Johnson v. Papendick et al

Filing 40

ORDER Adopting 33 Report and Recommendation for Granting 25 Motion to Dismiss, filed by Maxine Collard, Nathan Neusbaum, S. Lauhhunn; Granting 21 Motion to Dismiss filed by Gregory Fuller; Denying as Moot 30 Motion to Extend filed b y Kevin M. Chan; Denying 3 Motion for TRO, Motion for Preliminary Injunction filed by Kenneth Johnson; Granting 28 Motion to Dismiss, filed by Kevin M. Chan; Denying as Moot 39 Motion to Stay, filed by Maxine Collard, Nathan Neusbaum, S. Lauhhunn. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Kenneth Johnson,
Plaintiff,
v.

Case No. 14-14630

Keith Papendick, et al.,

Honorable Sean F. Cox

Defendants.
______________________________/

ORDER
ADOPTING REPORT AND RECOMMENDATION AND
DENYING MOTION TO STAY DISCOVERY AS MOOT
Plaintiff Kenneth Johnson filed this pro se civil rights action, asserting claims against
multiple defendants. Plaintiff also asserts state-law claims.
This matter was referred to Magistrate Judge Mona Majzoub for determination of all
non-dispositive motions pursuant to 28 U.S.C. § 636(b)(1) and Report and Recommendation
pursuant to § 636(b)(1)(B) and (C).
On June 4, 2015, Magistrate Judge Majzoub issued a Report and Recommendation
(“R&R) (Docket Entry No. 33) wherein she recommends that: 1) the Court deny Plaintiff’s
Motions for a Temporary Restraining Order and Preliminary Injunction; 2) grant a Motion to
Dismiss filed by Defendants Fuller, Collard, Neusbaum, Laughhunn, and Chan; 3) dismiss
Plaintiff’s complaint in its entirety; and 4) deny as moot Defendant Chan’s motion seeking an
extension of time to respond to discovery requests.
Magistrate Judge Majzoub’s R&R expressly advised Plaintiff that he was required to file
1

objections within fourteen days of receiving the R&R. (Docket Entry No. 33 at 17). The R&R
also expressly advised that:
Any objections must be labeled as “Objection #1,” “Objection #2,” etc. Any objection
must recite precisely the provision of this Report and Recommendation to which it pertains. Not
later than fourteen days after service of an objection, the opposing party must file a concise
response proportionate to the objections in length and complexity. The response must
specifically address each issue raised in the objections, in the same order and labeled as
“Response to Objection #1,” “Response to Objection #2,” etc.
(Id. at 18).
Pursuant to FED. R. CIV. P. 72(b), a party objecting to the recommended disposition of a
matter by a Magistrate Judge must filed objections to the R&R within fourteen (14) days after
being served with a copy of the R&R. “The district judge to whom the case is assigned shall
make a de novo determination upon the record, or after additional evidence, of any portion of the
magistrate judge’s disposition to which specific written objection has been made.” Id.
On June 22, 2015, Plaintiff filed Objections to the R&R. (Docket Entry No. 35).
Plaintiff appropriately labeled his objections as objections one through seven.
As allowed by Rule 72, Defendants filed a timely response to Plaintiff’s Objections on
June 26, 2015. (Docket Entry No. 36). Defendants addressed, in the same order presented,
Plaintiff’s seven objections.
On July 10, 2015 – after Defendants had responded to Plaintiff’s June 22, 2015
objections, and without seeking leave to do, Plaintiff filed a 17-page memorandum. That
memorandum does not contain specific objections to the R&R, but rather, repeats various
arguments Plaintiff made in connection with the motions that the R&R addressed. As such, that
unauthorized filing does not contain any objections to be addressed by the Court.
Having reviewed Plaintiff’s properly-made objections, (ie., those made in Docket Entry
2

No. 35) the Court finds them to be without merit.
With respect to his first and second “objections,” Plaintiff does not object at all. Rather,
he simply states that he agrees with certain conclusions of the magistrate judge. (Docket Entry
No. 35 at Pg ID 468).
As to his third objection, Plaintiff disagrees with the magistrate judge’s conclusion that
Plaintiff’s Eighth Amendment claim should be dismissed, but states no specific objection as to
how he believes she erred in making that recommendation.
In his Fourth Objection, Plaintiff disagrees with the magistrate judge’s recommendation
to dismiss his Fifth and Fourteenth Amendment claims. He acknowledges that he was not
denied medical care (Id. at Pg ID 468, “plaintiff makes no claim that he was denied care”) but
continues to disagree with the decisions made by the medical professionals who treated him.
The magistrate judge properly rejected such arguments in dismissing Plaintiff’s Eighth
Amendment claim. (R&R at 10). The Court also concurs with the magistrate judge’s conclusion
that his Fifth and Fourteenth Amendment claims should be dismissed. (R&R at 12-13).
As his Fifth Objection, Plaintiff asserts that the Court should “revisit plaintiff’s
complaint” because he “initially sued each defendant in their individual and personal capacities.”
But the magistrate judge concluded that “Plaintiff cannot succeed on his claims against
Defendants in their individual capacities for violation of the ADA.” (R&R at 13).
In his Sixth Objection, Plaintiff objects to the magistrate judge’s recommendation that
the Court decline to exercise supplemental jurisdiction over Plaintiff’s state-law claims after
having dismissed all federal claims. Plaintiff does not articulate any reason why this Court
should exercise supplemental jurisdiction after dismissing the federal claims and this Court

3

declines to do so.
In Plaintiff’s Seventh Objection, Plaintiff objects to the magistrate judge’s
recommendation that the Court deny Plaintiff’s Motion for a Preliminary Injunction, stating that
the “preliminary injunction will not cause substantial harm to others.” But that is not the only
relevant consideration in evaluating a motion seeking a preliminary injunction. The magistrate
judge applied the correct mutli-factor test in evaluating the motion and the Court agrees with her
conclusion that the motion should be denied because there is simply no likelihood of Plaintiff’s
success on the merits.
Accordingly, IT IS ORDERED that the Court ADOPTS the June 4, 2015 R&R and the
Court therefore: 1) DENIES Plaintiff’s Motion for a Temporary Restraining Order and
Preliminary Injunction; 2) GRANTS the Motion to Dismiss filed by Defendants; 3) DISMISSES
Plaintiff’s complaint in its entirety; and 4) DENIES AS MOOT Defendant Chan’s motion
seeking an extension of time to respond to discovery requests. The Court also DENIES AS
MOOT, Defendants’ Motion to Stay Discovery (Docket Entry No. 39).
IT IS SO ORDERED.

Dated: August 13, 2015

S/ Sean F. Cox
Sean F. Cox
U. S. District Judge

I hereby certify that on August 13, 2015, the foregoing document was served on counsel of
record via electronic means and upon Kenneth Johnson via First Class mail at the address below:
Kenneth Johnson 189941
Charles Egeler Reception and Guidance Center Annex
3855 Cooper Street
Jackson, MI 49201
S/ J. McCoy
Case Manager

4