Ouellette v. Beverly Hills, Village of et al

Filing 41

ORDER denying 35 Motion for Voluntary Dismissal; adopting 37 Report and Recommendation; finding as moot 39 Motion for Leave to File; granting 29 Motion for Summary Judgment. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL OUELLETTE,
Case No. 15-11604
Plaintiff,
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

v.
VILLAGE OF BEVERLY HILLS ET AL,

U.S. MAGISTRATE JUDGE
MONA K. MAJZOUB

Defendant.
/

ORDER ADOPTING REPORT AND RECOMMENDATION [37]; DENYING PLAINTIFF’S
MOTION FOR VOLUNTARY DISMISSAL [35]; GRANTING IN PART DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [29]; DENYING AS MOOT DEFENDANT’S EX
PARTE MOTION TO FILE EXHIBIT IN TRADITIONAL MANNER [39]
Plaintiff filed a pro se complaint on May 4, 2015, pursuant to 42 U.S.C.
§1983, alleging that Defendants Village of Beverly Hills Department of Public
Safety (“BHDPS”) and Lieutenant Michael Vargas violated his Fourth, Sixth and
Eighth Amendment rights [1]. Defendants filed a Motion for Summary Judgment
on August 1, 2016 [29]. Plaintiff filed a Motion for Voluntary Dismissal [35] on
October 31, 2016, requesting that the case be dismissed without prejudice because
he was unable to answer the motion by the Court’s deadline due to a lack of
resources to obtain necessary affidavits to defend his case. Defendants responded
on November 9, 2016 [36]. The Magistrate Judge issued a report and
recommendation on January 20, 2017 [37], recommending that the Court grant
Defendants’ Motion for Summary Judgment in part, dismissing all of Plaintiff’s
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claims with prejudice and denying Defendants’ request for costs and attorney fees,
and deny Plaintiff’s Motion for Voluntary Dismissal. Plaintiff filed objections to
this Report and Recommendation on February 17, 2017 [38]. Defendant filed a
response and an Ex Parte Motion to File Exhibit in Traditional Manner [39]. For
the reasons stated below, Defendant’s Ex Parte Motion to File Exhibit in
Traditional Manner [39] is DENIED as moot. The Court ADOPTS the Report and
Recommendation [37]. Plaintiff’s Motion for Voluntary Dismissal [35] is
DENIED. Defendants’ Motion for Summary Judgment [29] is GRANTED in
part, granted in dismissing all of Plaintiff’s claims against named Defendants with
prejudice and denied as to Defendants’ request for attorney fees and costs.
STATEMENT OF FACTS
The Magistrate Judge summarized the factual background of the complaint
as follows:
Plaintiff is currently incarcerated at the Marquette Branch Prison in
Marquette, Michigan as a result of a conviction on two charges of
Aggravated Stalking related to the arrests described in the instant
Complaint. (Docket no. 29 at 12; see Mich. Dep’t of Corr. Offender
Tracking Info. Sys. (OTIS).2) In the Complaint, Plaintiff alleges that
he was arrested and detained in a holding cell at the Village of
Beverly Hills Department of Public Safety (BHDPS) from November
23, 2013, to November 25, 2013. (Docket no. 1 ¶ 9.) He alleges that
throughout his detention, he was denied food and the medication that
he takes for his psychological condition. (Id. ¶ 10.) Plaintiff claims
that the deprivation described above constituted cruel and unusual
punishment in violation of his Eighth Amendment rights. (Id.)
According to Plaintiff, when he asked Defendant Vargas for
something to eat, Defendant Vargas mocked him and made fun of him
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by saying, “You’re too fat as it is, you don’t need to eat.” (Id. ¶ 11.)
Plaintiff claims that on November 24, 2013, he called his mother and
his attorney, Jean Hansen, and told them that he had not been given
his medication or anything to eat and informed them of Defendant
Vargas’s response to his request for food. (Id. ¶ 12.) Plaintiff states
that he did not eat until late in the evening on November 24, 2013,
when Ms. Hansen brought him a sandwich and French fries.
(Id. ¶ 13.) Plaintiff also asserts that his other attorney, Joyce
Rosenthal, contacted the BHDPS on November 25, 2013 to inquire
into Plaintiff’s status, but Defendant Vargas hung up on her. (Id. ¶
14.)
Plaintiff alleges that he was arrested again on Friday, November 29,
2013, and was detained in a holding cell at the BHDPS for the entire
weekend. (Id. ¶ 15.) According to Plaintiff, he was fed only one
granola bar throughout the detention, was deprived of his medication,
and was again mocked by Defendant Vargas for being fat. (Id. ¶ 16.)
Plaintiff avers that he was arraigned on November 30, 2013, for which
his attorney, Jean Hansen, was present and voiced concern over
Plaintiff not receiving his medication. (Id. ¶ 17.) Plaintiff alleges that
in response to Ms. Hansen’s concerns, Defendant Vargas stated, that
Plaintiff would be transported to the county jail shortly, which has a
medical facility. (Id.; docket no. 29-8 at 15.)
Plaintiff also alleges that he was not transported to the county jail for
more than 48 hours and reiterates that he was deprived of his
medication and given only one granola bar during the entire detention.
(Id.) Plaintiff further alleges that his attorney arrived at the BHDPS
before the arraignment and asked to meet with Plaintiff, but her
request was denied by Defendant Vargas, who allegedly said, “We
have nowhere for you to meet him, you’ll have to speak with him
