Brown v. Rivard et al

Filing 67

OPINION and ORDER Adopting 57 Report and Recommendation, Denying Plaintiff's 62 & 63 Objections, Denying Plaintiff's 46 Motion for Summary Judgment and Granting Defendant's 49 Motion for Summary Judgment. Signed by District Judge Judith E. Levy. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Trent Brown,
Plaintiff,

Case No. 16-12362
Judith E. Levy
United States District Judge

v.
S. Rivard, M. McCullick, K.
Parsons, F. Williams, and S.
Barnes,

Mag. Judge Anthony P. Patti

Defendants.
________________________________/
OPINION AND ORDER ADOPTING
THE REPORT & RECOMMENDATION [57], DENYING
PLAINTIFF’S OBJECTIONS [62, 63], DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [46] AND
GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [49]
This is the second report and recommendation in this case. The first
Report and Recommendation was adopted, granting defendants’
summary judgment motion as to all of plaintiff Trent Brown’s claims
except his due process defamation claim against defendant Stephen
Barnes. (Dkt. 39 at 19.) The parties then filed cross-motions for summary
judgment on the remaining claim. (Dkts. 46, 49.) The Magistrate Judge

issued the second Report and Recommendation (Dkt. 57) and denied
plaintiff’s motion to compel and for enjoining restitution (Dkt. 53). (Dkt.
58.) Plaintiff submitted objections to this Report and Recommendation
(Dkt. 62) and the order denying his motion to compel and for enjoining
restitution. (Dkt. 63.)
I.

Background
The Court adopts the factual background set forth in the Report

and Recommendation, except as otherwise noted:
a. June 17, 2014 altercation
On June 17, 2014, Plaintiff had a physical altercation
in his cell with another prisoner, his “bunkie,” which
Defendant Barnes discovered during his rounds. (DE 1, ¶¶ 1214.) Plaintiff was sitting on top of the other prisoner and
Barnes aimed his electronic control device (ECD) or taser at
the men, while instructing them to separate. (Id. ¶¶ 14-15.)
Plaintiff asserts that he was unable to follow Barnes’ order
because his bunkmate was holding him down, and that he
attempted to make this known by repeatedly stating “he’s
holding me.” (Id. ¶ 16) Barnes then tased Plaintiff for
“approximately 10 to 20 seconds.” (Id. ¶ 17.) Plaintiff was
subsequently handcuffed and escorted out of the housing unit.
(Id. ¶ 18.)
The other prisoner was seen first by the St. Louis
Correctional Facility’s healthcare staff and then was sent to a
local hospital via ambulance due the severity of his head
injuries. The other prisoner’s medical bills totaled $8,936.63.
(Id. at 52.)
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b. Misconduct report
Following the incident, Barnes issued a major
misconduct to Plaintiff for Assault Resulting in Serious
Physical Injury (Inmate Victim). (Id.; DE 49-2.) In the report,
Barnes stated that he saw Plaintiff [sic] of top of another
prisoner and that Plaintiff had his “hands wrapped around”
the other prisoner’s neck. Barnes further reported that he
ordered Plaintiff to get off the other prisoner, that Plaintiff
refused to comply with that order, and that he then deployed
his ECD. (DE 1 at 52.)
Plaintiff alleges that six days later, while standing in
front of Plaintiff’s cell, Barnes admitted that he “‘couldn’t see’
the placement of Plaintiff’s hands, for the ‘desk was in the
way,’” and that Barnes also informed Defendants Rivard and
McCullick that Plaintiff and his cellmate “‘were grabbing’ one
another’s ‘arms’ during his observance” and “that ‘the
sergeant made me do it!’ in reference to the false report
issuance.” (Id. ¶¶ 20-24.)
c. Misconduct report hearing
On June 26, 2014, an administrative hearing was
conducted on the major misconduct report issued by Barnes.
The hearing officer reviewed the report with Plaintiff, along
with a number of memoranda and statements from other
individuals. (DE 1 at 54.) A critical incident report and five
medical bills for the other prisoner were marked confidential,
and the hearing officer informed Plaintiff that he had also
previously reviewed two videos of the incident and a
confidential witness (CW) statement, all marked confidential
for security purposes. (Id.) At the hearing, Plaintiff argued
that he is not guilty and that he never “had [the other
prisoner] around the neck and [he] never hit him,” but rather
that “he was grabbed and held to the ground,” “it was
horseplay,” and “we were wrestling.” (Id.) Plaintiff further
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claimed that Barnes later admitted that he could not see
Plaintiff’s hands. (Id.)
The hearing officer found that the video evidence
supports the misconduct charge, and that it showed Plaintiff
on top of the other prisoner with his hands close to the other
prisoner’s neck, and that when he was told to get off the other
prisoner, Plaintiff did not do so and “had to be tazed by staff
with a ECD.” (DE 1 at 54.) The hearing officer further
expressly found that Barnes “observed [Plaintiff] on top of
prisoner Jackson on his bed with his hands wrapped around
prisoner Jackson’s neck choking him[,] which is consistent
with the confidential witness statement and found credible,”
and that Plaintiff’s allegation that “this was horseplay” “is not
logical because prisoner Jackson had head injuries and
8,936.63 in medical bills.” (Id.) The hearing officer awarded
restitution in the amount of $8,936.63 to be paid by Plaintiff
to the State of Michigan for injuries to the other prisoner, as
well as 10 days of detention and 30 days loss of privileges. (Id.)
d. Grievance 807-27a
On June 24, 2017, Plaintiff submitted a Step 1 grievance
based on Barnes’ allegedly false misconduct report. The
grievance was denied on procedural grounds because it was
directly related to the misconduct hearing, and this denial
was affirmed through the three-step grievance procedure. (DE
25-3 at 16-20.) This Court previously found that Plaintiff’s due
process defamation claim against Barnes was properly
exhausted through Grievance 807-27a. (DE 33 at 11-12; DE
39 at 9.)
(Dkt. 57 at 2-6.)
After the first Report and Recommendation was adopted, the
parties engaged in discovery on the remaining due process defamation
4

