Lewis v. Greason et al

Filing 129

ORDER Adopting 114 Report and Recommendation, Striking 124 Second Amended Complaint and 125 Affidavit in Support, and Resolving Outstanding Motions 33 , 74 , 108 , 116 , 117 , 121 , 123 , 126 , and 128 - Signed by District Judge Nancy G. Edmunds. (LBar)

Case 2:21-cv-11939-NGE-KGA ECF No. 129, PageID.1558 Filed 03/20/23 Page 1 of 13

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TOM LEWIS,
Plaintiff,
Case No. 2:21-cv-11939
v.
Hon. Nancy G. Edmunds
Magistrate Judge Kimberly G. Altman
ALAN GREASON, REGINA JENKINSGRANT, CHRISTINA RAMSEY,
JEFFREY LUZIUS, MELODY WALLACE,
RICHARD RUSSELL, FNU CAMPBELL,
UNKNOWN MAILROOM PERSONNEL,
and UNKNOWN TRANSFER
COORDINATOR,
Defendants.
____________________________________/
ORDER ACCEPTING AND ADOPTING FEBRUARY 15, 2023 REPORT AND
RECOMMENDATION [114], STRIKING SECOND AMENDED COMPLAINT [124]
AND AFFIDAVIT IN SUPPORT [125], AND RESOLVING OUTSTANDING
MOTIONS [33, 74, 108, 116, 117, 121, 123, 126, 128]
In this prisoner civil rights case, Plaintiff Tom Lewis brings five claims against
various Michigan Department of Corrections (“MDOC”) defendants in his Amended
Complaint: Claim I(a), First Amendment Retaliation, against Defendants Greason,
Jenkins-Grant, and Unknown Transfer Coordinator (identified as Jennifer Torres);
Claim I(b), Violation of Free Exercise Clause of First Amendment, against Defendants
Greason, Jenkins-Grant, and Unknown Transfer Coordinator (identified as Jennifer
Torres); Claim II, Interference with Access to the Courts (tampering with legal mail),
against Defendants Ramsey, Campbell, Wallace, Russell, and Luzius; Claim III,
Interference with Access to the Courts (denial of access to law library), against

1 

Case 2:21-cv-11939-NGE-KGA ECF No. 129, PageID.1559 Filed 03/20/23 Page 2 of 13

Defendants Luzius, Wallace, and Russell; and Claim IV, Interference with Access to
the Courts (interference with legal mail/ failure to send legal mail in a timely fashion),
against Defendants Unknown Mailroom Personnel (Carson City), Wallace, and
Russell.1 In June and August of 2022, Defendants Luzius, Campbell, Russell, and
Wallace filed dispositive motions. (ECF Nos. 33, 74.) Plaintiff filed timely responses to
those motions attaching an affidavit in support and several exhibits to each.2 (ECF Nos.
111, 112.) Plaintiff also moved to strike Defendants’ motions. (ECF No. 108.)
Before the Court are the Magistrate Judge’s February 15, 2023 Report and
Recommendation (“R and R”) and Plaintiff’s objections thereto.3 (ECF Nos. 114, 120.)
The Magistrate Judge Recommends denying Plaintiff’s motion to strike (ECF No. 108),
granting Defendant Luzius’s motion (ECF No. 33), and granting in part and denying in
part Defendants Campbell, Russell, and Wallace’s motion (ECF No. 74)—denying the
motion as to exhaustion of Plaintiff’s Claim II against Defendants Campbell and
Russell, but otherwise granting the motion including dismissing the claims against
Defendants Campbell and Russell for failure to state a claim. For the reasons set forth
below, the Court OVERRULES Plaintiff’s objections and ACCEPTS AND ADOPTS the
Magistrate Judge’s report and recommendation. In the interest of judicial economy,
this order also resolves Plaintiff’s motion to correct notice (ECF No. 116), Plaintiff’s

1

Plaintiff only numbers four claims, but in his first claim he alleges both retaliation and a violation
of the free exercise clause. For ease of reference, the Court will refer to these claims as Claims I(a) and
I(b), respectively.
2
Plaintiff’s responses were timely filed pursuant to the “prison mailbox rule,” which provides that
a pro se prisoner’s court filing is deemed filed as of the date on which he or she delivered the filing to
prison authorities for mailing. Houston v. Lack, 487 U.S. 266, 275 (1988). Plaintiff signed his responses
and they were postmarked on January 20 and January 23, 2023. Accordingly, they are accepted as filed
as of those dates.
3
Plaintiff’s motion for extension of time to file objections (ECF No. 117) is DENIED AS MOOT
as his objections were timely filed on February 27, 2023. 

