Payne v. McPherson et al

Filing 23

OPINION and ORDER (1) Rejecting Plaintiff's 22 Objections to Magistrate Judge Grand's Report and Recommendation; (2) Adopting the 19 Report and Recommendation; and (3) Granting Defendants' 14 Motion to Dismiss. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JAMES U. PAYNE,
Plaintiff,
v.

Civil Case No. 18-11155
Honorable Linda V. Parker

DEPUTY MCPHERSON, DEPUTY
WEIR, and DEPUTY JOE EDDY,
Defendants.
______________________________________/
OPINION AND ORDER (1) REJECTING PLAINTIFF’S OBJECTIONS
(ECF NO. 22) TO MAGISTRATE JUDGE GRAND’S JULY 30, 2018
REPORT AND RECOMMENDATION (ECF NO. 19); (2) ADOPTING
REPORT AND RECOMMENDATION; AND (3) GRANTING
DEFENDANTS’ MOTION TO DISMISS (ECF No. 14)
Plaintiff filed this lawsuit under 42 U.S.C. § 1983 on April 9, 2018, alleging
that Defendants violated his constitutional rights. The Court has referred the
matter to Magistrate Judge David R. Grand for all pretrial matters, including a
hearing and determination of all non-dispositive matters pursuant to 28 U.S.C.
§ 636(b)(1)(A) and/or a report and recommendation (“R&R”) on all dispositive
matters pursuant to 28 U.S.C. § 636(b)(1)(B). (ECF No. 6.) On June 8, 2018,
Defendants filed a motion to dismiss. (ECF No. 14.) On July 30, 2018, Magistrate
Judge Grand issued a R&R, recommending that the Court grant Defendants’

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motion. (ECF No. 19.) After receiving an extension of time to do so, Plaintiff
filed objections to the R&R on October 22, 2018. (ECF No. 22.)
Magistrate Judge Grand’s R&R
In the R&R, Magistrate Judge Grand first recommends dismissal of
Defendant Deputy Joe Eddy because Plaintiff sets forth absolutely no allegations
with respect to this defendant in his Complaint. (R&R at 5, ECF No. 19 at Pg ID
68.) Magistrate Judge Grand next recommends dismissal of Plaintiff’s claims
against Defendants Deputy McPherson and Deputy Weir to the extent they are
being sued in their official capacities. (Id. at 6, Pg ID 69.) Magistrate Judge
Grand explains that such claims are in fact claims against their employer, Oakland
County, and a municipality is liable under § 1983 only if the violation of the
plaintiff’s rights was caused by its policy, practice or custom. (Id.) Plaintiff
alleges no facts to support such a claim.
Lastly, Magistrate Judge Grand addresses Plaintiff’s claims against Deputies
McPherson and Weir in their individual capacities. (Id. at 6-8, Pg ID 69-71.)
Magistrate Judge Grand finds no allegations in the Complaint suggesting that
either defendant committed the actions that are the basis for the alleged
constitutional violations: putting cleaning products in Plaintiff’s food, spit and
“mouth slob” on his sandwich, lying about his seizure medications, or violating his

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HIPAA rights. (Id.) Magistrate Judge Grand points out that Plaintiff in fact
identifies other individuals as being responsible for this conduct in his Complaint.
For these reasons, Magistrate Judge Grand recommends that the Court
dismiss Plaintiff’s claims against Defendants.
Standard of Review
When objections are filed to a magistrate judge’s R&R on a dispositive
matter, 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 R&R 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).
Plaintiff’s Objections & Analysis
In his objections, Plaintiff first contends that Defendant Eddy “is involved.”
(Obj. at 1, ECF No. 22 at Pg ID 80.) According to Plaintiff, however, Eddy only is
involved as a witness to there being spit on Plaintiff’s food. This is not a reason to
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include him as a defendant in this case. Plaintiff does not allege that Defendant
Eddy violated his constitutional rights.
Plaintiff next asserts that Defendants McPherson and Weir violated his First
Amendment rights by not letting him speak personally to Lieutenant Hall or by
withholding his grievance letters for Lieutenant Hall. Plaintiff also states that
McPherson and Weir “treat[ed] him unfair] and did not let Plaintiff provide a urine
sample to show that there were cleaning products in his food. (Id.)
As an initial matter, “unfair treatment” does not necessarily describe
unconstitutional treatment. In any event, Plaintiff fails to identify specifically what
this alleged improper treatment was. Similarly, as Magistrate Judge Grand found,
Plaintiff does not allege that McPherson’s or Weir’s actions prevented him from
filing a grievance.
Finally, Plaintiff’s assertions regarding the deputies’ failure to check his
urine do not conflict with Magistrate Judge Grand’s interpretation of the Complaint
as alleging that someone other than Defendants committed the acts that form the
basis of the claimed constitutional violations. Notably, Plaintiff failed to mention
the urine sample in his Complaint or response to the motion. See Murr v. United
States, 200 F.3d 895, 901 n.1 (6th Cir. 2000) (citing United States v. Waters, 158
F.3d 933, 939 (6th Cir. 1998) (“Courts have held that while the Magistrate Judge
Act, 28 U.S.C. § 631 et seq., permits de novo review by the district court if timely
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objections are filed, absent compelling reasons, it does not allow parties to raise at
the district court stage new arguments or issues that were not presented to the
magistrate judge.”). In any event, to the extent Plaintiff is suggesting the deputies
refused to check his urine as part of a conspiracy to cover-up violations of his civil
rights, his allegations are insufficient to state a viable conspiracy claim. Further,
Plaintiff’s indication in his response brief that he was transported to the hospital for
treatment in connection with the alleged poisoning of his food undermines the
existence of a conspiracy.
For these reasons, the Court rejects Plaintiff’s objections to Magistrate Judge
Grand’s July 30, 2018 R&R and adopts Magistrate Judge Grand’s
recommendations.
Accordingly,
IT IS ORDERED that Defendants’ Motion to Dismiss (ECF No. 14) is
GRANTED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: November 27, 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, November 27, 2018, by electronic and/or
U.S. First Class mail.
s/ R. Loury
Case Manager
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