claim. Plaintiff argued that defendant lied in his misconduct report by
saying plaintiff’s hands were around the other inmate’s neck and
defamed plaintiff, resulting in a guilty determination and a restitution
order. The parties filed cross-motions for summary judgment (Dkts. 46,
49.) The Magistrate Judge issued the Report and Recommendation,
finding that plaintiff’s due process defamation claim failed as a matter of
law; declining to address defendant’s qualified immunity argument;
recommending that the Court decline to exercise supplemental
jurisdiction over state claims; and recommending that the Court decline
plaintiff’s requests for evidentiary and monetary sanctions. (Dkt. 57.)
The Report and Recommendation stated that objections must be filed
within fourteen days of service, or by July 9, 2018. (Id. at 29.) The
Magistrate Judge denied plaintiff’s motion to compel video footage of the
tazing and enjoin the award of restitution the same day he issued the
Report and Recommendation. (Dkt. 58.)
II.

Legal Standard
A party may object to a Magistrate Judge’s order on a

nondispositive pretrial matter and to a report and recommendation on
dispositive motions. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(a)-(b). A
5

district judge must resolve those objections. § 636(b)(1)(para); Fed. R. Civ.
P. 72(a)-(b). District courts review objections to nondispositive pretrial
motions under a “clearly erroneous or contrary to law” standard, §
636(b)(1)(A); United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001),
and objections to a report and recommendation on dispositive motions
under a de novo standard, § 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, 869 (E.D. Mich. 2004).
A successful objection specifically identifies the portion of the
pretrial order or report and recommendation that the objecting party
takes issue with, and then identifies the factual or legal basis of the error.
E.D. Mich. Loc. R. 71.1(d)(1); Robert v. Tesson, 507 F. 3d 981, 994 (6th
Cir. 2007). The objecting party must “pinpoint the Magistrate Judge’s
alleged errors.” Andres v. Comm’r of Soc. Sec. 733 F. App’x 241, 244 (6th
Cir. 2018). Objections to a report and recommendation that only dispute
the general correctness of a report and recommendation are improper.
Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir. 2006), abrogated on
6

