Annabel v. Frost et al

Filing 130

ORDER adopting in part 107 Report and Recommendation; overruling 114 Objections; denying 69 Motion for TRO; denying 91 Motion for District Judge to Issue Directive Order to Magistrate Judge. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT ANNABEL,

Case No. 14-10244
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

Plaintiff,
v.
JACK FROST, ET AL.,

U.S. MAGISTRATE JUDGE
R. STEVEN WHALEN

Defendants.
/
ORDER: (1) ADOPTING IN PART REPORT AND RECOMMENDATION [107];
(2) OVERRULING PLAINTIFF’S OBJECTIONS TO REPORT AND
RECOMMENDATION [114]; (3) DENYING PLAINTIFF’S MOTION FOR
TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION [69]; (4)
DENYING PLAINTIFF’S MOTION FOR DISTRICT JUDGE TO ISSUE DIRECTIVE
ORDER TO MAGISTRATE JUDGE [91]
On December 1, 2016, Plaintiff Robert Annabel filed a Motion for
Temporary Restraining Order (“TRO”) [Dkt. #69].1 On July 25, 2017, the
Magistrate Judge filed a Report and Recommendation (“R&R”) [107],
recommending that the Court deny Plaintiff’s Motion. On August 9, 2017, Plaintiff
filed Objections [114] to the Magistrate Judge’s R&R.

Plaintiff has filed several motions for TRO and injunctive relief throughout this
litigation. The first such motion was filed on October 22, 2015 [55] and will
hereinafter be referred to as the “first” motion for TRO and preliminary injunction.
The December 1, 2016 motion [69], which is the subject of this Order, will
hereinafter be referred to as the “current” motion for TRO and preliminary
injunction.

1

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On March 16, 2017 Plaintiff filed a Motion for District Judge to Issue
Directive Orders to Magistrate Judge [91].
For the reasons stated below, the July 25, 2017 R&R [107] is ADOPTED in
part; Plaintiff’s Objections to the R&R [114] are OVERRULED; Plaintiff’s
Motion for TRO and Preliminary Injunction [69] is DENIED; and Plaintiff’s
Motion for District Judge to Issue Directive Order to Magistrate Judge [91] is
DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed a Complaint [1] on January 17, 2014 and an Amended
Complaint [18] on April 8, 2014. In a previous R&R on this case [Dkt. #38], the
Magistrate Judge summarized Plaintiff’s allegations as follows:
At the time of the alleged incidents giving rise to his complaint,
[Plaintiff] was incarcerated at the Gus Harrison Correctional Facility.
On July 1, 2013, he asked Assistant Resident Unit Manager Steven
Kindinger to post a sign-up sheet for inmates seeking to obtain a
position as unit representative to the Warden’s Forum. Kindinger told
him, “I don’t want you as block rep.” Amended Complaint, ¶ IV-1.
Because Kindinger had still not posted a sign-up sheet by July 12,
2013, Plaintiff filed a grievance on July 17, 2013. Id. ¶ IV-3.
Defendants Eaton and Campbell rejected the grievance, and notified
Defendants Kindinger and Frost, a Corrections Officer, that Plaintiff
had written a grievance and should be disqualified from a unit
representative position. Id. ¶ IV-4-5.
Plaintiff alleges that on July 22, 2013, he opened the tray slot in
prisoner McQuitter’s cell and delivered a folded t-shirt to McQuitter.
Id. ¶ IV-8. Defendant Frost then walked toward Plaintiff and said,
“You’re in trouble, go lock up.” Id. ¶ IV-9. Frost wrote a Class II
misconduct ticket against Plaintiff for disobeying a direct order. Id. ¶
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10. Plaintiff alleges that “Frost would not have written a Class II
misconduct for disobeying a direct order if Plaintiff hadn’t pressed the
issue about a unit representative position with his superiors and then
filed a grievance.” Id. ¶ IV-12.
At the misconduct hearing on August 4, 2013, Plaintiff admitted to
opening McQuitter’s tray slot, but denied that Frost had ever given
him a direct order to not pass items to another prisoner. Plaintiff states
that Captain McConnell, who conducted the hearing, “falsely claimed
in a hearings report that Plaintiff admitted disobeying a direct order.”
Id. ¶¶ IV-17-20. He also alleges that in his August 6, 2013 hearings
report, McConnell “acknowledged that Plaintiff said the incident
could not have occurred at 1620 hours, as stated on the misconduct
report and changed the time to ‘approximately 1830 hours’....” Id. ¶
IV-20. Following the misconduct report, Plaintiff, who had won
election as unit representative, was removed from that position. Id. ¶¶
IV-19, 21.
Plaintiff brings the following claims:
(1) That all Defendants retaliated against him, in violation of his First
Amendment right to file a grievance and “for his exercise of the right
to freedom of speech on behalf of himself and other prisoners.”
(2) That Defendant Frost violated substantive due process by issuing a
false misconduct charge.
(3) That Defendant McConnell violated procedural due process at the
misconduct hearing.
(4) That Defendant Campbell violated due process by upholding
McConnell’s “false and unsupported findings.”