2 

Case 2:21-cv-11939-NGE-KGA ECF No. 129, PageID.1560 Filed 03/20/23 Page 3 of 13

motion for judicial notice (ECF No. 121), Plaintiff’s motion to amend the complaint (ECF
No. 123), Plaintiff’s motion to re-submit exhibits (ECF No. 126), and Plaintiff’s motion
to produce exhibits (ECF No. 128).
I.

Objections to Report and Recommendation
A.

Legal Standard

Upon receipt of a report and recommendation from the magistrate judge, a
district court judge “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). Thereafter, the district court judge “may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate judge.” Id.
See also Fed. R. Civ. P. 72(b)(3).
The Court is not “required to articulate all of the reasons it rejects a party's
objections,” if it does not sustain those objections. Thomas v. Halter, 131 F. Supp. 2d
942, 944 (E.D. Mich. 2001) (citations omitted). The purpose of filing objections is to
focus the district judge's “attention on those issues—factual and legal—that are at the
heart of the parties’ dispute.” Thomas v. Arn, 474 U.S. 140, 147 (1985). Thus, a party's
objections must be “specific.” Cole v. Yukins, 7 F. App'x 354, 356 (6th Cir. 2001)
(citations omitted). “The filing of vague, general, or conclusory objections does not
meet the requirement of specific objections and is tantamount to a complete failure to
object.” Id. (citing Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995)). Moreover,
objections that merely restate arguments previously presented do not sufficiently
identify alleged errors on the part of the magistrate judge. Senneff v. Colvin, No. 15cv-13667, 2017 WL 710651, at *2 (E.D. Mich. Feb. 23, 2017) (citing cases). An

3 

Case 2:21-cv-11939-NGE-KGA ECF No. 129, PageID.1561 Filed 03/20/23 Page 4 of 13

objection that does nothing more than disagree with a magistrate judge's conclusion,
or simply summarizes what has been argued before, is not considered a valid
objection. Howard v. Sec'y of Health and Human Servs., 932 F.2d 505, 508 (6th Cir.
1991); Watson v. Jamsen, No. 16-cv-13770, 2017 WL 4250477, at *1 (E.D. Mich. Sept.
26, 2017).
B.

Analysis

Plaintiff filed ten objections to the R and R. Because none of these objections
identify an error by the Magistrate Judge that, when remedied, would ultimately change
the conclusion that Plaintiff failed to state a claim as to Claims II and IV, and failed to
exhaust his administrative remedies as to Defendant Wallace in Claim II and all
defendants in Claims III and IV, each objection is overruled.
In his first objection, Plaintiff asserts that Defendants continue to “subvert the
judicial process through fraudulent acts denying [Plaintiff] his right to present a
defense.” (ECF No. 120, PageID.1429.) In support of this accusation, Plaintiff points to
the Magistrate Judge’s comment regarding the untimeliness of his responses and he
accuses MDOC of purposely failing to mail his responses despite providing him with
confirmation of mailing. Plaintiff also asserts that MDOC opened his mail and removed
grievance 21-4-1211 from his response since the Magistrate Judge noted that
grievance was not attached.
To the extent Plaintiff alleges fraud on the Court, he provides insufficient
evidence to support this claim. See Lacks Indus., Inc. v. McKechnie Vehicle
Components USA, Inc., 407 F. Supp. 2d 834, 847 (E.D. Mich. 2005) (“Proof of fraud
upon the court must be by clear and convincing evidence”) (citation omitted).

