Fitts et al v. Snyder et al

Filing 156

ORDER Adopting 133 Report and Recommendation; Denying Plaintiff's Motions to Amend the Complaint, 101 , 103 , 104 , 109 , 114 , 118 , 120 ; Striking Plaintiff's Motions for Immediate Release 105 , 108 ; Dismissing Defendants Van Ocheten, Rogers, and Hawes; and Dismissing Plaintiff's Davis and Wilson. Signed by District Judge Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Cameron Fitts, Michael Davis, and
Kenneth Wilson,
Plaintiffs,

Case No. 12-cv-13575
Hon. Judith E. Levy
Mag. Judge Paul J. Komives

v.
Marjorie van Ochten, Rogers,
Hawes, and Rene Vives,
Defendants.
________________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION [133];
DENYING PLAINTIFF’S MOTIONS TO AMEND THE
COMPLAINT [101, 103, 104, 109, 114, 118, 120]; STRIKING
PLAINTIFF’S MOTIONS FOR IMMEDIATE RELEASE [105, 108];
DISMISSING DEFENDANTS VAN OCHTEN, ROGERS, AND
HAWES; AND DIMISSING PLAINTIFFS DAVIS AND WILSON
This matter is before the Court on Magistrate Judge Stafford’s
February 27, 2015 Report and Recommendation, in which the
Magistrate Judge recommends denying plaintiff Michael Davis’ motions
to amend the complaint (Dkt. 101, 103, 104, 109, 114, 118, and 120);
striking Davis’ motions for immediate release (Dkt. 105, 108);
dismissing sua sponte defendants Marjorie Van Ochten, Rogers, and

Hawes; and dismissing sua sponte plaintiffs Davis and Kenneth Wilson.
(Dkt. 133.)

Magistrate Judge Stafford also entered an order on

February 27, 2015, in which she denied plaintiff Cameron Fitts’ motions
for an evidentiary hearing, for appointment of counsel, and for a
settlement conference (Dkt. 106); granted Fitts’ motion for a speedy
hearing (Dkt. 115); struck Fitts’ motion to transfer Davis and Wilson to
a federal prison (Dkt. 125); and struck Davis’ three miscellaneous
pleadings (Dkt. 119, 127, 131). (Dkt. 134.) Davis timely filed four sets
of objections to the Report and Recommendation and the Order. (Dkt.
137, 138, 141, 142.) Neither Fitts nor Wilson filed objections.
For the reasons set forth below, the Court will adopt the Report
and Recommendation and enter it as the findings and conclusions of
this Court.

Davis’ objections will be overruled.

Davis’ motions to

amend (Dkt. 101, 103, 104, 109, 114, 118, and 120) will be denied;
Davis’ motions for immediate release (Dkt. 105, 108) will be stricken;
the remaining claims against defendants Marjorie Van Ochten, Rogers,
and Hawes will be dismissed; and plaintiffs Davis and Wilson will be
dismissed from the case.

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The factual background has been fully set out elsewhere in this
case. (E.g., Dkt. 49, 97.)
I.

Standard of Review
Those portions of a magistrate judge’s order to which a party

timely files objections are reviewed under a clearly erroneous or
contrary to law standard. Fed. R. Civ. P. 72(a). Those portions of a
report and recommendation to which a specific objection has been made
are reviewed de novo. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3).
“De novo review in these circumstances entails at least a review of the
evidence that faced the magistrate judge; the Court may not act solely
on the basis of a report and recommendation.” Spooner v. Jackson, 321
F. Supp. 2d 867, 868-69 (E.D. Mich. 2004). “As to those parts of the
report and recommendation to which no party has objected, the Court
need not conduct a review by any standard.” Lardie v. Burkett, 221 F.
Supp. 806, 807 (E.D. Mich. 2002).
“[O]bjections disput[ing] the correctness of the magistrate's
recommendation but fail[ing] to specify the findings ... believed [to be]
in error are too general.” Spencer v. Bouchard, 449 F.3d 721, 725 (6th
Cir. 2006) (internal quotation marks and citation omitted). An objection
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“must be clear enough to enable the district court to discern those issues
that are dispositive and contentious.” Miller v. Currie, 50 F.3d 373, 380
(6th Cir. 1995).
II.

Analysis
Davis filed four sets of objections to the Magistrate Judge’s Order

and Report and Recommendation. (Dkt. 137, 138, 141, 142.) Around
the same time, he also filed a document titled “motion to correct
substantial error.”

(Dkt. 140.)

