Buffman v. Moody et al

Filing 26

ORDER Adopting Report and Recommendation for 22 Report and Recommendation and Dismissing All Remaining Claims. Signed by District Judge Judith E. Levy. (TMcg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Emmett Buffman,
Plaintiff,

Case No. 14-cv-12577

v.

Judith E. Levy
United States District Judge

Miss Moody, et al.,
Mag. Judge Anthony P. Patti
Defendants.
________________________________/
ORDER ADOPTING THE REPORT & RECOMMENDATION [22]
AND DISMISSING ALL REMAINING CLAIMS
On June 26, 2014, plaintiff Emmett Buffman filed what he titled
an “Emergency Motion for Emergency Restraining Order To Have
Plaintiff Removed From Any Unit Inclusive of Miss Moody or Mr.
McClatchey”. (Dkt. 1 at 3-8.) That filing also included a Prisoner Civil
Rights Complaint cover sheet and a Civil Cover Sheet for Prisoner
Cases. (Id. at 1, 12.)
On July 31, 2014, the Court dismissed all defendants from this
case except for Miss Moody.

(Dkt. 9.)

On November 13, 2015,

Magistrate Judge Patti issued an order requiring plaintiff to show cause

why his case against remaining defendant Moody should not be
dismissed both for failure to serve her and due to the seeming mootness
of his emergency motion following his transfer from FCI Milan to FCI
Elkton. (Dkt. 20.) Plaintiff responded on November 30, 2015, citing
unpleaded claims arising from his application to proceed without
payment of fees and attaching a denial of an administrative grievance,
dated October 17, 2014.

(Dkt. 21.) He also sought a court order

requiring the Federal Bureau of Prisons to provide information to the
U.S. Marshals Service regarding a first name and an address for
Moody, because plaintiff lacked sufficient information to identify or
locate Moody for purposes of service. (Id.)
On

April

6,

2016,

Judge

Patti

issued

a

Report

and

Recommendation recommending that the Court dismiss the remaining
claims in this case on the grounds that: 1) the initial filing in this
matter is not a true complaint, but is instead an emergency motion for a
restraining order; 2) even if the initial filing is construed as a
complaint, it was rendered moot by plaintiff’s transfer out of the facility
in which Moody worked; and 3) any amendment of the complaint would

2

be futile, as plaintiff failed to exhaust his administrative remedies prior
to filing suit. (Dkt. 22.)
Following an extension of the time to file objections to the Report
and Recommendation (Dkt. 24), plaintiff timely filed his objections,
which were received by the Court on May 23, 2016. (Dkt. 25.) When
resolving objections to a Report and Recommendation, the Court “must
determine de novo any part of the magistrate judge’s disposition that
has been properly objected to.” Fed. R. Civ. P. 72(b)(3). The Court “may
accept, reject, or modify the recommended disposition; receive further
evidence, or return the matter to the magistrate judge with
instructions.” Id.; see also 28 U.S.C. § 636(b)(1).
I.

Analysis
Plaintiff

sets

forth

four

objections

to

the

Report

and

Recommendation: 1) the liberal standard applicable to pro se pleadings
requires the Court to construe his “Emergency Motion” as a complaint;
2) the purported complaint includes allegations of injuries and
retaliation, part of the retaliation being the post-filing transfer that
may render this case moot; 3) the circumstances of his transfer
rendered him unable to exhaust his administrative remedies before
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October 17, 2014, and therefore amendment of his motion/complaint
would not be futile; and 4) the burden for plaintiff to show cause as to
why this case should not have been dismissed for failure to serve Moody
should be on defendant, because he has already made his case as
complainant.
A. Objection 1: Construing the Initial Filing
Plaintiff’s first objection requires the Court to review those filings
he claims constitute a complaint. In federal court, a pro se complaint is
entitled to a liberal construction and “must be held to less stringent
standards than formal pleadings drafted by lawyers[.]” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (citation omitted). On June 26, 2014,
plaintiff filed his “Emergency Motion” attached to a Prisoner Civil
Rights Complaint cover sheet. (Dkt. 1.) The motion seeks injunctive
relief against Moody for a variety of injuries arising from what plaintiff
deemed her “extreme and outrageous behavior.” (Id. at 5.) On review of
the motion, plaintiff does not cite any law that Moody violated, but
instead strings together a series of allegations that he claims caused
him emotional distress.

