, Barrett, Vroman,
Heyns, Heinritz, Haney, Armstrong, MacEachern, Stapleton, Chaney, and Wolfe
on all of the claims against them; (2) deny summary judgment for Defendants
Palmer, Kipp, Stewart, McCaulley, Sutherland, Napel, Alexander, Niemosto,
Place, Marshall, LaCount, Prelesnik, Norwood, Huss, McKeon, and Straub; and (3)
allow all of Plaintiff’s claims against this latter group of Defendants to proceed to
trial.
Defendants have now filed an objection to the R & R. Defendants say that
they “accept the Magistrate Judge’s summary of the evidence presented in
Defendants’ Motion and Plaintiff’s Response thereto; it is the conclusions drawn
from that evidence with respect to Plaintiff’s claim of gross negligence that
Defendants object to.” (Objection, ECF # 85 at 2, Pg ID 698.) Defendants argue
that the Magistrate Judge should have granted them summary judgment on the
gross negligence claim because (1) Plaintiff failed to present evidence sufficient to
support a finding that Defendants’ proximately caused Plaintiff’s claimed injuries
and (2) Plaintiff has impermissibly attempted to recast an intentional tort claim as a
gross negligence claim.

The Court overrules both of these objections because Defendants did not
sufficiently present either of these arguments in their original motion and/or to the
Magistrate Judge.

Defendants attacked the sufficiency of Plaintiff’s gross

negligence claim at the highest level of generality – never once specifying the
specific alleged defects identified in the objections. Accordingly, Defendants’
objections can only be regarded as new arguments. A party may not make new
arguments in an objection to an R & R. See Murr v. United States, 200 F.3d 895,
902, n.1 (6th Cir. 2000); Jackson v. Commissioner of Social Security, 2014 WL
1304913 at *7 (E.D. Mich. 2014).
Accordingly, IT IS HEREBY ORDERED THAT:
1. Defendants’ Objection (ECF #85) to the R & R is OVERRULED;
2. The R & R (ECF #84) is ADOPTED as the Order of the Court;
3. Defendants’ Motion for Summary Judgment (ECF #70) is
GRANTED as to Defendants Scutt, Barrett, Vroman, Heyns,
Heinritz, Haney, Armstrong, MacEachern, Stapleton, Chaney, and
Wolfe; and
4. Defendants’ Motion for Summary Judgment is DENIED as to
Defendants Palmer, Kipp, Stewart, McCaulley, Sutherland, Napel,
Alexander, Niemosto, Place, Marshall, LaCount, Prelesnik, Norwood,
Huss, McKeon, and Straub.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: August 12, 2015

I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on August 12, 2015, by electronic means and/or ordinary
mail.
s/Holly A. Monda
Case Manager
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