Dixon v. Ford Motor Company et al

Filing 79

ORDER Adopting #76 Report and Recommendation and Denying Plaintiff's #77 Objections. Signed by District Judge Judith E. Levy. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Eunice LaShawn Dixon,
Plaintiff,
v.

Case No. 16-cv-14124
Judith E. Levy
United States District Judge

Ford Motor Company,
Mag. Judge Anthony P. Patti
Defendant.
________________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION [76]
AND DENYING PLAINTIFF’S OBJECTIONS [77]
Before the Court is Magistrate Judge Anthony Patti’s Report and
Recommendation recommending the Court grant defendant Ford Motor
Company’s Motion for Summary Judgment. (Dkt. 76.) The parties were
required to file specific written objections within 14 days of service. Fed.
R. Civ. P. 72(b)(2); E.D. Mich. L.R. 72.1(d). Plaintiff filed seven objections.
I.

Background

The Court adopts the factual background laid out in Magistrate
Judge Patti’s Report and Recommendation. (Dkt. 76 at 412.) Additional
facts and references to the record are cited and explained, as necessary,
below.

II.

Legal Standard

A party may object to a Magistrate Judge’s report and
recommendation on dispositive motions by filing “specific written
objections to the proposed findings and recommendations.” Fed. R. Civ.
P. 72(a)-(b). A district judge must resolve proper objections. Id. District
courts review parts of a report and recommendation that have “been
properly objected to” de novo. 72(b)(3). 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 other grounds by Andres v. Comm’r of Soc.
Sec., 733 F. App’x 241 (6th Cir. 2018). Instead, 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).
III. Analysis
a. Objection 1: Magistrate’s Reliance on Defendant’s
Declarations
Plaintiff first objects to Magistrate Judge Patti’s reliance on “sham”
unsworn affidavits, identified as Exhibits 2, 4, and 6 to defendant’s
summary judgment motion. But all three of these exhibits are
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declarations made pursuant to 28 U.S.C. § 1746. “While an ‘affidavit’ is
required to be sworn to by the affiant in front of an ‘officer authorized to
administer oaths,’ 28 U.S.C. § 1746 allows for ‘unsworn declarations
under penalty of perjury’ to support any matter that legally requires an
affidavit to support it,” if made in the proper statutory form. Peters v.
Lincoln Elec. Co., 285 F.3d 456, 475 (6th Cir. 2002) (quoting Blacks Law
Dictionary 54 (5th ed. 1979)). Section 1746 states:
Wherever, under any law of the United States or under any
rule, regulation, order, or requirement made pursuant to law,
any matter is required or permitted to be supported,
evidenced, established, or proved by the sworn declaration,
verification, certificate, statement, oath, or affidavit, in
writing of the person making the same . . . such matter may,
with like force and effect, be supported, evidenced,
established, or proved by the unsworn declaration, certificate,
verification, or statement, in writing of such person which is
subscribed by him, as true under penalty of perjury, and dated,
in substantially the following form . . . “I declare (or certify,
verify, or state) under penalty of perjury that the foregoing is
true and correct. Executed on (date).
(Signature)”.
Here, the exhibits identified comply with the statute. All three are
signed and dated below the following declaration: “I declare under
penalty of perjury that the foregoing is true and correct.” (Dkts. 63-5 at
6; 63-7 at 4; 63-9 at 3.) So, although plaintiff is correct that the exhibits
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are unsworn statements, they nonetheless “satisfy[y] 28 U.S.C. § 1746
and may be considered as an unsworn declaration.” See Synder v. WalMart Stores, Inc., No. 18 C 583, 2018 U.S. Dist. LEXIS 55588, at *9 (N.D.
Ill. April 2, 2018). Because the declarations are proper and are, in fact,
listed in Rule 56 as competent evidence to support a motion for summary
judgment, it was not error for the Magistrate Judge to rely on them. See
Fed. R. Civ. P. 56(c)(1) (“A party asserting that a fact cannot be . . .
disputed must support the assertion by[ ]citing to particular parts of
materials in the record, including . . . affidavits or declarations.”).
Plaintiff’s first objection is denied.
b. Objections 2-4: Expert Testimony, Impermissible
Medical Notes, and Court Documentation Relating
to Plaintiff’s Mental Health
Objections two through four also fail. These objections seemingly
revolve around plaintiff’s multiple mental health diagnoses made in
unrelated state proceedings. Plaintiff’s objections appear to be rooted in
her general disagreement with these diagnoses. The Court neither agrees
nor disagrees with, nor is in any position to evaluate, the various
diagnoses from various treaters referenced on the record from outside
proceedings.
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Regardless

