Reed v. Lewis et al

Filing 90

ORDER ADOPTING REPORT AND RECOMMENDATION (Doc. 87)AND GRANTING VICKI LEWISS MOTION FOR SUMMARY JUDGMENT (Doc. 82)AND DENYING NOLA FETTIGS MOTION FOR SUMMARY JUDGMENT (Doc. 82)AND DIRECTING COUNSEL BE APPOINTED FOR PLAINTIFF Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MARK ANTHONY REED-BEY,
Plaintiff,
Case No. 13-10168
vs.
HON. AVERN COHN
VICKI LEWIS, NOLA FETTIG,
Defendants.
__________________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION (Doc. 87)
AND
GRANTING VICKI LEWIS’S MOTION FOR SUMMARY JUDGMENT (Doc. 82)
AND DENYING NOLA FETTIG’S MOTION FOR SUMMARY JUDGMENT (Doc. 82)
AND
DIRECTING COUNSEL BE APPOINTED FOR PLAINTIFF
I.
This is a pro se prisoner civil rights case under 42 U.S.C. § 1983. Following
dispositive motions and an appeal, see Doc. 59, plaintiff’s retaliation claim against Vicki
Lewis, a corrections officer, and Nola Fettig, a resident unit manager,1 remains. Lewis
and Fettig filed a joint motion for summary judgment. (Doc. 82). The magistrate judge
issued a report and recommendation (MJRR), recommending that the motion be
granted as to Lewis and denied as to Fettig. (Doc. 87).
Before the Court are plaintiff’s and Fettig’s objections to the MJRR. (Docs. 88,
89). For the reasons that follow, the objections will be overruled, summary judgment
will be granted as to Lewis and denied as to Fettig. Also, the Court will direct that
1

Fettig has since retired but is still being represented by the Michigan Attorney
General’s office.

counsel be appointed for plaintiff.
II.
A district court must conduct a de novo review of the parts of a magistrate
judge's report and recommendation to which a party objects. 28 U.S.C. § 636(b)(1). The
district "court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate" judge. Id. The requirement of de novo
review "is a statutory recognition that Article III of the United States Constitution
mandates that the judicial power of the United States be vested in judges with life
tenure." United States v. Shami, 754 F.2d 670, 672 (6th Cir. 1985).
A general objection, or one that merely restates the arguments previously
presented, is not sufficient to alert the court to alleged errors on the part of the
magistrate judge. An "objection" that does nothing more than state a disagreement with
a magistrate judge's suggested resolution, or simply summarizes what has been
presented before, is not an objection as that term is used in this context. Howard v.
Sec'y of Health and Human Servs., 932 F.2d 505, 508 (6th Cir. 1991) ("It is arguable in
this case that Howard's counsel did not file objections at all.... [I]t is hard to see how a
district court reading [the ‘objections'] would know what Howard thought the magistrate
had done wrong.").
III.
As to plaintiff’s objections, the magistrate judge recommends that Lewis be
dismissed on summary judgment because plaintiff cannot show a causal connection or
an adverse action taken against him by Lewis. Plaintiff’s objections essentially repeat
the arguments considered and rejected by the magistrate judge. The magistrate judge
2

carefully considered the record and concluded that no rational trier of fact could find that
Lewis retaliated against plaintiff. The Court agrees. Although plaintiff alleged a claim
against Lewis sufficient to survive dismissal, the record evidence does not support a
finding that there was a causal connection between plaintiff’s protected activity or that
plaintiff suffered an adverse action by Lewis.
As to Fettig, the magistrate judge recommended that summary judgment be
denied because the record reveals a factual question as to whether there is a causal
connection between plaintiff’s protected activity (informing Fettig that he had filed a
grievance against her) and the adverse action (her decision depriving plaintiff of his
property) sufficient to survive summary judgment.
Fettig objects to the magistrate judge’s reliance on the Sixth Circuit’s opinion to
find that plaintiff has satisfied the other elements of a retaliation claim, i.e. engaging in
protected activity and suffering an adverse action. Fettig says that the Sixth Circuit did
not so conclude. This objection is not well taken. As the magistrate judge explained,
the Sixth Circuit found that plaintiff had engaged in protected conduct and suffered an
adverse action; the record bears this out.
Fettig also objects on the grounds that the magistrate judge failed to consider her
arguments that any official capacity claim must be dismissed and that she is entitled to
immunity as a hearing officer. While the MJRR did not address these arguments, a
failure to do so is not grounds for rejecting the MJRR.
To the extent plaintiff has asserted a claim against Fettig in her official, as
opposed to individual, capacity, it must be dismissed on the grounds of 11th Amendment
immunity.
3

Fettig’s argument that she is entitled to immunity as the hearing officer for the
misconduct hearing lacks merit. Such immunity applies only to independent hearing
officers who are attorneys and whose duties are governed by M.C.L. § 791.251 through
791.255. Shelly v. Johnson, 849 F.2d 228, 229 (6th Cir. 1988) (hearing officers as
defined by Sections 791.251-791.55 are independent attorneys and are entitled to
absolute immunity). It does not extend to prison employees like Fettig. Cleavinger v.
Saxner, 474 U.S. 193 (1985) (prison employees who are subordinate to the warden not
entitled to absolute immunity for disciplinary decisions). Although Fettig conducted a
disciplinary hearing, she was not an independent attorney and was subordinate to the
warden. As such, she is not entitled absolute immunity for her actions as a hearing
officer. See Good v. Heyns, 2017 WL 3446262 (E.D. Mich. May 25, 2017).
V.
Finally, given the fact that a claim remains against Fettig, the Court directs that
counsel be appointed to assist plaintiff in either pursuing settlement, which is highly
encouraged, or proceeding to trial. See Bennett v. Smith, 110 F. App’x 633, 635 (6th
Cir. 2004) (counsel may be appointed in a civil case in exceptional circumstances).
Upon the appointment of counsel, the Court will schedule a status conference.
SO ORDERED.

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: September 28, 2017
Detroit, Michigan
4