Buffman v. Moody et al

Filing 13

ORDER GRANTING IN PART Plaintiff's 5 Motion for admission of evidence on the record to be utilized for any and all motions presented to this Court in the case at bar at any time during this case.--Signed by Magistrate Judge Paul J. Komives. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EMMETT BUFFMAN
(#19368-424),
Plaintiff,
CASE NO. 5:14-CV-12577
JUDGE JUDITH E. LEVY
MAGISTRATE JUDGE PAUL J. KOMIVES
v.
MOODY,
A. MCCLATCHEY,
J. A. TERRIS,
SAMUELS and
ERIC J. HOLDER,
Defendants.
/
ORDER GRANTING IN PART PLAINTIFF’S JULY 14, 2014 MOTION FOR
ADMISSION OF EVIDENCE ON THE RECORD TO BE UTILIZED FOR ANY AND
ALL MOTIONS PRESENTED TO THIS COURT IN THE CASE AT BAR AT AY TIME
DURING THIS CASE (Doc. Ent. 5)
A.

Plaintiff is a Party to an Earlier Filed Case.
Emmett Buffman (#19368-424) is currently incarcerated at FCI Milan. See

www.bop.gov, “Inmate Locator.” On September 19, 2013, Buffman filed a lawsuit against the
United States of America, as well as FCI Milan Warden J.A. Terris; FCI Milan Health Services
Administrator Mr. Zesto; FCI Milan Medical Licensed Practitioner (MLP) Restituto Pomaloy;
FCI Milan MLP Stephen Gidal and FCI Milan Clinical Director William Malatinsky. See Case
No. 5:13-cv-14024-JEL-MKM (E.D. Mich.). As described by Magistrate Judge Majzoub in her
July 10, 2014 report and recommendation, “[p]laintiff’s claims arise from the medical treatment
he received for two boils on his body located underneath his left arm and in the groin area.”

The United States of America has filed an answer. The individual defendants and the
United States of America have each filed dispositive motions, both of which remain pending
before this Court.
B.

In the Instant Case, Service of Process is Ongoing as to the Sole Remaining
Defendant (Moody).
On June 26, 2014, Buffman filed a prisoner civil rights complaint pro se against Miss

Moody, described as an FCI Milan Unit Manager; A. McClatchey, described as an FCI Milan
Unit Counselor; J. A. Terris, described as the FCI Milan Warden; Mr. Samuels (Charles E.
Samuels, Jr.), the Federal Bureau of Prisons (BOP) Director; and Eric J. Holder (Eric H. Holder,
Jr.), Attorney General of the United States. Doc. Ent. 1 at 1-2, 10.1
The bulk of plaintiff’s initial filing is titled an “Emergency Motion for Emergency
Restraining Order to Have Plaintiff Removed from Any Unit Team Inclusive of Miss Moody or
Mr. McClatchey[,]” Doc. Ent. 1 at 3-7. Therein, plaintiff describes, among other things, Miss
Moody’s March 27, 2013 delivery of an “Incident Report” for “General Housekeeping” with a
violation for “Being Unsanitary or Untidy,” and points out that his March 29, 2013 BOP Health
Services Medical Duty Status, issued by Stephen Gidel, MLP, indicates that plaintiff was
confined to the living quarters except for meals, pill line and treatments until March 31, 2013;
was under convalescence until March 31, 2013; and was not cleared to work in food service.
Doc. Ent. 1 at 5-6 ¶ 6, Doc. Ent. 1 at 9 (Exhibit 1). This filing also mentions the events of June
16, 2014. Doc. Ent. 1 at 3-4 ¶ 2, Doc. Ent. 1 at 6 ¶ 7.2
1

Defendants Samuels and Holder’s full names were available on their respective agency’s
websites. See www.bop.gov and www.justice.gov.
2

Within his complaint, plaintiff mentions Millbrook. See Doc. Ent. 1 at 6 ¶ 9. The Court
assumes plaintiff is referring to Millbrook v. United States, 133 S.Ct. 1441 (Mar. 27, 2013), wherein
2

On July 30, 2014, Magistrate Judge Whalen entered an order (Doc. Ent. 8) waiving
prepayment of the filing fee and directing periodic subsequent payments of the filing fee. The
following day, on July 31, 2014, Judge Levy entered an opinion and order (Doc. Ent. 9) of
partial summary dismissal and directing service upon the remaining defendant. Specifically, the
order dismissed with prejudice the civil rights complaint as to defendants McClatchey, Terris,
Samuel and Holder but directed the U.S. Marshal to serve defendant Moody. Doc. Ent. 9 at 4.
On August 5, 2014, the U.S. Marshal acknowledged receipt of documents for service of
process upon Moody. Doc. Ent. 11. As of August 20, 2014, Moody had not appeared.
C.

