Annabel v. Frost et al

Filing 329

ORDER GRANTING 317 Motion for Clarification of September 30, 2019 Order. Signed by District Judge Robert H. Cleland. (LWag)

Case 3:14-cv-10244-RHC-APP ECF No. 329, PageID.3482 Filed 01/19/23 Page 1 of 3

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______________________________________________________________________
ROBERT ANNABEL,
Plaintiffs,
v.

Case No. 14-10244

JACK FROST, et al.,
Defendant.
__________________________________/
ORDER CLARIFYING SEPTEMBER 30, 2019 ORDER (ECF NO. 240)
Plaintiff Robert Annabel claims that Defendants Jack Frost, Steven Kindinger,
Sherman Campbell, James Eaton, and Keith McConnell, employees of the Michigan
Department of Corrections, retaliated against Plaintiff for filing grievances in violation of
the First Amendment by issuing false misconduct reports, wrongly finding him guilty
thereof, and terminating him from the unit representative position. (ECF No. 18). On
September 30, 2019, the court 1 entered an Order (ECF No. 240), which adopted in part
Magistrate Judge R. Steven Whalen’s August 9, 2019 Report and Recommendation
(“R&R”) (ECF No. 232), sustained in part and overruled in part Plaintiff’s objections
(ECF No. 236), and denied the parties’ cross-motions for summary judgment (ECF Nos.
210, 211).
The parties do not dispute that Plaintiff’s First Amendment retaliation claim
arising out of McConnell’s conduct outside of the hearing has been dismissed for failure
to exhaust. (ECF No. 317, PageID.3376; ECF No. 319, PageID.3990; see ECF No.

1

The late Honorable Arthur J. Tarnow authored the opinion.

Case 3:14-cv-10244-RHC-APP ECF No. 329, PageID.3483 Filed 01/19/23 Page 2 of 3

252.). “[N]ot attempting to persuade the [c]ourt to reconsider or change its prior rulings”
(ECF No. 317, PageID.3366), Defendants now seek clarification as to whether Plaintiff’s
claim against McConnell for his conduct in the role as a hearing officer has been
dismissed. (ECF No. 317.) It has not.
The September 30, 2019 Order did not adopt the Magistrate Judge’s
recommendation to grant summary judgment in favor of Defendants. (ECF No. 240,
PageID.2857-58.) In so doing, the court recognized that it was “presented with two
accounts of the same story. One arguing that each piece of evidence is a link in a chain
of a retaliation conspiracy. The other arguing that each piece of evidence amounts to a
mere coincidence of isolated incidents.” (Id., PageID.2856.) Accordingly, the court
declined to “render an opinion on this factual dispute,” and expressed that “the law
dictates jury submission.” (Id.)
Contrary to Defendants’ assertion (see ECF No. 317, PageID.3377), Plaintiff
made more than just the one failure-to-exhaust objection to the R&R concerning
McConnell. 2 In any case, the law allows the court to accept, reject, or modify any or all
of the Magistrate Judge’s recommended disposition. Fed. R. Civ. P. 72 (b)(3) (“The
district judge may accept, reject, or modify the recommended disposition . . .”); 28
U.S.C. § 636(b)(1) (“A judge of the court may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge.”); see also

For example, in his Objection 1 – “The evidence should have been viewed in a
light most favorable to Plaintiff on defendants’ motion for summary judgment” (ECF No.
236, PageID.2822) – Plaintiff faulted the R&R for “wholly accept[ing] McConnell and
Campbell’s statements that there was no video evidence to support 1642 hours [sic.]
was the false time” and stated that he “showed the hearing and appeal decisions were
dishonest.” (Id., at PageID.2824.) This objection was sustained. (ECF No. 240,
PageID.2857.)
2

2

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Thomas v. Arn, 474 U.S. 140, 154 (1985) (“[W]hile the statute does not require the
judge to review an issue de novo if no objections are filed, it does not preclude further
review by the district judge, sua sponte or at the request of a party, under a de novo or
any other standard.”). In other words, “[t]he authority—and the responsibility—to make
an informed, final determination . . . remains with the [court].” United States v. Raddatz,
447 U.S. 667, 682 (1980) (citing Mathews v. Weber, 423 U.S. 261, 271 (1976)). As
indicated above, the court found a triable dispute of material facts that needs to be
submitted to the jury, and, via the September 30, 2019 Order, denied Defendants’
request for summary judgment of Plaintiff’s claims, including the one against McConnell.
Accordingly, IT IS CLARIFIED that Plaintiff’s claim against McConnell for his
conduct in the role as a hearing officer is not dismissed. This order does not alter the
analysis or findings contained in the September 30, 2019 Order.
s/Robert H. Cleland /
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE

Dated: January 19, 2023

I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, January 19, 2023, by electronic and/or ordinary mail.
s/Lisa Wagner /
Case Manager and Deputy Clerk
[phone]
S:\Cleland\Cleland\HEK\Civil\14-10244.ANNABEL.MotionforClarification.NH.docx

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