through the cell door slot, and watch what you talk about as the whole
area is being recorded, and I’ll be listening to it later.” (Id. ¶ 18.)
Plaintiff claims that Defendant Vargas’s behavior in this regard
infringed upon his Sixth Amendment right to counsel. (Id.)
Plaintiff also alleges that the Village of Beverly Hills Department of
Public Safety is not equipped to house detainees for any extended
period of time and that detainees are instead housed in the
neighboring City of Birmingham. (Id. ¶ 20.) Plaintiff alleges that such
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was the practice and procedure in effect during both of his detentions,
during which he was subjected to cruel and unusual punishment and
deprived of his Sixth Amendment rights. (Id.)
Plaintiff makes several other allegations in the Complaint, most of
which are seemingly unrelated to the two periods of detention
discussed above. For example, Plaintiff alleges that in February of
2014, he arrived at the BHDPS with an envelope from his attorney
that contained privileged information. (Id. ¶ 19.) Plaintiff asserts that
the envelope was taken from him and was not returned until October
of 2014. (Id.) Plaintiff also alleges that in August of 2014, his
attorney, Ms. Rosenthol, attempted to contact the BHDPS to pick up
papers requested through the Freedom of Information Act (FOIA), but
she was hung up on. (Id. ¶ 21.) According to Plaintiff, when Ms.
Rosenthol went to the BHDPS in person to pick up the requested
paperwork, Defendant Vargas threw the paperwork at her. (Id.)
Plaintiff claims that he discovered upon reading the contents of that
paperwork that he had been left completely alone while he was
detained in the holding cell at the BHDPS while the officers went on a
fire run, which he claims subjected him to a potential medical and/or
fire emergency. (Id. ¶ 22.) Lastly, Plaintiff alleges that in July of
2014, he learned that a GPS tracking device was attached to one of his
work vehicles. (Id. ¶ 23.) Plaintiff claims that he then hired a private
investigator, who determined through the longitudinal and latitudinal
coordinates that the device was activated at the BHDPS. (Id.) Plaintiff
claims that the use of the device violated his Fourth Amendment
rights because neither he nor his attorney was aware of any warrant
authorizing the device. (Id.)
[37 at 2-4].
STANDARD OF REVIEW
This Court reviews objections to an R&R on a dispositive motion de novo.
See 28 U.S.C. § 636(b)(1)(c). Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and
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that the moving party is entitled to a judgment as a matter of law.” FED. R. CIV. P.
56(c). The moving party has the burden of establishing that there are no genuine
issues of material fact, which may be accomplished by demonstrating that the
nonmoving party lacks evidence to support an essential element of its
case. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Court must construe
the evidence, and all reasonable inferences drawn therefrom, in the light most
favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). A genuine issue for trial exists if “the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
ANALYSIS
1. DEFENDANT’S EX PARTE MOTION TO FILE EXHIBIT IN TRADITIONAL
MANNER [39]
After performing a de novo review of the Magistrate’s Report and
Recommendation and the record in the case, the Court determines that, for the
reasons stated below, the Objections filed have no merit and the Court rules below
without referencing the response. Therefore, the Court denies as moot Defendant’s
Ex Parte Motion to File Exhibit in Traditional Manner [39].
2. REPORT AND RECOMMENDATION [38]
Plaintiff raises four objections to the Report and Recommendation [38]: (1)
Plaintiff admits error in naming Defendant Vargas as being present for his
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arraignment, and upon review of the Motion for Summary Judgment record,
Plaintiff learned that a Lieutenant was present during the arraignment. Plaintiff
asserts that due to his pro se status, he mistakenly filed a Motion for Voluntary
Dismissal rather than amend the complaint to reflect this new fact and that should
not be held against him; (2) Plaintiff admits error in not naming in the complaint
the unknown officer who allegedly attached a GPS device to his car; (3) Plaintiff
avers that he was unable to conduct the investigative functions necessary to defend
against the Motion for Summary Judgment due to his incarceration, and thus
should have his Motion for Voluntary Dismissal granted; and (4) Plaintiff asserts
that there are material facts at issue, noting that Defendant Vargas’ affidavit states
that he was not involved in the booking process of Plaintiff, while his actual
booking sheet shows him as the officer who participated in the booking.
None of the objections put forth by Plaintiff address the deficiencies in his
complaint that were identified in the Report and Recommendation as the reason
why his complaint must fail as a matter of law. From the evidence presented by
Defendants, and the requirements under law to plead §1983 claims under the
Eighth, Sixth and Fourth Amendments, Plaintiff has failed to establish in his
objections that he would be able to remedy the deficiencies identified by the
Magistrate in the R&R.

