White v. Jindal et al

Filing 165

ORDER withdrawing 134 Motion for an Emergency Hearing; granting 136 Motion to Seal Rulings; withdrawing 143 Motion of Correction to Motion for Emergency Hearing; denying 145 Motion to Amend Scheduling Order; withdrawing 146 Emergency Motion for Immediate Temporary Injunction to Prevent Physical Injury or Death; withdrawing 148 Motion in Support of Motion to Amend and Proof of Ongoing Imminent Danger; granting in part and denying in part 162 Motion to Voluntarily Dismiss doc, 134, 143, 146, 148, 162 - Signed by Magistrate Judge Mona K. Majzoub. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARK WHITE,
Plaintiff,
vs.

CIVIL ACTION NO. 13-15073
DISTRICT JUDGE AVERN COHN
MAGISTRATE JUDGE MONA K. MAJZOUB

ROSILYN JINDAL, et al.,
Defendants.
___________________________________________/
OPINION AND ORDER 1) GRANTING IN PART PLAINTIFF’S MOTION TO
VOLUNTARILY DISMISS DOC’S 134, 143, 146, 148 AND FOR ORAL ARGUMENTS
ON SUMMARY JUDGMENT AND ONGOING CONCERNS OF IMMINENT DANGER
[162]; 2) GRANTING IN PART PLAINTIFF’S MOTION TO SEAL RULINGS DUE TO
IMMINENT DANGER AND SEEKING JUDICIAL NOTICE OF FACTS AND
CURRENT IMMINENT DANGER [136]; AND 3) DENYING PLAINTIFF’S MOTION
TO AMEND/CORRECT SCHEDULING ORDER AND TAKE NOTICE OF IMMINENT
DANGER [145]
I.

Background
Plaintiff Mark White, currently a prisoner at the Bellamy Creek Correctional Facility in

Ionia, Michigan, filed this pro se civil rights case on December 13, 2013. (Docket no. 1.) He
originally alleged claims against a number of defendants related to his healthcare while imprisoned
at the Gus Harrison Correctional Facility in Adrian, Michigan, but those claims have been
dismissed based on the applicable statute of limitations and for improper joinder. (Docket no. 73
at 6-8.) His remaining claims relate to his refusal to “snitch” on fellow inmates and the alleged
failure of Gus Harrison prison officials to properly protect him from gang members. (Docket no.
14 at 5-6.) He sues Defendant Paul Klee, the Warden at the Gus Harrison Facility; Defendant Lee

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McRoberts, the Deputy Warden; and Defendant C. Condon, a Resident Unit Manager
(“Defendants”), all in their official and individual capacities. (Id. at 1.)
Plaintiff is subject to the three strikes rule in 28 U.S.C. § 1915(g)1 (see White v. Heyns, No.
13-cv-12104, docket no. 4, E.D. Mich. May 24, 2013); however, he has been allowed to proceed
without prepayment of fees in this case because he was able to demonstrate that he was “under
imminent danger of serious physical injury.” 28 U.S.C. § 1915(g); see also docket no. 73 at 7.
On April 22, 2014, Plaintiff obtained a Temporary Injunction requiring Defendants to “transfer
plaintiff to an MDOC facility that does not have a ‘high concentration’ of members of the
Gangster’s Disciples prison gang.” (Docket no. 44 at 3.) On June 24, 2014, however, the
Temporary Injunction was vacated following a determination that Plaintiff was required to seek
protection through Michigan Department of Corrections (“MDOC”) administrative procedures
before resorting to court-ordered relief. (Docket no. 73 at 5-6.)
Since that time, Plaintiff has been transferred out of the Gus Harrison Facility. He has
continued his efforts to prosecute this case, however, by filing numerous “motions,” many of
which are confusing, repetitive, and procedurally improper. Defendants respond sporadically.
Since the dissolution of the Temporary Injunction, the Court has issued a number of orders to
move the case along, most notably by appointing counsel for Plaintiff, on September 15, 2015.
(Docket no. 121.) On April 1, 2016, however, the Court granted Plaintiff’s counsel’s motion to
withdraw from the case, following a “fundamental breakdown in the attorney-client relationship,”
which counsel alleged was “caused by [Plaintiff’s] belligerent insistence upon taking action

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Under 28 U.S.C. § 1915(g), a court may revoke or deny a plaintiff’s in forma pauperis status where the
plaintiff has, on three or more prior occasions, suffered dismissal of civil rights claims on the ground that the claim
was frivolous, malicious, or failed to state a claim upon which relief can be granted.