Plaintiff’s July 14, 2014 Motion Seeks to Supplement the Record with His July 9,
2014 Sworn Statement.
Judge Levy has referred this case to me for pretrial proceedings. Doc. Ent. 10. Currently

before the Court is plaintiff’s July 14, 2014 motion for admission of evidence on the record to be
utilized for any and all motions presented to this Court in the case at bar at any time during this
case. Doc. Ent. 5 at 1-2. Citing his attached July 9, 2014 sworn statement (see Doc. Ent. 5 at 311), plaintiff claims it “should be allowed . . . to be an attachment to all future motions filed with
the court in this case, or in the alternative a piece of evidence admitted on the record to be
referred to at any point throughout this legal process[.]” Doc. Ent. 5 at 1 ¶ 3. Plaintiff requests
that the Court “[g]rant admission of this evidence on the record to be utilized for any and all

the Supreme Court of the United States considered “the circumstances under which intentionally
tortious conduct by law enforcement officers can give rise to an actionable claim under the FTCA.”
Millbrook, 133 S.Ct. at 1444. The Supreme Court held, “the [Federal Tort Claims Act (FTCA)]
waiver effected by the law enforcement proviso extends to acts or omissions of law enforcement
officers that arise within the scope of their employment, regardless of whether the officers are
engaged in investigative or law enforcement activity, or are executing a search, seizing evidence,
or making an arrest.” Millbrook, 133 S.Ct. at 1446.
3

motions presented to this court in the case at bar at any time during this case[.]” Doc. Ent. 5 at 2
¶ A.
Attached to the motion is plaintiff’s July 9, 2014 sworn statement. Doc. Ent. 5 at 3-11.
Therein, plaintiff first addresses the events of March 27, 2013 through April 1, 2013, mentioning
Moody. Doc. Ent. 5 at 3-4. Then, fast-forwarding to 2014, plaintiff describes the events of April
3, 2014 through July 9, 2014, mentioning defendants Moody, McClatchey, Samuels and Terris
(Doc. Ent. Ent. 5 at 4-11), as well as what appear to be references to Forms BP-9 (“Request for
Administrative Remedy”)3 (Doc. Ent. 5 at 7, 9-10).4
D.

Order
Upon consideration, plaintiff’s July 14, 2014 motion for admission of evidence on the

record to be utilized for any and all motions presented to this Court in the case at bar at any time
during this case (Doc. Ent. 5) is GRANTED but only to the extent it asks this Court to recognize
plaintiff’s July 9, 2014 sworn statement (Doc. Ent. 5 at 3-11). To be clear, this does not mean
that the Court will reconsider its July 31, 2014 order (Doc. Ent. 9), because such a request would
need to be filed in accordance with E.D. Mich. LR 71(h) (“Motions for Rehearing or
Reconsideration.”). Furthermore, plaintiff is cautioned that he must make specific reference to
the sworn statement in future filings in order for the Court to consider it.
IT IS SO ORDERED.

3

There is also a Form BP-10 (“Regional Administrative Remedy Appeal”) and a Form BP-11
(“Central Office Administrative Remedy Appeal”). See www.bop.gov, “Resources,” “BOP
Policies,” 1330.18 (“Administrative Remedy Program”).
4

Plaintiff’s sworn statement also mentions Diaz v. Romita, No. 05-70928, 2006 WL 903622
(E.D. Mich. Apr. 7, 2006) (Roberts, J.) and Millbrook. See Doc. Ent. 5 at 8, 11.
4

The attention of the parties is drawn to Fed. R. Civ. P. 72(a), which provides a period of
fourteen (14) days from the date of service of a copy of this order within which to file an appeal
for consideration by the district judge under 28 U.S.C. § 636(b)(1).

Dated: September 10, 2014

s/ Paul J. Komives
PAUL J. KOMIVES
UNITED STATES MAGISTRATE JUDGE

I hereby certify that a copy of the forgoing document was sent to parities of record on September
10, 2014, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Paul J. Komives

5