Horn, III v. Washington et al

Filing 65

OPINION AND ORDER Adopting 46 Report and Recommendation, and 55 Report and Recommendation re 31 Motion for Summary Judgment, and 40 Motion for Preliminary Injunction. Signed by District Judge Judith E. Levy. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Stephen Lee Horn, III,
Plaintiff,
v.
Heidi Washington, et al.,
Defendants.

Case No. 22-cv-11637
Judith E. Levy
United States District Judge
Mag. Judge David R. Grand

________________________________/
OPINION AND ORDER DENYING PLAINTIFF STEPHEN LEE
HORN, III’S OBJECTIONS [47], ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION ON PLAINTIFF’S
MOTION FOR INJUNCTION [46], AND ADOPTING THE
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
ON DEFENDANTS’ MOTION TO DISMISS AND FOR SUMMARY
JUDGMENT [55]
Before the Court is Magistrate Judge David R. Grand’s Reports and
Recommendations (“R&R”) (ECF Nos. 46, 55) for Defendants Heidi
Washington, Les Parish, Robert Mulligan, and Kevin Bushroe’s1 motion
for summary judgment (ECF No. 31) and Plaintiff Stephen Lee Horn’s
motion for injunction. (ECF No. 40.)

In his complaint, Horn mistakenly identifies Bushroe as “Brushwick.” (ECF
No. 1, PageID.3.)
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Judge Grand issued the R&R on Plaintiff’s motion for injunction on
June 14, 2023 (ECF No. 46), and the R&R on the Defendants’ motion to
dismiss and for summary judgment on September 15, 2023. (ECF No. 55.)
The parties were required to file specific written objections, if any, within
fourteen days of service. See Fed. R. Civ. P. 72(b)(2); E.D. Mich. LR
72.1(d). Horn submitted objections to the R&R on his motion for
injunction; the objections are dated June 23, 2023. (ECF No. 47.)
Defendants responded to the objection. (ECF No. 48.) As to the R&R on
Defendants’ motion to dismiss and for summary judgment, no objections
were filed.
I.

Background
The factual and procedural background set forth in the R&Rs is

fully adopted as though set forth in this Opinion and Order. (ECF Nos.
46, 55.)
II.

Legal Standard
A party may object to a magistrate judge’s report and

recommendation on dispositive motions, and a district judge must resolve
proper objections under a de novo standard of review. See 28 U.S.C.
§ 636(b)(1)(B)–(C); Fed. R. Civ. P. 72(b)(1)–(3). “For an objection to be
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proper, Eastern District of Michigan Local Rule 72.1(d)(1) requires
parties

to

‘specify

the

part

of

the

order,

proposed

findings,

recommendations, or report to which [the party] objects’ and to ‘state the
basis for the objection.’” Pearce v. Chrysler Grp. LLC Pension Plan, 893
F.3d 339, 346 (6th Cir. 2018). Objections that restate arguments already
presented to the magistrate judge are improper, see Coleman-Bey v.
Bouchard, 287 F. App’x 420, 422 (6th Cir. 2008) (citing Brumley v.
Wingard, 269 F.3d 629, 647 (6th Cir. 2001)), as are those that are vague
and dispute the general correctness of the report and recommendation.
See Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995).
Moreover, objections must be clear so that the district court can
“discern those issues that are dispositive and contentious.” Id. (citing
Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir.
1991)); see also Thomas v. Arn, 474 U.S. 140, 147 (1985) (explaining that
objections must go to “factual and legal” issues “at the heart of the
parties’ dispute”). In sum, the objections must be clear and specific
enough to permit the Court to squarely address them on the merits. See
Pearce, 893 F.3d at 346. Because Plaintiff is self-represented, the Court
will construe his objection liberally. See Boswell v. Mayer, 169 F.3d 384,
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387 (6th Cir. 1999) (“Pro se plaintiffs enjoy the benefit of a liberal
construction of their pleadings and filings.”); Stanley v. Vining, 602 F.3d
767, 771 (6th Cir. 2010) (stating that “we read a [pro se] prisoner’s
complaint liberally”).
III. Analysis
A.

Plaintiff’s motion for injunction

Plaintiff filed a “motion for a[n] injunction” requesting “computer,
copies, assisted, le[g]al writer.” (ECF No. 40, PageID.280.) The R&R
recommends denying Plaintiff’s request for injunctive relief. (ECF No. 46,
PageID.320.)
In the first paragraph of his objection, Plaintiff states that he
“object[s] to the ruling.” (ECF No. 47, PageID.323.)
i.