[Dkt. #38 at 2-3].
Defendants moved for summary judgment on all claims [28]. In addition, on
October 22, 2015, Plaintiff filed his first Motion for TRO and Preliminary

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Injunction [55], in which he claimed infringement of his right to access the courts
because he lacked a sufficient supply of legal paper on which to draft his
pleadings.
On January 22, 2016 the Court entered an Order [59], which, among other
things, adopted the Magistrate Judge’s R&R; granted Defendants’ Motion for
Summary Judgment; and denied Plaintiff’s first Motion for TRO and Preliminary
Injunction.
On February 10, 2016, Plaintiff filed an Amended Notice of Appeal [61] on
the Court’s decision to grant summary judgment. On September 21, 2016, the
Sixth Circuit reversed in part, vacating the Court’s dismissal of the First
Amendment retaliation claim, and affirming the dismissal of Plaintiff’s procedural
and substantive due process claims. Annabel, II v. Frost, No. 15-1518, (6th Cir.
Sept. 21, 2016). The only claim remaining in this action is Plaintiff’s First
Amendment retaliation claim.
In Plaintiff’s current Motion for TRO and Preliminary Injunction [69], he
again claims interference with his constitutional right to access the courts. Plaintiff
maintains that he has been denied meaningful use of the prison’s law library. He
further contends that officers at the Gus Harrison Correctional Facility withheld his
legal mail, in violation of Michigan Department of Corrections (“MDOC”)
policies.

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Plaintiff is now incarcerated at the Ionia Maximum Correctional Facility. On
July 28, 2017, Plaintiff filed a Renewed Motion for TRO and Preliminary
Injunction [110].2 In his Renewed Motion [110], Plaintiff repeats the claims
asserted in the current Motion [69] and maintains that he is still being denied his
right to access the courts.
Plaintiff seeks an injunction against MDOC requiring that it “abide by all its
written policies and procedures for prisoner access to the courts” and cease the
“arbitrary blanket practice of seizing envelopes sent by the federal courts” and
opening and reading legal mail prior to delivery. [69 at 11].
STANDARD OF REVIEW
“A district court’s standard of review for a magistrate judge’s report and
recommendation depends on whether a party files objections.” Erard v. Johnson,
905 F. Supp. 2d 782, 789 (E.D. Mich. 2012) (noting that as to portions of the R&R
to which no party has objected, the court is not required to undertake any review).
The parts of the R&R to which specific objections are made will be reviewed by
the Court de novo. 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b)(3).
“‘[O]bjections disput[ing] the correctness of the magistrate’s
recommendation but fail[ing] to specify the findings . . . believed in error’ are too
general.” Novak v. Prison Health Services, Inc., No. 13-11065, 2014 WL 988942,
Hereinafter, Plaintiff’s Renewed Motion for TRO and Preliminary Injunction
[110] will be referred to as “Renewed Motion.”

