Cummings v. Heyns et al

Filing 172

ORDER adopting 164 Report and Recommendation; Overruling 168 Plaintiff's Objection; granting 126 Motion to Amend; denying 133 Plaintiff's Second Notice of Retaliation, Request for Preliminary Injunction and Motion for Extension of Time to Respond filed by Walter Cummings and Terminating Defendant Guajardo without prejudice. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Case No. 14-10957

WALTER CUMMINGS,

SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

Plaintiff,
v.
PAUL KLEE, ET AL.,

U.S. MAGISTRATE JUDGE
STEPHANIE DAWKINS DAVIS

Defendants.
/

ORDER ADOPTING THE REPORT AND RECOMMENDATION [164]; OVERRULING
PLAINTIFF’S OBJECTION [168]; GRANTING PLAINTIFF’S MOTION TO AMEND
[126]; AND DENYING PLAINTIFF’S SECOND NOTICE OF RETALIATION, REQUEST
FOR PRELIMINARY INJUNCTION, AND MOTION FOR EXTENSION OF TIME TO
RESPOND [133]
Pro se Plaintiff Walter Cummings, an inmate in the custody of the Michigan
Department of Corrections (“MDOC”), has brought claims against various MDOC
officials pursuant to 42 U.S.C. § 1983. On February 10, 2016, the Court referred
pretrial matters in this case to the Magistrate Judge [Dkt. 46].
On November 27, 2017, Plaintiff filed a Motion to Amend by Striking
Defendant Nicholas Guajardo from the Amended Complaint Without Prejudice
[126]. On January 8, 2018, Plaintiff filed a Second Notice of Retaliation, Request
for Preliminary Injunction, and Motion for Extension of Time to Respond to Any
and All Deadlines [133].

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On April 25, 2018, the Magistrate Judge issued a Report and
Recommendation (“R&R”) [164], advising the Court to grant without prejudice
Plaintiff’s motion to strike Defendant Guajardo and deny Plaintiff’s motion for
preliminary injunction and for extension of time to respond.
Plaintiff filed an Objection [168] to the R&R on May 11, 2018. It appears
that Plaintiff only objects to the portion of the R&R that denies the motion for
preliminary injunction and extension of time to respond.
For the reasons discussed below, the Court ADOPTS the R&R [164].
Plaintiff’s Objection [168] is OVERRULED. Plaintiff’s Motion to Amend [126] is
GRANTED. Plaintiff’s Second Notice of Retaliation, Request for Preliminary
Injunction, and Motion for Extension of Time [133] is DENIED.
FACTUAL BACKGROUND
The factual background, for the purposes of this order,1 is set forth as
follows:
In his motion for a preliminary injunction and extension of time to respond
to all deadlines, plaintiff details instances of retaliation he has suffered from
Librarians Platte and Loomis and Hearing Officer Harris at Carson City
Correctional Facility for filing a grievance against Platte. (Dkt. 133, Pg ID
1238-39). According to plaintiff, in retaliation for filing the grievance,
Loomis threatened plaintiff and Harris confiscated plaintiff’s legal materials
after a legal property hearing. (Id. at Pg ID 1239). Plaintiff requests
injunctive relief in the form of being allowed to forward his legal documents
1

More detailed recitations of the facts can be found in the Court’s and Magistrate Judges’
previous orders.1 See, e.g., Dkt. 35, 131, 162. The Court incorporates those facts by
reference here.