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As Judge Patti rigorously detailed, plaintiff’s motion seeks only
injunctive relief, rather than monetary or other relief. (Dkt. 22 at 1213.) On July 14, 2014, the Court also received a sworn statement from
plaintiff in which he characterized his filing as “an EMERGENCY
RESTRAINING ORDER against Miss Moody” that included a request
“in that motion for a INJUNCTION which would provide me
injunctive relief of having a judge order that I be moved to a Unit
that does NOT HAVE MISS MOODY WORKING IN IT.” (Dkt. 5 at
11 (emphasis in original).)
Plaintiff’s original motion also referenced a separate complaint
filed on June 9, 2014. (Dkt. 1 at 3.) No such filing is on record with this
Court.

In his emergency motion, plaintiff stated that a separate

complaint was “submitted . . . to this honorable court for injustices
which are occurring to Buffman even as he is submitting this
EMERGENCY MOTION.” (Id. (emphasis in original).) To the extent
that plaintiff attempts to recast his motion as a complaint, he has
routinely done so by citing to other documents filed after the motion.
(See, e.g., Dkt. 21 at 2 (citing a nonexistent page of plaintiff’s second
application to proceed in forma pauperis).)
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On its face, the original filing in this case is not a complaint. It is
a motion filed for injunctive relief pursuant to a complaint that plaintiff
believed he filed on June 9, 2016. Plaintiff himself differentiated the
two. Pro se pleadings are subject to a less stringent standard than
those prepared by attorneys for represented parties.

However, the

Court cannot treat a motion filed subsequent to an unfiled but clearly
referenced complaint as the complaint itself. Accordingly, Judge Patti’s
analysis was correct.
B. Objection 2: Additional Allegations of Injuries, Including
Transfer as Retaliation
Plaintiff’s second objection seems to argue that he alleged a
variety of injuries and retaliation, and that the transfer that is the basis
of Judge Patti’s recommendation that the case be dismissed as moot
was part of the retaliation alleged.
As best the Court can discern, the purpose of this argument is
twofold: first, to show that plaintiff was alleging injuries and pursuing
claims in his motion other than those serving as the basis for his
injunctive relief, rendering his motion a complaint, and second, to show
that the case is not moot both because there are claims other than
injunctive relief in the motion, and because the act rendering the case
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moot was part of the injury the case sought to redress. The additional
allegations plaintiff points to are either not in his motion and have not
been asserted in this case, or are in the motion, and are part of the
injuries alleged as the basis for injunctive relief.

Either way, those

allegations would not convert his motion for injunctive relief to a
complaint, or qualify as claims other than ones for injunctive relief.
Plaintiff’s transfer could not have been a part of the retaliation
alleged in his complaint. Plaintiff filed his motion on June 26, 2014,
and notified the Court that he had “recently been transferred” from FCI
Milan to FCI Elkton in a letter written on June 11, 2015. (Dkt. 18 at 1.)
Plaintiff also seems to make other allegations about his treatment with
regard to the transfer, but does not allege in his motion or in his
objections that his complaint against Moody was the trigger for the
transfer or, if it were, that Moody has any further ability to cause him
harm. Because the motion before the Court at this juncture consists
entirely of a request to enjoin Moody from harming plaintiff, and the
transfer has removed plaintiff from the facility where Moody worked,
the motion, on its face, is moot.
C. Objection 3: Futility of Amendment
7

Judge Patti determined that any amendment of the initial filing, if
it were to be construed as a complaint, would be futile, and that
plaintiff should not be granted leave to amend pursuant to Fed. R. Civ.
P. 15(a).

The futility arises from plaintiff’s failure to exhaust

administrative remedies before filing suit. See Porter v. Nussle, 534
U.S. 516, 524 (2002) (federal prisoners suing under Bivens are required
to exhaust inmate grievance procedures prior to instituting a § 1983
suit); see also Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999)
(prisoners “may not exhaust administrative remedies during the
pendency of the federal suit.”) (citation omitted).
Here, plaintiff filed his motion on June 26, 2014, and exhausted
his administrative remedies on October 17, 2014. (Dkt. 21 at 4 (denial
of Claim Number TRT-NCR-2014-04492).)