other grounds by Andres v. Comm’r of Soc. Sec. 733 F. App’x 241 (6th Cir.
2018). The objections must go to “factual and legal” issues “that are at
the heart of the parties’ dispute.” Thomas v. Arn, 474 U.S. 140, 147
(1985); Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995).
Summary judgment is proper when “the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court may not
grant summary judgment if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The Court “views the evidence, all
facts, and any inferences that may be drawn from the facts in the light
most favorable to the nonmoving party.” Pure Tech Sys., Inc. v. Mt.
Hawley Ins. Co., 95 F. App’x 132, 135 (6th Cir. 2004) (citing Skousen v.
Brighton High Sch., 305 F.3d 520, 526 (6th Cir. 2002)).
III. Analysis
Plaintiff filed eleven objections to the Report and Recommendation
(objections one through eleven) (Dkt. 62) and three to the denial of his
motion to compel and enjoin (objections twelve through fourteen). (Dkt.
63.) Although the objections appear to be over a week late on the docket,
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plaintiff included the date the objections to the Report and
Recommendation were postmarked and the Court assumes that both sets
of objections were sent together based on their sequential numbering.
Because plaintiff is a pro se prisoner and his objections were postmarked
before the July 30, 2018 deadline, the Court treats these objections as
timely under the prisoner’s mailbox rule. See Houston v. Lack, 487 U.S.
266, 273 (6th Cir. 2002). Each objection is addressed individually below,
applying de novo review to plaintiff’s proper objections to the Report and
Recommendation and the clearly erroneous and contrary to law standard
to proper objections to the order denying plaintiff’s motion to compel and
for enjoining the restitution order.
a. Objections 1, 2, 3, 4, 6, and 7
In objections one, two, three, four, six, and seven, plaintiff points to
portions of the Magistrate Judge’s fact section and offers a different
formulation of the facts, as well as additional facts. (Dkt. 62 at 1-7.)
Though plaintiff’s objections are specific in terms of which part of the
Report and Recommendation he objects to, he fails to state the bases for
his objections as Local Rule 71.1(d)(1) and Robert require. And contrary
to Andres, he does not pinpoint how the alleged mischaracterization of
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fact affected the Magistrate Judge’s analysis of his due process
defamation claim. Rather, plaintiff’s objection states the facts as he
perceives them and would prefer the Magistrate Judge to have
characterized them. These objections have no bearing on his due process
defamation claim and are denied.
b. Objection 5
In plaintiff’s fifth objection, he corrects a statement of law in his
motion for summary judgment. (Dkt. 62 at 4-5.) This is not a proper
objection because he does not identify an error the Magistrate Judge
made, but one he made. The objection is denied.
c. Objection 8
Plaintiff’s eighth objection is in effect multiple objections which are
identified as clearly as possible below based upon plaintiff’s subheadings.
i. Sub-heading One (Dkt. 62 at 9-12)
This is a generalized objection to the Magistrate Judge’s Report and
Recommendation. Plaintiff restates the standard for summary judgment
and summarizes parts of his earlier arguments about his due process
defamation claim that defendant defamed him by lying in a false
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misconduct report, resulting in a guilty determination and a restitution
order. (Id.) He does not specify the error the Magistrate Judge made as
Rule 71.1(d)(1) and Robert require. The objection amounts to a dispute as
to the general correctness of the portions of the Report and
Recommendation plaintiff references and is improper. Spencer, 449 F.3d
at 725. The objection is denied.
ii. Sub-heading Two (Dkt. 62 at 12)
Plaintiff states “[i]n objection to the magistrate’s statement that –
‘a. Defamation without more does not state a due process claim’ (id. at
12-14) – see Plaintiff’s “First” counterpoint above.” Plaintiff does not
specify the basis of his objection or give any indication what error he
believes the Magistrate Judge made, factual or legal. This objection is
denied.
iii. Sub-heading Three (Dkt. 62 at 12-25)
Under this subheading, plaintiff seems to make several objections,
which are addressed by page range.
First, plaintiff restates applicable law and summarizes what the
Magistrate Judge did in his Report and Recommendation. (Dkt. 62 at 1314.) This is an improper objection because it does not specifically pinpoint
10