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a. PLAINTIFF’S CLAIMS AGAINST DEFENDANT BHDPS
The Court agrees with the Magistrate that the Defendant BHPSD is
improperly named as a party in this case. Under Michigan law M.C.L.A. §92.1, a
municipal police department is part of the municipality; therefore a suit against the
BHDPS is actually against the Village of Beverly Hills itself as the real party in
interest in this case. See e.g. Haverstick Enterprises, Inc. v. Fin. Fed. Credit, Inc.,
32 F.3d 989, 992, nt. 1 (6th Cir. 1994). Therefore, in this Order, the Court liberally
construes the complaint as being filed against the Village of Beverly Hills.
A municipal party may only be sued under §1983 if a Plaintiff is harmed by
an execution of a municipal party’s unconstitutional policy or custom. Monell v.
Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978). In his complaint,
Plaintiff alleges that during his detention, it was the policy and practice of the
BHDPS to house detainees in the City of Birmingham because the BHDPS was not
equipped to house detainees for an extended period of time and as a consequence
suffered cruel and unusual punishment and violations of his Sixth Amendment
rights. [1 at ¶20]. Plaintiff has not proffered any evidence of this policy or practice,
and, additionally, this practice itself is not unconstitutional. Moreover, Plaintiff
was not in fact housed in the City of Birmingham so it was not the execution of the
policy itself that caused his alleged harm. His claims revolve around the
inadequacy of the holding cells at BHDPS and the violation of established policy

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or practice by individual agents of the BHDPS. Under Monell, a municipality
cannot be held responsible for an injury inflicted solely by its employees or agents.
Id. Therefore, based on the facts presented in the complaint, Plaintiff cannot state a
valid claim against the BDHPS or the Village of Beverly Hills for the alleged
violations incurred during his detention.
Plaintiff’s objections do not address his inability to state a valid claim
against a municipal Defendant, and therefore his complaints against BHDPS must
be dismissed with prejudice.
b. CLAIMS AGAINST DEFENDANT VARGAS
“The basic requirements of a § 1983 claim include a showing that (1) a
person, (2) acting under color of state law, (3) deprived the plaintiff of a federal
right.” Berger v. City of Mayfield Heights, 265 F.3d 399, 405 (6th Cir. 2001).
There is no dispute that Vargas was a person acting under color of state law, so the
question before the Court is whether Plaintiff was deprived of a constitutional
right.
Plaintiff’s complaint alleges that Vargas violated his constitutional rights
under the Eighth Amendment’s prohibition of cruel and unusual punishment
allegedly by refusing him food and medication during his detention at BHDPS
from November 12, 2013 to November 25, 2013. [1 at ¶¶9-13]. The Eighth
Amendment’s protections apply specifically to post conviction inmates, while the