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[counsel] believes to be legally unjustified.” (Docket no. 133 at 6-7.)
There is currently a litany of Motions pending in this matter:


Plaintiff’s Motion for Emergency Hearing (docket no. 134);



Plaintiff’s Motion to Seal Rulings Due to Imminent Danger and Seeking Judicial Notice of
Facts and Current Imminent Danger (docket no. 136);



Plaintiff’s Motion to Amend Complaint to Change the Title of Case and to Add Defendant
(docket no. 141);



Plaintiff’s Motion of Correction to Motion for Emergency Hearing (docket no. 143);



Plaintiff’s Motion to Amend Scheduling Order and Take Notice of Imminent Danger
(docket no. 145);



Plaintiff’s Emergency Motion for Immediate Temporary Injunction to Prevent Physical
Injury or Death (docket no. 146);



Plaintiff’s Motion in Support of Motion to Amend and Proof of Ongoing Imminent Danger
(docket no. 148);



Plaintiff’s Motion Nunc Pro Tunc to Dismiss Docket #141 and Adopt Amended Complaint
as Filed Exhibit A in Docket #128 (docket no. 149);



Plaintiff’s Motion for Contempt and Sanctions (docket no. 150);



Plaintiff’s Second Motion for Contempt - Sanctions, Request for Investigation, Attorney
Misconduct - Conspiracy with Non-Parties - Deliberate Deceptive Practices - Threats Intimidation - Injunctive Relief Requested (docket no. 152);



Defendants’ Motion for Rule 11 Sanctions (docket no. 153);



Defendants’ Motion for Summary Judgment (docket no. 158);



Plaintiff’s Motion to Voluntarily Dismiss Doc’s 134, 143, 146, 148 and for Oral
Arguments on Summary Judgment and Ongoing Concerns of Imminent Danger (docket
no. 162).
The Undersigned has addressed Plaintiff’s Motion to Amend Complaint to Change the

Title of Case and to Add Defendant (docket no. 141), Plaintiff’s Motion Nunc Pro Tunc to Dismiss
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Docket #141 and Adopt Amended Complaint as Filed Exhibit A in Docket #128 (docket no. 149),
the parties’ motions for contempt/sanctions (docket nos. 150, 152, 153), and Defendants’ Motion
for Summary Judgment (docket no. 158) in a Report and Recommendation filed concurrently with
this Opinion and Order. The Court will address the remaining motions herein. All pretrial
matters have been referred to the undersigned for consideration.

(Docket no. 12.)

The

undersigned dispenses with oral argument pursuant to Eastern District of Michigan Local Rule
7.1(f).
II.

Analysis
A.

Plaintiff’s Motion to Voluntarily Dismiss Doc’s 134, 143, 146, 148 and for Oral
Arguments on Summary Judgment and Ongoing Concerns of Imminent
Danger [162]

As the title of this Motion makes clear, Defendant seeks to voluntarily dismiss, or
withdraw, several different motions.

(Docket no. 162.)