an error. See Andres, 733 F. App’x at 244. To the extent this is an
objection, it is denied.
Second, plaintiff asserts that the Magistrate Judge misunderstood
his “argument against preclusion” and that the Court has jurisdiction to
reconsider the facts. (Id. at 14-17.) This objection is proper and warrants
de novo review.
The first part of the objection presumably means that the
Magistrate Judge improperly determined that the facts found by the
misconduct hearing officer were entitled to stand given this Court’s
previous opinion and order denying defendant’s objection that plaintiff
had to exhaust his due process defamation claim through the grievance
process. (Dkt. 39 at 6-9.) There, this Court held that because plaintiff’s
defamation claim was “collateral to the misconduct decision itself,” it was
unnecessary for plaintiff to exhaust his defamation claim. (Id. at 7.)
However, plaintiff misunderstands the effect of the Court’s earlier
opinion and order, which considered the exhaustion of his defamation
claim. Exhaustion of grievances is required by state law before a prisoner
can seek judicial review of the final decision. Mich. Comp. Laws §
791.255. Now, plaintiff is asking the Court to decide the merits of his
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claim, which is properly before the Court because it did not need to be
exhausted with the Michigan Department of Corrections. When the
Court held that plaintiff’s claim did not need to be exhausted in the
grievance procedure because it was collateral to the disciplinary hearing,
it did not mean that the facts found in the hearing would have no bearing
on this claim or that plaintiff could relitigate facts properly found by the
hearing officer, even facts related to plaintiff’s claim. There is “no
previous determination” that the Magistrate Judge needed to consider on
this matter. (See Dkt. 62 at 15.)
In the second part of the objection, plaintiff asserts that the Court
has the jurisdiction to reconsider the facts found by the hearing officer
that underlie his due process defamation claim. Presumably, plaintiff
means he wishes to litigate the question of whether the report defendant
filed was false.1 (See id. at 15-17.) The Magistrate Judge declined to do

To establish a due process defamation claim, plaintiff must show defamation and “a
further injury, such as . . . loss of a legal right or status[.] [D]efamation, by itself,
does not constitute a remedial constitutional claim.” Voyticky v. Village of
Timberblake, Ohio, 412 F.3d 669, 677 (6th Cir. 2005) (citing Paul v. Davis, 424 U.S.
693, 701-03 (1976)); Mertik v. Blalock, 983 F.3d 1353, 1362 (6th Cir. 1993). Based on
plaintiff’s defamation claim as he pleaded it, he could theoretically establish an
additional injury from defendant’s alleged defamation by showing that a false report
implicated a liberty interest, that the restitution order implicated a liberty interest,
1

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so, finding that there was “some evidence in the record supporting the
hearing officer’s conclusion” that there was misconduct by plaintiff. (Dkt.
57 at 18-19.)
Fact disputes are more properly resolved by the hearing officer.
Gibson v. Rousch, 587 F. Supp. 504, 506 (E. D. Mich. 1984). “Federal
district courts do not sit as appellate courts to review the fact findings of
hearing officers in prison disciplinary hearings.” Id. at 505-06. As long as
there is “some evidence” to support the factual findings, the factual
findings may stand without violating due process. Superintendent, Mass.
Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455-56 (1985). The misconduct
report that defendant filed, the statements of witnesses, the video
evidence, and the injuries to the other inmate support the hearing
officer’s finding. See Id. at 455; Selby v. Caruso, 734 F.3d 554, 559 (6th
Cir. 2013). Therefore, plaintiff is not entitled to relitigate the factual
findings of the hearing officer.
Plaintiff argues that “the facts alleged by Plaintiff and the facts
rendered by the hearing offer can peacefully co-exist” under University of

or that the restitution order implicated a property interest, and that he was deprived
of those interests without due process. (See Dkt. 1 at 5-10; Dkt. 24 at 4-7.)

13

Tennessee v. Elliot, 478 U.S. 788 (6th Cir. 1986). (Dkt. 16.) Plaintiff does
not point to which facts, however. The basis of plaintiff’s defamation
claim is that defendant lied about where plaintiff’s hands were, and the
hearing officer determined that the misconduct detailed in the report was
true. Therefore, even if the facts were relitigated and conformed to
plaintiff’s expectations, the facts plaintiff needs to prove his claim cannot
coexist with the facts found by the hearing officer.
Even if newly litigated facts showed the misconduct report was
false, it would not satisfy plaintiff’s burden to show that in addition to
defendant defaming him, plaintiff suffered a further injury through the
false misconduct report. “A prisoner has no constitutional right to be free
from false accusations of misconduct” alone. Jackson v. Hamlin, 61 F.
App’x 131, 132 (6th Cir. 2003). Plaintiff must have been denied adequate
procedural due process, in the form of a fair hearing, regarding the false
report. See Cromer v. Dominguez, 103 F. App’x 570, 573 (6th Cir. 2004).
Plaintiff does not object to the Magistrate Judge’s finding that he was
provided due process, and so this objection is moot. The objection is
denied.