4 

Case 2:21-cv-11939-NGE-KGA ECF No. 129, PageID.1562 Filed 03/20/23 Page 5 of 13

Admittedly, some of the confusion here may be due to error on the Court’s part though
this does not change the disposition of the R and R, or ultimately affect this Court’s
decision. For instance, Plaintiff’s responses were indeed postmarked January 20 and
January 23, although mail or other delays outside of MDOC’s control caused the
documents to be received on January 30 and February 1, respectively. Regardless,
the Magistrate Judge fully considered Plaintiff’s responses in her report so there was
no prejudice to Plaintiff. (ECF No. 114, PageID.1364.) In addition, the grievance
Plaintiff references does appear to be attached to his response despite the Magistrate
Judge’s inability to identify it (the “grievance identifier” is blank, but the substance of
the grievance matches Plaintiff’s description). (ECF No. 112, PageID.1351.) Because
the inclusion of this grievance would not change the Court’s analysis of the issue,
Plaintiff was not prejudiced as a result of this small oversight.
In his second objection, Plaintiff asserts that he was prejudiced because the
Court did not allow him to engage in discovery. But, as the Magistrate Judge noted in
her February 15, 2023 Order, discovery requests are premature at this stage. (ECF
No. 115.) Plaintiff does not need discovery to respond to a motion to dismiss or a
motion for summary judgment on the basis of exhaustion, which is the stage these
proceedings are at now. Moreover, to the extent the grievances Plaintiff references
differ from each other, this does not constitute fraud. See Threatt v. Williams, No. 1512585, 2016 WL 4607639, at *2 (E.D. Mich. Sept. 6, 2016); Mathis v. Sudhir, No. 1:13CV-187, 2014 WL 905823, at *10 (W.D. Mich. Mar. 5, 2014).

5 

Case 2:21-cv-11939-NGE-KGA ECF No. 129, PageID.1563 Filed 03/20/23 Page 6 of 13

In his third objection, Plaintiff confuses the Federal Rule of Civil Procedure
applicable to Plaintiff’s motion to strike (Rule 12(g)(2)) and the Rules applicable to
Defendants’ motions (Rules 12(b)(6) and 56(a)). The Magistrate Judge did not err.
In his fourth objection, Plaintiff disagrees with the Magistrate Judge’s analysis
and findings regarding Plaintiff’s failure to exhaust his claims against Defendant
Luzius. (See ECF No. 114, PageID.1369-1372.) But an objection that does nothing
more than disagree with a magistrate judge's conclusion, or simply summarizes what
has been argued before, is not considered a valid objection. Howard v. Sec'y of Health
and Human Servs., 932 F.2d 505, 508 (6th Cir. 1991); Watson v. Jamsen, No. 16-cv13770, 2017 WL 4250477, at *1 (E.D. Mich. Sept. 26, 2017). Nevertheless, this Court
reviewed the relevant grievance and grievance report and is satisfied that Defendant
Luzius successfully showed that Plaintiff failed to exhaust his administrative remedies
against him. See Lee v. Willey, 789 F.3d 673, 677 (6th Cir. 2015) (“Failure to exhaust
administrative remedies is an affirmative defense, which the defendant has the burden
to plead and prove by a preponderance of the evidence.”)
Plaintiff provides an example of a grievance that was rejected at Step III and
asserts that his grievance was in fact decided on the merits. (ECF No. 108,
PageID.1247.) But the example of a grievance that was rejected at Step III shows four
options for a response, one of the options being that the Step II rejection is upheld. It
would appear this is the case with grievance MRF-19-10-1453, which states “the
rejection is upheld” which this Court takes to mean the grievance was rejected at
Step II and that rejection was affirmed at Step III. (ECF No. 108, PageID.1246.) In any
event, whether the grievance was rejected or denied did not affect the Magistrate