He also requests oral argument

regarding Defendants’ Motion for Summary Judgment and his ongoing concerns of imminent
danger. (Id.) Defendants did not file a response to the Motion.
The Court will grant the Motion (docket no. 162) in part and deny in part. Specifically,
the Court will allow Plaintiff to voluntarily withdraw docket nos. 134, 143, 146, and 148. These
motions (docket nos. 134, 143, 146, and 148) all relate to allegedly dangerous conditions at the
Oaks Correctional Facility, also referred to as “ECF,” and all essentially request transfer from the
Oaks Facility. As he explains in the Motion, Plaintiff was transferred from the Oaks Facility on
September 5, 2016, rendering each of the motions identified in the Motion to Voluntarily Dismiss
moot. (Docket no. 162.) Of the motions Plaintiff seeks to withdraw, Defendants only filed a
Response to docket no. 134, and in their Response, Defendants also take the position that the

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motion is moot. (Docket no. 138 at 2.) Defendants therefore are not prejudiced by Plaintiff’s
voluntary withdrawal of docket nos. 134, 143, 146, and 148.
Plaintiff also requests oral argument regarding Defendants’ Motion for Summary
Judgment and his ongoing concerns of imminent danger. (Docket no. 162.) Included in docket
no. 162 is a Response to Defendants’ Motion for Summary Judgment.2 As explained in the
concurrently issued Report and Recommendation, however, the Court recommends that
Defendants’ Motion for Summary Judgment (docket no. 158), be denied as moot, in light of the
fact that the Court also recommends Plaintiff be allowed to file a second amended complaint. The
Court therefore will not consider Plaintiff’s Response to Defendants’ Motion for Summary
Judgment contained within docket no. 162, and will deny Plaintiffs’ request for oral argument on
the Motion for Summary Judgment as moot.
B.

Plaintiff’s Motion to Seal Rulings Due to Imminent Danger and Seeking
Judicial Notice of Facts and Current Imminent Danger [136]

In Plaintiff’s Motion to Seal Rulings Due to Imminent Danger and Seeking Judicial Notice
of Facts and Current Imminent Danger (docket no. 136), Plaintiff asks the Court to seal one
Opinion and Order (docket no. 97), one Report and Recommendation (docket no. 98), and two
Orders (docket nos. 131, 133). Plaintiff states that these “rulings contain information about other
inmates or statements by the Court that can be accessed by any inmate . . . and are dangerous to
Plaintiff’s health and safety.” (Docket no. 136 at 1.) Defendants did not respond to the Motion.
Docket no. 97 is the Court’s Opinion and Order from January 14, 2015. It quotes from
Plaintiff’s discovery requests for the disciplinary and psychiatric records of certain inmates.
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The Motion to Voluntarily Dismiss Doc’s 134, 143, 146, 148 and for Oral Arguments on Summary
Judgment and Ongoing Concerns of Imminent Danger and the Response to Defendant’s Motion for Summary
Judgment are two separate documents; however, they were mailed together and filed together as one docket entry.

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(Docket no. 97 at 6.) Docket no. 98 is a Report and Recommendation from February 7, 2015.
The Court quotes Plaintiff’s Amended Complaint and Motion for Summary Judgment, in which
Defendant makes allegations about these same inmates. (Docket no. 98 at 5.) Docket nos. 131
and 133 are both Orders in which the Court either quotes the same discovery requests or references
its decision in docket no. 97. (See docket no. 131 at 6; docket no. 133 at 4-5.)
The Court has already ordered the sealing of Docket no. 97. (Docket no. 119 at 6.) For
the same reasons the Court granted Plaintiff’s prior request, the Court will grant Plaintiff’s instant
request and order the sealing of docket nos. 98, 131, and 133 in accordance with Eastern District of
Michigan Local Rule 5.3, and Federal Rule of Civil Procedure 5.2.
The Court will not, however, entertain any further requests or motions to seal documents
unless Defendant provides specific reasons to support the sealing, particularly in light of the fact
that Plaintiff has been transferred away from Gus Harrison Facility, where it appears the named
inmates are housed, and away from Chippewa Facility, where Plaintiff was housed when he
originally requested the sealing of docket no. 97. (See docket nos. 82 at 9-10, 99 at 1-2.) The
general statement that information is “dangerous to Plaintiff’s health and safety” is inadequate.
Only by reference to the Court’s prior Order from August 2015 (docket no. 119 at 5-6), was the
Court able to determine why the information in docket nos. 98, 131, and 133 might be dangerous to
Plaintiff.
In the Motion to Seal, Plaintiff also asks the Court to take judicial notice of a number of
factual allegations that bear no relevance to the Motion to Seal. Plaintiff cites no authority in
support of his request. Assuming Plaintiff seeks judicial notice of these allegations to support his
claims for trial, in reliance on Federal Rule of Evidence 201, the Court will deny Plaintiff’s request