2

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at *3 (E.D. Mich. Mar. 13, 2014) (quoting Miller v. Currie, 50 F.3d 373, 380 (6th
Cir. 1995)).
ANALYSIS
I.

REPORT & RECOMMENDATION [107]
“A preliminary injunction is reserved for only the most egregious case,

and should not be extended to cases which are doubtful or do not come within
well-established principles of law.” Bonnell v. Lorenzo, 241 F.3d 800, 826 (6th
Cir. 2001). Plaintiff, as the moving party, has the “burden of proving that the
circumstances clearly demand [an injunction].” Overstreet v. Lexington-Fayette
Urban Cnty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002).
When evaluating a motion for preliminary injunction, the Court must
consider four factors:
(1) Whether the movant has a strong likelihood of success on the
merits;
(2) Whether the movant would suffer irreparable injury without the
injunction;
(3) Whether issuance of the injunction would cause substantial harm
to others; and
(4) Whether the public interest would be served by issuance of the
injunction.”

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Bonnell, 241 F.3d at 809 (quoting Rock & Roll Hall of Fame v. Gentile Prods, 134
F.3d 749, 753 (6th Cir. 1998)).
Although no single factor is controlling of the outcome, if “there is simply
no likelihood of success on the merits,” that is usually “fatal.” Gonzales v. Nat’l
Bd. of Med. Exam’rs, 225 F.3d 620, 625 (6th Cir. 2000).
The Court agrees with the Magistrate Judge’s conclusion that Plaintiff has
not met his burden of showing entitlement to injunctive relief, but offers alternate
reasoning to support the finding that Plaintiff has no likelihood of success on the
merits.
In the R&R, the Magistrate Judge explains that because Plaintiff seeks a
preliminary injunction against MDOC, which is a not a party to this lawsuit,
Plaintiff has no likelihood of success on the merits. The R&R further reasons that
even if Plaintiff’s Motion were construed to apply to named Defendants, Plaintiff’s
request for injunctive relief would be rendered moot, since those individuals are
employed at the Gus Harrison Correctional Facility and Plaintiff has since been
transferred to the Ionia Maximum Correctional Facility. See Kensu v. Haigh, 87
F.3d 172, 175 (6th Cir. 1996).
However, in Plaintiff’s Renewed Motion [110], Plaintiff alleges that MDOC
is still impeding his access to the courts, notwithstanding the transfer to Ionia. A
prison transfer does not necessarily moot “an inmate’s claim where the inmate

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faces the potential for future harm.” Colvin v. Caruso, 605 F. 3d 282, 295 (6th Cir.
2010) (declining to find Plaintiff’s claim moot where his nonkosher status traveled
with him to the new correctional facility). Accordingly, the Court declines to adopt
the Magistrate Judge’s finding that Plaintiff’s claim is moot because of his transfer
to Ionia.
Nevertheless, even if the Court were to overlook the technical deficiencies in
Plaintiff’s current Motion and interpret it as adequately setting forth a claim for
denial of access to courts, the Court agrees with the R&R that Plaintiff is unlikely
to succeed on the merits.
Plaintiff maintains that he is being denied meaningful use of the prison law
library. However, “an inmate cannot establish relevant actual injury simply by
establishing that his prison’s law library or legal assistance program is subpar in
some theoretical sense.” Lewis v. Casey, 518 U.S. 343, 351 (1996).
Plaintiff has failed to demonstrate “that the alleged shortcomings in the
library or legal assistance program hindered his efforts to pursue a legal claim.” Id.
As the Magistrate Judge notes to the contrary, “the docket entries in this case show
that Plaintiff has actively and aggressively litigated in this action . . . . [belying]
any claim that he . . . does not have adequate access to legal materials.” [R&R at
5].

