Ayotte v. Stemen et al
ORDER adopting 80 Report and Recommendation; Overruling 82 Ojbections and denying 63 Motion for Summary Judgment. Signed by District Judge Arthur J. Tarnow. (MLan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 15-13826
SENIOR UNITED STATES DISTRICT
JUDGE ARTHUR J. TARNOW
STEMEN, ET AL.,
MAGISTRATE JUDGE STEPHANIE
ORDER ADOPTING REPORT AND RECOMMENDATION ; OVERRULING
PLAINTIFF’S OBJECTIONS ; AND DENYING DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT 
Plaintiff Paul Ayotte filed the instant prisoner civil rights action on October 26,
2015. Defendants Visconti, Bridges, Stemen, and Neuberger filed a Motion for
Summary Judgment Based on Exhaustion  on April 7, 2017. Plaintiff filed a
Response  on May 2, 2017 and a Second Response  on May 11, 2017.
Defendants filed a Reply  on June 30, 2017. Plaintiff filed a Response to Reply
 on July 18, 2017.
On December 8, 2017, the Magistrate Judge issued a Report and
Recommendation (“R&R”)  recommending that the Court deny Defendants’
Motion for Summary Judgment on the issue of exhaustion and order that the matter be
resolved in a one-day bench trial. The R&R further recommends that counsel be
appointed for Plaintiff before the bench trial is held.
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Plaintiff filed Objections  to the R&R on December 27, 2017.
For the reasons stated below, the R&R  is ADOPTED; Plaintiff’s
Objections  are OVERRULED; and Defendants’ Motion for Summary Judgment
 is DENIED.
Defendants’ First Motion for Summary Judgment 
On December 22, 2015, Defendants filed their first Motion for Summary
Judgment . On August 11, 2016, the Magistrate Judge issued an R&R 
recommending that the Court grant in part and deny in part Defendants’ Motion for
Summary Judgment .
On September 20, 2016, the Court adopted in part the R&R . [Dkt. #51]. In
its Order , the Court dismissed all of Plaintiff’s claims except those against
Defendants Visconti and Bridges for alleged retaliation under the First Amendment
and against Defendants Stemen, Benson, and Neuberger for alleged conspiracy to
falsify a misconduct ticket. Specifically, the Court held that Defendants failed to show
that Plaintiff’s claim for conspiracy to falsify a misconduct ticket claim had not been
exhausted. [Dkt. #51 at 13].
On August 31, 2017, Plaintiff filed a Motion to Vacate its Previous Order
Granting Summary Judgment . The Court denied the Motion to Vacate  on
November 28, 2017.
Defendants’ Second Motion for Summary Judgment Based on
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Defendants filed the instant Motion for Summary Judgment Based on
Exhaustion  on April 7, 2017. Plaintiff filed a Response  on May 2, 2017 and
a Second Response  on May 11, 2017. On June 30, 2017, Defendants filed a
Reply , in which they conceded that there are material disputed facts concerning
exhaustion and proposed that the Court hold a bench trial to resolve the factual
On December 8, 2017, the Magistrate Judge issued the instant R&R .
Plaintiff filed Objections  to the R&R  on December 27, 2017.
Service and Discovery Motions
On January 5, 2016, Plaintiff filed a Motion to Compel Service . On June
29, 2016, the Magistrate Judge issued an Order , which, inter alia, denied as moot
Plaintiff’s Motion to Compel Service .
Defendants filed a Motion to Stay Discovery  on March 23, 2016. Plaintiff
filed a Response  on April 6, 2016. On March 8, 2017, the Magistrate Judge
granted Defendants’ Motion to Stay Discovery. [Dkt. #58].
On March 23, 2017, Plaintiff filed a Motion to Supplement Complaint .
Defendants filed a Response  on May 17, 2017. The Magistrate Judge denied
Plaintiff’s Motion to Supplement Complaint on December 8, 2017. [Dkt. #81].
Plaintiff’s Objections  to the R&R, filed on December 27, 2017, include
objections to: Order  Denying Plaintiff’s Motion to Compel Service ; Order
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 Granting Defendants’ Motion to Stay Discovery; and Order  Denying
Plaintiff’s Motion to File Supplemental Complaint .1
I. Plaintiff’s Objection Concerning Exhaustion of Remedies
In Section I of Plaintiff’s Objections , Plaintiff objects to the R&R’s
recommendation concerning exhaustion of remedies.
