Moore v. Liewert

Filing 58

ORDER Adopting 56 Report and Recommendation Granting Defendant's 38 Motion for Summary Judgment. Signed by District Judge George Caram Steeh. (BSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHARLES MOORE,
Plaintiff,

Case No. 20-CV-11144

vs.

HON. GEORGE CARAM STEEH

D. LIEWERT,
Defendant.
_____________________________/

ORDER ACCEPTING MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION (ECF NO. 56)
Plaintiff Charles Moore is in the custody of the Michigan Department
of Corrections at the Gus Harrison Correctional Facility. Moore filed this
civil rights action under 42 U.S.C. § 1983 alleging that defendant D. Liewert
refused to serve him a meal which he medically needed because he is
diabetic. Moore sued Liewert in his individual and official capacities,
asserting an Eighth Amendment deliberate indifference claim, a First
Amendment retaliation claim, and a Fourteenth Amendment equal
protection claim. Defendant moved for summary judgment on the grounds
that he did not deny Moore a meal, that he was unaware that Moore is
diabetic, and that Moore was not treated differently than any similarly
situated prisoner. He also argues that he is entitled to qualified and
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sovereign immunity. The magistrate judge issued a report and
recommendation (“R&R”) recommending that defendant’s motion for
summary judgment be granted (ECF No. 56). The matter is before the
Court on plaintiff’s timely-filed objections to the R&R (ECF No. 57).
A party who objects to an R&R must file specific objections. 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Plaintiff filed over thirty
paragraphs of objections to the R&R, addressing the content of each page
of the R&R. Plaintiff’s objections can be categorized as follows:
First, plaintiff contends that the magistrate judge failed to make all
reasonable inferences in his favor as the non-moving party. On the
contrary, the magistrate judge gave plaintiff’s claims a very broad reading,
and used plaintiff’s version of the facts whenever they conflicted with
defendants. See e.g., ECF No. 56, PageID.379 (“The Court agrees with
Moore that providing an inedible meal is “’the functional equivalent of...no
meal at all[]’”; and “But Moore’s testimony that the ride-out bag contained
moldy food is compatible with a liberal reading of the allegation that Liewert
denied him a meal.”) The Court finds that the magistrate judge made all
reasonable inferences in favor of plaintiff, properly applying the summary
judgment standard.
Second, plaintiff argues that the magistrate judge’s statement that
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depriving a diabetic of one meal is not objectively serious is erroneous. The
magistrate judge correctly stated that “depriving a diabetic prisoner of one
meal does not pose a substantial risk of harm absent evidence that the
missed meal resulted in physical harm.” ECF No. 56, PageID.380 (emphasis
added, citations omitted). This is a correct statement of the law. Furthermore,
the magistrate judge correctly noted that plaintiff offered no evidence that he
suffered physical harm from missing the one meal.

Third, plaintiff contends that his oral complaints about being denied a
meal are protected free speech for purposes of supporting his retaliation
claim. However, this is just one of four factors required to show retaliation.
The magistrate judge found that plaintiff failed to support the second factor,
that an adverse action was taken against him. Ultimately, the magistrate
judge concluded that “the one-time denial of a meal was not objectively
serious enough to show a constitutional deprivation.” This conclusion is
supported by the law and the evidence in this case.
Fifth, plaintiff states that defendant is a white male who demonstrated
racial animus against him in violation of the Fourteenth Amendment.
Specifically, plaintiff contends defendant treated him differently than white
inmates by refusing to serve him pizza. The magistrate judge addressed
the evidence in the light most favorable to plaintiff and found that there was
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no issue of material fact showing that plaintiff was similarly situated to
inmates who were served pizza. ECF No. 56, PageID.384-385.
For the reasons stated, plaintiff’s objections are overruled.
Now, therefore,
IT IS HEREBY ORDERED that the Report and Recommendation
(ECF No. 56) is ACCEPTED by the Court.
IT IS HEREBY FURTHER ORDERED that defendant’s motion for
summary judgment (ECF No. 38) is GRANTED.
Dated: September 9, 2022

s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
September 9, 2022, by electronic and/or ordinary mail and
also on Charles Moore #223268, Gus Harrison Correctional
Facility, 2727 E. Beecher Street, Adrian, MI 49221.
s/Brianna Sauve
Deputy Clerk

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