14

Third, plaintiff states that he never argued that the findings in his
misconduct disciplinary hearing should be overturned; that he should not
be penalized for using a “demonstrative argument;” and recounts the
series of filings made before the Magistrate Judge and how those filings
“concede[ ] to all of Plaintiff’s counter-arguments articulated in his
Response.” (Dkt. 62 at 18-19.) These objections do not point to an error
the Magistrate Judge made, and so they are denied.
Fourth, plaintiff objects to the footnote regarding his motion to
compel production of video footage (Dkt. 58). (Dkt. 62 at 19 to 21.) This
objection is improper because it is a generalized objection—the objection
merely states the video is necessary for summary judgment. Even if the
objection were proper, as set forth previously, that objection is moot, and
it is denied.
iv. Sub-heading Four (Dkt. 62 at 21-35)
Plaintiff objects to the Magistrate Judge’s recommendation that the
restitution order does not implicate a liberty or property interest. (Dkt.
57 at 20-25.) First, he points to what the Court previously stated in its
earlier opinion and order adopting the Magistrate Judge’s first report and
recommendation, which indicated that plaintiff had established a due
15

process defamation claim against defendant. (Dkt. 39 at 9.) The Court
stated “the fine in this case is so atypical that the Court could not find
any cases in which a plaintiff challenged prison disciplinary cases
anywhere near that amount.” (Id. at 11.) This is a proper objection that
warrants de novo review.
As a preliminary matter, plaintiff appears to take this statement as
a final decision that the restitution order violated his liberty and property
interests. This is incorrect for two reasons. First, the Court’s earlier
decision was a denial of summary judgment, which is not a final decision
on the facts. See Kovacaevich v. Kent State University, 224 F.3d 806, 835
(6th Cir. 2000). This case is now at a different stage of litigation because
the record has been further developed, and now the second set of
summary judgment motions must be decided to determine if there are
any material issues of factual dispute for a jury to decide. Id. (“District
courts may in their discretion permit renewed or successive motions for
summary judgment, particularly when the moving party has expanded
the factual record on which summary judgment is sought.”).
Second, the Court’s earlier decision did not address whether
plaintiff had been deprived of a liberty interest without due process. In
16

addition to showing that he had a liberty interest implicated by an
atypical and significant hardship in the context of prison life, plaintiff
must also demonstrate that he was denied that liberty interest without
due process.2 See McMillian v. Fielding, 136 F. App’x 818, 820 (6th Cir.
2005) (citing Freeman v. Rideo, 808 F.2d 949, 951 (2d Cir. 1986)). Plaintiff
has not properly objected to the Magistrate Judge’s determination that
he was given the process he was due. It is not enough that the fine may
have implicated plaintiff’s liberty interest; plaintiff must show that he
suffered an undue deprivation of a liberty interest without being afforded
the proper notice and opportunity to be heard.
Next, plaintiff objects by arguing that he has a protected liberty and
property interest implicated by the restitution order. (Dkt. 62 at 21-25.)
Plaintiff has a property interest in his funds, but he again must show
that he was deprived of this interest without due process. See Hampton
v. Hobbs, 106 F.3d 1281, 1287 (6th Cir. 1997). Plaintiff does not object to
the Magistrate Judge’s determination that he was not denied due
process, and so this objection is moot as well. The objection is denied.

Though the Court received and read plaintiff’s exhibits and letters regarding his
medical records (Dkts. 64, 65), these filings do not affect the outcome on de novo
review because plaintiff has not shown he was deprived of due process of law.

