Spearman #158437 v. Stoddard et al

Filing 35

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 26 , granting defendants' motion for summary judgment 13 ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MAURICE SPEARMAN, #158437,
Plaintiff,
File No. 1:09-CV-632
v.
HON. ROBERT HOLMES BELL
CATHLEEN STODDARD, et al.,
Defendants.
/
ORDER APPROVING AND ADOPTING
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
On March 30, 2011, United States Magistrate Judge Joseph G. Scoville issued a report
and recommendation (“R&R”) recommending that Plaintiff Maurice Spearman’s claims for
injunctive and declaratory relief be dismissed as moot, that Defendants’ motion for summary
judgment (Dkt. No. 13) be granted, and that a final judgment be entered in Defendants’ favor
on all of Plaintiff’s claims for damages. (Dkt. No. 26, R&R.) Plaintiff filed objections to
the R&R on April 14, 2011. (Dkt. No. 27.)
This Court is required to make a de novo determination of those portions of the R&R
to which specific objection has been made, and may accept, reject, or modify any or all of
the Magistrate Judge’s findings or recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ.
P. 72(b).
Plaintiff has raised numerous objections to the R&R, but none of his objections

suggest that the recommended disposition of Defendants’ motion for summary judgment is
erroneous. For example, Plaintiff objects to the R&R’s failure to find that Defendant Keller
mishandled Plaintiff’s disbursement request and that this action caused Plaintiff’s appeal to
be delayed. The R&R did not have to make the requested finding because Plaintiff failed to
show actual injury, which is an essential element for his access to courts claim. (See R&R
10.) Plaintiff’s contention that he did suffer actual injury because an appeal to state court
would have been futile lacks merit. The Appeals Division denied Plaintiff’s appeal on the
merits, rather than because it was untimely. Therefore, Plaintiff’s contention that the state
court would have been required to dismiss his appeal for failure to exhaust administrative
remedies is legally incorrect.
Plaintiff objects to the finding that he failed to try to resolve his grievance with
Stoddard. The R&R makes no such finding; the R&R simply described what findings were
made during the grievance process. (See R&R 7.)
Plaintiff objects to the R&R’s finding that his transfer to a lower security prison was
not adverse action for purposes of his retaliation claim. Plaintiff contends that the transfer
was adverse to him because it prevented him from working as a legal writer. Although the
R&R indicated that a transfer to a lower security classification would not deter a person of
ordinary firmness from engaging in protected speech, the R&R recommended that Defendant
Stoddard be granted summary judgment on Plaintiff’s retaliation claims because Plaintiff was
unable to meet the causation element of his prima facie case, and because it was undisputed

2

that the same action would have been taken in the absence of protected activity. Plaintiff has
not shown that these findings were incorrect. Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s objections to the R&R (Dkt. No. 27) are
OVERRULED.
IT IS FURTHER ORDERED that the March 30, 2011, R&R (Dkt. No. 26) is
APPROVED and ADOPTED as the opinion of the Court.
IT IS FURTHER ORDERED that Plaintiff’s claims for injunctive and declaratory
relief are DISMISSED AS MOOT.
IT IS FURTHER ORDERED that Defendants’ motion for summary judgment (Dkt.
No. 13) is GRANTED.

Dated: September 8, 2011

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

3