of

plaintiff’s

disagreement

with

these

various

statements and diagnoses, objections to a report and recommendation
must go to “factual and legal” issues “that are at the heart of the parties’
dispute.” Thomas, 474 U.S. at 147; Miller, 50 F.3d at 380. Further,
objections must “pinpoint the Magistrate Judge’s alleged errors,” rather
than opposing counsel’s. See Andres, 733 F. App’x at 244 (emphasis
added).

Although plaintiff’s diagnosis was referenced as factual

background in the Report and Recommendation, no diagnosis was at the
heart of the dispute and none are relied upon in the Magistrate Judge’s
reasoning and adjudication of plaintiff’s claims.
In objection two, plaintiff appears to object to the characterization
of a psychologist who evaluated her in an unrelated probate matter as an
“expert.” The only reference Magistrate Judge Patti makes to this
psychologist is the following statement in the factual background section:
“Following a hearing in the Macomb County Probate Court on December
8, 2016 that included testimony by the examining mental health expert,
the Probate Court ordered Plaintiff hospitalized for up to 60 days of
inpatient treatment followed by an additional 30 days of alternative
treatment.” (Dkt. 76 at 11 (citing Dkt. 63-8).) The document cited by
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Magistrate Judge Patti (Dkt. 63-8) is a transcript from a probate court
hearing prompted by plaintiff’s mother, who was seeking plaintiff’s
involuntary hospitalization. (Dkt. 63-3 at 25-26.) The hearing includes a
diagnosis by Dr. Raymond Dwaihy, whose qualifications were stipulated
to on the record. (Id. at 6.) He diagnosed plaintiff with a psychotic
disorder, explaining that she had “elaborate fixed delusional system
association with feeling that she’s being stalked by people who are trying
to interfere with her life.” (Id. at 7.)
There is no basis for this Court to review this stipulation, which
was made in state probate court. Nor is the stipulation relevant to the
pending motion in this case. To the extent plaintiff’s mental health is
referenced in the Report and Recommendation, it only serves as factual
context for her beliefs about and allegations against defendant. And
although the context may help the Court understand that plaintiff feels
distrustful of various people in her life for reasons beyond her control,
neither her diagnosis nor the related discussion during or about the
probate court proceeding are relevant to the outcome of her case in this
Court. Magistrate Judge Patti explained that plaintiff’s claims are not

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supported by sufficient competent evidence. He did not rely on any past
diagnosis to reach this conclusion. Objection two is denied.
Objection three is also unclear and irrelevant. Plaintiff points to a
page in her deposition and argues that an attorney for the defendant did
not have authorization to obtain medical notes relied upon during the
deposition and did not produce the documents on the record.1 As with
objection two, this objection does not touch the heart of the dispute nor
does it pinpoint any specific error in the Magistrate Judge’s Report and
Recommendation. The portion of the deposition at issue in plaintiff’s
objection was not used or relied upon by the Magistrate Judge. Whether
or not it was improper for opposing counsel to rely upon this
documentation had no bearing on the proper dismissal of plaintiff’s
claims.
Finally, plaintiff objects to the use of a copy of plaintiff’s mother’s
probate court petition for plaintiff’s involuntary hospitalization. (Dkt. 634.) Plaintiff does not believe that defendant obtained a copy of this from
the probate court and claims instead that “the use of the petition offers

Notably, defendant clarifies that it did not have this documentation. It had
requested documentation related to this doctor in discovery requests. But since
plaintiff did not produce any notes, it had none.
1