6 

Case 2:21-cv-11939-NGE-KGA ECF No. 129, PageID.1564 Filed 03/20/23 Page 7 of 13

Judge’s conclusion as to Luzius (See ECF No. 114, PageID.1383) (noting that “MRF1453 would not have exhausted cognizable claims against Luzius [because] . . . the
decision to sanction [Plaintiff] was made by the hearing officer, not Luzius.)
Plaintiff’s fifth objection is also invalid as it merely states his disagreement with
the Magistrate Judge’s exhaustion analysis as to Defendants Campbell, Russell, and
Wallace without identifying a clear and specific error that would change the outcome.
See Howard v. Sec'y of Health and Human Servs., 932 F.2d 505, 508 (6th Cir. 1991);
Watson v. Jamsen, No. 16-cv-13770, 2017 WL 4250477, at *1 (E.D. Mich. Sept. 26,
2017). The arguments Plaintiff makes do not speak to an issue “at the heart of the
parties’ dispute.” Thomas v. Arn, 474 U.S. 140, 147 (1985). Plaintiff provides no
evidence and points to no error that would support a conclusion that he exhausted his
remedies as to Claims III and IV or that Claims II and IV state a claim upon which relief
can be granted. This Court agrees with the Magistrate Judge’s analysis and its own
analysis of these issues in its October 7, 2021 Opinion and Order.
In his sixth objection, Plaintiff asserts that the Magistrate Judge did not consider
his response to Defendants Campbell, Russell, and Wallace’s Motion to Dismiss. This
is inaccurate. The Magistrate Judge specifically noted that she considered both of
Plaintiff’s responses in analyzing the motions. (ECF No. 114, PageID.1364.)
In his seventh objection, Plaintiff refers to the portion of the Magistrate Judge’s
report in which she analyzes exhaustion of the claims against Defendants Campbell,
Russell, and Wallace, but his arguments surround whether the Magistrate Judge
properly considered circumstantial evidence relating to Defendants’ alleged
conspiracy. Plaintiff also disagrees with the Magistrate Judge’s application of several

7 

Case 2:21-cv-11939-NGE-KGA ECF No. 129, PageID.1565 Filed 03/20/23 Page 8 of 13

cases pertaining to the exhaustion of conspiracy claims: Ayotte v. Stemen, No. 1513826, 2019 WL 2219739, at *3 (E.D. Mich. Feb. 27, 2019), Coates v. Castilla, No. 20CV-11101, 2022 WL2162926, at *4 (E.D. Mich. Jan. 20, 2022), report and
recommendation adopted, 2022 WL 2161484 (E.D. Mich. June 15, 2022), and Johnson
v. Bryant, No. 1:17-CV-853, 2018 WL 3105945, at *1 (W.D. Mich. June 25, 2018). This
Court reviewed the Magistrate Judge’s analysis of the exhaustion issue and is satisfied
that the Magistrate Judge’s conclusion is well supported by both facts and law. As
Plaintiff does not provide a specific reason why the cases he refers to are “wholly
distinguishable” from the present case, his objection is overruled. (ECF No. 120,
PageID.1455.) See also Cole v. Yukins, 7 F. App'x 354, 356 (6th Cir. 2001) (finding
that objections must be “specific”).
Plaintiff’s eighth objection discusses the Magistrate Judge’s analysis of
Defendants’ law-of-the-case argument arguing that she erred in applying the doctrine
to the present case. (ECF No. 114, PageID.1390-1391.) Plaintiff’s arguments are
unfounded. The Magistrate Judge discussed the law-of-the-case doctrine, but did not
find that it applied in this instance. Rather, the Magistrate Judge noted that Defendant
failed to cure the deficiencies in his original complaint by filing the Amended Complaint
and that these deficiencies were fatal to Claim IV. (See ECF No. 114, PageID.1391
(noting that Plaintiff’s “hurdle” is that his petition for rehearing to the United States
Supreme Court was so unlikely to be granted that any delay would not constitute an
“actual injury” as required to sustain a claim)).
In his ninth objection, Plaintiff asserts that the Magistrate Judge erred by not
analyzing Plaintiff’s fraud allegations before coming to a conclusion regarding

