Contor #236210 v. Caruso et al

Filing 102

ORDER REJECTING REPORT AND RECOMMENDATION 98 and denying plaintiff's fourth motion for appointment of counsel (taken from docket #89); ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN S O U T H E R N DIVISION

R O N A L D CONTOR, P l a in tif f , F ile No. 1:07-CV-303 v. H O N . ROBERT HOLMES BELL P A T R IC IA CARUSO, et al., D e f e n d a n ts . / M E M O R A N D U M OPINION AND ORDER R E J E C T I N G THE REPORT AND RECOMMENDATION O n May 5, 2009, United States Magistrate Judge Ellen S. Carmody issued a Report a n d Recommendation ("R&R"), recommending that Defendant Keith Ivens's motion for s u m m a ry judgment be granted. Plaintiff filed objections to the R&R on May 21, 2009. D e f en d a n t Ivens filed a response to Plaintiff's objections on June 1, 2009. For the reasons th a t follow, Plaintiff's objections are granted in part and the R&R is rejected as the opinion o f the Court. T h is Court is required to make a de novo determination of those portions of a R&R to which specific objections are made, and may accept, reject, or modify any or all of the M a g i s tr a te Judge's findings or recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P . 72(b). D e f en d a n t Ivens filed his motion for summary judgment on December 24, 2008. D e f en d a n t attached several exhibits to the motion for summary judgment. Exhibit B to the

s u m m a ry judgment motion, Plaintiff's medical records, was filed separately on the same date, to g e th e r with a motion to file this exhibit under seal. (Dkt. No. 83.) Attached to the motion f o r summary judgment and the motion to seal are certificates of service noting that the " f o re g o in g paper" has been mailed to "the involved non participants." (Dkt. Nos. 82, 83.) E x h ib i t C to the summary judgment motion, as filed on December 24, 2008, is a p lac e h o ld e r for an affidavit by Defendant Ivens. The placeholder notes that an affidavit will b e filed upon being signed and notarized. (Dkt. No. 82.) P la in tif f filed a motion for extension of time to respond on January 21, 2009, stating th a t Defendant had filed Plaintiff's medical records with the Court under seal and that P la in tif f was attempting to obtain a copy of these records in order to properly respond to the s u m m a ry judgment motion. (Dkt. No. 86.) The Court granted Plaintiff until February 27, 2 0 0 9 , to respond to the summary judgment motion. (Dkt. No. 88.) Plaintiff never filed a re s p o n s e . On April 28, 2009, Defendant Ivens filed a signed and notarized copy of Exhibit C to the summary judgment motion, an affidavit by Defendant that is signed and dated as of A p ril 27, 2009. No certificate of service is attached to this Exhibit. O n May 5, 2009, the Magistrate Judge issued an R&R recommending that the Court g ra n t Defendant's motion for summary judgment. The R&R relied upon both the medical r e c o rd s and the affidavit of Defendant Ivens.

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P la in tif f 's first objection is that, as an unrepresented prisoner, he must be given notice o f the consequences of not coming forward with evidence challenging another party's motion f o r summary judgment, citing United States v. Ninety Three Firearms, 330 F.3d 414 (6th Cir. 2 0 0 3 ). In that case, the Court of Appeals for the Sixth Circuit noted that "The majority of circu its have held that a pro se litigant is entitled to notice of the consequences of a summary ju d g m e n t motion and the requirements of the summary judgment rule." Id. at 427. In filing a motion for extension of time to respond to Defendant's motion, Plaintiff clearly had notice o f the need for some response. Moreover, he responded to a previous motion for summary jud g m en t with supporting evidence. (Dkt. No. 25.) Nevertheless, Plaintiff also contends that he did not receive a copy of two of the e x h ib its to the summary judgment motion, the medical records and the affidavit of Defendant Ive n s. Pleadings and written motions must be served on every party. Fed. R. Civ. P. 5(a)(1). The Court notes that these exhibits were filed separately from Defendant's motion and the C o u rt cannot find a clear indication in the record that they were properly served on Plaintiff. In his response to Plaintiff's objections, Defendant does not respond to Plaintiff's allegation th a t Plaintiff did not receive a copy of these exhibits. Thus, even if Plaintiff had sufficient notice of the need to respond in accordance with th e requirements of Rule 56, it is not clear that he could have adequately responded. In an a b u n d a n c e of caution, the Court will require Defendant Ivens to serve copies of Exhibits B a n d C to his summary judgment motion on Plaintiff, if Defendant has not already done so,

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a n d submit to the Court evidence of such service. After Defendant has submitted such e v i d e n c e of service with the Court, the Court will grant Plaintiff additional time to submit a response to the motion for summary judgment,1 and Defendant Ivens shall have an o p p o rtu n ity to reply to Plaintiff's response. Thus, the Court will grant Plaintiff's objections a n d reject the R&R solely on this basis. After the parties have made their submissions, the M a g istra te Judge will reconsider the motion for summary judgment. A lso pending before the Court is Plaintiff's fourth motion for appointment of counsel. C o n s i d e r in g the factors set forth in Lavado v. Keohane, 992 F.2d 601, 604-05 (6th Cir. 1 9 9 3 ), the Court finds that appointment of counsel is not warranted in this case at this time. A c c o r d i n g l y, I T IS HEREBY ORDERED that Plaintiff's objections to the Report and R e c o m m e n d a tio n of the Magistrate Judge (Dkt. No. 99) are GRANTED IN PART. I T IS FURTHER ORDERED that the Report and Recommendation (Dkt. No. 98) is REJECTED as the opinion of this Court. I T IS FURTHER ORDERED that Defendant Ivens shall serve a copy of Exhibits B and C to its summary judgment motion on Plaintiff, if he has not already done so, and s u b m it to the Court evidence of such service by June 19, 2009. Plaintiff shall have thirty ( 3 0 ) days to respond to Defendant's motion for summary judgment from the date that such

Having cited Ninety Three Firearms in his objections, Plaintiff cannot later object that he did not have notice of the requirements of Rule 56 of the Federal Rules of Civil Procedure, should he fail to adequately respond. 4

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e v id e n c e of service is filed with the Court. Defendant Ivens shall have fourteen (14) days to submit a reply to Plaintiff's response. Thereafter, the Magistrate Judge will reconsider D e f e n d a n t's motion for summary judgment. I T IS FURTHER ORDERED that Plaintiff's fourth motion for appointment of c o u n s e l (taken from Dkt. No. 89) is DENIED.

Dated: June 3, 2009

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

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