2

17

d. Objection 9
Plaintiff objects to the Magistrate Judge’s conclusion that it was
unnecessary to address defendant’s qualified immunity argument. (Dkt.
62 at 26.) Plaintiff adds, “[i]n objection, Plaintiff contends – see objection
No. 8, ‘Fourth’ counterpoint.’” The Magistrate Judge did not reach this
issue, and so it is unclear what plaintiff objects to. The objection is denied.
e. Objection 10
First, plaintiff objects to the lack of detail in the Magistrate Judge’s
reference to “state law claims.” (Dkt. 62 at 26.) Then, plaintiff seems to
object to the Magistrate Judge’s finding that the state law claims convey
a private right of action. (Id.) Both objections are improper. The first part
of plaintiff’s objection does not point out a factual or legal error that goes
to the heart of the dispute the Magistrate Judge addressed in that portion
of his report and recommendation—supplemental jurisdiction over state
law claims. See Thomas, 474 U.S. at 140; see generally 28 U.S.C. §
1367(c). The second part also does not go to the heart of the supplemental
jurisdiction issue because whether the state claims could set forth a
private cause of action does not affect this Court’s discretion to dismiss

18

state law claims when the case no longer has a federal character. The
objection is denied.
f. Objection 11
Plaintiff objects to the Magistrate Judge’s findings that spoliation
sanctions are unwarranted in this case. (Dkt. 62 at 27.) Specifically, he
takes issue with the video the Magistrate Judge determined he had
requested and that defendant had told him was no longer available. If
there was confusion about plaintiff’s requests and defendant’s response,
the objection is moot because defendant later clarified that the video still
exists. (Dkt. 50 at 5.) The objection is denied.
g. Objection 12
Plaintiff objects to the Magistrate Judge’s denial of his motion to
compel video evidence. Much of the objection is general disagreement
with the Magistrate Judge’s conclusion and that the denial of the motion
to compel is “a veiled credibility judgment and weighing of the evidence.”
(Dkt. 63 at 1-5.) This does not state error. However, plaintiff properly
objects when he states that the Court has jurisdiction to reevaluate the
facts, presumably by allowing plaintiff to compel the video evidence of
the altercation in the cell. This objection to the nondispositive pretrial
19

order warrants review under the clearly erroneous or contrary to law
standard.
Plaintiff points to nothing in his objection that shows the
Magistrate Judge’s order denying his motion to compel was clearly
erroneous or contrary to law. The Magistrate Judge relied on Mullins v.
Smith for the proposition that a court does not have jurisdiction to
“relitigate de novo the determinations made in prison disciplinary
settings.” 14 F. Supp. 2d 1009, 1012 (E.D. Mich. 1998). This is consistent
with this Court’s de novo review of the same argument. Supra, Section
III.c.iii.
Plaintiff makes several arguments, but he does not show the
decision was in clear error or contrary to law. First, he argues that Rule
56 permits him to relitigate facts found by the hearing officer, but Rule
56 describes the legal standard and process parties must follow to receive
a judgment without trial. Second, plaintiff points again to his argument
that his defamation claim is collateral to the disciplinary hearing and
that the facts can peacefully coexist. For the reasons set forth above, this
argument lacks merit. See Section III.c.iii. Therefore, the Magistrate

20

Judge’s decision to deny plaintiff’s motion to compel was not clearly
erroneous or contrary to law. The objection is denied.
h. Objection 13
Plaintiff objects to the Magistrate Judge’s denial of his motion to
compel the production of a copy of his deposition transcript. (Dkt. 62 at
7-10.) Plaintiff argues that the Magistrate Judge did not cite to any
binding authority and cites to the Sixth Amendment, Fourteenth
Amendment, and Federal Rules of Civil Procedure 5(a)(1), 26(b)(1), 30(e),
32, and 34 to show he is entitled to a free copy of his deposition transcript.
This is a proper objection that warrants review under the clearly
erroneous or contrary to law standard.
Plaintiff fails to show that the Magistrate Judge’s decision was
clearly erroneous or contrary to law. The Magistrate Judge cited
adequate authority showing that a civil plaintiff is not entitled to a free
copy of a transcript and “[a]n indigent plaintiff bears his own litigation
expenses.” Green v. Miller, No. 2:13-cv-14247, 2015 WL 1014914, at *2
(E.D. Mich. Mar. 9, 2015) (alteration in original) (quoting Dujardine v.
Mich. Dept. of Corr., No. 1:07-cv-701, 2009 WL 3401172, at *1 (W.D.
Mich. Oct. 19, 2009)). Furthermore, under these circumstances, nothing
21

