Kensu v. Borgerding, M.D. et al

Filing 121

OPINION and ORDER (1) Rejecting Plaintiff's Objections to Magistrate Judge's Report and Recommendation, (2) Adopting the 115 Report and Recommendation and Denying Plaintiff's 112 Emergency Motion for Temporary Restraining Order, and (3) Lifting Injunction. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TEMUJIN KENSU,
Plaintiff,
Civil Case No. 16-13505
Honorable Linda V. Parker

v.
WILLIAM BORGERDING, M.D., et al.
Defendants.
_______________________________/

OPINION AND ORDER (1) REJECTING PLAINTIFF’S OBJECTIONS TO
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION, (2)
ADOPTING REPORT AND RECOMMENDATION AND DENYING
PLAINTIFF’S EMERGENCY MOTION FOR TEMPORARY
RESTRAINING ORDER, AND (3) LIFTING INJUNCTION
This matter presently is before the Court on Plaintiff’s emergency motion for
a temporary restraining order to enjoin Defendants from transferring Plaintiff to a
different prison facility. Magistrate Judge Stephanie Dawkins Davis, to whom the
matter has been referred for all pretrial proceedings, issued a Report and
Recommendation on July 3, 2018, recommending that this Court deny Plaintiff’s
motion. (ECF No. 115.) In light of the exigencies of the matter, this Court ordered
the parties to file objections to the R&R on or before July 6, 2018. (ECF No. 116.)
Any response to any objections were to be filed on or before July 10, 2018. (Id.)
The Court enjoined Defendants from transferring Plaintiff until it had the
opportunity to review and rule on any objections. (Id.)

Plaintiff filed objections to the R&R on July 6, 2018. (ECF No. 117.)
Defendants filed responses to Plaintiff’s objections on July 10, 2018. (ECF No.
118, 119.)
When objections are filed to a magistrate judge’s R&R on a dispositive
matter,1 the Court “make[s] 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). The Court, however, “is not required to articulate all of the
reasons it rejects a party’s objections.” Thomas v. Halter, 131 F. Supp. 2d 942,
944 (E.D. Mich. 2001) (citations omitted). A party’s failure to file objections to
certain conclusions of the report and recommendation waives any further right to
appeal on those issues. See Smith v. Detroit Fed’n of Teachers Local 231, 829
F.2d 1370, 1373 (6th Cir. 1987). Likewise, the failure to object to certain
conclusions in the magistrate judge’s report releases the Court from its duty to
independently review those issues. See Thomas v. Arn, 474 U.S. 140, 149 (1985).
In his motion, Plaintiff claims that Defendants are transferring him to
another facility in retaliation for his pursuit of this litigation. The Court must
consider four factors in deciding whether to grant Plaintiff’s request for an
injunction: (1) whether Plaintiff has a strong likelihood of success on the merits;
(2) whether Plaintiff is likely to suffer irreparable injury without the injunction; (3)

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 Under

the Local Rules for the Eastern District of Michigan, a motion for
injunctive relief is a dispositive motion. E.D. Mich. LR 7.1(e)(1)(A).
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whether issuance of the injunction would cause substantial harm to others; and (4)
whether the public interest would be served by issuance of the injunction.
Tumblebus Inc. v. Cranmer, 399 F.3d 754, 760 (6th Cir. 2005). No single factor is
controlling; however, “a finding that there is simply no likelihood of success on the
merits is usually fatal.” Gonzales v. Nat’l Bd. of Med. Exam’rs, 225 F.3d 620, 625
(6th Cir. 2000). The movant bears the burden of demonstrating entitlement to an
injunction. Overstreet v. Lexington-Fayette Urban Cty. Gov’t, 305 F.3d 566, 573
(6th Cir. 2002).
To succeed on a First Amendment retaliation claim, the plaintiff must show:
(1) that he engaged in protected conduct; (2) the defendant took an adverse action
that would deter a person of ordinary firmness from continuing to engage in that
conduct, and (3) the adverse action was taken at least in part because of the
exercise of the protected conduct. Thaddeus-X v. Blatter, 175 F.3d 378, 393 (6th
Cir. 1999). Magistrate Judge Davis concluded that Plaintiff presented “very little
evidence to establish likelihood of success of the merits of his claims.” (R&R at 6,
ECF No. 115 at Pg ID 1904.) Magistrate Judge Davis assumed that Plaintiff had
engaged in protected conduct, but found no evidence to support the remaining
elements of his claim. (Id. at 6-8, Pg ID 1904-06.) As to the causal connection
requirement, Magistrate Judge Davis wrote that “[P]laintiff provides no evidence,

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either by way of declaration, affidavit, testimony, documents or otherwise to tie
together his [protected conduct] with the pending transfer.” (Id. at 7, Pg ID 1905.)
Plaintiff’s objections contain much hyperbole and argument, but again no
evidence to show that the decision to transfer him to another facility was made in
some part because of his protected conduct. Plaintiff attaches hundreds of pages of
exhibits to his objections but, again, the evidence therein relates to his alleged
denial of adequate medical care rather than the transfer decision. Plaintiff asserts
that Defendants have fabricated the reason for the transfer, but offers nothing to
substantiate that claim. As reflected in the cases cited by Magistrate Judge Davis
in her R&R, conclusory allegations of retaliatory motive are insufficient to show a
likelihood of success on the merits. (R&R at 8, ECF No. 115 at Pg ID 1906.)
In his objections, Plaintiff fails to demonstrate that the remaining
preliminary injunction factors warrant relief. First, Plaintiff merely speculates
about a new facility’s ability to meet his health care needs. He spends much time
pointing out how those needs are not being met by the medical providers at his
current location, but this does nothing to show a likelihood of irreparable harm if
he is transferred. While a transfer may make it more difficult for Plaintiff and his
counsel to meet in person, this does not demonstrate irreparable harm. Second,
Plaintiff’s assertion of public harm—that is, “permit[ting] baseless claims of sexual
harassment to dictate decision making (Obj. at 13, ECF No. 117 at Pg ID 1932)—
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is premised on Plaintiff’s assertion that Defendants’ reason for his transfer is
fabricated. Again, however, Plaintiff has presented no evidence to support this
conclusory assertion.
For these reasons, the Court rejects Plaintiff’s objections to Magistrate Judge
Davis’ July 3, 2018 R&R and adopts her recommendation to DENY Plaintiff’s
emergency motion for a TRO and preliminary injunction. The Court therefore lifts
its order enjoining Defendants from transferring Plaintiff.
IT IS SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: July 12, 2018
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, July 12, 2018, by electronic and/or U.S.
First Class mail.
s/ R. Loury
Case Manager

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