Sourander v. Hanft et al

Filing 60

ORDER Accepting and Adopting 56 Report and Recommendation, Overruling Plaintiff's 59 Objections, Granting Defendants' 31 Motion to Dismiss and for Summary Judgment, Denying Plaintiff's 54 Motion to Conduct Discovery and Dismissing Action. Signed by District Judge Gershwin A. Drain. (TMcg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PATRICK ALAN SOURANDER,
Plaintiff,
Case No.: 18-cv-11162
Honorable Gershwin A. Drain

v.

SHERIFF HOWARD HANFT, et
al.,
Defendants.
___________________________/

ORDER ACCEPTING AND ADOPTING REPORT AND
RECOMMENDATION [#56], OVERRULING PLAINTIFF’S OBJECTIONS
[#59], GRANTING DEFENDANTS’ MOTION TO DISMISS AND FOR
SUMMARY JUDGMENT [#31], DENYING PLAINTIFF’S MOTION TO
CONDUCT DISCOVERY [#54] AND DISMISSING ACTION
I. INTRODUCTION
Presently before the Court in this 42 U.S.C. § 1983 prisoner civil rights
action is Magistrate Judge R. Steven Whalen’s Report and Recommendation, filed
on August 7, 2019. Magistrate Judge Whalen recommends that the Court grant the
Defendants’ Motion to Dismiss and Motion for Summary Judgment. Specifically,
Magistrate Judge Whalen recommends that Plaintiff’s First Amendment “legal”
mail claim be dismissed with prejudice because the mail was not legal mail and
therefore it was appropriate for the jail officials to open and inspect it for

contraband. Magistrate Judge Whalen further recommends that Plaintiff’s
remaining Fourth, Fifth, Sixth and Fourteenth Amendment claims, as well as his
state law claims, be dismissed without prejudice based on Plaintiff’s failure to
exhaust his administrative remedies with respect to these claims. Plaintiff filed his
objections on September 12, 2019. For the reasons that follow, the Court will
overrule Plaintiff’s objections.

II. LAW & ANALYSIS
A. Standard of Review
Title 28 U.S.C. § 636 sets forth the standard of review used by the Court
when examining a report and recommendation. The Court, “shall make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). This
Court has the power to, “accept, reject or modify, in whole or in part, the findings
or recommendations made by the magistrate judge.” Id.