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to this Court to ensure they will be preserved. (Id. at Pg ID 1240). According
to plaintiff, there is a reasonable likelihood of success on this claim and he
will suffer irreparable injury because he cannot afford an attorney to get
back the legal items the above-named individuals confiscated. (Id.). Plaintiff
further requests a six-month extension of time to respond to all Court orders
or court rule deadlines due to the above-named individuals’ actions. (Id.).
In response, defendant Jindal argues that the alleged retaliatory conduct took
place at Carson City Correctional Facility, but that Jindal’s last contact with
plaintiff was at Gus Harrison Correctional Facility before plaintiff was
transferred on January 21, 2014. (Dkt. 145, at p. 1-2). Jindal states that she
has no personal knowledge of the allegations in plaintiff’s motion for
preliminary injunction.
The MDOC defendants argue the same in their response. Defendants assert
that plaintiff’s allegations of retaliatory conduct involve individuals at
Carson City, not Gus Harrison, the site of the events detailed in plaintiff’s
complaint. (Dkt. 147, at p. 2). The defendants assert that they do not have
any involvement in the allegations plaintiff makes in his motion. The
defendants point out, as does Jindal, that plaintiff was transferred from Gus
Harrison in January 2014. None of the named defendants are named in his
motion for preliminary injunction. (Id.). The defendants therefore ask that
plaintiff’s motion be denied.
ANALYSIS
The Magistrate Judge recommended that the Court deny Plaintiff’s Motion
for Preliminary Injunction and Extension of Time to Respond “because the
allegations in plaintiff’s motion are not against the defendants, nor do they relate to
the factual bases of the complaint.” (Dkt. 164). The Magistrate Judge noted that
Plaintiff’s motion was an improper “attempt to address other issues unrelated to his
original complaint.” Hendricks v. Hazzard, 2013 WL 2635729, at *3 (S.D. Ohio

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June 12, 2013), report and recommendation adopted, 2013 WL 5944082, at *4
(S.D. Ohio Nov. 5, 2013).
In response, Plaintiff asserts that “these retaliatory actions started because”
Defendant Sherman Campbell “was the warden at Carson City Correctional
Facility [while] the plaintiff was there.” (Dkt. 168 at 3). This statement is
insufficient to justify granting injunctive relief – it is well established that to obtain
a preliminary injunction, Plaintiff must show “some relationship between the
conduct giving rise to the claims in the complaint and the injury sought to be
prevented by the motion for preliminary injunctive relief.” Colvin v. Caruso, 605
F.3d 282, 299-300 (6th Cir. 2010).
As the Magistrate Judge explained, the events giving rise to Plaintiff’s action
stem from an incident that occurred at the Gus Harrison Correctional Facility in
September 2013. Plaintiff, who is handicapped, alleges that Defendants improperly
removed him from the medical ward and placed him in segregation, in violation of
his rights under the Americans with Disabilities Act (“ADA”), as well as the First
and Eighth Amendments. See Dkt. 82. These allegations are completely unrelated
to his current request for injunctive relief, which involves non-parties at a different
facility. “A motion for a TRO or preliminary injunction is not the means by which
a plaintiff already in court on one claim can seek redress for all other conditions of

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confinement that he finds actionable.” Arrington v. Scott, 2013 WL 1080298, at *1
(W.D. Mich. Jan. 7, 2013).
To be clear, this is not to say that Plaintiff’s claims with respect to the
confiscation of his legal research materials are meritless.2 What it means is that
these claims must be pursued separately, as they are unrelated to the factual bases
of the complaint in this case.
The remainder of Plaintiff’s objections are improper because they simply
restate previous arguments already considered. See Wade v. Berryhill, No. 1610042, 2017 WL 8355590, at *1 (E.D. Mich. Mar. 3, 2017) (citing Davis v.
Caruso, No. 07-10115, 2008 WL 540818, at *2 (E.D. Mich. Feb. 25, 2008)).
Plaintiff may not “merely reiterate[ ] arguments made to the Magistrate Judge,” as
this “defeats the purpose and efficiency of the Federal Magistrate’s Act, 28 U.S.C.
§ 636.” Heath v. Comm’r of Soc. Sec., 2018 WL 1559768, at *1-2 (W.D. Mich.
Mar. 31, 2018) (citing Howard v. Sec’y of Health & Human Servs., 932 F.2d 505,
509 (6th Cir. 1991)).
CONCLUSION
For the reasons discussed above,

2

See, e.g., Kennedy v. Bonevelle, 413 Fed. Appx. 836 (6th Cir. 2011) (reversing the
district court in part, the Sixth Circuit concluded that plaintiff, a pro se prisoner, had
stated claims for denial of access to the courts and retaliation under the First
Amendment).

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IT IS ORDERED that the Report and Recommendation [164] is hereby
ADOPTED and entered as the findings and conclusions of the Court.
IT IS FURTHER ORDERED that Plaintiff’s Objection [168] is
OVERRULED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Amend [126] is
GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Second Notice of Retaliation,
Request for Preliminary Injunction, and Motion for Extension of Time [133] is
DENIED.
SO ORDERED.

Dated: June 5, 2018

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

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