in the Constitution, the Federal Rules of Civil Procedure, or the Local
Rules of the Eastern District of Michigan entitle plaintiff to a free copy of
his deposition transcript. The most plaintiff could have asked for was to
review the transcript and make changes within thirty days. Fed. R. Civ.
Pro. 30(e). But only if plaintiff pays “reasonable charges” would the court
reporter have been obligated to produce a copy of the transcript. See Fed.
R. Civ. 30(f)(3).
Plaintiff argues that the Magistrate Judge did not cite to binding
authority and therefore his denial of his motion to compel was in error.
(Dkt. 63 at 9.) In the absence of binding or mandatory authority, courts
are free to turn to persuasive authority, as the Magistrate Judge did. See
United States v. Tucker, 28 F.3d 1420, 14425 (6th Cir. 1994) (looking to
other circuits); King v. Handorf, 821 F.3d 650, 655 (6th Cir. 2016)
(illustrating the general principle that courts may turn to persuasive
authority in the absence of mandatory authority). Further, plaintiff does
not cite any binding authority that he is entitled to a free transcript of
his deposition.
Plaintiff next cites to the Confrontation Clause of the Sixth
Amendment and the Fourteenth Amendment Due Process Clause (Dkt.
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63 at 8, 10), but his reliance is misplaced. The Confrontation Clause only
applies to criminal defendants. United States v. Collins, 799 F.3d 554,
576 (6th Cir. 2015) (citing United States v. Johnson, 581 F.3d 320, 324
(6th Cir. 2009)). The same prevents him from relying on the Fourteenth
Amendment. Bruce v. Welch, 572 F. App’x 325, 329 (6th Cir. 2014) (“The
Due Process Clause of the Fourteenth Amendment requires fair notice of
criminal charges sufficient to allow a defendant to prepare an adequate
defense.” (emphasis added)). Moreover, these constitutional provisions
are not designed to help him access a copy of his deposition without
charge.
Last, the Federal Rules of Civil Procedure do not support plaintiff’s
argument that he should be given a copy of his deposition transcript free
of cost. Rule 5 does not provide for a free copy of the transcript because
plaintiff believes that he may need it if he appeals. (Dkt. 63 at 10.) The
portion of Rule 26 that plaintiff cites also does not provide for discovery
that is free of cost to plaintiff. Rule 30(e) addresses the review of
depositions by witnesses for accuracy. Rule 32 describes the use of
depositions in court, and Rule 34 details how parties request, respond to,
and object to discovery requests. These rules do not accomplish what
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plaintiff argues they do. The objection is denied because plaintiff fails to
show the Magistrate Judge’s decision was clearly erroneous or contrary
to law.
i. Objection 14
Plaintiff objects to the Magistrate Judge’s denial of plaintiff’s
motion to enjoin the restitution order. However, he fails to show that the
Magistrate Judge’s finding that he did not face an atypical and
significant hardship as a result of the restitution order was clearly
erroneous and contrary to law standard. The Magistrate Judge points to
ample case law in his decision regarding the $8,936.63 restitution order.
E.g., Sturges v. Heyns, No. 14-cv-14120, 2014 WL 7012671, at *3 (E.D.
Mich. Dec. 11, 2014). Plaintiff does not show that this determination was
in clear error or contrary to law.
Plaintiff also objects for the first time to the process he was given,
which is necessary to show the restitution order deprived him of a liberty
interest. See McMillian, 136 F. App’x at 820 (citing Freeman, 808 F.2d at
951). Plaintiff argues that the Michigan Department of Corrections
manual does not permit restitution through false charges and impaired
hearings. (Dkt. 63 at 13.) But this begs the question. Plaintiff does not
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show that the Magistrate Judge’s decision that plaintiff was not denied
adequate due process in his disciplinary hearing was clearly erroneous
or contrary to law. The objection is denied.
IV.

Conclusion

Accordingly, plaintiff’s objections (Dkt. 62) are DENIED and the
Report and Recommendation (Dkt. 57) is ADOPTED. Plaintiff’s
objections (Dkt. 62) to the Magistrate Judge’s order denying his motion
to compel and for an order enjoying restitution (Dkt. 58) are DENIED.
Defendant Barnes’ motion for summary judgment is GRANTED.
Dated: October 10, 2018
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 October 10, 2018.
s/Shawna Burns
SHAWNA BURNS
Case Manager

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