This Court reviews de novo the portions of the R&R to which objections have
been filed. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The Court “may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the
recommendations are not meant to be simply a vehicle to rehash arguments set forth
in the petition.” Nickelson v. Warden, 2012 WL 700827, at *4 (S.D. Ohio Mar. 1,
2012); see also Senneff v. Colvin, No. 15-13667, 2017 WL 710651, at *2 (E.D. Mich.
Feb. 23, 2017).
Plaintiff asks that the Court decline to adopt the R&R’s findings on exhaustion.
Plaintiff argues that the Magistrate Judge erred “by basing her decision on the fallacy
submitted by the Defendants and not by discerning facts from the factual record.”
[Dkt. #82 at 8]. It seems as though Plaintiff is arguing that a bench trial on the issue of
The objections are labeled as “Plaintiff’s Objection Concerning Service and
Discovery” (Section II) and “Plaintiff Objections to Magistrate’s Ruling on Motion to
Amend Defendant’s Continuous Retaliatory Conduct” (Section IV).
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exhaustion is unnecessary because Defendants have been lying to the Court and the
Court may simply accept Plaintiff’s version of the facts as true.
Plaintiff misconstrues the Court’s role in deciding a motion for summary
judgment. “At the summary judgment stage the judge’s function is not himself to
weigh the evidence and determine the truth of the matter but to determine whether
there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). Here, the Magistrate Judge found a genuine issue of fact with respect to
exhaustion. As explained in the R&R:
[T]he plaintiff creates two disputed questions of fact regarding his
exhaustion efforts: (1) he claims, in contradiction to Defendant
Neuberger, that he did raise his issues at his misconduct hearing, and (2)
he claims to have submitted a different appeal form raising different
issues than the one received by MDOC.
[Dkt. #80 at 2].
The Magistrate Judge properly viewed this evidence in the light most favorable to
Plaintiff in recommending that the Court deny Defendants’ Motion for Summary
Judgment. See [Dkt. #82 at 9].
The R&R further recommends that the Court hold a one-day bench trial on the
issue of exhaustion. The Sixth Circuit has explained that “. . . disputed issues of fact
regarding exhaustion under the PLRA . . . [may] be decided in a bench trial.” Lee v.
Willey, 789 F.3d 673, 678 (6th Cir. 2015). Because there is a material question of fact
as to whether Plaintiff properly exhausted his administrative remedies, a one-day
bench trial before the Magistrate Judge is appropriate in this case. Moreover, the
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Court adopts the R&R’s recommendation that counsel be appointed to represent
Plaintiff at the bench trial. At the bench trial, Plaintiff will have the opportunity to
present evidence to support his exhaustion claim and to challenge Defendants’
credibility. Plaintiff’s objection is overruled.
II. Plaintiff’s Objections Concerning Service and Discovery and Objection
to Ruling on Motion to Amend
In Sections II and IV of Plaintiff’s Objections , Plaintiff contests the
Magistrate Judge’s rulings on three separate, non-dispositive matters. The Court
construes the aforementioned sections as objections to Orders [46, 58, 81].
When a litigant objects to a magistrate judge’s ruling on a non-dispositive
pretrial matter, the court may “modify or set aside any part of the order that is clearly
erroneous or is contrary to law.” Fed. R. Civ. P. 72(a). The “clearly erroneous”
standard does not permit a district court to reverse the magistrate judge’s finding
simply because it would have decided the issue differently. Anderson v. City of
Bessemer, N.C., 470 U.S. 564, 573 (1985). Rather, a “finding is ‘clearly erroneous’
when, although there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been
committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948).
As an initial matter, Plaintiff’s objections to Orders [46, 58] are untimely. Fed.
R. Civ. P. 72 provides that a party has 14 days to file its objections to orders on nondispositive matters. The Magistrate Judge issued Order  on June 29, 2016 and
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Order  on March 8, 2017. Plaintiff filed the instant objections on December 27,
2017. Plaintiff offers no reason for the lengthy delay in filing his objections.
Furthermore, Plaintiff’s objections to Orders [46, 58, 81] are without merit.