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due process clause of the Fourteenth Amendment operates in the context of pretrial
detainees to provide the same protections as those secured post-conviction under
the Eighth Amendment. Miller v. Calhoun Cty., 408 F.3d 803, 812 (6th Cir. 2005).
In light of the liberal construction given to pro se complaints, the Court will
construe Plaintiff’s Eighth Amendment claims as if Plaintiff had correctly brought
them under the Fourteenth Amendment, and will refer to the Eighth Amendment
jurisprudence in the following analysis. Id.
“The Eighth Amendment prohibition on cruel and unusual punishment
protects prisoners from the ‘unnecessary and wanton infliction of pain.’” Barker v.
Goodrich, 649 F.3d 428, 434 (6th Cir. 2011) (quoting Farmer v. Brennan, 511
U.S. 825, 842 (1994). When a Plaintiff brings a condition of confinement claim, he
must show that he was deprived of the “minimal civilized measure of life’s
necessities” and that the Defendant was deliberately indifferent to his health or
safety. Id at 434. In this case, Plaintiff claims that he was denied food and his
medication while detained at BHDPS from the time of his detention on November
23, 2013 to mid-day November 25, 2013. [1 at ¶10]. Specifically, he states that he
was not fed until his attorney arrived late in the evening on November 24, 2013. [1
at ¶13]. Plaintiff also alleges that Vargas taunted him with insults focused on his
weight when he asked for food. [1 at ¶11; 16].

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Defendant presents an affidavit in which Vargas states that the standard
procedure at BHDPS is to feed detainees at approximately 7:30am to 8:00am,
11:00am to 12:00pm, and 5:00pm to 6:00pm [29-11 at ¶13]. Vargas further
explains that night shift officers work from 7:00pm to 7:00am, and therefore all
feeding responsibilities fall to the day shift. [Id at ¶14]. Per Vargas’ affidavit, as
well as the shift sheet from BHDPS submitted into evidence, Vargas worked the
night shift from November 22 to November 24, 2013, and thus would not have
been responsible for feeding Plaintiff. [29-10]. Defendant Vargas further stated in
his affidavit that Plaintiff never requested any food or medicine, but if he had he
would have provided it to him. [29-11 at ¶15; 16]. Additionally, Defendant
submitted a video of an interview of Plaintiff conducted by BHDPS officers on
November 29, 2013 [29-9]. In this interview, Plaintiff explained that he received a
granola bar every eight hours during his November 23, 2013 to November 25,
2013 detention. [29-9]. Plaintiff also stated that his attorney brought him his
bipolar medication at the BHDPS at 5:00pm on the second day of his detention
[Id].
As the Magistrate has pointed out, the affidavit evidence at bar, as well as
the video evidence of Plaintiff himself, directly contradict his claims. Thus, per
Plaintiff’s own statements, he was given food and his medicine during his
detention from November 23, 2013 to November 25, 2013. Additionally,

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Plaintiff’s remaining allegations that Vargas called him fat do not rise to the level
of an Eighth Amendment claim. None of the objections raised by Plaintiff address
these factual inconsistencies. Most notably, Plaintiff does not address the
videotaped statements he made five days after his alleged deprivation of food and
medicine. His objections do not establish that any evidence he could possibly
obtain if the case was dismissed without prejudice could rebut his own previous
statements that directly contradict his claims; nor does he demonstrate that a
genuine issue of fact exists for trial with respect to this claim.
In addition, the alleged factual disputes that Plaintiff has sought to raise in
his objections are not material. Even if Vargas’ statement of not being involved in
Plaintiff’s booking is inaccurate, it does nothing to refute Plaintiff’s own
statements, and has no bearing on the fact that Vargas was working shifts in which
feeding did not occur. Therefore any dispute over that fact is not material with
respect to Plaintiff’s conditions of confinement claims. The Court agrees with the
Magistrate that summary judgment should be granted on Plaintiff’s claim that
Defendant Vargas violated his Eighth Amendment rights by depriving him of food
and medicine.
Moving to Plaintiff’s claims surrounding Vargas’ alleged actions of
November 29, 2013 to November 30, 2013, Defendant Vargas’ affidavit asserts
that he was not working on those days, and the shift schedule from BHDPS shows