This motion concerns the alleged

confiscation of Davis’ legal property – photocopies of, e.g., the Journal of
the United States Senate, materials on bankruptcy law, and prisoner
grievances and responses from 2012 – by staff at Lakeland Correctional
Facility (“LCF”), where Davis is currently held. (See id. at 2, 11.) Davis
previously complained about the confiscation of these materials in three
motions to amend the complaint. (Dkt. 114, 119, 120.) The Magistrate
Judge struck one of those motions and recommends denying the other
two.

The Court will accordingly construe Davis’ “motion to correct

substantial error” as an objection to the Magistrate Judge’s order and
recommendation.

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Davis’

objections

are

lengthy,

repetitive,

and

difficult

to

comprehend. They do not specify the findings believed to be erroneous.
Rather, the objections consist of the same arguments Davis has
repeatedly made in this case: that his 1978 murder convictions are
invalid, and that various MDOC administrative actions were illegal.
Davis claims his convictions are invalid because the charging
documents referred to the relevant provisions of the Michigan Compiled
Laws, rather than to the session laws. Davis claims the administrative
actions, such as the confiscation of his legal property, are illegal because
they were based on invalid administrative rules. In turn, those rules
are purportedly invalid because (1) Mich. Comp. Laws § 24.207(k) lacks
an enacting clause, and (2) MDOC amended the rules in violation of §
24.207(k).
Davis’ failure to object to specific findings relieves the Court of the
obligation to review the Magistrate Judge’s order and report and
recommendation, Lardie, 221 F. Supp. at 807.

The Court will

nonetheless explain below why the Magistrate Judge’s findings and
recommendations will be adopted.

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A.

Objections to the Magistrate Judge’s February 27,
2015 Order (Dkt. 134)

The Magistrate Judge ordered three of Davis’ filings to be stricken
for failure to state the relief sought or the grounds for relief. (Dkt. 134
at 7.) The relevant filings include a letter to the LCF warden (Dkt. 119)
and two “motions.” (Dkt. 127, 131.) As discussed above, Davis has
made no specific objections to the order, although he does allege a
“substantial error” related to his proposed claims against LCF staff,
implicating the striking of docket number 119. The Court finds that the
Magistrate Judge did not clearly err in striking docket numbers 119,
127, and 131, as those filings fail to state the relief sought or the
grounds for relief.
B.

Motions to Amend (Dkt. 101, 103, 104, 109, 114, 118,
120)

The Magistrate Judge concluded that Davis’ eight pending
motions to amend actually comprise only three such motions. In the
first motion, Davis seeks to add as defendants Magistrate Judge R.
Steven Whalen and Magistrate Judge Paul J. Komives, the magistrate
judges previously assigned to this case, based on their reports and
recommendations. (Dkt. 101; 103.) In the second, Davis seeks to add as
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defendants the law librarian and an inmate at LCF for failing to
immediately return some photocopies Davis had made. (Dkt. 104 at 51;
Dkt. 109.) In the third, Davis seeks to add as defendants several LCF
staff members for confiscation of his legal property. (Dkt. 114, 118,
120.)
Leave to amend a complaint should be “freely give[n] . . . when
justice so requires.” Fed. R. Civ. P. 15(a)(2). But “a motion to amend
may be denied where there is undue delay, bad faith or dilatory motive
on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party
by allowance of the amendment, futility of amendment, etc.” Riverview
Health Inst., LLC v. Med. Mut. of Ohio, 601 F.3d 505, 520 (6th Cir. 2010)
(emphasis and citation omitted). “A proposed amendment is futile if the
amendment could not withstand a Rule 12(b)(6) motion to dismiss.” Id.
(citation omitted).
The Magistrate Judge found that Davis’ proposed amendments
are futile, as they raise claims that are the same as or similar to claims
already determined in this case to be meritless.

The Court agrees,

insofar as it applies to Davis’ motion to add Magistrate Judges Whalen
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and Komives. (See Dkt. 97.) Davis’ motion to add the LCF librarian
and inmate is also futile, as Davis fails to identify a cause of action that
might entitle him to relief for the delayed return of photocopies.
The Magistrate Judge also found that Davis’ claims against LCF
staff are improperly brought in this action, as they are unrelated to
existing claims in the amended complaint. See Proctor v. Applegate, 661
F. Supp. 2d 743, 778 (E.D. Mich. 2009) (holding that “a civil plaintiff
may not name more than one defendant in his original or amended
complaint unless one claim against each additional defendant is
transactionally related to the claim against the first defendant and
involves a common question of law or fact”). Finally, the Magistrate
Judge found that allowing Davis to amend the complaint at this late
stage would substantially prejudice the remaining defendants and
unreasonably delay resolution of the case. The Court will adopt these
findings and deny Davis’ motions to amend.
C.