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With respect to Plaintiff’s claim regarding delivery of his legal mail, the
Court recognizes that prison officials may open prisoners’ legal mail pursuant to a
uniform policy. Sallier v. Brooks, 343 F. 3d 868, 873 (6th Cir. 2003). The Court
further notes the heightened concern with affording prison officials discretion to
open inmates’ legal mail. Id. at 874.
In his Affidavit [69], Plaintiff states that the Gus Harrison and Ionia
correctional facilities have blanket practices of opening all legal mail outside of his
presence. Although Plaintiff’s assertions, if true, may constitute an unlawful
practice on the part of MDOC, see e.g., Sallier, 343 F.3d at 874; Knop v. Johnson,
977 F.2d 996, 1012 (6th Cir. 1992), Plaintiff has not met his substantial burden of
showing the irreparable harm necessary for the relief requested. As the R&R points
out, Plaintiff continues to actively litigate this action and has even succeeded in the
Sixth Circuit, notwithstanding the alleged MDOC policy violation.
II.

PLAINTIFF’S OBJECTIONS [114]

Objection 1: “The Court of Appeals ruling is res judicata that Plaintiff has a
likelihood of success on the merits.” (Obj. at 1).
The Court reads Plaintiff’s statement as an objection to the Magistrate
Judge’s finding that Plaintiff has no likelihood of success on the merits. Plaintiff
seems to argue that the Sixth Circuit’s decision vacating the dismissal of the First
Amendment retaliation claim refutes the Magistrate Judge’s finding that Plaintiff is

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unlikely to succeed on the merits. The Sixth Circuit found that Plaintiff asserted
sufficient facts to support a plausible First Amendment retaliation claim. Annabel,
II v. Frost, No. 15-1518, at 5 (6th Cir. Sept. 21, 2016) (emphasis added). The Sixth
Circuit did not hold that Plaintiff had a likelihood of success on the merits of that
claim. Accordingly, Plaintiff’s objection is overruled.

Objection 2: “That Plaintiff did not plead an access to the courts claim does not
preclude an injunction.” (Obj. at 2).
There is some merit to Plaintiff’s assertion that his failure to allege an access
to courts claim in his Amended Complaint does not, itself, preclude injunctive
relief. “‘[A] party moving for a preliminary injunction must necessarily establish a
relationship between the injury claimed in the party’s motion and the conduct
asserted in the complaint.’” Colvin, 605 F.3d at 300 (quoting Devose v.
Herrington, 42 F. 3d 470, 471 (8th Cir. 1994)) (noting that the purpose of a
preliminary injunction is to protect the movant from being harmed in the way in
which he was alleged to have been harmed in the complaint).
In the Amended Complaint, Plaintiff claims, “all defendants acted with the
retaliatory intent and in concert to violate Plaintiff’s First Amendment right to file
grievance and for his exercise of the right to freedom of speech on behalf of
himself and other prisoners.” (Am. Compl. at 6). Even interpreting Plaintiff’s First

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Amendment retaliation claim to include the access to courts claim regarding library
access and mail, Plaintiff still fails to meet his burden of showing irreparable harm
in his ability to pursue this case. Thus, Plaintiff’s objection is overruled.

Objection 3: “Third party M.D.O.C. has its interests adequately represented by a
party with the same interests.” (Obj. at 3).
Plaintiff seems to object to the Magistrate Judge’s finding that because
MDOC is not a party to this lawsuit, Plaintiff has no likelihood of success on the
merits. The Court construes Plaintiff’s objections liberally because he is a pro se
litigant. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). The failure to name
MDOC as a party does not affect the Court’s decision to deny Plaintiff the
injunctive relief he seeks. Even construing the Motion to apply to the named
Defendants, Plaintiff still fails to meet his burden. Therefore, Plaintiff’s objection
is overruled.