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that he was on leave during that period. [29-11 at ¶7; 29-10]. Plaintiff’s objections
fatally fail to address it. Moreover, he has failed to state that any evidence could be
obtained to address this. Therefore, Plaintiff’s claims against Vargas arising from
the dates of November 29, 2013 to November 30, 2013 are dismissed with
prejudice.
Plaintiff also alleges that Vargas hung up on his attorney on November 25,
2013, made Defendant’s attorney speak with him through the cell door slot and
videotaped this conversation, and threw FOIA paperwork in his attorney’s face
when she picked up the papers in August 2014. [1 at ¶14, 18, 21]. The Court agrees
with the Magistrate that these allegations cannot rise to the level of a Sixth
Amendment violation because the record establishes that Plaintiff did have contact
with his attorney during his detention from November 23, 2013 to November 25,
2013 when she visited him on November 24, 2013 [1 at ¶13]. Additionally,
according to Plaintiff and confirmed by the Court’s record, Plaintiff’s attorney
represented him at his arraignment on November 30, 2013. [1 at ¶17; 29-8]. There
is no evidence on the record, or averred to in Plaintiff’s complaint, that he was
denied counsel under the Sixth Amendment. As for the allegations concerning
Vargas throwing documents in the face of Plaintiff’s attorney, this does not rise to
the status of a constitutional violation against Plaintiff; at most it represents a state-

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law claim of assault against Vargas on behalf of his attorney, a claim which Vargas
does not have standing to pursue.
Plaintiff’s objections plainly fail to address any of the inadequacies flagged
by the Magistrate in the R&R. Indeed, the only mention in the objections to his
attorney is that he misidentified Vargas, and the officer was in fact Lieutenant
Ottney [38]. This has no bearing on the R&R to dismiss this claim against Vargas,
and, in light of the record, fails to plead a constitutional violation of his Sixth
Amendment.
In conclusion, Plaintiff has failed to show that Defendant Vargas violated his
constitutional rights under the Fourteenth Amendment or the Sixth Amendment.
Therefore his §1983 claims against Vargas must fail as a matter of law, and
summary judgment is appropriate. Marvin v. City of Taylor, 509 F. 3d 234, 244
(6th Cir. 2007).
c. PLAINTIFF’S ADDITIONAL ALLEGATIONS
Plaintiff has also raised other allegations in his complaint, which include the
following: (1) in February 2014 Plaintiff arrived at BHDPS with an envelope that
contained privileged information which was taken from him and not returned [1 at
¶19]; (2) Plaintiff’s attorney contacted the BHDPS in August 2014 to arrange to
pick up FOIA-requested paperwork, but was hung up on [1 at ¶21]; (3) while
detained in a BHDPS holding cell, Plaintiff was left alone when the officers went

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on a fire run, as he allegedly later discovered from FOIA paperwork [1 at ¶22]; and
(4) in July 2014, Plaintiff became aware of a GPS tracking device attached on one
of his work vehicles and, through private detective work, discovered that it
appeared to be activated at the BHDPS despite the absence of any warrant
authorizing the search, in violation of his Fourth Amendment rights [1 at ¶23].
In the context of these allegations, Defendant Vargas is not identified as
being involved, and in fact Plaintiff does not allege any particular person as
committing these alleged violations or any specific dates. Specifically, Defendant
Vargas denied any knowledge or involvement in any of these alleged acts in his
affidavit [29-11]. The only allegation that might rise to the level of a constitutional
violation is the claim which concerns the GPS. Plaintiff has not specified which of
the named Defendants committed the alleged violations in either the complaint or
in the objections, and there is no inference that can be made by the Court as to
which, if either, of the named Defendants committed this act. Defendant Vargas
has submitted an affidavit stating that he: did not place a tracking device on
Plaintiff’s car; did not instruct anyone to place a tracking device on his car; and did
not have any knowledge that a tracking device had been placed on his car. [29-11
at ¶27-28]. Further, despite reference to a private investigator that Plaintiff himself
hired as the source of the tracking device information, Plaintiff has not submitted
any evidence to support this claim, such as a report or affidavit from the private