First, with respect to Order , the Magistrate Judge properly denied
Plaintiff’s Motion to Compel Service as moot. In support of its ruling, the Magistrate
Judge explained that the Court recently ordered Plaintiff to provide an address to
serve Defendant Benson because the U.S. Marshals had been unable to effectuate
service at her last known address. [Dkt. #46 at 1]. The Magistrate Judge further
explained that the Court ordered Plaintiff to show cause why dismissal should not be
recommended as to Defendant Singleton because she is deceased. Id. The Magistrate
Judge did not err in denying Plaintiff’s Motion to Compel as moot where the Court
had already addressed the issues regarding service raised in the motion.
Second, with respect to Order , the Magistrate Judge’s decision to stay
discovery was not clearly erroneous. The Magistrate Judge explained that substantive
discovery was not warranted at this stage in the proceedings because the preliminary
issue of exhaustion had not yet been ruled upon. [Dkt. #58 at 1-2]. In his objection,
Plaintiff submits that it is inappropriate for a court to grant summary judgment
without affording a party the opportunity to conduct discovery. [Dkt. #11 at 29]. But,
Plaintiff fails to acknowledge that the R&R  recommends denying, not granting,
summary judgment. After the threshold issue of exhaustion has been resolved via
bench trial, the Magistrate Judge may lift the stay on discovery.
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Finally, with respect to Order , the Magistrate Judge did not clearly err in
denying Plaintiff’s Motion to Supplement Complaint. Applying the factors set forth in
Forman v. Davis, 371 U.S. 178 (1962), the Magistrate Judge concluded that the
proposed supplemental claim was not sufficiently related to the pending claims and
further concluded that the addition of a new claim would unduly delay the
proceedings. [Dkt. #81 at 5-6]. In his objection, Plaintiff argues that his proposed
amendment relates back to the date of the original pleading under Fed. R. Civ. P.
15(c). However, Plaintiff’s proposed amendment concerns an issue that is alleged to
have occurred in January 2016, see [Dkt. #61], while the allegations in the Complaint
 concern issues that occurred in late 2014 and early 2015. The proposed claim did
not arise out of the conduct set out in the original pleading. See Fed. R. Civ. P.
None of the Magistrate Judge’s rulings were clearly erroneous or contrary to
law. Accordingly, Plaintiff’s objections to Orders [48, 56, 81] are overruled.
Defendants’ Fraud Upon the Court
In Section III of Plaintiff’s Objections , Plaintiff moves the Court to
“reverse all of its Order granting relief to the Defendants when, as here, [sic]
knowingly perjured themselves and fabricated evidence to obtain a favorable
judgment.” [Dkt. #82 at 13]. The Court construes Plaintiff’s request as a motion for
reconsideration of Order  denying Plaintiff’s Motion to Vacate its Previous Order
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Granting Summary Judgment in Favor of the Defendants Based on Defendants’ Fraud
Upon this Court .
Local Rule 7.1(h)(3), which governs motions for reconsideration, provides:
Generally, and without restricting the court’s discretion, the
court will not grant motions for rehearing or
reconsideration that merely present the same issues ruled
upon by the court, either expressly or by reasonable
implication. The movant must not only demonstrate a
palpable defect by which the court and the parties and other
persons entitled to be heard on the motion have been misled
but also show that correcting the defect will result in a
different disposition of the case.
See also Hansmann v. Fid. Invs. Institutional Servs. Co., 326 F.3d 760, 767 (6th Cir.
2003) (A motion for reconsideration is granted only “. . . if the movant demonstrates
that the district court and the parties have been misled by a palpable defect, and
correcting the defect will result in a different disposition of the case.”).
Plaintiff repeats the allegations of fraud set forth in his Motion to Vacate .
However, to succeed on a motion for reconsideration, Plaintiff may not simply rehash
his arguments, but must demonstrate a palpable defect by the Court. See United States
v. Smith, No. 08-20349, 2009 WL 55008, at *1 (E.D. Mich. Jan. 7, 2009). Plaintiff has
made no such showing here. Therefore, Plaintiff’s motion for reconsideration is
For the reasons stated above,
IT IS ORDERED that the R&R  is ADOPTED.
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IT IS FURTHER ORDERED that Plaintiff’s Objections  are
IT IS FURTHER ORDERED that Defendants’ Motion for Summary
Judgment Based on Exhaustion  is DENIED.
IT IS FURTHER ORDERED that the Magistrate Judge hold a one-day bench
trial on the issue of exhaustion of administrative remedies, for preparation of a Report
IT IS FURTHER ORDERED that Plaintiff is provisionally appointed counsel
to represent him at the bench trial.
Dated: February 8, 2018
s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
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