8 

Case 2:21-cv-11939-NGE-KGA ECF No. 129, PageID.1566 Filed 03/20/23 Page 9 of 13

Defendants’ motions. This Court takes fraud very seriously and agrees with Plaintiff
that part of the Court’s duty is to protect the judicial process. (ECF No. 120,
PageID.1424.) But the Magistrate Judge did consider Plaintiff’s allegations of fraud and
found no evidence of any wrongdoing by Defendants in the present case. (ECF No.
114, PageID.1370-71.) This Court too considered Plaintiff’s arguments in regards to
his fourth objection, above. Simply put, Plaintiff’s arguments and exhibits do not
support a conclusion that Defendants or their attorney altered any evidence in this
case. Slight differences in documents drafted at different times and in different MDOC
facilities do not, without more, rise to the level necessary to support a claim of fraud on
the Court. See Threatt v. Williams, No. 15-12585, 2016 WL 4607639, at *2 (E.D. Mich.
Sept. 6, 2016); Mathis v. Sudhir, No. 1:13 CV-187, 2014 WL 905823, at *10 (W.D.
Mich. Mar. 5, 2014). To the extent that Plaintiff refers to what he understands to be
fraud in his prior case of Lewis v. Decker, Case No. 1:18-cv-1093 (W.D. Mich.), those
allegations are part of his claims in the present case and the Magistrate Judge has
considered them appropriately.
Plaintiff’s tenth objection is comprised of several of his previous arguments
discussed above. Thus, this objection is overruled for the reasons stated herein.
II.

Defendants Ramsey and Unknown Mailroom Personnel
Plaintiff names Defendants Ramsey, Campbell, Wallace, Russell, and Luzius in

his Claim II. (ECF No. 16, PageID.179.) In her R and R, the Magistrate Judge
concluded that Plaintiff properly exhausted this claim as against Defendants Campbell
and Russel, but that Plaintiff’s Claim II failed to state a valid conspiracy claim under
§ 1983. (See ECF No 114, PageID.1386, 1392.) This analysis and the Magistrate

9 

Case 2:21-cv-11939-NGE-KGA ECF No. 129, PageID.1567 Filed 03/20/23 Page 10 of 13

Judge’s conclusions also apply to Defendant Ramsey. Though Plaintiff may have
exhausted his claim against Ramsey, he fails to state a civil conspiracy claim. As
Defendant Ramsey is only a named in Claim II, she is hereby dismissed from this
action. See 42 U.S.C. § 1997e(c) (granting the district court the authority to dismiss a
claim or action “on its own motion” under circumstances present here).
Similarly, the Court finds that because Plaintiff failed to state a claim for relief in
Claim IV, that he failed to state a claim against Defendant Unknown Mailroom
Personnel. (See ECF No. 16, PageID.182.) Defendant Unknown Mailroom Personnel
is therefore dismissed.
III.

Plaintiff’s Motions for Judicial Notice, to Re-Submit the Exhibits, and to
Produce Exhibits
Plaintiff’s motions for judicial notice (ECF No. 121), to re-submit the exhibits

(ECF No. 126), and to produce exhibits (ECF No. 127) all surround Plaintiff’s theory
that Defendants opened his mail to remove exhibits from his responses to Defendants’
dispositive motions. As explained above, Plaintiff’s exhibits 1-14 and exhibits A-G were
in fact attached to his responses and reviewed by both the Magistrate Judge and this
Court. Plaintiff’s motions are therefore denied.
IV.

Plaintiff’s Motion to Correct Notice
Plaintiff moves to “correct the Court’s incorrect notice to Defendants as to

Plaintiff’s claims against them.” (ECF No. 116.) To the extent the parties need
clarification regarding the remaining claims and defendants in this action, this order so
clarifies. Plaintiff’s motion is therefore denied.

10 

Case 2:21-cv-11939-NGE-KGA ECF No. 129, PageID.1568 Filed 03/20/23 Page 11 of 13

V.

