Barhite v. Sumner et al

Filing 34

ORDER ACCEPTING REPORTS AND RECOMMENDATIONS [#25] [#26] GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT [#14], DENYING PLAINTIFFS MOTION FOR IMMEDIATE INJUNCTIVE RELEF [#16] AND DISMISSING ACTION. Signed by District Judge Gershwin A. Drain. (Bankston, T)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MELVIN BARHITE,
Plaintiff,

Case No. 12-cv-13722
District Judge Gershwin A. Drain

v.
DAVE SUMNER, et al.,
Defendants.
_______________________________/
ORDER ACCEPTING REPORTS AND RECOMMENDATIONS [#25] [#26] GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [#14], DENYING
PLAINTIFF’S MOTION FOR IMMEDIATE INJUNCTIVE RELEF [#16] AND
DISMISSING ACTION
On August 22, 2012, Plaintiff Melvin Barhite, a prisoner in the custody of the Michigan
Department of Corrections filed a pro se civil rights complaint under 42 U.S.C. § 1983. On
November 27, 2012, the Court referred this matter to Magistrate Judge R. Steven Whalen for a
Report and Recommendation (“R&R”) on all dispositive matters. See Dkt. #12. Defendants
filed a Motion for Summary Judgment on December 27, 2012. See Dkt. #14. Plaintiff filed a
Motion for Immediate Injunctive Relief on January 7, 2013. See Dkt. #16. Magistrate Judge
Whalen wrote R&Rs for the Motion for Summary Judgment [#25] and the Motion for Immediate
Injunctive Relief [#26].
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(d)(2) of this Court, Plaintiff had
fourteen days to file Objections to the R&Rs, which meant his Objections were due on

approximately September 6, 2013. Failure to file Objections would constitute Plaintiff’s waiver
of those issues for appeal. Thomas v. Arn, 474 U.S. 140 (1985).
However, Plaintiff’s status as a prisoner made this timeline difficult. In an effort to
accommodate Plaintiff, the Court granted Plaintiff’s Motion for Extension of Time to File
Objections to the R&Rs.1 See Dkt. #30. This Court’s Order gave Plaintiff forty-five additional
days to file Objections, making his filing date October 20, 2013. Id. Later, it came to the
Court’s attention that the Plaintiff was moved to a different facility, and may not have received a
copy of this Court’s Order granting him an extension of time to file Objections. Upon realization
of Plaintiff’s transfer, the Court amended its Order to accommodate Plaintiff once more, giving
him until November 25, 2013 to file Objections. See Dkt. #32. To date, Plaintiff has failed to
file any Objections. The Court has given Plaintiff two extensions of time to file Objections to
Magistrate Judge Whalen’s R&Rs. Moreover, the Court’s second extension was without a
request from Plaintiff. The Court can no longer make accommodations for Plaintiff. Plaintiff’s
Objections are untimely. Therefore, he has waived his right to appeal.
Upon review of the parties’ submissions and Magistrate Judge Whalen’s R&Rs, the
Court agrees with Magistrate Judge Whalen’s conclusions that the Defendants’ actions do not
rise to the level of an Eight Amendment violation and Plaintiff’s likelihood of success on the
merits is low. Therefore, the Court ADOPTS Magistrate Whalen’s R&Rs [#25 and #26] as this
Court’s factual findings and conclusions of law. Defendants’ Motion for Summary Judgment
[#14] is GRANTED, Plaintiff’s Motion for Immediate Injunctive Relief [#16] is DENIED. This
cause of action is dismissed.

1

Plaintiff titled his Motions as Extensions of Time to Answer Denials, however , the Court viewed these as
extensions of time to file Objections to the R&Rs after considering the substance of the motions.

SO ORDER
Dated: December 11, 2013
/s/Gershwin A Drain
Gershwin a. Drain
United States District Court Judge