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because Plaintiff has not provided any sources “whose accuracy cannot reasonably be questioned”
for his allegations. Fed. R. Evid. 201(b)(2). Moreover, even if Plaintiff could produce such
sources, the Court would still deny his request because it is improperly combined with his Motion
to Seal.

C.

Plaintiff’s Motion to Amend Scheduling Order and Take Notice of Imminent
Danger [145]

Plaintiff’s Motion to Amend Scheduling Order and Take Notice of Imminent Danger
(docket no. 145), consists chiefly of a complaint that his former attorney never gave him a copy of
the first scheduling order, a reiteration of his concerns about his safety at the Oaks Correctional
Facility (from which he has already been transferred), and complaints about the Oaks librarian.
He asks the Court to “modify and reissue a scheduling order, take notice of current and future
danger and the unconstitutional unwritten practices regarding legal copies and legal mail for
indigents, and any other appropriate relief.” (Docket no. 145 at 3.) Defendants did not respond.
Under Federal Rule of Civil Procedure 16(b), a court’s scheduling order may be modified
only for “good cause and with the judge’s consent.” “In order to establish ‘good cause,’ parties
must show that ‘despite their diligence they could not meet the original deadline.’” Morgan v.
Blust & Driscoll Holdings, LLC, No. 08-15027, 2010 WL 1524002, at *2 (E.D. Mich. Apr. 15,
2010) (citation omitted). “In deciding whether the ‘good cause’ standard is met, it is also
important to consider ‘whether the opposing party will suffer prejudice’ due to the schedule
modification.” Id. (citation omitted). The Court will deny the Motion at this stage in the
proceedings for failure to show good cause, and because it is likely moot in light of the proposed
second amended complaint, which is discussed in the concurrently issued Report and

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Recommendation.
All other forms of relief Plaintiff requests in his Motion to Amend the Scheduling Order
(docket no. 145) will also be denied. As in his Motion to Seal (docket no. 136), Plaintiff appears
to ask the Court to take “judicial notice” of unsupported allegations and conclusions of law which
are totally unrelated to the Motion to Amend the Scheduling Order, e.g., “take notice of current
and future danger and the unconstitutional unwritten practices regarding legal copies and legal
mail for indigents . . . .” (Docket no. 145 at 3.)
In the future, Plaintiff is advised to be specific and concise in any motion he files, with
allegations only related to the relief he seeks through the motion. Plaintiff also should not request
multiple forms of unrelated relief in the same motion.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Voluntarily Dismiss Doc’s
134, 143, 146, 148 and for Oral Arguments on Summary Judgment and Ongoing Concerns of
Imminent Danger [162] is GRANTED IN PART and DENIED IN PART. Docket nos. 134,
143, 146, and 148 will be withdrawn.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Seal Rulings due to Imminent
Danger and Seeking Judicial Notice of Facts and Current Imminent Danger [136] is GRANTED
IN PART. Docket nos. 98, 131, and 133 will be sealed.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Amend Scheduling Order and
Take Notice of Imminent Danger [145] is DENIED.
NOTICE TO THE PARTIES
Pursuant to Fed. R. Civ. P. 72(a), the parties have a period of fourteen days from the date of
this Order within which to file any written appeal to the District Judge as may be permissible under

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28 U.S.C. 636(b)(1).

Dated:

October 20, 2016

s/ Mona K. Majzoub
MONA K. MAJZOUB
UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE
I hereby certify that a copy of this Report and Recommendation was served on counsel of
record and on Plaintiff Mark White on this date.
Dated: October 20, 2016

s/ Lisa C. Bartlett
Case Manager

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