Plaintiff argues that this

case presents a unique “factual scenario” in which he was prevented
from exhausting his administrative remedies because he was “literally
[transferred] from the prison under [the] complaint and had to complete
administrative grievance process in the new prison with very little or no
cooperation from local prison staff, combined with unjustifiable delay in

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the process of final stages of grievance (‘TRT-NCR-2014-04492’).” (Dkt.
25 at 9.)
Plaintiff’s administrative grievance was completed on October 17,
2014.

(Dkt. 21 at 4.)

Communication regarding this lawsuit was

successfully sent to plaintiff at FCI Milan via U.S. Mail on October 21,
2014 and January 13, 2015. (See Text-Only Certificates of Service, Oct.
21, 2014 and Jan. 13, 2015.) Plaintiff was then transferred from FCI
Milan to FCI Elkton at some point in time reasonably close to June 11,
2015. (Dkt. 18.) Plaintiff did not have to complete his administrative
grievance process in the new facility, because he was not transferred
until roughly eight months after the administrative grievance process
was complete. It is also unclear what the unjustifiable delay was with
regard to plaintiff’s administrative grievance, because plaintiff does not
state when he filed the grievance or how long it took to resolve.
Plaintiff also relies on Wolfe v. Alexander, a Middle District of
Tennessee case in which that court found that prisoners were excused
from

exhausting

administrative

remedies

because

“a

grievance

procedure is not ‘available’ even if one exists on paper if the defendant
prison officials somehow prevent a prisoner from using it.” Id., Case
9

No. 11-cv-0751, 2014 WL 4897733, at *15 (M.D. Tenn. Sept. 30, 2014)
(citing Brock v. Kenton Cnty., 93 Fed. Appx 793, 798 (6th Cir. 2004)
(collecting cases)) (further citations omitted). Plaintiff has not stated
how Moody or any other prison officials made the grievance procedure
unavailable by allegedly transferring him to another facility eight
months after he completed the process and nearly a year after he filed
suit.
The Court agrees with Judge Patti that if the initial filing is
construed as a complaint, any amendment would be futile because
plaintiff failed to properly exhaust his administrative remedies, which
he was required to do before filing suit in federal court. 42 U.S.C. §
1997e(a). The Court further notes that under 28 U.S.C. § 14.9, the time
for plaintiff to file suit in federal court based on the denial was “not
later than 6 months after the date of mailing of the notification.” In
this case, that would have been April 17, 2015, which means that the
time for filing another suit following denial of the grievance has also
run.
D. Objection 4: The Burden For Plaintiff To Show Cause

10

On November 13, 2015, Judge Patti issued an order for plaintiff to
show cause why this case should proceed, given that the case appeared
to be moot.

(Dkt. 20.)

On November 30, 2015, plaintiff replied by

repeating many of the same arguments included in his objections. (Dkt.
21.)
Plaintiff objects to Judge Patti’s determination that he has not
shown cause why this case should not be dismissed on two grounds:
first, that Judge Patti’s finding is too harsh, and that plaintiff has not
been able to properly object to Judge Patti’s recommendation that this
case be dismissed; and second, that the burden should be on Moody to
show cause because plaintiff has already made his case in his initial
filing. (Dkt. 25 at 10.)
Plaintiff has had two opportunities to object to dismissal of this
case: his response to the order to show cause (Dkt. 21), and his
objections to the Report and Recommendation. (Dkt. 25.) Plaintiff was
also given a thirty-day extension to file his objections to the Report and
Recommendation. (Dkt. 24.) These opportunities were sufficient to set
forth detailed objections to any recommendation that Judge Patti made
to the Court.
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The remaining defendant in this case should not have to show
cause why plaintiff’s case should or should not proceed. Judge Patti
identified numerous significant issues with the nature and prosecution
of this case by plaintiff in his original order and in the Report and
Recommendation. The only party that could sufficiently address those
issues was plaintiff. Accordingly, Judge Patti’s show cause order and
Report and Recommendation were both properly directed toward
plaintiff.

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II.

Conclusion
For the reasons set forth above, it is hereby ordered that:
Judge Patti’s Report and Recommendation (Dkt. 22) is ADOPTED;
Plaintiff’s motion (Dkt. 1) is DENIED AS MOOT;1 and
This case is DISMISSED WITH PREJUDICE. The Court certifies

that an appeal of this decision would not be taken in good faith.
IT IS SO ORDERED.
Dated: June 20, 2016
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 June 20, 2016.

s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

If the motion is construed as a complaint, then the complaint should be considered
DISMISSED WITH PREJUDICE AS MOOT.
1

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