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investigator. Moreover, Plaintiff has provided no reason for lack of evidence,
despite discovery being fully completed in this case. He also fails to mention in his
objections that evidence from this private investigator will be forthcoming to show
either named Defendant committed the alleged violation. Therefore, summary
judgment is granted on these claims.
d. CONCLUSION
Despite the case advancing all the way through summary judgment and an
extension of time to response to the Motion for Summary Judgment, Plaintiff has
not responded to the Motion for Summary Judgment, and has filed mere bare
bones objections that do not address any of the legal and factual deficiencies that
underpin his claims against both Defendants. In conclusion, the Court adopts the
Magistrate’s R&R. Defendants’ Motion for Summary Judgment is granted and, for
the reasons stated above, the entirety of Plaintiff’s claims against Defendant
BHDPS and Defendant Vargas are dismissed with prejudice. Additionally,
Defendants’ request for attorney fees and costs is denied.
3. MOTION FOR VOLUNTARY DISMISSAL [35]
Plaintiff filed this instant case on May 4, 2015. On August 1, 2016
Defendants filed a Motion for Summary Judgment [29]. Plaintiff requested and
obtained an extension to file his response to the Motion on November 1, 2016.
Plaintiff filed a Motion for Voluntary Dismissal [35] on October 31, 2016 [35].

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Defendants filed a response on November 9, 2016, to which Plaintiff did not reply.
On January 20, 2017, the Magistrate recommended that this Motion be denied and
further recommended granting in part Defendants’ Motion for Summary
Judgement in which all of Plaintiff’s claims against Defendants were dismissed
with prejudice. Plaintiff filed objections on February 17, 2017.
In his Motion for Voluntary Dismissal and objections to the R&R, Plaintiff
requests that the Court grant his Motion for Voluntary Dismissal because the
limited resources and available contacts that necessarily result from his
incarceration necessitate voluntarily dismissal without prejudice so that he can
pursue his claims when he is in a better position to do so. Specifically, Plaintiff
alleges that he is unable to procure affidavits from his attorneys and other
witnesses, and thus is not in a position to respond to the Motion for Summary
Judgment. [35; 38]. Defendants opposed this motion, stating that granting
Plaintiff’s Motion would be unfair since the case had proceeded through discovery
to the dispositive motion phase, and significant expense and effort had been
untaken in the defense of the case up to date. [36].
Under Federal Rule of Civil Procedure 41(a)(2), “an action may be
dismissed at the plaintiff’s request only by court order, on terms that the court
considers proper.” Fed. R. Civ. P. 41(a)(2). This decision is within the discretion of
the court, and the question to be considered is whether defendant would suffer

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“plain legal prejudice” if the case is dismissed without prejudice. Grover by
Grover v. Eli Lilly & Co., 33 F.3d 716, 718 (6th Cir. 1994). When considering a
Motion for Voluntary Dismissal, the Court “should consider such factors as the
defendant's effort and expense of preparation for trial, excessive delay and lack of
diligence on the part of the plaintiff in prosecuting the action, insufficient
explanation for the need to take a dismissal, and whether a motion for summary
judgment has been filed by the defendant.” Id.
In this case, the Court agrees with the Magistrate that the factors clearly
favor the Defendant. The case was filed on May 4, 2015 and, on August 14, 2015 a
scheduling order was entered by the Court setting the discovery cutoff deadline for
July 1, 2016 [1; 15]. Prior to this Motion being filed, Plaintiff was actively engaged
in discovery up to the discovery cut off deadline, and had more than a year to
complete discovery. The fact that Plaintiff was actively engaged in discovery with
Defendants, and filed Motions with the Court in response to discovery efforts,
undercuts the argument that Plaintiff was thwarted from completion of discovery
because of limited resources. Most importantly, Defendants have filed a Motion for
Summary Judgment that has merit and which, based on the available evidence and
legal authority cited, should be granted. Plaintiff’s objections, discussed above on
pages five and six, do not demonstrate sufficient need to warrant dismissal without
prejudice, as they fail to indicate how additional discovery time and retrievable

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affidavits from witnesses could adequately respond to the Magistrate’s findings in
law and fact pertaining to the claims against the named Defendants. Accordingly,
the Court adopts the R&R as to Plaintiff’s Motion for Voluntary Dismissal [35]
and Plaintiff’s Motion is denied.

IT IS ORDERED that the Court ADOPTS the Report and
Recommendation [37].
IT IS FURTHER ORDERED that Defendants’ Motion for Summary
Judgment [29] is GRANTED in part as to the dismissal of the case with
prejudice, and DENIED in part as to Defendant’s request for attorney fees and
costs that they incurred defending this action.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Voluntary
Dismissal [35] is DENIED.
IT IS FURTHER ORDERED that Defendant’s Ex Parte Motion to File
Exhibit in Traditional Manner [39] is DENIED as moot.
SO ORDERED.

Dated: March 6, 2017

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

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