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concrete evidence that defendants entered Plaintiff’s home on at least one
occasions [sic].” (Dkt. 77.) This unsubstantiated allegation and conjecture
by plaintiff is not a legitimate objection and does not relate to any error
made by the Magistrate Judge. For this and other reasons cited above,
objection four fails as well.
c. Objection 5: Magistrate’s
Categorization of
Plaintiff’s Documentation as Incompetent Evidence
In objection five, plaintiff takes issue with a statement by defendant
that a piece of plaintiff’s proffered evidence in opposition to its motion for
summary judgment was “self-serving hearsay.” But a proper objection
must identify an error made by the Magistrate Judge. The Court will
address this objection to the extent the Report and Recommendation
similarly characterizes this evidence and then determines that it cannot
be relied upon.
As Magistrate Judge Patti correctly points out, once defendant has
met its initial burden under Rule 56, plaintiff must show through
competent evidence that there is an issue of triable fact. (See Dkt. 76 at
13 (citing Wrench LLC v. Taco Bell Corp, 256 F.3d 446, 453 (6th Cir.
2001)).) Here, plaintiff’s daily log – presumably found at Docket Entry 72

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at 23-27 – is not competent evidence to refute Ford Motor Company’s
motion. It is also largely illegible.
Rule 56 helpfully enumerates the types of competent evidence that
may create a genuine issue of fact to defeat summary judgment; parties
should cite “to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations . . ., admissions, interrogatory answers, or
other materials.” Fed. R. Civ. P. 56(c)(1)(A). Any evidence may be objected
to if it cannot be presented in a form that would be admissible in
evidence. 56(c)(2). Here, plaintiff’s log is largely illegible. In addition, it
is not in any proper form, as that term is used in the rule. It is not a
signed declaration or affidavit. Unfortunately, the writing is also difficult
to discern since the handwriting is on top of typewritten words.
Therefore, not only is the log not proper evidence to create an issue of
triable fact, but also it is nearly impossible to ascertain the content of
these writings, much less draw upon them to identify an issue of fact. The
Magistrate Judge correctly declined to consider this proffered evidence.
Defendant’s characterization of the log as hearsay, while likely correct,
need not be discussed here. For these reasons, objection 5 is denied.
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d. Objection 6: Magistrate’s Reliance on Dorr v. Ling
Plaintiff objects to Magistrate Judge Patti’s reliance on a report and
recommendation he previously authored that had been subsequently
adopted by another judge in this district. Magistrate Judge Patti stated:
Finally, like the above-cited cases, in light of the complete
failure of proof and the nature and details of the allegations,
the Court cannot escape the conclusion that Plaintiff’s
allegations in the instant matter are also “fanciful, fantastic
or delusional.” See Dorr v. Ling, 2017 U.S. Dist. LEXIS
221750, *4 (E.D. Mich. Nov. 21, 2017) (Patti, M.J.), report and
recommendation adopted (Borman, J.).
(Dkt. 76 at 21-22.) There is no law, and plaintiff does not cite any, to
suggest a magistrate judge is not free to cite previously adopted reports
and recommendations. The Court regularly considers and cites to
previous opinions for persuasive guidance on how to rule in similar
matters. In any case, Magistrate Judge Patti’s reference was merely
explanatory and was not necessary for the disposition of the case.
Objection 6 is without merit.
e. Objection 7: Bias, Violation of Michigan Code of
Judicial Conduct Canons 1 and 2
In her final objection, plaintiff objects again to Magistrate Judge
Patti’s reference to Dorr v. Ling, in addition to claiming that he is biased
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against her based on his “relationships with one or more defendants.”
(Dkt. 77 at 6.) This objection is without merit. Plaintiff makes baseless
allegations without any explanation. Plaintiff’s final objection is likewise
denied.
IV.

Conclusion

The Court has carefully reviewed the Report and Recommendation
and concurs in the reasoning and result. It has also carefully reviewed
each of plaintiff’s seven objections and the accompanying record and finds
that the objections are without merit. Accordingly,
Plaintiff’s objections (Dkt. 77) are DENIED and the Report and
Recommendation (Dkt. 76) is ADOPTED;
Plaintiff’s motion pursuant to Federal Rule of Civil Procedure 56(d)
is DENIED;
Further, Defendant’s Motion for Summary Judgment (Dkt. 63) is
GRANTED and plaintiff’s remaining claims are DISMISSED with

prejudice with prejudice.
IT IS SO ORDERED.
Dated: December 4, 2018
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
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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 December 4, 2018.
s/Shawna Burns
SHAWNA BURNS
Case Manager

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