Plaintiff’s second paragraph2

In the second paragraph, Plaintiff objects to the R&R’s
recommendation that the Court deny his request for a clerk at the
facility’s law library. (Id.) Plaintiff states,
2) Plaintiff “object” concerning the denying of having a clerk (not)
at this branch facility (MBP) for the law-library as they are hired
in “all” other facilities of (M.D.O.C.) for the assistances of case laws
It is unclear if Plaintiff intended to raise one or multiple objections. The Court
will address each paragraph in Plaintiff’s response to the R&R. (ECF No. 47.)
2

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and martial of law, and with forms and could and direction to filing
their wone active here at this facility, to assist with the facts that
could help Plaintiff to cross examine the Defendants which violates
his 6th Amendment.3
(Id.)
Defendants argue that “Horn did not raise the issue of the law
library clerk in . . . his injunction motion.” (ECF No. 48, PageID.328.)
While it is true that a clerk is not in Plaintiff’s list of “relief requested,”
Plaintiff does discuss the lack of a clerk in his original motion, (ECF No.
40, PageID.280 (“[T]heirs no clerk here to assist with the assisting or
reference to proper material.”)), and the R&R addresses Plaintiff’s
allegation that he lacks legal assistance. (ECF No. 46, PageID.318.)
However, Defendants are correct that “Horn does not specify the
parts of the R&R he is objecting to, as required by E.D. Mich. LR 72.1(d).”
(ECF No. 48, PageID.328.) Plaintiff reiterates that he wants a clerk in
his facility’s law library but does not “address specific concerns with the
magistrate [judge]’s report.” Howard, 932 F.2d at 509 (citing Arn, 474
U.S. at 147). Therefore, this is not a proper objection.

Unless otherwise indicated, quotations from Plaintiff’s filings will be
reproduced exactly as written, without correction, to avoid changing the meaning of
Plaintiff’s submissions.
3

5

The R&R recommended that Plaintiff’s motion be denied because
Plaintiff does not meet the four factors required for a preliminary
injunction:
“(1) whether the movant has a strong likelihood of success on the
merits; (2) whether the movant would suffer irreparable injury
without the injunction; (3) whether issuance of the injunction would
cause substantial harm to others; and (4) whether the public
interest would be served by the issuance of the injunction.”
(ECF No. 46, PageID.316–317 (quoting Robinson v. Long, 814 F. App’x
991, 994 (6th Cir. 2020)).) The R&R determined that Plaintiff cannot
meet the second, third, or fourth factors.
As to the second factor, the R&R determined that Plaintiff “has not
demonstrated that he will suffer irreparable harm without immediate
injunctive relief” because Plaintiff did not show an actual injury. (Id. at
PageID.318.) Plaintiff did not show an actual injury because he “has not
established that ‘the alleged shortcomings in the library or legal
assistance program hindered his efforts to pursue a legal claim,’” (Id.
(quoting Annabel v. Frost, No. 14-10244, 2017 WL 4161107, at *4 (E.D.
Mich. Sept. 20, 2017))), and because Plaintiff “does not currently have
any imminent due dates before the Court.” (Id.) Plaintiff states in his
objection that a clerk provides “assistances of case laws and martial of
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law, and with forms” and could “assist with the facts that could help
plaintiff to cross examine the Defendants which violates his 6th
Amendment.” (ECF No. 47, PageID.323.) However, Plaintiff has not
identified specific forms that he needs help with, see Jackson v. Gill, 92
F. App’x 171, 173 (6th Cir. 2004) (holding that prisoner failed to allege
any actual prejudice because “he did not allege what his legal mail was,
or that he had a case dismissed, was prevented from filing a complaint,
or missed a legal deadline”), and Plaintiff has still not identified any
filings that he was unable to prepare due to the lack of assistance.4
Additionally, the R&R concluded that Plaintiff does not meet the
final two factors because the resolution of prison administration issues
by prison authorities “should be accorded deference by the Courts.” (ECF
No. 46, PageID.319 (quoting Bazzetta v. McGinnis, 124 F.3d 774, 779 (6th
Cir. 1997)).) The R&R looks to Michigan Department of Corrections
(“MDOC”) policies, which set forth the materials and services (such as a
legal writer) inmates have access to and how they can be accessed. (Id.

To the extent Plaintiff requests that prison staff assist him in gathering facts
to assist in cross-examination, this appears to go beyond the scope of the legal
assistance he is entitled to. See MDOC Policy Directive 05.03.115 (“However, neither
staff nor prisoner clerks shall provide legal advice beyond instructions on the use of
the [electronic law library] and the law library collection.”).
4

7

(quoting MDOC Policy Directive 05.03.116).) A review of MDOC Policy
Directive 05.03.115 (Law Libraries) establishes that MDOC does not
require that clerks always be available to assist in the law libraries.
Plaintiff’s objection does not address the R&R’s analysis.
Accordingly, this objection is denied.
ii.