Objection 4: “That Plaintiff is able to do some litigation does not show that he is
not suffering from interference or a probalistic harm.” (Obj. at 3-4).
Plaintiff maintains that he has having difficulty finding and citing cases
within the Sixth Circuit, but nonetheless concedes that “he is litigating
aggressively.” [114 at 4]. Plaintiff’s concession supports, rather than refutes, the

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Magistrate Judge’s conclusion that Plaintiff has not suffered irreparable harm.
Thus, the objection is overruled.

Objection 5: “Plaintiff does not seek to ‘micro-manage’ administrators and the
relief does not involve deference to security concerns.” (Obj. at 4-5).
The Court need not review “‘objections disput[ing] the correctness of the
magistrate’s recommendation” that fail “to specify the findings . . . believed in
error . . . .’” Novak, 2014 WL 988942, at *3 (quoting Miller, 50 F.3d at 380).
Because Plaintiff sets forth generalized objections to the R&R on this issue, the
Court finds Plaintiff’s assertion “tantamount to complete failure to object.” Cole v.
Yukins, 7 F. Appx. 354, 356 (6th Cir. 2001).
III.

PLAINTIFF’S MOTION FOR DISTRICT JUDGE TO ISSUE DIRECTIVE
ORDERS TO MAGISTRATE JUDGE [91]

On March 16, 2017, Plaintiff filed a Motion for District Judge to Issue
Directive Orders to Magistrate Judge [91]. Defendants have not filed a response.
Pursuant to Fed. R. Civ. P. 83(b), E.D. Mich. L.R. 83.22 and L.R. 72.1(b)(1),
Plaintiff requests that the Court “issue directive orders to Magistrate Whalen to
remedy undue delays in case management and to make findings as to allegations of
misconduct by an attorney and against his clients.” [91 at 1]. Plaintiff seems to be

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asking the Court to issue a directive order requiring the Magistrate Judge to
promptly decide several motions Plaintiff has filed.
Fed. R. Civ. P. 83(b) states, “[a] judge may regulate practice in any manner
consistent with federal law . . . and the district’s local rules.” Eastern District Local
Rule 72.1(b)(1) states, “a magistrate judge may perform any of the duties
authorized above upon specific reference by a judge of the court or pursuant to a
general order of the court . . . . [and] will conform to the general procedural rules
of this court, the instructions of the district judge to whom the case is assigned, and
the Plan for the Administration of the Magistrate Judge System.” Moreover, Local
Rule 83.22 sets forth procedures for attorney discipline.
Plaintiff requests that the Court “issue the proper directive orders to
Magistrate Judge Whalen for remedy of delays in scheduling orders and resolving
pending matters on the case docket,” [91 at 2], but none of the rules to which
Plaintiff cites offer any support for his demand.
“As a threshold matter, the Court – not any party – is responsible for
managing its docket.” United States v. Montgomery, No. 12-CR-20392, 2013 WL
12099394, at *3 (E.D. Mich. Feb. 13, 2013). “The court endeavors to adjudicate all
matters . . . in a timely matter, as justice ordinarily requires and as the pending
caseload allows.” Floyd v. Burt, No. 06-CV-10357, 2007 WL 295028, at *1 (E.D.
Mich. Jan. 29, 2007). Neither the Federal Rules of Civil Procedure nor the Eastern

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District of Michigan’s Local Rules designate a specific period of time within
which the Court is required to issue orders on the motions on this docket.
Accordingly, Plaintiff’s Motion [91] is denied.

CONCLUSION
For the reasons stated above,
IS IT ORDERED that the Report and Recommendation [107] is
ADOPTED in part.
IT IS FURTHER ORDERED that Plaintiff’s Objections [114] to the R&R
are OVERRULED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Temporary
Restraining Order and Preliminary Injunction [69] is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for District Judge to
Issue Directive Order to Magistrate Judge [91] is DENIED.
SO ORDERED.

Dated: September 20, 2017

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

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