Motions for Immediate Release (Dkt. 105, 108)

Davis filed two motions for immediate release from prison; the
second is styled as a correction of the first.
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Davis contends he is

entitled to a writ of habeas corpus under 28 U.S.C. § 2254. (Dkt. 108.)
As the Magistrate Judge noted, the Court has already ruled on this
issue, striking Davis’ earlier petition for a writ of habeas corpus as
improperly joined with this civil rights case. (Dkt. 117.) As explained
in that order, and in the Report and Recommendation adopted in that
order (Dkt. 96), “[h]abeas is the exclusive remedy . . . for the prisoner
who seeks immediate or speedier release from confinement.” Skinner v.
Switzer, 131 S. Ct. 1289, 1293 (2011) (internal quotation marks and
citation omitted). And a habeas petition may not be joined with a civil
rights action brought under 42 U.S.C. § 1983. (See Dkt. 96 at 3-4, citing
cases.)

The Court will therefore adopt the Magistrate Judge’s

recommendation and will strike Davis’ motions for immediate release
(Dkt. 105, 108).
D.

Dismissal of remaining claims against defendants Van
Ochten, Rogers, and Hawes

The Magistrate Judge recommends dismissing the remaining
claims against defendants Rogers, Hawes, and Van Ochten on two
grounds. First, plaintiffs failed to respond to a March 7, 2013 order
requiring them to show cause why the complaint should not be

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dismissed as to Rogers and Hawes. (Dkt. 25.) The basis for the show
cause order was that the waivers of service for Rogers and Hawes were
returned unexecuted because MDOC could not identify them.1

(Id.)

Second, the claims in the Amended Complaint against Rogers, Hawes,
and Van Ochten have already been dismissed as to thirteen other
defendants for failure to state a claim.2 (Dkt. 54, 80.) The Magistrate
Judge concluded those claims were not dismissed as to Rogers, Hawes,
and Van Ochten only because they had not been served with the
complaint and so they did not join the motions to dismiss.
Davis

does

not

articulate

a

specific

objection

to

the

recommendation to dismiss the remaining claims against Rogers,
Hawes, and Van Ochten.
reviewed

the

record

recommendation.

and

The Court has nonetheless thoroughly
will

adopt

the

Magistrate

Judge’s

The remaining claims against defendants Rogers,

Hawes, and Van Ochten will therefore be dismissed under 29 U.S.C. §
1915(e)(2)(B)(ii) for failure to state a claim.

Van Ochten’s waiver of service was also returned unexecuted.
Plaintiffs’ claim against Van Ochten concerns the alleged invalidity of MDOC
administrative rules for major misconduct. (Dkt. 12 at 7-8, ¶ 3.) Only plaintiff Fitts
brings a claim against Rogers and Hawes, for allegedly conspiring to “get [Fitts]
looked [sic] back up in prison” in retaliation for complaints Fitts made about the
cities of Inkster and Romulus. (Id. at 8 ¶ 4.)
1
2

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E.

Dismissal of plaintiffs Davis and Wilson

After dismissal of the remaining claims against Rogers, Hawes,
and Van Ochten, the only claim remaining in this action is plaintiff
Fitts’ retaliation claim against defendant Rene Vives. (See Dkt. 12 at 9
¶ 9.) For this reason, the Magistrate Judge recommends dismissing
plaintiffs Davis and Wilson from the case. Davis does not articulate a
specific objection to this recommendation.

The Court will adopt the

recommendation and dismiss Davis and Wilson.
III. Conclusion
Accordingly, the Magistrate Judge’s Report and Recommendation
(Dkt. 133) is ADOPTED;
Plaintiff Michael Davis’ Objections (Dkt. 137, 138, 140, 141, 142)
are OVERRULED;
Davis’ motions to amend (Dkt. 101, 103, 104, 109, 114, 118, and
120) are DENIED;
Davis’ motions for immediate release (Dkt. 105, 108) are
STRICKEN;
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All remaining claims against defendants Marjorie Van Ochten,
Rogers, and Hawes are DISMISSED; and
Plaintiffs Michael Davis and Kenneth Wilson are DISMISSED
from the case.
IT IS SO ORDERED.
Dated: August 21, 2015
Ann Arbor, Michigan

/s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on August 21, 2015.
s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

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