Plaintiff’s third paragraph

In the third paragraph of Plaintiff’s objection, Plaintiff objects to
the R&R’s recommendation that the Court deny his requests for a
computer upgrade, better internet connection, books, and a clerk. (ECF
No. 47, PageID.324.)
Plaintiff objection for the Court not ordering or stepping in to assist
with proper computer upgrade, for the plaintiff claim, because of
MBP prison whereabouts (Upper Michigan) their wi-fi connection
is soon to be upgraded, but does not help Plaintiff at this point and
time, to proceed in further claim, because the computer locks up
and Plaintiff can not finish research to case laws because of the
freezing of wi-fi, and their no books located and no clerks to assist
so courts are denying Plaintiff with over coming this summary
judgment or any further matters in this claim.
(Id.)
Like Plaintiff’s second paragraph, this objection does not “address
specific concerns with the magistrate [judge]’s report.” Howard, 932 F.2d

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at 509 (citing Arn, 474 U.S. at 147). Therefore, this is not a proper
objection.
Further, the R&R’s recommendations as to these issues still holds.
The Court has already addressed Plaintiff’s request for a clerk. See supra
i. Plaintiff’s second paragraph. Also, this is the first time Plaintiff has
raised that he is requesting books. “Issues raised for the first time in
objections to a magistrate judge’s report and recommendation are
deemed waived.” Peterson v. Burris, No. 17-1291, 2017 WL 8289655, at
*3 (6th Cir. Dec. 8, 2017). To the extent that Plaintiff requests books, his
objection is denied. Additionally, Horn has not pointed to any law that
requires MDOC to provide him with a computer upgrade or wi-fi.
Finally, Plaintiff has not demonstrated an actual injury. Plaintiff
claims that computer and internet issues are preventing his research
from progressing. (ECF No. 47, PageID.324.) However, Plaintiff can
request extensions of time for deadlines, and has successfully done so in
the past. (See ECF No. 37 (requesting extension of time for response to
Defendants’ Motion for Summary Judgment because of law library
limitations and his inexperience); ECF No. 38 (granting Plaintiff’s motion

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for extension of time).) Plaintiff does not allege specific due dates that he
missed because of computer issues. (See ECF No. 46, PageID.318.)
Accordingly, Plaintiff’s objection is denied.
iii.

Plaintiff’s fourth paragraph

In the fourth paragraph, Plaintiff states,
Plaintiff also object for asking of this Court to have a legal assisted
which a legal writer that’s already hired by MBP and is inmate to
assist Plaintiff, because of the other matters that’s involved, of
computer, clerk, and no books. Plaintiff object showing that the
Courts are trying to dismiss his claim because by stating there are
no other litigation, meaning no more paper-work have to be filed
object.
(ECF No. 47 at PageID.324.) The Court will construe this as an objection
to the R&R’s recommendation that the Court deny his request for a legal
writer.
As stated previously, Plaintiff has not demonstrated actual injury
because he has not identified specific legal claims that he has not been
able to pursue due to the lack of a legal writer. Also, “inmates may be
provided a legal writer only if they meet the requirements for eligibility.”
(ECF No. 46, PageID.319 (citing MDOC Policy Directive 05.03.116
(effective Apr. 5, 2021)).) If Plaintiff believes he was wrongfully denied a
legal writer by MDOC, “the appropriate remedy would be to file a
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grievance.” (Id. (citing MDOC Policy Directive 03.02.130).) Accordingly,
Plaintiff’s objection is denied.
B.

Defendants’ motion for summary judgment

Also before the Court is the R&R recommending the Court grant
Defendants Heidi Washington, Les Parish, Robert Mulligan, and Kevin
Bushroe’s motion to dismiss and for summary judgment. (ECF No. 55.)
The parties were required to file specific written objections, if any, within
14 days of service. Fed. R. Civ. P. 72(b)(2); E.D. Mich. L.R. 72.1(d). No
objections were filed. The Court has nevertheless carefully reviewed the
Report and Recommendation and concurs in the reasoning and result.
IV.

Conclusion

For the reasons set forth above, Plaintiff’s objections to the R&R on
his motion for injunction (ECF No. 47) are DENIED and the R&Rs (ECF
Nos. 46, 55) are ADOPTED. Accordingly, Plaintiff’s motion for injunction
(ECF No. 40) is DENIED and Defendants’ motion to dismiss and for
summary judgment (ECF No. 31) is GRANTED.
IT IS SO ORDERED.
Dated: February 5, 2024
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
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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 February 5, 2024.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager

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