B. Plaintiff’s Objections to the Report and Recommendation
i.

Objection No. 1

In his first objection, Plaintiff complains that the Magistrate Judge erred by
converting Defendants’ Motion to Dismiss into a Motion for Summary Judgment
without conducting discovery. Plaintiff’s objection is meritless. Defendants’
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motion was brought pursuant to both Rule 12(b)(6) and Rule 56 of the Federal
Rules of Civil Procedure. ECF No. 293, PageID. 293. The Plaintiff responded to
the motion, as well as furnished exhibits and his declaration. Thus, Plaintiff had
fair notice that the motion was presented as a motion for summary judgment and
was given an opportunity to respond.
ii. Objection No. 2
Next, Plaintiff objects to the Magistrate Judge’s consideration of
Defendants’ exhibits, filed along with Defendant’s Reply brief. This objection
likewise lacks merit. In their Reply brief, Defendants presented arguments and
documents to rebut the claims made by Plaintiff in his Response to Defendants’
Motion to Dismiss and/or for Summary Judgment. Defendants included the two
grievances that Plaintiff filed while detained at the Ogemaw County Jail, which
had already been provided in their original motion. Defendants also attached the
prison grievance policy to rebut Plaintiff’s claim that the jail did not have an
administrative grievance procedure. Lastly, Defendants also included documents
evidencing that Plaintiff had received, and acknowledged receipt of the responses
to his grievances in order to rebut Plaintiff’s claim that he never received responses
to his grievances.
It was appropriate for the Magistrate Judge to consider these attachments
since they addressed arguments in Plaintiff’s Response brief. See Smith v. Burns
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Med. Ctr., 779 F.2d 1173, 1175 n.6 (6th Cir. 1986) (illustrating that a district court
may consider attachments filed after a summary judgment motion is submitted
where a defendant seeks to address new arguments presented in the plaintiff’s
response); see also Baugh v. City of Milwaukee, 823 F. Supp. 1452, 1457 (E.D.
Wis. 1993), aff’d 41 F.3d 1510 (7th Cir. 1994) (“[W]here the reply affidavit
merely responds to matters placed in issue by the opposition brief and does not
spring upon the opposing party new reasons for the entry of summary judgment,
reply papers – both briefs and affidavits – may properly address those issues.”).
Because Defendant’s Reply brief and attached exhibits addressed Plaintiff’s
arguments in his Response, the Magistrate Judge did not err in considering the
exhibits. This objection is overruled.
iii. Objection No. 3
Plaintiff also objects to the Magistrate Judge’s “use of all unauthenticated
exhibits.” ECF No. 59, PageID. 1067. Plaintiff’s objection is without merit. The
Ogemaw County Jail documents submitted by the Defendants have been
authenticated by the affidavits of Defendant Purtill, Defendant Osier and Sheriff
Hanft. As such, the Magistrate Judge did not improperly rely on unauthenticated
documents and Plaintiff’s objection is overruled.
iv. Objection No. 4
Next, Plaintiff objects to the Magistrate Judge’s conclusion that Ogemaw
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County Jail had an available grievance procedure. This objection likewise lacks
merit. The evidence of record demonstrates that the jail had a grievance policy in
effect at the time of Plaintiff’s detention in 2014 and 2015. ECF No. 52, PageID.
735. In fact, Plaintiff invoked the initial step in the available grievance procedure
with respect to the issue with his “legal” mail, as well as with respect to discipline
he received for passing a note to another prisoner. Moreover, the Magistrate
Judge correctly concluded that Plaintiff did not meet his burden to demonstrate that
the Ogemaw County Jail grievance procedure was unavailable to him. This
objection is overruled.
v. Objection No. 5
Plaintiff also objects to the Magistrate Judge’s conclusion that Plaintiff’s
transfer to the MDOC did not render his administrative remedies unavailable.
Plaintiff was detained in the Ogemaw County Jail from 2014 through 2016. He
had ample time to initiate and complete the available grievance procedure but did
not. The Magistrate Judge did not err in concluding that Plaintiff’s transfer did not
make his administrative remedies unavailable. This objection is also overruled.
vi. Objection No. 6
Lastly, Plaintiff objects to the Magistrate Judge’s conclusion that Plaintiff
did not exhaust his available remedies. The evidence of record, as well as
Plaintiff’s admissions show that Plaintiff failed to exhaust his administrative
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remedies with respect to all of his claims except for his First Amendment legal
mail claim.1 Plaintiff filed two grievances during his detention at Ogemaw County
Jail, only one of which concerns his legal mail. The other grievance concerned
discipline associated with Plaintiff passing a note to another inmate in violation of
jail rules. No other grievances were filed even though the jail had an available
administrative procedure. Plaintiff’s objection is overruled.
C. Plaintiff’s Motion to Conduct Discovery
On May 8, 2019, Plaintiff filed a motion to conduct discovery in order to file
a Sur-Reply to Defendant’s Reply brief. As an initial matter, the Court has already
considered and rejected Plaintiff’s assertion that Defendants added new arguments
and evidence in their Reply brief. Moreover, Plaintiff did not seek to conduct
discovery pursuant to Rule 56(d) of the Federal Rules of Civil Procedure prior to
filing his Response to the Defendants’ Motion to Dismiss and for Summary
Judgment. Moreover, Plaintiff’s declaration in support of his motion merely
mimics the language of Rule 56(d) by referring generally to Plaintiff’s need to take

does not object to the Magistrate Judge’s conclusion that Plaintiff cannot
establish his First Amendment claim because the mail at issue was not from a
lawyer. Rather, the mail was from his co-defendant. Magistrate Judge Whalen
therefore correctly concluded that the jail officials did not violate the First
Amendment by refusing to provide materials sent by Plaintiff’s co-defendant. See
Parrish v. Johnson, 800 F.2d 600, 603 (6th Cir. 1986).
1

 Plaintiff

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discovery to obtain facts “to make a meaningful response to the motion for
summary judgment . . . .” ECF No. 56, PageID.996. Notably, Plaintiff does not
request discovery on the issue of exhaustion of administrative remedies, Plaintiff’s
grievances or any other material that is relevant to the exhaustion issue. His
motion is therefore denied.

III.

CONCLUSION

Accordingly, for the reasons articulated above, the Court OVERRULES
Plaintiff’s Objections [#59], and ACCEPTS and ADOPTS Magistrate Judge R.
Steven Whalen’s August 7, 2019 Report and Recommendation [#56].
Defendants’ Motion to Dismiss and for Summary Judgment [#31] is
GRANTED.
Plaintiff’s Motion to Conduct Discovery [#54] is DENIED.
This cause of action is DISMISSED.
SO ORDERED.
Dated: September 17, 2019

/s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge

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CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
September 17, 2019, by electronic and/or ordinary mail.
/s/ Teresa McGovern
Deputy Clerk

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