Plaintiff’s Motion to Amend the Complaint
Plaintiff also moves to amend his complaint in order to clarify his conspiracy

claims against Defendants. (ECF No. 123.) Generally, pursuant to Rule 15(a), the
Court should freely grant a party leave to amend his or her pleadings when justice so
requires. Fed. R. Civ. P. 15(a). Rule 15(a) sets forth “a liberal policy of permitting
amendments to ensure the determination of claims on their merits.” Oleson v. United
States, 27 Fed. Appx. 566, 569 (6th Cir. 2001) (internal quotations omitted). As the
United States Court of Appeals for the Sixth Circuit has noted, “[f]actors that may affect
[a Rule 15 (a)] determination include undue delay in filing, lack of notice to the opposing
party, bad faith by the moving party, repeated failure to cure deficiencies by previous
amendment, undue prejudice to the opposing party, and futility of the amendment.”
Seals v. Gen. Motors Corp., 546 F.3d 766, 770 (6th Cir. 2008). A court may deny a
motion for leave to amend for futility if the amendment could not withstand a motion to
dismiss. Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505, 512 (6th Cir.
2010); Midkiff v. Adams Cnty. Reg'l Water Dist., 409 F.3d 758, 767 (6th Cir. 2005). In
addition, when considering the issue of prejudice, a court must ask whether allowing
amendment would “require the opponent to expend significant additional resources to
conduct discovery or prepare for trial” or cause considerable delay in resolving the
dispute. Phelps v. McClennan, 30 F.3d 658, 662–63 (6th Cir. 1994).
Here, the Court finds Plaintiff’s proposed amended complaint to be futile. This
order dismisses the claims Plaintiff wishes to amend and his proposed amendments
fail to cure the deficiencies. Moreover, allowing Plaintiff to now amend his complaint

11 

Case 2:21-cv-11939-NGE-KGA ECF No. 129, PageID.1569 Filed 03/20/23 Page 12 of 13

would cause undue prejudice to Defendants who would be required to expend
significant additional resources in preparing future motions.
Plaintiff’s motion to amend (ECF No. 123) is therefore denied, and his second
amended complaint (ECF No. 124) and affidavit in support (ECF No. 125) are hereby
stricken from the record.
VI.

Conclusion
For the foregoing reasons, Plaintiff’s Motion for Extension of Time to File

Objections (ECF No. 117) is DENIED AS MOOT and the following motions are
DENIED: Motion to Correct Notice (ECF No. 116); Motion for Judicial Notice
(ECF No. 121); Motion to Amend Complaint (ECF No. 123); Motion to Re-Submit
Exhibits (ECF No. 126); and Motion to Produce Exhibits (ECF No. 128).
Plaintiff’s Objections (ECF No. 120) are OVERRULED and the Court hereby
ACCEPTS AND ADOPTS the Magistrate Judge’s February 15, 2023 Report and
Recommendation (ECF No. 114), DENIES Plaintiff’s Motion to Strike Multiple
Summary Judgment Motions (ECF No. 108), GRANTS Defendant Luzius’s Motion for
Summary Judgment (ECF No. 33), and GRANTS IN PART AND DENIES IN PART as
described above Defendants Campbell, Russell, and Wallace’s Motion to Dismiss or
in the Alternative for Summary Judgment (ECF No. 74).
Finally, Plaintiff’s Second Amended Complaint (ECF No. 124) and Affidavit in
Support of Second Amended Complaint (ECF No. 125) are hereby STRICKEN and
the Clerk of the Court is HEREBY ORDERED to update the case caption to reflect
Jennifer Torres as the “Unknown Transfer Coordinator.” Defendants Christina

12 

Case 2:21-cv-11939-NGE-KGA ECF No. 129, PageID.1570 Filed 03/20/23 Page 13 of 13

Ramsey, Jeffrey Luzius, Melody Wallace, Richard Russell, FNU Campbell, and
Unknown Mailroom Personnel are HEREBY DISMISSED.
The Amended Complaint (ECF No. 16) continues to govern this action with
only Claim I(a)—First Amendment Retaliation—and Claim I(b)—Violation of Free
Exercise Clause—remaining, both against Defendants Greason, Jenkins-Grant,
and Torres. A scheduling order will issue after which the parties will be permitted
to engage in discovery relevant to these claims and in accordance with the
Federal Rules of Civil Procedure, including Rule 33 and Rule 34.
SO ORDERED.
__/s/ Nancy G. Edmunds__
Nancy G. Edmunds
United States District Court
Dated: March 20, 2023

I hereby certify that a copy of the foregoing document was served upon counsel of
record on March 20, 2023, by electronic and/or ordinary mail.
s/ Lisa Bartlett
Case Manager

13